United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer

__________________________________________

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Docket No. 18-0780

Issued: October 11, 2018

Appearances: Case Submitted on the Record

Stephen Larkin, 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 March 3, 2018 appellant, through her representative, filed a timely appeal from a 

January 19, 2018 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 established that OWCP should expand acceptance of 

her claim to include a supraspinatus tear of the left shoulder and bulging cervical discs. 

FACTUAL HISTORY

On February 4, 2015 appellant, then a 56-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on January 20, 2015, while at work, she sustained a concussion 

when a fence fell striking the left side of her head. She stopped work on January 22, 2015. OWCP 

accepted the claim for neck sprain and a concussion without loss of consciousness. It paid 

appellant wage-loss compensation for total disability beginning March 11, 2015. 

In a February 15, 2015 attending physician’s report (Form CA-20), Dr. Deborah Eisen, 

specializing in critical care medicine, provided a history of appellant being hit on the head by an 

unsecured gait while moving mail on a deck. She diagnosed a concussion and cervical sprain/strain 

due to the employment activity.

A magnetic resonance imaging (MRI) scan study of the cervical spine, obtained on 

February 26, 2015, revealed bulging discs at C3 to C7, straightening of the cervical lordosis, and 

a chronic loss of height at C5 and C6. 

Dr. Eisen, in an undated report received by OWCP on March 4, 2015, discussed appellant’s 

work injury and noted that she complained of neck and radiating shoulder pain, headaches, and 

dizziness. She diagnosed a concussion, a cervical spine bulge, and cervical sprain/strain. 

Dr. Eisen related, “There are seven cervical vertebrae that are separated by discs that support the 

spinal cord. With axial compression to the spinal vertebrae, such as in this case with a blunt force 

to the head, the vertebrae get compressed putting pressure on the discs. When the contents (nucleus 

pulposus) get pressed together, this results in a cervical disc bulge.” She advised that the “act of 

the gate hitting [appellant] in the head causing an acceleration-deceleration injury would result in 

a concussion with no loss of consciousness, a bulge to the cervical discs and a cervical sprain 

strain.” Dr. Eisen advised that the diagnoses were also consistent with appellant’s symptoms and 

the findings on examination.

An OWCP medical adviser reviewed the evidence on March 12, 2015 and related, “I do 

not believe the multiple bulging cervical discs between C3 and C7 seen on the MRI scan were due 

to the trauma of January 20, 2015. Bulging discs are seen on most MRI scans of the spine and are 

usually considered either normal or incidental findings. This is especially true when they are seen 

at multiple levels at one section of the spine, as in this case.” The medical adviser recommended 

a second opinion examination.

By decision dated April 1, 2015, OWCP denied appellant’s request to expand acceptance 

of her claim to include cervical disc bulges as causally related to the January 20, 2015 employment 

injury. It noted that an OWCP medical adviser had considered the request and found that the 

evidence did not establish that she sustained employment-related diagnoses other than a neck 

sprain and concussion without loss of consciousness.
3

OWCP subsequently received a January 22, 2015 report from the emergency room. 

Dr. Elizabeth Marilyn Franzek, who specializes in emergency medicine, obtained a history of 

appellant being struck by a fence post and subsequently experiencing dizziness and syncope. She 

noted that the fence was “too heavy to lift off [and] someone had to help her.” Dr. Franzek found 

that appellant likely had postconcussive syndrome.

On July 6, 2015 Dr. Eisen referred appellant for a left shoulder MRI scan. The MRI scan

study, obtained on August 7, 2015, revealed a moderate full-thickness distal supraspinatus tendon 

tear with retraction of the tendon margin to the medial numeral head, narrowing of the 

acromioclavicular joint space, and spurring of the distal clavicle and distal acromion process. 

In a report dated August 18, 2015, Dr. Eisen requested that OWCP expand acceptance of 

the claim to include a left shoulder condition. She noted that appellant was hit by a gate on her 

head and left side and that she could not “lift the gate off of herself.” At the time she initially 

sought treatment her physicians focused on her head rather than her shoulder. Dr. Eisen related, 

“In addition, when [appellant] told this office the history it was thought that the gate was too heavy 

to lift off of her rather than she was physically unable to lift the gate due to injuring her shoulder.” 

She related that examination findings showed a positive left supraspinatus test and Apley’s test 

and that the left shoulder MRI scan study showed a full-thickness distal supraspinatus tear. 

