United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

DEPARTMENT OF THE ARMY, CIVILIAN 

PERSONNEL ADVISORY CENTER, 

Fort McCoy, WI, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-0810

Issued: January 2, 2020

Appearances: Case Submitted on the Record

Brett Elliot Blumstein, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 6, 2019 appellant, through counsel, filed a timely appeal from a January 15, 

2019 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish a back injury 

causally related to the accepted March 20, 2017 employment incident.

 

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

FACTUAL HISTORY

On March 28, 2017 appellant, then a 58-year-old heavy mobile equipment repairer 

supervisor, filed a traumatic injury claim (Form CA-1) alleging that on March 20, 2017 he 

herniated a disc in his back and pain after he slipped on ice in the parking lot of the employing 

establishment. The employing establishment did not controvert the claim.

The record contains one page of a report dated March 23, 2017 from Dr. Michael Ayers, a 

Board-certified orthopedic surgeon, who evaluated appellant for low back pain after he slipped on 

ice at work on March 20, 2017.

In a report dated March 31, 2017, Dr. Jason P. Rahal, a neurosurgeon, noted that appellant 

had experienced severe pain in his left leg and low back after he slipped and fell on ice on 

March 20, 2017 on his way to work. Emergency services transported him to a hospital because he 

could not stand or walk after his fall. Dr. Rahal indicated that appellant had a history of a herniated 

disc at L4-5 around 28 years earlier. He reviewed the results of a March 2017 magnetic resonance 

imaging (MRI) scan, finding “severe lateral recess stenosis due to disc and osteophyte complexes 

with nerve impingement at L4-5 and L5-S1....” Dr. Rahal diagnosed displacement of a lumbar 

disc and referred appellant for physical therapy.

On April 11, 2017 Dr. Craig Warnick, Board-certified in family medicine, found that 

appellant was unable to work from March 27 to April 28, 2017.

In a development letter dated April 25, 2017, OWCP advised appellant that the evidence 

then of record was insufficient to establish his claim. It informed him of the type of medical and 

factual evidence needed, including a detailed description of the March 20, 2017 employment 

incident and a narrative report from his physician explaining the relationship between the incident 

and any diagnosed condition. OWCP afforded appellant 30 days to submit the necessary evidence.

Thereafter, OWCP received a March 20, 2017 emergency department report from

Dr. Walter J. Grabowski, Board-certified in emergency medicine. Dr. Grabowski obtained a 

history of appellant having experienced severe back pain radiating into his leg such that he was 

unable to stand after he fell on ice in the parking lot at work on that date. He reviewed his history 

of a herniated lumbar disc a long time ago and a herniated cervical disc. Dr. Grabowski diagnosed 

left sciatica and intractable back pain and admitted appellant to the hospital.

A lumbar spine MRI scan obtained on March 20, 2017 revealed an L4-5 left lateral recess 

disc bulge and left paracentral annular tear causing stenosis and contact with the L5 nerve root, 

and a left lateral recess disc osteophyte complex causing significant stenosis of the left lateral 

recess and posterior displacement of the left S1 nerve root origin. 

On March 20, 2017 Dr. Sonjay B. Shrinivas, an osteopath, indicated that appellant had 

fallen on ice while walking into work, landing on his hands, knees, and right side. He had 

experienced severe pain when he tried to rise and was taken by ambulance to the hospital. 

Dr. Shrinivas noted that appellant was currently receiving treatment for cervical radiculopathy. He 

diagnosed sciatica of the left side likely due to recent fall. 

In a progress report dated April 28, 2017, Dr. Rahal discussed appellant’s history of severe 

back pain radiating into his left lower extremity after a March 20, 2017 fall on ice. He noted that 

appellant had a six-week history of pain in his left leg and low back “most consistent with left L5 
3

radiculopathy, in the setting of a fall on the ice.” Dr. Rahal diagnosed displacement of a lumbar 

introvert disc and referred appellant for physical therapy.

On May 1, 2017 the employing establishment advised that appellant had fallen on premises 

that it owned, operated, or controlled within 30 minutes of his usual work hours and while engaged 

in his official duties. On May 2, 2017 it specified that it owned the parking lot and that it was not 

open to the public. 

On May 2, 2017 Dr. Warnick opined that appellant remained disabled pending an 

evaluation on May 16, 2017. On May 16, 2017 Dr. Suresh Gundaji, Board-certified in family 

medicine, found that he could resume work on May 17, 2017.

By decision dated May 26, 2017, OWCP denied appellant’s traumatic injury claim. It 

found that the medical evidence submitted was insufficient to establish a diagnosed condition 

causally related to the accepted March 20, 2017 employment incident.

On June 12, 2017 Dr. Warnick advised that appellant had a history of intermittent lower 

back pain that flared once or twice per year that was unlike the symptoms for which he had received 

treatment at the hospital. He related, “This is a new injury with significant findings on MRI [scan], 

some of which are very likely related to his fall. The findings on MRI [scan] correlate to the 

significant symptoms for which he has been receiving treatment over the past few months. The 

fall was a direct cause of his pain and likely the causative factor in the disc herniation.”

On June 13, 2017 appellant requested a review of the written record by a representative of 

OWCP’s Branch of Hearings and Review. 

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

May 26, 2017 decision. 

