United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.R., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Neosho, MO, Employer

__________________________________________

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Docket No. 18-1285

Issued: February 12, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 June 14, 2018 appellant filed a timely appeal from a March 23, 2018 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to 

consider the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March 23, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish consequential 

conditions of post-traumatic seizure and paroxysmal atrial fibrillation disorder as causally related 

to his accepted June 22, 2016 employment injury.

FACTUAL HISTORY

On June 22, 2016 appellant, then a 53-year-old archives technician, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he fell from the sixth rung of a ladder or from a height 

of roughly five feet landing on his back on a concrete floor while in the performance of duty. On 

July 19, 2016 OWCP accepted his traumatic injury claim for T12 vertebra compression fracture 

and resulting surgery. By decision dated July 19, 2016, it noted that appellant submitted medical 

evidence in support of his claim for the additional conditions of seizure disorder and irregular 

heartbeat, however, these conditions had not been accepted as employment related. 

On November 30, 2016 OWCP expanded acceptance of appellant’s claim to include

complete rotator cuff tear of the left shoulder and adhesive capsulitis of the left shoulder as well 

as surgery for these conditions.3 On August 9, 2017 it further expanded acceptance of his claim 

to include bilateral pulmonary embolisms as due to his June 22, 2016 employment injury and 

resulting spine surgery.

In notes dated June 22, 2016, Dr. Clint R. Dunkle, an osteopath, reported that on that date 

appellant had slipped and fell from a seven foot ladder and landed on his back on concrete 

sustaining low back pain. While initially hospitalized for his fall, following the administration of 

morphine for pain control, he had a tonic-clonic seizure with resulting postictal confusion. 

Dr. Dunkle reported that the seizure was attributed to the morphine and not the fall. Appellant’s 

family reported that appellant had a history of epilepsy when he was a child as well as a previous 

head injury. He was not on anti-seizure medication. 

On June 22, 2016 Dr. Ahmed T. Robbie, a Board-certified neurologist, reported that 

appellant had been given morphine for pain control following his June 22, 2016 fall and that he

subsequently developed a tonic-clonic seizure which lasted for a few minutes followed by postictal 

confusion. He noted that as appellant had a history of a head concussion and seizures as a child, 

he had a low threshold for seizures, and that morphine and pain may have provoked or initiated 

his June 2016 seizure. Dr. Robbie recommended that appellant avoid morphine as it may provoke 

his seizures.

In a June 23, 2016 note, Dr. James P. Sisk, an osteopath, reported that appellant fell from 

a ladder resulting in a compression fracture. Appellant had been given pain medications and 

subsequently had a seizure with a postictal stage. Dr. Sisk noted that appellant had a history of 

seizures as a child.

 

3 On April 7, 2017 appellant underwent arthroscopic left rotator cuff repair, distal clavicle resection, subacromial 

decompression, and lysis of adhesions left shoulder.
3

On June 24, 2016 Dr. Cherylon Yarosh, a Board-certified neurosurgeon, performed 

appellant’s surgical stabilization with T1-L2 instrumentation and arthrodesis. She noted that he 

sustained acute blood loss, anemia, tachycardia, and a few brief episodes of atrial fibrillation

during the surgery which required treatment with a beta blocker. 

In a separate June 24, 2016 note, Dr. Robert Lieurance, a Board-certified orthopedic 

surgeon, opined that appellant’s June 22, 2016 seizure was “possibly related” to medications. He 

noted that appellant had a history of seizures with the last one occurring when he was 13 years old.

On June 25, 2016 Dr. David Zuehlke, a Board-certified cardiologist, described appellant’s 

history of injury on June 22, 2016 and reported that appellant experienced atrial fibrillation during 

his June 24, 2016 back surgery as well as an episode of paroxysmal atrial fibrillation following his 

surgery. He reported that appellant had a history of heart palpitations beginning two or three years 

prior to 2016. Dr. Zuehlke noted that appellant had also had sporadic episodes of short runs of 

atrial fibrillation occurring about every six months, but no other cardiac history. He reported, “My 

impression is this [appellant] has paroxysmal fibrillation probably predating his surgery and 

augmented at this time by hypercatecholaminemia.” On June 26, 27, and 28, 2016 Dr. Zuehlke 

continued to note that appellant experienced episodes of proximal atrial fibrillation and to prescribe 

medication.

In a report dated July 21, 2016, Dr. Zuehlke noted that on June 26, 2016 appellant had 

postoperative atrial fibrillation. He suggested that as appellant’s catecholamine level dropped

following his surgery, the tendency for atrial fibrillation with rapid ventricular response would 

dissipate. Dr. Zuehlke found that appellant remained in “postoperative atrial fibrillation.”

