United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.H., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

SHIPYARD, Portsmouth, VA, Employer

__________________________________________

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Docket No. 18-1238

Issued: January 18, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 June 4, 2018 appellant, through counsel, filed a timely appeal from a March 29, 2018 

merit decision and an April 26, 2018 nonmerit 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.

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish that the 

acceptance of his claim should be expanded to include the additional conditions of right hip 

 

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

osteoarthritis, cervical myelopathy with radiculopathy, and lumbar radiculopathy causally related 

to the accepted December 10, 2015 employment injury; and (2) whether OWCP properly denied 

his request for an oral hearing pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On January 8, 2016 appellant, then a 64-year-old electrician, filed a traumatic injury claim 

(Form CA-1) alleging that on December 10, 2015 he sustained a bruised right hip in the 

performance of duty when he tripped and fell, landing on a two-way radio in his right pocket. 

Appellant’s supervisor completed a medical referral form dated December 10, 2015 noting 

that appellant had “slight pain” in his right thigh and that it was occupational in nature.

On December 18, 2015 an emergency department nurse diagnosed a thigh bruise.3

An August 2, 2016 magnetic resonance imaging (MRI) scan study of the lumbar spine 

revealed foraminal stenosis from L3 to S1, central canal stenosis, and grade one anterolisthesis 

from L3 to L5 with advanced facet arthropathy. A cervical spine MRI scan dated November 15, 

2016 revealed advanced cervical degenerative disc disease with cord impingement, findings 

suggestive of myelomalacia, and high-grade foraminal stenosis with nerve root impingement 

bilaterally.

In a November 16, 2016 form report, Dr. Karl F. Bowman, Jr., a Board-certified orthopedic 

surgeon, diagnosed right foot drop, right hip osteoarthritis, and lumbar facet arthropathy. He 

related that appellant’s symptoms began on April 5, 2016 and found that he was disabled from 

employment.

In a December 7, 2016 duty status report (Form CA-17), Dr. Bowman diagnosed facet 

arthropathy of the lumbar spine, lumbar spinal stenosis and spondylosis, and right hip 

osteoarthritis. He indicated that appellant was unable to work.

In December 7, 2016 and January 17, 2017 attending physician’s reports (Form CA-20),

Dr. Bowman diagnosed lumbar spine pain and facet arthropathy, cervical radiculopathy, bilateral 

carpal tunnel syndrome, right hip osteoarthritis, and stenosis of the lumbar spine. He did not 

respond to the question on the form regarding whether the diagnosed conditions resulted from an 

employment activity.4

In a December 13, 2016 Form CA-20, Dr. Mark B. Kerner, a Board-certified orthopedic 

surgeon, diagnosed cervical myelopathy and checked a box marked “yes” that the condition was 

caused or aggravated by employment, noting that appellant’s symptoms began after an 

employment injury. In a subsequent January 20, 2017 Form CA-20, he diagnosed cervical 

myelopathy and radiculopathy and again checked a box marked “yes” that the condition was 

caused or aggravated by the described employment activity of a fall at work. Dr. Kerner related 

 

3 On January 11, 2016 Dr. Mark Haggerty, an osteopath, advised that appellant could return to work on January 12, 

2016 with restrictions on climbing stairs. 

4

In a December 13, 2016 Form CA-17 and work note, Dr. Bowman found that appellant was totally disabled.
3

that after the incident appellant experienced increasing neck pain and arm pain with numbness. 

He indicated that the contusion resulted in a spinal cord injury with “central cord syndrome.”

In a March 9, 2017 development letter, OWCP advised appellant that it had paid a limited 

amount of medical expenses as his injury appeared minor and had not been controverted. It 

informed him that it was now formally adjudicating his claim and requested that he submit 

additional factual and medical information, including a rationalized report from his attending 

physician addressing the causal relationship between a diagnosed condition and the identified work 

incident. OWCP afforded appellant 30 days to submit the necessary evidence.

Thereafter, appellant submitted unsigned chart notes from Dr. Bowman dated May through 

August 2016. On May 16, 2016 Dr. Bowman discussed complaints of neck and upper extremity 

pain and right hip and leg stiffness. He advised that appellant described “no particular injury.”

Dr. Bowman diagnosed lumbar facet arthropathy, low back pain, cervical radiculopathy, bilateral 

carpal tunnel syndrome, and right hip osteoarthritis. 

