United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.H., Appellant

and

DEPARTMENT OF THE AIR FORCE, HILL 

AIR FORCE BASE, Clearfield, UT, Employer

__________________________________________

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Docket No. 19-0513

Issued: September 24, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 8, 2019 appellant, through counsel, filed a timely appeal from a December 7, 

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.3

 

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.

3 The Board notes that following the December 7, 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 her burden of proof to establish that the acceptance 

of her claim should be expanded to include cervical spine conditions consequential to her accepted 

November 8, 2005 employment injury.

FACTUAL HISTORY

On November 23, 2005 appellant, then a 33-year-old electrical equipment repairer, filed a 

traumatic injury claim (Form CA-1) alleging that on November 8, 2005 she injured her right 

shoulder when pulling the arm of a manual press while in the performance of duty. She stopped 

work on January 26, 2006. Appellant resigned from her position effective January 27, 2006. 

OWCP accepted her claim for right shoulder impingement syndrome; right shoulder tendinitis; 

and right shoulder partial rotator cuff tear. Appellant initially received wage-loss compensation 

and medical benefits on the supplemental rolls and then received compensation benefits on the 

periodic rolls as of August 3, 2008.4 She returned to private sector employment in 

September 2009.

Appellant underwent OWCP authorized right shoulder surgeries on June 15, 2006, 

September 25, 2007, and February 28 and July 31, 2008, which were performed by Dr. Brent 

Thomas Watson, a Board-certified orthopedic surgeon.

In May 2010, appellant developed severe neck, right shoulder and right arm pain and was 

diagnosed with cervical disc herniation at C6-7. On June 28, 2010 Dr. Richard I. Zipnick, a Boardcertified orthopedic surgeon, performed cervical spine surgery with anterior cervical discectomy 

and fusion at C6-7. OWCP developed the issue of whether her cervical disc herniation at C6-7

and surgery were causally related to the accepted November 8, 2005 employment injury by either 

direct cause, aggravation, precipitation, or acceleration. It did not authorize appellant’s June 28, 

2010 cervical spine surgery or a 2014 left shoulder surgery.

In a May 10, 2011 report, Dr. Aubrey Swartz, a Board-certified orthopedic surgeon and 

OWCP referral physician, opined that there was no evidence that appellant’s cervical disc 

herniation was causally related to the November 8, 2005 employment injury.

In an October 7, 2014 report, Dr. Michael E. Callahan, another Board-certified orthopedic 

surgeon and OWCP referral physician, opined that appellant’s cervical disc herniation at C6-7 and 

resultant surgery was not causally related to the November 8, 2005 employment injury. He noted 

that appellant had a spontaneous onset of right upper extremity radicular pain in 2009 essentially 

four years from the initial onset of her right shoulder pain with multiple right shoulder surgeries 

due to the employment injury. Dr. Callahan explained that there was no medical indication of a 

disc injury prior to 2009 and 2010, as appellant was working under restrictions, and there was no 

 

4 By decision dated March 7, 2007, OWCP awarded appellant 16 percent permanent impairment of the right upper 

extremity. By decision dated October 8, 2009, it reduced her wage-loss compensation effective October 11, 2009 as

she had the capacity to earn wages in the position as an office manager. By decision dated May 24, 2011, an OWCP 

hearing representative affirmed an October 27, 2010 decision that appellant had not established an additional schedule 

award beyond that already received. 
3

causation for the cervical spine injury. He thus opined that the right shoulder dysfunction did not 

contribute in any way to the cervical spine C6-7 level disc herniation. 

On May 26, 2015 appellant, through counsel, requested that her case be expanded to 

include adhesive capsulitis and cervical disc herniation at C6-7. In support of her claim, she 

submitted an April 20, 2015 report from Dr. Michael T. Giovanniello, a Board-certified 

physiatrist. Dr. Giovanniello opined that, within a reasonable degree of medical certainty,

appellant’s C6-7 disc herniation and resultant surgery occurred secondary to altered body 

mechanics from the accepted November 8, 2005 right shoulder injury due to the repetitive 

increased strain and stress through the cervical spine. He noted that there was specific 

documentation of right paracervical pain during appellant’s first visit in April 2008, she had altered 

body mechanics as a result of the industrial-related right shoulder injury, and also had documented 

increased neck symptoms in January 2009 with a moderate disc herniation at C6-7. 

Dr. Giovanniello explained that her symptoms progressed and worsened in April 2010 secondary 

to the repetitive increased strain through the cervical spine and resulted in the C6-7 disc herniation. 

