United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, NEW 

YORK INTERNATIONAL SERVICE CENTER 

Jamaica, NY, Employer

__________________________________________

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Docket No. 18-1595

Issued: March 13, 2019

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 17, 2018 appellant, through counsel, filed a timely appeal from a July 10, 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 to consider 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 the acceptance 

of her claim should be expanded to include the additional conditions of post-traumatic headaches, 

dizziness, post-traumatic vestibulopathy, postconcussion syndrome, and cervical radiculopathy 

casually related to the accepted December 5, 2014 employment injury.

FACTUAL HISTORY

On December 5, 2014 appellant, then a 52-year-old postal police officer, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, she was injured in a motor vehicle accident,

while in the performance of duty, when a livery cab struck her postal vehicle. She alleged that she 

struck her left temple on the window frame of her vehicle.

Appellant provided a note from Dr. Lee Berk, an internist, dated December 5, 2014 

diagnosing thoracic strain and concussion with no loss of consciousness. On December 5, 2014 

she underwent a computerized tomography (CT) scan of her head which demonstrated no evidence 

of acute intracranial hemorrhage or displaced fracture. 

In a December 15, 2014 development letter, OWCP requested additional factual and 

medical evidence in support of appellant’s traumatic injury claim. It afforded her 30 days for a 

response.

On December 20 and 27, 2014 Dr. Afshan Khan, a Board-certified neurologist, diagnosed 

vertigo, postconcussion syndrome, headaches, and myofascial pain syndrome due to the 

December 5, 2014 motor vehicle accident. In a January 12, 2015 note, he also diagnosed posttraumatic vestibulopathy, cervical radiculopathy, and cervical myofascial pain syndrome.

By decision dated January 21, 2015, OWCP denied appellant’s traumatic injury claim,

finding that she had not established that the December 5, 2014 employment incident occurred as 

alleged. On February 10, 2015 appellant requested a review of the written record from an OWCP 

hearing representative.

On January 28, 2015 appellant provided a narrative description of the events of 

December 5, 2014. She noted that, along with a fellow police officer, she was returning to the 

employing establishment after responding to a burglar alarm. Appellant’s fellow officer was 

driving the vehicle and she was in the front passenger seat. Another vehicle struck her vehicle 

causing it to spin out of control and hit a metal divider. Appellant’s right temple hit the door panel 

molding between the passenger side window and the windshield. She did not lose consciousness, 

but experienced swelling and severe pain in her right temple. Appellant was transported to the 

hospital by ambulance. She also provided a copy of the accident report and an incident report.

On December 5, 2014 Dr. Zong W. Chen, a physician Board-certified in emergency 

medicine, examined appellant following the motor vehicle accident and diagnosed head contusion 

following right-side temple trauma without loss of consciousness.
3

On January 17, 2015 appellant underwent a cervical CT scan which demonstrated loss of 

lordosis, degenerative changes, and disc herniations at C2-3 and C4-5. She also underwent a brain 

magnetic resonance imaging (MRI) scan which demonstrated lacunar infarct or ischemic changes. 

In a note dated February 9, 2015, Dr. Khan reported that appellant sustained injuries as a 

restrained front seat passenger. He described the motor vehicle accident and noted that she struck 

her right temple on the window frame as her body was jerked sideways. Dr. Khan diagnosed posttraumatic headaches and dizziness, post-traumatic vestibulopathy, post-concussion syndrome, 

cervical radiculopathy, and lacunar infarct.

By decision dated October 13, 2015, OWCP’s hearing representative vacated OWCP’s 

January 21, 2015 decision and accepted appellant’s claim for head contusion. She also remanded 

the case for further development of the additional conditions diagnosed by Dr. Khan including 

referral of the medical records to an OWCP district medical adviser (DMA). On November 16, 

2015 OWCP informed appellant that her traumatic injury claim had been accepted for head 

contusion. 

On January 15, 2016 Dr. Jon Glass, a Board-certified neurologist and DMA, reviewed a 

statement of accepted facts (SOAF), the medical evidence, and OWCP’s questions regarding 

appellant’s additional diagnoses. He opined that none of the diagnoses provided by Dr. Khan were 

employment related as there was no medical evidence supporting these conditions after 

February 9, 2015 or as of November 16, 2015 when OWCP accepted her traumatic injury claim. 

Dr. Glass indicated that appellant’s symptoms from a concussion should have resolved within six 

to eight weeks and cervical spine trauma should have resolved within three-to-four months.

By decision dated March 15, 2016, OWCP denied expansion of the acceptance of 

appellant’s traumatic injury claim to encompass conditions other than head contusion. 

On March 15, 2017 appellant, through counsel, requested reconsideration of the March 15, 

2016 OWCP decision. She disagreed with the DMA’s findings noting that he only addressed 

whether her diagnosed conditions should have resolved and not whether the conditions were 

causally related to the December 5, 2014 employment injury. Counsel contended that the DMA’s 

reasoning was faulty and based solely on the finding that as there was no medical evidence after a 

certain date, appellant must not have ever had the additional conditions. He contended that a 

second opinion referral was appropriate. Appellant also provided additional medical evidence.

In his March 15, 2017 report, Dr. Khan opined that post-concussion syndrome did not 

always resolve within six-to-eight weeks. He noted that the medical literature supported that 

chronic postconcussion syndromes were possible. Dr. Khan found that appellant’s symptoms had 

not resolved by February 9, 2015. Appellant continued to experience headaches through June 30, 

2015, but was allowed to carry a firearm. Dr. Khan had released her to return to work on

August 5, 2015.