OWCP referred appellant to Dr. Thomas P. Nipper, a Board-certified orthopedic surgeon, 

for a second opinion examination. In a report dated January 27, 2016, Dr. Nipper discussed her 

current complaints of pain in the left shoulder and neck and reviewed the evidence of record. On 

examination, he found left shoulder weakness with external rotation and abduction, full range of 

motion of the cervical spine, and normal strength and sensation of the upper extremities. 

Dr. Nipper diagnosed a resolved neck sprain. He further found a left shoulder rotator cuff tear, 

which he noted OWCP indicated was unrelated to the employment injury. Dr. Nipper opined that 

appellant could resume work considering only her neck condition.

On April 1, 2016 Dr. Eisen, in an addendum to her August 18, 2015 report, indicated that 

appellant’s diagnosis was a left supraspinatus tear. 

OWCP, on June 3, 2016, requested that Dr. Nipper address whether the acceptance of 

appellant’s claim should be expanded to include a supraspinatus tear of the left shoulder. It 

enclosed additional medical evidence for his review.

Dr. Nipper, in a June 7, 2016 addendum, reviewed the additional medical evidence and 

noted that the January 22, 2015 report from the emergency department did not refer to a left 

shoulder injury or support Dr. Eisen’s finding that appellant fell on her left shoulder. He opined 

that OWCP should not expand acceptance of the claim to include a left supraspinatus tear given 

the fact that it was not mentioned in the initial reports from the emergency department.

On November 7, 2016 OWCP advised appellant of its proposed termination of her wageloss compensation and entitlement to medical benefits. It found that Dr. Eisen’s reports 

represented the weight of the evidence and established that she had no further disability or residuals 

of her accepted injury.
4

In a November 18, 2016 initial evaluation, Dr. Jason R. Baynes, a Board-certified 

orthopedic surgeon, obtained a history of a fence falling on appellant, hitting her head, and “having 

her fall with the fence falling on her left shoulder....” He related that she had shoulder symptoms 

when she sought treatment for dizziness on January 22, 2015, but that physicians did not 

concentrate on her shoulder complaints. Dr. Baynes diagnosed a traumatic full thickness rotator 

cuff tear of the left shoulder after an employment-related accident. He recommended a rotator cuff 

repair and advised that appellant was totally disabled.

By decision dated January 5, 2017, OWCP terminated appellant’s wage-loss compensation 

and authorization for medical benefits. It noted that she did not initially assert that she fell on the 

ground on her left shoulder or needed help lifting the gate. OWCP found that appellant had no 

disability due to her accepted neck sprain or concussion, but instead had disability due to a left 

rotator cuff tear, which it had not accepted as work related.

Appellant, on January 30, 2017, requested a telephone hearing before an OWCP hearing 

representative. At the telephone hearing, held on July 13, 2017, she related that on January 20, 

2015 she was helping a new driver take mail off a truck when a metal gate fell and hit her head. 

Appellant was unable to lift it off and yelled for assistance, and the new driver lifted it off of her. 

She did not know the driver, but his name was in a report given to her supervisor. At the time 

appellant sought treatment she was dizzy and confused, so the medical professionals evaluated her 

head rather than her neck and shoulder. She related that she tried to lift the gate off with her left 

shoulder, but it was too heavy. Appellant asserted that the fence hit her head and then landed on 

her shoulder after she fell. 

By decision dated September 25, 2017, OWCP’s hearing representative reversed the 

January 5, 2017 decision. He found that Dr. Nipper did not provide a reasoned opinion regarding 

whether appellant’s bulging discs were caused or aggravated by the work injury. The hearing 

representative instructed OWCP to obtain a supplemental report from Dr. Nipper addressing 

whether her disc bulges were caused or aggravated by the work incident and whether her attempt 

to lift the metal gate resulted in or aggravated her rotator cuff tear.

Dr. Nipper, in an October 3, 2017 supplemental report, again noted that the hospital report 

did not mention a left shoulder injury. He related:

“Based on these emergency room records, the left shoulder condition does not 

appear to be causally related to the accident of January 20, 2015.

“As to whether the claimant’s disc bulges (documented in the MRI scan of 

February 26, 2015) were caused or aggravated by the work accident of January 20, 

2015, when a metal gate struck her head and hand it should be noted that the disc 

bulges noted on this MRI scan are part of degenerative disc disease and not trauma 

related.”

