United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer

__________________________________________

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Docket No. 17-0332

Issued: June 26, 2018

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 30, 2016 appellant, through counsel, filed a timely appeal from an August 3, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish that her right 

shoulder, cervical, and neurological conditions are causally related to an accepted August 18, 2015 

employment incident.

FACTUAL HISTORY

On August 18, 2015 appellant, then a 51-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained an injury to her neck that same day as a result 

of being rear-ended in an employment-related motor vehicle accident. She stopped work that day.

Appellant submitted a duty status report (Form CA-17) dated August 24, 2015 from an 

unknown provider diagnosing a right shoulder injury as a result of the claimed August 18, 2015 

employment incident.

In a September 4, 2015 development letter, OWCP advised appellant of the deficiencies of 

her claim and afforded her 30 days to submit additional evidence and respond to its inquiries.

In response, appellant submitted hospital records dated August 24, 2015 in which Dr. Jason 

Hartis, an emergency medicine specialist, diagnosed acute cervical strain and back lipoma. 

Dr. Hartis noted that appellant had presented to the emergency room complaining of neck and right 

shoulder pain from a motor vehicle accident a week prior and presented with numbness and 

tingling in the right arm.

By decision dated October 8, 2015, OWCP denied appellant’s claim because she had failed 

to establish fact of injury as she had failed to respond to the development letter with a response to 

the questions requested by OWCP.

On January 20, 2016 counsel requested reconsideration and submitted an 

electromyography and nerve conduction velocity (EMG/NCV) studies dated August 28, 2015 

demonstrating acute right C6-7 radiculopathy. Appellant also submitted a November 11, 2015 

report from a nurse practitioner diagnosing acute right C6-7 radiculopathy.

In an August 24, 2015 report, Dr. Garo Avetian, a Board-certified internist, diagnosed 

cervical sprain/strain and right shoulder sprain/strain. He noted that appellant was rear-ended on 

August 18, 2015 and since the injury she had been unable to perform most of her activities of daily 

living, work, and physical activities. Dr. Avetian opined that it was “within a medical probability”

that appellant’s injuries were causally related to the claimed employment incident. He noted that 

appellant was involved in a previous nonwork-related motor vehicle accident in 2009, which had

resolved. On September 30, 2015 Dr. Avetian diagnosed thoracic sprain/strain and probable 

cervical radiculopathy and opined that “within a medical probability” appellant’s injuries were a 

direct result of the claimed August 18, 2015 employment incident.

On September 30, 2015 Dr. Shiva Gopal, a Board-certified neurologist, diagnosed posttraumatic cervical strain/sprain with clinical radicular features bilaterally, post-traumatic lumbar 

strain/sprain, and post-traumatic cephalalgia. He opined that appellant clearly had upper extremity 

radiculopathy versus entrapment neuropathy. Dr. Gopal noted that appellant was suffering from 
3

injuries sustained in a motor vehicle accident which occurred on August 18, 2015 while at work. 

Appellant saw her physician one week later due to severe pain in the neck and dizziness. Since 

the accident, she stated that she had been suffering from headaches occurring once weekly, located 

in the back of the head, and neck pain with radiation down both arms to the hands, right greater 

than left, with paresthesia. Appellant also complained of lower back pain.

In an October 28, 2015 report, Dr. Gopal found that appellant was still suffering from 

headaches occurring once weekly, neck pain with radiation, and lower back pain. He opined that 

appellant’s significant neurological injuries, including radiculopathy, were causally related to her 

claimed August 18, 2015 motor vehicle accident. On March 21, 2016 Dr. Gopal found that 

appellant had headaches occurring two times per week, located in the back of the head and 

radiating frontal. Appellant also complained of significant visual worsening as well as 

development of cognitive issues over the past two months with trouble with forgetfulness. She 

suffered from significant neck pain with paresthesia of the right hand consistent with her EMG 

finding of a right C6-7 radiculopathy and non-localized ulnar neuropathy. Dr. Gopal noted that 

pain management had been discontinued secondary to cognitive issues as appellant reported 

progressive memory changes and difficulty with her attention and daily activities. He advised that 

appellant’s headaches and cognitive dysfunction required a magnetic resonance imaging (MRI) 

scan of the brain, cognitive testing, and possibly a cortical brain mapping study.

On November 12, 2015 Dr. Alan Kwon, a Board-certified anesthesiologist and pain 

management specialist, diagnosed post-traumatic cervical strain/sprain, post-traumatic shoulder 

strain/sprain, post-traumatic cervical and peripheral neuropathy, post-traumatic cervicalgia, and 

probable post-traumatic cervical facet syndrome. He noted that appellant was wearing a seat belt, 

but because it was a postal truck the seat belt was on the opposite side. Appellant was thrown 

forward and backwards in her seat when she was rear-ended. She did not suffer a loss of 

consciousness, but felt dizzy following the incident. Appellantc did not seek immediate medical 

attention. A week later she was having significant pain and swelling over her right shoulder and 

neck and began to seek medical treatment. Dr. Kwon opined that appellant’s conditions were a 

direct result of the claimed August 18, 2015 motor vehicle accident.

In a November 20, 2015 report, Dr. Gerald Vernon, a Board-certified family practitioner, 

diagnosed cervical sprain/strain, cervical disc syndrome with radiculopathy, entrapment 

neuropathy of the right hand and wrist, bilateral shoulder sprain, right greater than left, ruling out 

right rotator cuff tear, thoracic sprain/strain, and myofascial pain syndrome. He noted that 

appellant was involved in a motor vehicle accident on October 18, 2015.3

By decision dated April 4, 2016, OWCP denied the claim finding that the factual evidence 

was sufficient to establish fact of injury, but the medical evidence submitted was insufficient to 

establish a causal relationship between appellant’s diagnosed conditions and the accepted 

August 18, 2015 employment incident.