4

 

On September 2, 2016 appellant requested that his accepted conditions be expanded to 

include the additional conditions of paroxysmal atrial fibrillation and post-traumatic seizure. 

In a report dated September 26, 2016, Dr. Jorge A. Gonzalez, a neurologist, noted 

appellant’s history of a fall from a ladder in June 2016. He diagnosed T10 compression fracture 

and single grand-mal or tonic-clonic seizure episode. Dr. Gonzalez found that appellant’s 

electroencephalogram was unremarkable. He noted that appellant reported that he had febrile 

convulsions as a child, but that this condition had resolved. Dr. Gonzalez reported that appellant 

had had no additional seizures since his June 2016 fall. He diagnosed singular convulsive event 

without recurrence and noted that a patient was not considered epileptic until there was evidence 

of two or more seizures. Dr. Gonzalez completed an addendum opining that appellant’s 

“breakthrough seizure event” was a singular event and therefore not reflective of epilepsy. He 

 

4 On December 29, 2016 Dr. John F. Swartz, a Board-certified cardiologist, diagnosed persistent atrial flutter 

associated with rapid ventricular response. He described appellant’s history of injury on June 22, 2016 and noted that 

he experienced a seizure. Dr. Swartz reported that following appellant’s T10 through L1 arthrodesis he developed 

atrial fibrillation. He diagnosed recurrent atrial dysrhythmias first diagnosed after appellant’s June 22, 2016 

employment injury. Dr. Swartz recommended radiofrequency cardiac catheter ablation to eliminate appellant’s atrial 

flutter. He noted that appellant’s previously diagnosed paroxysms of atrial fibrillation were “possibly” the triggering 

event for his atrial flutter. On January 12, 2017 appellant underwent a radiofrequency cardiac catheter ablation of 

Type 1 atrial flutter. 
4

further concluded that the seizure was a consequence of appellant’s fall and “reaching [the] 

threshold for seizure due to the rotational, gyrational, and translational forces of the injury.”

By development letter dated October 11, 2016, OWCP requested that appellant provide 

additional medical evidence regarding his claimed conditions of paroxysmal atrial fibrillation and

post-traumatic seizure. It afforded him 30 days to respond.

In reports dated June 21 and July 14, 2017, Dr. David I. Krohn, a Board-certified internist 

acting as a district medical adviser (DMA), reviewed Dr. Zuehlke’s June 24 and 25, 2016 notes 

and opined that appellant’s paroxysmal atrial fibrillation “likely” preexisted his 2016 work injury 

by several years with intermittent alteration of heart rhythm of which appellant was unaware. He

found that Dr. Zuehlke’s opinion regarding the increased circulating catecholamines was not 

unreasonable, but was speculative. The DMA opined that it was the natural history of atrial 

fibrillation to occur sporadically, most often with no identifiable cause. He noted that appellant 

continued to have episodes of documented atrial fibrillation and atrial flutter episodically for no 

apparent reason. The DMA concluded, “In my opinion there was no aggravation of this preexisting 

condition specifically resulting from the episode on June 24, 2016. The condition took its natural 

course.”

With regard to appellant’s diagnosed post-traumatic seizure, the DMA noted reviewing a 

hospital note which reported that appellant had experienced a tonic-clonic seizure with postictal 

confusion following a lumbar spine computerized tomography (CT) scan on June 22, 2016 while 

hospitalized for his employment injuries. He reported that appellant had a known history of prior 

seizures which began in childhood resulting in a diagnosis of epilepsy. The DMA also noted that 

appellant had a head injury as a child. He reported that the medical evidence did not support 

recurrence of seizures since June 22, 2016 and opined that appellant had experienced a rare 

recurrence of his childhood epilepsy during his hospitalization. The DMA opined that the causal 

relationship between appellant’s employment injury and the June 22, 2016 seizure had not been 

established. 

By decision dated August 23, 2017, OWCP denied appellant’s claim for the additional 

conditions of paroxysmal atrial fibrillation and post-traumatic seizure. On August 30, 2017 

appellant requested an oral hearing before an OWCP hearing representative.

On February 7, 2018 appellant testified at an oral hearing and noted that he had not received 

the DMA’s reports and requested that the record remain open for 60 days so that he might submit 

new evidence.