By decision dated January 19, 2018, OWCP denied expansion of the acceptance of 

appellant’s claim to include a left shoulder supraspinatus tear and bulging cervical discs. It 

determined that Dr. Nipper’s reports constituted the weight of the evidence and established that 
5

her left shoulder rotator cuff tear and cervical disc bulges were not causally related to the 

January 20, 2015 employment injury.

On appeal appellant’s representative asserts that the reports from Dr. Eisen were sufficient 

to expand acceptance of the claim to include cervical disc bulges and a left shoulder supraspinatus 

tear. He maintains that the emergency room did not address every issue, but instead the primary 

concern at the time, and thus Dr. Nipper used an inaccurate basis for finding the conditions 

unrelated. The representative further contends that Dr. Nipper did not provide rationale for his 

opinion and thus OWCP did not adequately comply with the remand instructions of the hearing 

representative.

LEGAL PRECEDENT

Where an employee claims that a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.3 

Causal relationship is a medical issue, and the medical evidence required to establish causal 

relationship is rationalized medical evidence.4 The opinion of the physician must be based on a 

complete factual and medical background of the claimant, 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 claimant.5 

The weight of medical evidence is determined by its reliability, its probative value, its convincing 

quality, the care of analysis manifested, and the medical rationale expressed in support of the 

physician’s opinion.6 Neither the mere fact that a disease or condition manifests itself during a 

period of employment, nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish causal relationship.7

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.8 The implementing regulation provides that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee examination and OWCP will select a 

 

3 See V.B., Docket No. 12-599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

4 See Kenneth R. Love, 50 ECAB 276 (1999).

5 See John W. Montoya, 54 ECAB 306 (2003).

6 See H.H., Docket No. 16-0897 (issued September 21, 2016); James Mack, 43 ECAB 321 (1991).

7 See V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECABA 623 (2000).

8 5 U.S.C. § 8123(a).
6

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.9

ANALYSIS

The Board finds that the case is not in posture for decision as there is an unresolved conflict 

in medical opinion between Dr. Eisen, appellant’s attending physician, and Dr. Nipper, an OWCP 

referral physician, regarding whether she sustained bulging cervical discs and a left shoulder 

supraspinatus tear as a result of the accepted January 20, 2015 employment injury. 

OWCP accepted that appellant sustained a cervical sprain and a concussion without loss of 

consciousness on January 20, 2015 when she was struck by a falling fence. Dr. Eisen, on March 4, 

2015, noted that she complained of neck pain radiating into her shoulder, headaches, and dizziness. 

She opined that axial compression to the vertebrae of the spine due to blunt force trauma to the 

head had resulted in pressure on the discs and cervical bulging discs as demonstrated by MRI scan

study. On August 18, 2015 Dr. Eisen found that a left shoulder MRI scan revealed a full-thickness 

distal supraspinatus tear, which she attributed to appellant trying to lift the fence off of her left side 

on the date of injury.

By contrast Dr. Nipper, the second opinion physician, opined in reports dated June 7, 2016 

and October 3, 2017 that appellant did not sustain a left shoulder condition as a result of the 

January 20, 2015 work injury. He further concluded, in his October 3, 2017 report, that her 

cervical disc bulges were unrelated to the January 20, 2015 employment injury, but instead 

resulted from a degenerative condition.

Both Dr. Eisen and Dr. Nipper provided a description of the employment injury and both 

discussed the medical evidence and their physical findings. The Board, therefore, finds that a 

conflict in medical opinion exists regarding whether appellant’s bulging cervical discs and left 

shoulder supraspinatus tear were causally related to the accepted work injury of 

January 20, 2015.10 OWCP regulations provide that, if a conflict exists between the medical 

opinion of the employee’s physician and the medical opinion of either a second opinion physician 

or an OWCP medical adviser, OWCP shall appoint a third physician to make an examination.11 

The Board will thus remand the case to OWCP for referral to an impartial medical examiner 

regarding whether the acceptance of appellant’s claim should be expanded to include bulging 

cervical discs and a left shoulder condition.12 Following this and any such further development as 

may be deemed necessary, OWCP shall issue a de novo decision. 

 

9 20 C.F.R. § 10.321.

10 See W.B., Docket No. 17-1994 (issued June 8, 2018).

11 5 U.S.C. 8123(a); see also G.K., Docket No. 16-1119 (issued March 16, 2018).

12 See P.S., Docket No. 17-0802 (issued August 18, 2017).
7

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the January 19, 2018 decision of the Office of 

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

consistent with this opinion of the Board.

Issued: October 11, 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