In a November 22, 2016 report, Dr. Kerner noted that appellant experienced increasing 

neck pain and arm pain and numbness after a fall at work. He found that appellant had severe 

cervical stenosis and “areas of gliosis, clearly myelopathic with ongoing cervical stenosis with a 

cord contusion causing what appears to be a cord injury with central cord syndrome.” Dr. Kerner 

recommended a decompression and fusion.

On December 2, 2016 Dr. Kerner performed an anterior cervical discectomy and fusion 

and multiple levels.5

Dr. Kerner, in a December 13, 2016 Form CA-17, diagnosed cervical myelopathy and 

checked a box marked “yes” that the history provided by appellant corresponded to that on the 

form of a neck injury in a fall.

By decision dated April 17, 2017, OWCP denied appellant’s traumatic injury claim. It 

found that the medical evidence submitted was insufficient to establish that he sustained a 

diagnosed condition caused or aggravated by the accepted employment incident.

Subsequent to OWCP’s decision, appellant submitted additional unsigned chart notes from

Dr. Bowman. In a March 23, 2017 chart note, he evaluated appellant for cervical radiculopathy 

and carpal tunnel syndrome. Dr. Bowman noted that his symptoms began after a work fall, but 

that “he was uncertain whether the fall had caused his symptoms or whether it was due to a 

preexisting condition.” He advised that diagnostic studies showed a chronic condition which “may 

have been acutely exacerbated” by appellant’s employment injury.

In an April 27, 2017 report, Dr. Bowman related that he initially evaluated appellant on 

May 16, 2016 for cervical radiculopathy, cervical arthritis, and carpal tunnel syndrome. He noted 

that an x-ray showed advanced cervical arthritis that compressed the spinal cord necessitating 

surgery. Dr. Bowman discussed appellant’s history of a fall on December 10, 2015 at work. He 

indicated that diagnostic studies revealed that he had preexisting cervical arthritis, but opined that 

 

5 Dr. Kerner provided progress reports subsequent to the surgery on January 20 and May 16, 2017.
4

the “fall certainly could have aggravated his preexisting medical condition to the point that it would 

have exceeded a symptom threshold requiring an intervention for his resolution of neurological 

symptoms.”

On May 23, 2017 appellant requested reconsideration. He submitted the first page of the 

December 18, 2015 emergency department Care Nurse Triage report which noted that he had 

fallen seven days earlier with a two-way radio in his pocket and had pain in his right upper leg.

In a July 27, 2017 CA-20 form, Dr. Kerner diagnosed cervical myelopathy and 

radiculopathy and checked a box marked “yes” that the condition was caused or aggravated by the 

described employment activity of a fall at work. He found that the injury to the spinal cord resulted 

in central cord syndrome.

By decision dated August 21, 2017, OWCP denied modification of its April 17, 2017 

decision. It found that appellant had not submitted sufficient evidence to establish that he sustained 

a diagnosed condition causally related to the December 10, 2015 employment incident.6 

In a January 30, 2018 report, Dr. David D. Alcantara, a Board-certified physiatrist, noted 

that appellant had experienced an employment-related fall on December 10, 2015 causing cervical 

myelopathy due to severe cord compression treated with a decompression and fusion at multiple 

levels.7 Subsequent to the injury, he “presented as myelopathic, meaning an upper motor neuron 

injury, concordant with [a] neck injury, resulting in signs of decreased strength, sensation, and 

hyperflexia.” Dr. Alcantara related that appellant had preexisting cervical spinal stenosis that was 

often an asymptomatic condition. He asserted that his fall caused a nerve injury, noting that the 

“forces sustained during a fall combined with central stenosis can compress and/or strike the spinal 

cord with sufficient force to injure it.” Dr. Alcantara indicated that appellant had symptoms in all 

the extremities, but less on the left lower extremity, which suggested an injury to the right central 

cervical spine. He related, “In short, his impairment/disability is related directly to the injury 

sustained by his fall. Degenerative and genetic factors predisposed to this injury. There are other 

aforementioned factors that contribute to his full breadth of symptoms, but their contribution is 

limited and for all intents and purposes can be disregarded.”