On May 11, 2016 counsel requested reconsideration and submitted a June 23, 2016 MRI 

scan of the cervical spine which revealed mild degenerative changes at C5-6 and C6-7.

 

3 The Board notes that August 18, 2015 is the alleged date of the accepted employment incident.
4

In an April 25, 2016 report, Dr. Gopal reviewed the factual and medical history of the claim 

and reiterated his diagnoses. He noted that appellant’s past medical history included the presence 

of a lipoma to the right shoulder which was said to have increased in size since her trauma. 

Dr. Gopal opined that appellant’s conditions were causally related to the accepted August 18, 2015 

employment incident explaining that an acceleration-deceleration injury causes rapid forward and 

backward shifting of the head, neck, and body. He further opined that this “whiplash”-type injury 

directly caused appellant’s neck injury resulting in cervical radiculopathy. Dr. Gopal explained 

that there could also be shearing of brain tissues from these types of injuries, which would be a 

clear cause of appellant’s dizziness, visual changes, and cognitive deficits.

By decision dated August 3, 2016, OWCP denied modification of its prior decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that an injury4 was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

to the employment injury.5

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether “fact of injury” has been established. A 

fact of injury determination is based on two elements. First, the employee must submit sufficient 

evidence to establish that he or she actually experienced the employment incident at the time, 

place, and in the manner alleged. Second, the employee must submit sufficient evidence, generally 

only in the form of medical evidence, to establish that the employment incident caused a personal 

injury. An employee may establish that the employment incident occurred, as alleged, but fail to 

show that his or her condition relates to the employment incident.6

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. The opinion of the 

physician must be based on a complete factual and medical background of the employee, must be 

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the employee.7

 

4 OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or 

series of events or incidents, within a single workday or shift. Such condition must be caused by external force, 

including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body 

affected. 20 C.F.R. § 10.5(ee).

5 See T.H., 59 ECAB 388 (2008).

6

Id.

7

Id.
5

ANALYSIS

The Board finds that this case is not in posture for a decision.

In support of her claim appellant submitted medical evidence, including three reports from

Dr. Gopal. The Board finds that the medical opinions of Dr. Gopal are sufficient to require further 

development of the medical evidence as it relates to whether appellant’s diagnosed conditions are 

causally related to the accepted employment incident.

In his reports, Dr. Gopal diagnosed post-traumatic cervical strain/sprain with clinical 

radicular features bilaterally, post-traumatic lumbar strain/sprain, post-traumatic cephalalgia, 

upper extremity radiculopathy, neck pain with paresthesia of the right hand consistent with her 

EMG finding of a right C6-7 radiculopathy, and non-localized ulnar neuropathy. He noted that 

appellant’s past medical history included the presence of a lipoma to the right shoulder which was 

said to have increased in size since the accepted employment-related August 18, 2015 motor 

vehicle accident. On March 21, 2016 Dr. Gopal found that appellant had headaches occurring two 

times per week, significant visual worsening, and development of cognitive issues. He noted that 

pain management had been discontinued secondary to cognitive issues as appellant reported 

progressive memory changes and difficulty with her attention and daily activities. In an April 25, 

2016 report, Dr. Gopal opined that appellant’s conditions were causally related to the August 18, 

2015 employment incident explaining that an acceleration-deceleration injury causes rapid 

forward and backward shifting of the head, neck, and body and that this “whiplash”-type injury 

directly caused appellant’s neck injury resulting in cervical radiculopathy. Dr. Gopal further 

explained that there could also be shearing of brain tissues from these types of injuries, which 

would be a clear cause of appellant’s dizziness, visual changes, and cognitive deficits. The Board 

finds that when read together Dr. Gopal has provided sufficient medical rationale explaining the 

mechanism of how being rear-ended in a motor vehicle accident at work on August 18, 2015 

caused appellant’s conditions due to an acceleration-deceleration injury caused by the rapid 

forward and backward shifting of the head, neck, and body. The Board does not find Dr. Gopal’s 

explanation of “shearing of brain tissues” sufficient to explain a basis for appellant’s dizziness, 

visual changes, and cognitive deficits as his reasoning as to this mechanism is both speculative 

and equivocal in nature. The Board has long held that medical opinions that are speculative or 

equivocal in character have little probative value.8 

Accordingly, the Board finds that Dr. Gopal provided an affirmative opinion on causal 

relationship which properly identifies the mechanism of injury, findings upon examination, and 

explained how the motor vehicle accident caused appellant’s diagnosed conditions. The Board 

finds that Dr. Gopal’s opinion, while not sufficiently rationalized to meet appellant’s burden of 

proof, is sufficient, given the absence of any opposing medical evidence, to require further 

development of the record.9 It is well established that proceedings under FECA are not adversarial 

in nature, and while appellant has the burden of proof to establish entitlement to compensation, 

 

8 T.M., Docket No. 08-0975 (issued February 6, 2009).

9 See J.G., Docket No. 17-1062 (issued February13, 2018); A.F., Docket No. 15-1687 (issued June 9, 2016). See 

also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).
6

OWCP shares responsibility in the development of the evidence.10 OWCP has an obligation to 

see that justice is done.11

The case will be remanded to OWCP for further action consistent with this decision. On 

remand, after such further development of the case record as OWCP deems necessary, it shall issue 

a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for a decision.

ORDER

IT IS HEREBY ORDERED THAT the August 3, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board.

Issued: June 26, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees' Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board

 

10 See, e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978); 

William N. Saathoff, 8 ECAB 769, 770 71; Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).

11 William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).