On August 21, 2018 Dr. John W. Ellis, Board-certified in family medicine, noted that 

appellant had injured his back at work in the early 1990’s, but had not filed a claim. His condition 

resolved with physical therapy such that he only had occasional minor low back pain. Dr. Ellis 

discussed appellant’s history of a March 20, 2017 fall on ice and subsequent hospitalization. He 

reviewed the medical records, including the results of diagnostic studies. On examination Dr. Ellis

found a positive straight leg raise on examination with decreased sensation at the L4 and L5 nerve 

dermatome distributions. He diagnosed a disc herniation, radiculopathy, and spondylosis of the 

lumbar spine. Dr. Ellis opined that the “injuries to his lumbar spine and sequelae are a direct result 

of his fall on March 20, 2017....” He related:

“[Appellant’s] fall onto the ice was so severe that he had an acute disc herniation 

at the L4-5 level as demonstrated by the MRI [scan]. The sudden force of his fall 

caused compression of the discs causing the L4-5 disc to herniate. The disc 

herniation caused compression of the L5 nerve root as it exits the neuroforamen 

causing his severe radiculopathy. When he fell, the L5-S1 was compressed so 

severely that he had bulging of the disc compressing the S1 nerve root on the left 

side.... The disc herniation and disc bulge were so severe that they have continued 

to put pressure on the left L5 and S1 nerves as they exit the neuroforamen causing 

his severe radicular symptoms and weakness in his left lower extremity as 

demonstrated on physical examination.”
4

On August 29, 2018 appellant, through counsel, requested reconsideration. 

By decision dated January 15, 2019, OWCP denied modification of the September 25, 

2017 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,3that an injury 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.4 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5 

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

duty, it first must be determined whether fact of injury has been established. There are two 

components involved in establishing fact of injury. 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.6 Second, the employee must submit medical evidence to 

establish that the employment incident caused a personal injury.7

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 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.8

ANALYSIS

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

In support of his claim, appellant submitted a report dated March 20, 2017 from

Dr. Grabowski, who evaluated him after he was transported to the hospital by ambulance on that 

date after his fall at work. Dr. Grabowski discussed appellant’s history of severe back pain 

 

3 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

6 See V.J., Docket No. 18-0452 (issued July 3, 2018); Bonnie A. Contreras, 57 ECAB 364 (2006).

7

Id.

8 See H.B., Docket No. 18-0781 (issued September 5, 2018).
5

radiating into his leg after he slipped on ice in the parking lot at work. He diagnosed left sciatic 

and intractable back pain and admitted him to the hospital. 

On March 20, 2017 Dr. Shrinivas reviewed appellant’s history of a slip and fall on ice 

walking into work and diagnosed sciatic likely due to the fall. On April 28, 2017 Dr. Rahal found 

that appellant had pain in his left leg and lower back consistent with radiculopathy at L5 after a 

fall on ice. He diagnosed lumbar disc displacement.

In a report dated June 12, 2017, Dr. Warnick noted that appellant had a history of 

intermittent back pain unlike the symptoms he experienced that led to his hospital treatment. He 

advised that he had sustained a new injury and that the fall directly caused his pain and likely 

resulted in his herniated disc.

On August 21, 2018 Dr. Ellis reviewed appellant’s history of a prior back injury, his fall 

on ice on March 20, 2017, and the medical reports of record. He provided findings on examination 

and diagnosed a lumbar disc herniation, radiculopathy, and spondylosis. Dr. Ellis attributed the 

diagnosed conditions to his March 20, 2017 fall on ice, finding that the force of the fall compressed 

his discs and resulted in herniation of the disc at L4-5, and severe compression of the disc at L5-S1. 

He opined that the herniated L4-5 disc compressed the L5 nerve root and that the L5-S1 disc 

compression affected the S1 nerve root resulting in left lower extremity radiculopathy and 

weakness.

The Board finds that Dr. Ellis’ opinion is sufficient, given the absence of any opposing 

medical evidence, to require further development of the record.9 Dr. Ellis’ report is not 

contradicted by any substantial medical or factual evidence of record. Further, his opinion is based 

upon a complete factual history and medical background, is supported by reasonable medical 

certainty, and contains a sufficient level of medical rationale explaining the nature of the 

relationship between the diagnosed conditions and the accepted employment incident.10 While

Dr. Ellis’ report is insufficiently rationalized to meet appellant’s burden of proof to establish his 

claim, it raises an uncontroverted inference between his current back condition and the accepted 

employment incident and, therefore, is sufficient to require OWCP to further develop the medical 

evidence and the case record.11

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence.12 The nonadversarial policy of 

proceedings under FECA is reflected in OWCP’s regulations at section 10.121.13 

The Board will, therefore, remand the case to OWCP for further development of the 

medical evidence. On remand OWCP shall refer appellant, a statement of accepted facts, and the 

medical evidence of record to an appropriate Board-certified physician. The chosen physician 

 

9 D.C., Docket No. 18-1664 (issued April 1, 2019).

10 S.C., Docket No. 19-0920 (issued September 25, 2019).

11 K.S., Docket No. 19-0506 (issued July 23, 2019); D.W., Docket No. 17-1884 (issued November 8, 2018).

12 W.C., Docket No. 18-1386 (issued January 22, 2019).

13 20 C.F.R. § 10.121.
6

shall provide a rationalized opinion as to whether the accepted March 20, 2017 employment 

incident resulted in the diagnosed conditions. If the physician opines that the diagnosed conditions 

are not causally related, he or she must explain with rationale how or why the causation opinion 

differs from that of Dr. Ellis. Following this and any other further development deemed necessary, 

OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the January 15, 2019 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: January 2, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board