Following the oral hearing, in a February 26, 2018 letter, appellant asserted that he had no 

history of heart conditions. He denied a preexisting heart condition and alleged that Dr. Zuehlke’s 

reports established his claim for atrial fibrillation. Appellant also asserted that Dr. Sisk’s June 22 

2016 report established that his seizure occurred due to his fall on June 22, 2016. He submitted 

treatments notes from Dr. Ely R. Gordon, an osteopath, dated August 13, 2015 and February 11, 

2016 indicating that his heart rate was regular with normal rhythm without murmurs, rubs, or 

gallops.
5

By decision dated March 23, 2018, OWCP’s hearing representative affirmed the 

August 23, 2017 OWCP decision and found that the June 22 and July 19, 2017 reports from the 

DMA were entitled to the weight of the medical evidence and demonstrated that appellant’s 

diagnosed post-traumatic seizure and paroxysmal atrial fibrillation disorder were not employment

related.

LEGAL PRECEDENT

It is an accepted principle of workers’ compensation law that when the primary injury is 

shown to have arisen out of and in the course of employment, every natural consequence that flows 

from the injury is deemed to arise out of the employment, unless it is the result of an independent, 

intervening cause attributable to the employee’s own intentional conduct.5 The basic rule is that a 

subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is 

compensable if it is the direct and natural result of a compensable primary injury.6 With respect 

to consequential injuries, the Board has held that, where an injury is sustained as a consequence 

of an impairment residual to an employment injury, the new or second injury, even though 

nonemployment related, is deemed, because of the chain of causation to arise out of and in the 

course of employment and is compensable.7

A claimant bears the burden of proof to establish a claim for a consequential injury. As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, showing causal relationship. Rationalized medical 

evidence is an opinion of reasonable medical certainty supported by sound medical rationale 

explaining the nature of the relationship of the diagnosed condition and the specific employment 

factors or employment injury.8

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint a 

third physician who shall make an examination.9 When there are opposing reports of virtually 

equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant 

to section 8123(a) of FECA, to resolve the conflict in the medical evidence.10 Where a case is 

referred to an impartial medical examiner for the purpose of resolving a conflict, the opinion of 

 

5 D.L., Docket No. 18-0629 (issued November 16, 2018); Albert F. Ranieri, 55 ECAB 598 (2004); Clement Jay 

After Buffalo, 45 ECAB 707 (1994); John R. Knox, 42 ECAB 193 (1990).

6 D.L., id.; S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB 

117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

7 D.L., id.; L.S., Docket No. 08-1270 (issued July 2, 2009); Kathy A. Kelley, 55 ECAB 206 (2004).

8 D.L., id.; J.B., Docket No. 14-1474 (issued March 13, 2015).

9 5 U.S.C. § 8123(a). See D.L., id.; S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008); 

Darlene R. Kennedy, 57 ECAB 414 (2006).

10 D.L., id.; A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB 

713 (2005).
6

such specialist, if sufficiently well rationalized and based on a proper factual and medical 

background must be given special weight.11

ANALYSIS

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

The record reflects an unresolved conflict of the medical opinion evidence between

Dr. Krohn, the DMA, and Dr. Zuehlke, appellant’s treating physician, regarding whether 

appellant’s diagnosed paroxysmal atrial fibrillation disorder was casually related to his June 22, 

2016 employment injuries.

In June 21 and July 19, 2017 reports, Dr. Krohn reviewed the medical evidence of record. 

He found, based on Dr. Zuehlke’s notes, that appellant’s paroxysmal atrial fibrillation “likely”

preexisted his 2016 work injury. The DMA further found that Dr. Zuehlke’s opinion regarding 

the increased circulating catecholamines due to surgery was not unreasonable, but was speculative 

and opined that atrial fibrillation naturally occurred sporadically, most often with no identifiable 

cause. He concluded that appellant did not sustain an aggravation of his preexisting atrial 

fibrillation due to his June 24, 2016 surgery. 

Dr. Zuehlke reported that appellant experienced atrial fibrillation during his June 24, 2016 

back surgery as well as an episode of paroxysmal atrial fibrillation following his surgery. He noted 

that appellant had a history of heart palpitations beginning two or three years prior to 2016. 

Dr. Zuehlke opined that appellant’s preexisting paroxysmal atrial fibrillation was “augmented” on 

June 24, 2016 by hypercatecholaminemia due to his back surgery. On July 21, 2016 he suggested 

that as appellant’s catecholamine level fell following his surgery, the tendency for atrial fibrillation 

with rapid ventricular response would dissipate. Dr. Zuehlke noted that appellant remained in 

“postoperative atrial fibrillation.” His reports support that appellant’s hypercatecholaminemia 

resulting from his accepted back surgery contributed to his paroxysmal atrial fibrillation on and 

after June 24, 2016.