By decision dated April 12, 2017, OWCP denied modification of the March 15, 2016 

OWCP decision.

In a report dated September 1, 2017, Dr. Morton Finkel, a Board-certified neurologist, 

noted appellant’s history of injury on December 5, 2014 in a motor vehicle accident while at work. 
4

He reported that the right side of her head hit the vehicle door. Dr. Finkel noted that appellant 

continued to experience headaches and that her MRI scan demonstrated a basal ganglia infarct. 

He diagnosed cerebral contusion.

On August 10 and September 12, 2017 Dr. Isaiah Pinckney, II, a family practitioner, 

examined appellant due to headache and neck pain. He noted her history of a motor vehicle 

accident during which she struck the right side of her head. Dr. Pinckney reviewed appellant’s 

cervical CT scan and diagnosed bulging cervical disc, contusion of the head, and postconcussion 

syndrome. He opined that these conditions were causally related to her work accident. 

Dr. Pinckney concluded that appellant’s accident was the competent producing cause of her 

injuries and the need for further treatment.

In a February 16, 2018 note, Dr. Finkel diagnosed cerebral contusion. 

On April 12 2018 appellant, through counsel, requested reconsideration of OWCP’s 

April 12, 2017 decision. She provided reports dated September 10, 2017 and April 20, 2018 from

Dr. Finkel. Dr. Finkel described appellant’s December 5, 2014 motor vehicle accident which 

resulted in her striking her head. He reviewed Dr. Kahn’s reports and found that she had persistent

headaches and dizziness for four months after her accepted injury. Dr. Finkel opined that the 

accident of December 5, 2014 was the competent producing cause of appellant’s cerebral 

contusion and cerebral concussion, vertigo due to vestibulopathy, and cervical radiculopathy. He

found that her conditions had not resolved by February 9, 2015. Dr. Finkel disagreed with the

DMA that a concussion typically resolves within six-to-eight weeks and found that appellant had 

experienced headache and dizziness for several months.

By decision dated July 10, 2018, OWCP denied modification of the March 15, 2016 

decision, finding that appellant had not submitted sufficient medical evidence to establish causal 

relationship between her December 5, 2014 employment injury and her diagnosed conditions of 

post-traumatic headaches, dizziness, post-traumatic vestibulopathy, post-concussion syndrome, 

and cervical radiculopathy. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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.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

 

3

Id.

4 See F.H., Docket No. 18-1238 (issued January 18, 2019); Tracey P. Spillane, 54 ECAB 608 (2003).

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).
5

When 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.6 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.7 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 

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.9

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

OWCP shares responsibility in the development of the evidence and to see that justice is done.10

ANALYSIS

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

On October 13, 2015 OWCP’s hearing representative accepted appellant’s claim for head 

contusion. She also remanded the case for OWCP to undertake development of the medical 

evidence regarding the additional conditions alleged by appellant as employment related. The

hearing representative directed OWCP to refer the case record to a DMA for review. OWCP 

referred the medical evidence, a SOAF, and a list of questions to Dr. Glass, a Board-certified 

neurologist and DMA. On January 15, 2016 Dr. Glass opined that none of the diagnoses provided 

by Dr. Khan were employment related as there was no medical evidence supporting these 

conditions after February 9, 2015 or as of November 16, 2015. He indicated that appellant’s 

symptoms from a concussion should have resolved within six-to-eight weeks and cervical spine 

trauma should have resolved within three-to-four months. Dr. Glass did not provide a coherent

basis for his opinion that the additional claimed conditions were not causally related to her

accepted employment injury. He indicates both that the diagnosed conditions were causally related 

to appellant’s accepted employment injury as she was initially diagnosed with head and cervical 

injuries, but also that the additional diagnosed conditions were not causally related to her

December 5, 2014 employment injury because these conditions had largely resolved by the time 

OWCP accepted her claim. This opinion did not clearly address whether the motor vehicle 

accident and resulting head injury had resulted in additional medical conditions such as post-

 

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

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

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

9 F.H., supra note 4.

10 J.S., Docket No. 16-0777 (issued January 3, 2017); Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. 

Hammons, 51 ECAB 219 (1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983).
6

traumatic headaches, dizziness, post-traumatic vestibulopathy, post-concussion syndrome, and 

cervical radiculopathy at the time of or following the December 5, 2014 employment injury.

It is well established that proceedings under FECA are not adversarial in nature and OWCP 

is not a disinterested arbiter.11 While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence and to see that 

justice is done.12 When OWCP undertakes to develop the evidence it has an obligation to seek 

clarification from its physician upon receiving a report that did not adequately address the issues 

that OWCP sought to develop.13 As such, it should obtain a clear and rationalized supplemental

opinion from Dr. Glass with regard to appellant’s request for expansion of the acceptance of her

claim to include additional employment-related conditions. Thus, the Board will remand the case 

to OWCP to obtain a supplemental report from the DMA, providing a rationalized medical opinion 

as to whether her additional conditions are causally related to the employment injury regardless of 

whether they are ongoing conditions or whether they have resolved. Following this and any other 

development deemed necessary, OWCP shall issue a de novo decision on whether appellant

sustained additional conditions causally related to the December 5, 2014 employment injury.

CONCLUSION

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

 

11 J.S., id.; Vanessa Young, 56 ECAB 575 (2004).

12 Supra note 10.

13 S.C., Docket No. 17-1587 (issued January 2, 2019); E.B., Docket No. 17-0795 (issued January 18, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the July 10, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further development consistent 

with this decision of the Board.

Issued: March 13, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board