Dr. Bowman, on February 1, 2018, noted that he had treated appellant for a right leg and 

hip injury after he tripped and fell on December 10, 2015, landing on a two-way radio in his right 

front pocket. He experienced pain in his right hip and difficulty with ambulation. Dr. Bowman 

noted that appellant’s symptoms had progressed. He related:

“It is of my opinion that his persistent right hip pain, weakness, disturbance of gait, 

and his limp requiring the use of a cane in his left hand can be directly attributed to 

the work injury he sustained while at [the employing establishment] on 

December 10, 2015. I feel that the diagnosis is likely a significant high-grade tear 

 

6

In its decision, OWCP referred to the reports from Dr. Bowman as completed by Dr. Arthur W. Wardell, a Boardcertified orthopedic surgeon and an associate of Dr. Bowman.

7 Dr. Alcantara, on July 24, 2017, evaluated appellant for right lower extremity weakness, noting that he complained 

of weakness on the right side after a fall.
5

of [the] hip abductor musculature as well as a permanent exacerbation of 

preexisting right hip osteoarthritis.” 

Appellant, through counsel, on February 8, 2018 requested reconsideration.

By decision dated March 29, 2018, OWCP modified in part and affirmed in part its 

August 21, 2017 decision. It accepted that appellant sustained a contusion of the right thigh. 

OWCP found, however, that the medical evidence of record was insufficient to establish that he 

sustained right hip osteoarthritis, cervical myelopathy with radiculopathy, or lumbar radiculopathy 

causally related to his December 10, 2015 employment injury.

On April 9, 2018 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. 

By decision dated April 26, 2018, OWCP denied appellant’s request for a telephone 

hearing under 5 U.S.C. § 8124(b). It found that he had previously requested reconsideration under 

5 U.S.C. § 8128(a) and thus was not entitled to a hearing as a matter of right. OWCP considered 

the matter within its discretion and determined that the issue could be equally well addressed by 

appellant submitting a request for reconsideration with evidence supporting that the claimed 

conditions were causally related to the December 10, 2015 employment injury.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA8 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that he or she is an employee of the United 

States within the meaning of FECA, that the claim was filed within the applicable time limitation, 

that an injury was sustained while in the performance of duty as alleged, and that any disability or 

specific condition for which compensation is claimed is causally related to the employment injury.9

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.10 To establish causal relationship between the 

condition, as well as any attendant disability claimed and the employment event or incident, the 

employee must submit rationalized medical opinion evidence based on a complete factual and 

medical background, supporting such a causal relationship.11 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 

 

8 See supra note 2.

9 See C.W., Docket No. 17-1636 (issued April 25, 2018); Tracey P. Spillane, 54 ECAB 608 (2003).

10 See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

11 See S.A., Docket No. 18-0399 (issued October 16, 2018).
6

the claimant.12 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.

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish that the 

acceptance of his claim should be expanded to include the additional conditions of right hip 

osteoarthritis, cervical myelopathy with radiculopathy, or lumbar radiculopathy causally related to 

the accepted December 10, 2015 employment injury. 

As noted, if a claimant alleges that a condition not accepted or approved by OWCP resulted 

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

causally related to the employment injury through the submission of rationalized medical 

evidence.13

Appellant submitted chart notes from Dr. Bowman dated May 16, 2016 through 

March 23, 2017. In a May 16, 2016 chart note, Dr. Bowman discussed his complaints of neck and 

upper extremity pain and stiffness in his right hip and leg. He advised that appellant related that 

he had not experienced a specific injury. Dr. Bowman diagnosed multiple conditions, including 

cervical radiculopathy. As he did not attribute appellant’s condition to the December 10, 2015 

employment injury, his opinion is of diminished probative value.14 

In a March 23, 2017 chart note, Dr. Bowman noted that appellant had informed him that 

his symptoms began after a fall at work. He indicated that he had a chronic condition that may 

have been aggravated by the work injury. Dr. Bowman’s finding, however, that appellant’s fall 

may have aggravated or exacerbated his condition is speculative in nature and thus of little 

probative value.15

Dr. Bowman, in a November 16, 2016 form report, diagnosed right foot drop, right hip 

osteoarthritis, and lumbar facet arthropathy, noting that appellant’s symptoms began on 

April 4, 2016. In CA-20 reports dated December 7, 2016 and January 17, 2017, he diagnosed 

lumbar facet arthropathy, cervical radiculopathy, bilateral carpal tunnel syndrome, right hip 

osteoarthritis, and lumbar stenosis. Dr. Bowman did not respond to the questions on the forms

with regard to causation. Medical evidence that does not offer an opinion on the cause of an 

 

12 See P.M., Docket No. 18-0287 (issued October 11, 2018).

13 See supra note 11.

14 See C.H., Docket No. 17-0266 (issued May 17, 2018).

15 See M.D., Docket No. 18-0195 (issued September 13, 2018) (the Board has held that medical opinion that are 

speculative or equivocal in character are of diminished probative value).
7

employee’s condition is of no probative value on the issue of causal relationship.