The Board finds that a conflict in the medical opinion evidence exists between appellant’s 

treating physician, Dr. Zuehlke, who found an aggravation of appellant’s preexisting paroxysmal 

atrial fibrillation by his accepted back surgery, and Dr. Krohn, the DMA, who concluded that 

appellant’s preexisting paroxysmal atrial fibrillation followed its natural course with no 

employment-related aggravation. These reports are of equal probative value. Both physicians 

offered a biomechanical explanation for the disparate opinions. Consequentially, the case must be 

referred to an impartial medical specialist to resolve the existing conflict in the medical opinion 

evidence regarding whether the aggravation of appellant’s paroxysmal atrial fibrillation is a 

consequence of his accepted back injury and resulting surgery on June 24, 2016 or a natural 

progression of his underlying condition.12 

 

11 D.L., id.; V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 

215 (1994).

12 M.R., Docket No. 17-0634 (issued July 24, 2018); P.R., Docket No. 16-0146 (issued September 9, 2016).
7

On remand OWCP should refer appellant, along with the case file and a statement of 

accepted facts (SOAF), to an appropriate specialist for an impartial medical evaluation and a report 

including a rationalized opinion as to whether or not his paroxysmal atrial fibrillation is causally 

related to his accepted back injury and resulting surgery on June 22, 2016. Following this further 

development, OWCP shall issue a de novo decision regarding his claim for a consequential 

condition of paroxysmal atrial fibrillation.

The Board further finds that this case is not in posture for a decision due to an unresolved 

conflict in the medical opinion evidence regarding whether appellant’s tonic-clonic seizure episode 

is causally related to his accepted June 22, 2016 employment injury.

Appellant provided notes from several physicians addressing the cause of his June 22, 2016 

seizure. Drs. Robbie and Lieurance attributed appellant’s June 22, 2016 seizure to the 

administration of morphine for pain control. However, these opinions were equivocal and of 

diminished probative value.13 The physicians used words such as “possibly related” and “may 

have provoked” when discussing the relationship between appellant’s seizure and the 

administration of morphine. Drs. Dunkle and Sisk opined that appellant’s June 22, 2016 seizure 

was due to the administration of morphine following his employment-related fall, but failed to 

provide any medical reasoning in support of these opinions. A medical report is of limited 

probative value when the opinion on causal relationship lacks medical rationale.14

In his June 21, 2017 report, the DMA noted appellant’s history of a June 22, 2016 tonicclonic seizure with postictal confusion. He found that the seizure occurred following a lumbar 

spine CT scan on June 22, 2016 while appellant was hospitalized for his employment injuries. The 

DMA noted that appellant had a known history of childhood head injury and seizures with

diagnosis of epilepsy. He opined that appellant had experienced a rare recurrence of his childhood 

epilepsy during his hospitalization and that the causal relationship between his injury and the 

June 22, 2016 seizure had not been established.

On September 26, 2016 Dr. Gonzalez reported that appellant had experienced febrile 

convulsions as child, but that this condition had resolved as he matured. He diagnosed singular 

convulsive event. Dr. Gonzalez concluded that the June 22, 2016 seizure was a consequence of 

appellant’s fall and “reaching [the] threshold for seizure due to the rotational, gyrational, and 

translational forces of the injury.”

The Board finds that the DMA and Dr. Gonzalez offered reasoned medical explanations 

for the varying conclusions reached. Dr. Gonzalez found that appellant’s childhood seizure 

disorder had resolved and opined that his June 22, 2016 seizure was a direct consequence of his 

employment-related fall through the forces of that injury. The DMA attributed appellant’s 

June 22, 2016 seizure to a recurrence of his childhood epilepsy rather than to his fall. As the 

opposing medical reports are of virtually equal weight and rationale, the Board finds that there is 

 

13 See Y.F., Docket No. 17-1187 (issued June 5, 2018); D.D., 57 ECAB 734 (2006) (Medical opinions that or 

speculative or equivocal in character are of diminished probative value).

14 R.V., Docket No. 18-0522 (issued November 5, 2018); T.T., Docket No. 17-0471 (issued August 8, 2017); 

Debra L. Dillworth, 57 ECAB 516 (2006).
8

also an unresolved conflict as to whether appellant sustained an employment-related seizure on 

June 22, 2016.15 

On remand, OWCP should refer appellant, along with the case file and a SOAF, to an 

appropriate specialist for an impartial medical evaluation and a report including a rationalized 

opinion as to whether or not appellant’s June 22, 2016 seizure was a consequence of his accepted 

employment injuries on June 22, 2016. Following this further development, OWCP shall issue a 

de novo decision regarding his claim for a consequential condition of tonic-clonic seizure episode.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the March 23, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: February 12, 2019

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

 

15 Supra note 12.