16

 Thus, these 

reports are insufficient to meet appellant’s burden of proof regarding expansion of his claim.17

On November 22, 2016 Dr. Kerner noted that appellant had experienced neck and arm pain 

with numbness subsequent to a fall at work. He diagnosed severe cervical stenosis and a cord 

contusion causing central cord syndrome. While Dr. Kerner indicated that appellant’s neck and 

arm pain began after an employment-related fall, he did not specifically attribute the cervical 

stenosis and central cord syndrome to the accepted December 10, 2015 work injury and thus his 

opinion is of little probative value.18

Dr. Kerner, in a December 13, 2016 Form CA-20, diagnosed cervical myelopathy and 

checked a box marked “yes” that the condition was caused or aggravated by employment. He 

provided as a rationale that the symptoms began after an employment injury. In a Form CA-17 

dated December 13, 2016, Dr. Kerner diagnosed cervical myelopathy and checked a box marked 

“yes” that the history provided by appellant corresponded to that on the form of a neck injury after 

a fall. In January 20 and July 27, CA-20 forms, he diagnosed cervical myelopathy and 

radiculopathy and again checked a box marked “yes” that the condition was caused or aggravated 

by the described employment activity of a fall at work. Dr. Kerner noted that following the 

incident appellant had experienced worsening neck pain and arm pain and numbness. He opined 

that he sustained a spinal cord injury and central cord syndrome. The Board has held, however, 

that a report that addresses causal relationship with a checkmark, without medical rationale 

explaining how the employment incident caused the alleged injury, is of diminished probative 

value and insufficient to establish causal relationship.19 While Dr. Kerner noted that appellant’s 

symptoms began after a work injury, an opinion that a condition is causally related to an incident 

because the employee was asymptomatic before the injury is insufficient, without adequate 

rationale, to establish causal relationship.20

On April 27, 2017 Dr. Bowman noted that appellant had fallen at work on December 10, 

2015 and that diagnostic studies showed cervical arthritis compressing the spinal cord. He opined 

that the fall at work “could have” aggravated his preexisting cervical arthritis. Dr. Bowman’s 

opinion on causation is speculative and thus, as previously noted, of diminished probative value.21 

Dr. Alcantara, in a January 30, 2018 report, reviewed appellant’s history of a fall at work 

on December 10, 2015 with a subsequent diagnosis of cervical myelopathy due to severe cord 

compression requiring a decompression and fusion at multiple levels. He advised that after the 

injury, appellant experienced symptoms of an upper motor neuron injury. Dr. Alcantara diagnosed 

preexisting cervical spinal stenosis. He opined that appellant’s fall resulted in a nerve injury to 

 

16 See O.C., Docket No. 17-1175 (issued October 29, 2018); L.B., Docket No. 18-0533 (issued August 27, 2018).

17 See supra note 12.

18 See L.A., Docket No. 15-1136 (issued March 2, 2016).

19 See R.A., Docket No. 17-1472 (issued December 6, 2017); Sedi L. Graham, 57 ECAB 494 (2006).

20 See J.R., Docket No. 18-0206 (issued October 15, 2018).

21 See K.M., Docket No. 18-0185 (issued September 7, 2018).
8

the right central spine from forces compressing or striking the spinal cord. Dr. Alcantara opined 

that his disability was due to his employment injury and that degenerative and genetic factors 

predisposed him to the injury. While he found that appellant’s fall caused a compression injury to 

the spine, he did not provide a sufficient explanation of the mechanism of injury or address the 

delay in the onset of the cervical symptoms following the incident.22 Such rationale is particularly 

important given his history of an underlying, preexisting cervical condition.23

On February 1, 2018 Dr. Bowman discussed his treatment of appellant for a right leg and 

hip injury after a December 10, 2015 fall at work. He diagnosed a tear of the hip abductor and an 

exacerbation of right hip osteoarthritis. Dr. Bowman, however, did not provide any rationale for 

his causation finding. A mere conclusion without the necessary rationale explaining how and why 

the physician believes that a claimant’s accepted exposure could result in a diagnosed condition is 

insufficient to meet a claimant’s burden of proof.24

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

establish causal relationship is rationalized medical evidence.25 Appellant failed to provide 

reasoned medical evidence demonstrating that he sustained right hip osteoarthritis, cervical 

myelopathy with radiculopathy, and lumbar radiculopathy causally related to the accepted 

December 10, 2015 employment injury. Accordingly, the Board finds that he has failed to meet 

his burden of proof to establish expansion of the accepted conditions of his claim.26

Appellant may submit new evidence or argument with a written request for reconsideration, 

to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 

C.F.R. §§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an 

OWCP hearing representative, provides: Before review under section 8128(a) of this title, a 

claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of 

this section is entitled, on request made within 30 days after the date of the issuance of the decision, 

to a hearing on his claim before a representative of the Secretary.27 A hearing is a review of an 

adverse decision by an OWCP hearing representative. Initially, the claimant can choose between 

 

22 See S.F., Docket No. 18-0444 (issued October 4, 2018); L.B., Docket No. 14-1687 (issued June 10, 2015).

23 See E.D., Docket No. 16-1854 (issued March 3, 2017).

24 See T.T., Docket No. 17-0681 (issued March 13, 2018).

25 See supra note 11; E.P., Docket No. 16-0153 (issued August 24, 2016).

26 Id.

27 5 U.S.C. § 8124(b)(1).
9

two formats: an oral hearing or a review of the written record. In addition to the evidence of 

record, the claimant may submit new evidence to the hearing representative.28

A claimant is entitled to a hearing or review of the written record as a matter of right only 

if the request is filed within the requisite 30 days as determined by postmark or other carriers’ date 

marking and before the claimant has requested reconsideration (whether or not reconsideration 

was granted).29 Although there is no right to a review of the written record or an oral hearing as a 

matter of right if a claimant had previously sought reconsideration, OWCP may, within its 

discretionary powers, grant or deny a hearing when the request is untimely or made after 

reconsideration under section 8128(a).30

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for a telephone hearing 

before an OWCP hearing representative under 5 U.S.C. § 8124(b)(1). As appellant had previously 

requested reconsideration on May 23, 2017 and February 8, 2018, he was not entitled to an oral

hearing as a matter of right under section 8124(b)(1) of FECA.31

The Board further finds that OWCP did not abuse its discretion in denying appellant’s 

request for an oral hearing.32 The Board has held that the only limitation on OWCP’s discretionary 

authority is reasonableness. An abuse of discretion is generally shown through proof of manifest 

error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to logic and 

probable deduction from established facts.33 OWCP advised appellant that his case could be 

equally well addressed by requesting reconsideration before OWCP and submitting new evidence 

not previously considered supporting that he sustained additional conditions as a result of his 

December 10, 2015 employment injury. The evidence of record does not support that OWCP 

abused its discretion in its denial of appellant’s request for an oral hearing.34 Accordingly, the 

Board finds that OWCP properly denied his request for an oral hearing.35

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish that the 

acceptance of his claim should be expanded to include the additional conditions of right hip 

 

28 20 C.F.R. § 10.615.

29 Id. at 10.616(a); L.S., Docket No. 18-0115 (issued May 10, 2018).

30 20 C.F.R. § 10.616(a); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written 

Record, Chapter 2.1601.2(a) (October 2011); see also A.O., Docket No. 18-0558 (issued October 10, 2018).

31 See A.O., supra note 30.

32 See S.F., Docket No. 17-0463 (issued September 8, 2017).

33 See R.G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542 (2006).

34 See L.S., supra note 29.

35 See C.A., Docket No. 17-0944 (issued May 15, 2018).
10

osteoarthritis, cervical myelopathy with radiculopathy, and lumbar radiculopathy causally related 

to the accepted December 10, 2015 employment injury. The Board further finds that OWCP

properly denied his request for an oral hearing under 5 U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the April 26 and March 29, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: January 18, 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