He also opined that the right shoulder injury caused adhesive capsulitis which resulted in 

significantly restricted range of motion with respect to the right shoulder. Secondary to this 

reduced range of motion, appellant had increased strain and stress through the cervical spine and 

the muscles of the cervical spine in order to perform functional activities. Dr. Giovanniello

explained that over time, those mechanical changes resulted in increased repetitive strain and stress 

through the cervical spine and the C6-7 disc herniation. 

OWCP again referred appellant for a second opinion examination to determine whether 

appellant’s cervical condition was related to the accepted right shoulder injury. In a September 14, 

2017 report, Dr. Terry A. Brown, a Board-certified physiatrist, disagreed with Dr. Giovanniello’s 

opinion that the prominent bulging of C6-7 was related to abnormal mechanics resulting from 

appellant’s initial shoulder injury. He opined that the time frame from the November 2, 2005 

shoulder injury to the onset of the neck pain and ultimate discovery of prominent bulging disc at 

one level was too great for him to attribute, within a reasonable degree of medical certainty, that 

appellant’s employment injury and subsequent surgeries contributed to the cervical disc

conditions. 

By decision dated October 3, 2017, OWCP denied appellant’s request that acceptance of 

her claim should be expanded to include a cervical spine condition. It accorded determinative 

weight to the opinions of Drs. Brown, Callahan, and Swartz, OWCP’s referral physicians.5

On October 9, 2017 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative.

In a January 15, 2018 report, Dr. Watson indicated that he was not convinced that 

appellant’s November 8, 2005 employment injury did not involve her neck as well as her shoulder. 

He noted that from her initial visit she did not have classical shoulder symptoms, but had trapezial 

pain, rhomboid pain, periscapular pain and neck tightness. Dr. Watson indicated that there was 

concern on his part as to whether her injury was related to her “index injury” or a more 

longstanding problem which predated her 2005 claim, but there was nothing in the medical records 

 

5

It noted that the claim was accepted for ankyloses of right shoulder joint, right biceps tendon rupture; complete 

right rotator cuff rupture, disorder of bursae and tendons of right shoulder; pes anserinus tendinitis, and sprain of right 

shoulder and rotator cuff.
4

which predated that timeframe. He indicated that causation was a difficult issue as appellant’s 

symptoms were bimodal in their distribution from the beginning and her shoulder symptoms did 

not resolve completely with shoulder surgery. Dr. Watson opined that appellant had some 

contribution to her neck conditions due to shoulder weakness and that the compensatory changes 

to her shoulder would likely have contributed to her increased pain and periscapular pain. With 

regard to the bulging or herniated discs, he opined that this could have resulted from her “index 

injury” which had not required treatment or was not significant enough to require surgery until 

2009.

Following a preliminary review, in a decision dated February 1, 2018, an OWCP hearing 

representative set aside OWCP’s October 3, 2017 decision. The hearing representative found that 

a conflict of medical evidence existed between Dr. Giovanniello and the second opinion physicians 

which necessitated referral to an impartial medical examiner (IME). 

In a letter dated March 13, 2018, OWCP advised appellant that a conflict in medical 

opinion existed between Dr. Brown, OWCP’s second opinion examiner, and Dr. Giovanniello, 

appellant’s treating physician, regarding whether her C6-7 disc herniation and subsequent surgery 

was causally related to her November 8, 2005 employment injury. It referred her, along with the 

case record, and a statement of accepted facts (SOAF) to Dr. Richard T. Knoebel, a Board-certified 

orthopedic surgeon, for an impartial medical examination. 

OWCP requested that Dr. Knoebel address whether appellant’s current cervical condition 

was caused, aggravated, precipitated, or accelerated by the effects of the accepted shoulder 

conditions or any treatment of the accepted injury as described in the SOAF. It attached definitions 

for these terms. 

In an April 18, 2018 report, Dr. Knoebel noted the history of injury, his examination of 

appellant, the SOAFs and the medical records. He concluded that appellant’s cervical condition, 

which manifested itself five years after the original employment injury in 2010 and had associated 

findings of right C6-7 disc herniation with resultant surgery could not have been reasonably

caused, contributed to, aggravated by, accelerated, or precipitated by the November 8, 2005 

employment injury. Dr. Giovanniello noted the medical records subsequent to the November 8, 

2005 employment incident indicated that appellant had right trapezial pain and right-sided 

paracervical pain with negative Spurling sign for radiculopathy and with no objective evidence of 

neurologic abnormalities of the right upper extremity until her severe radicular pain noted in 

May 2010. Dr. Knoebel opined that Dr. Giovanniello’s postulate that appellant’s dysfunction and 

pain of the right shoulder resulted in biomechanical disorders which precipitated a cervical disc 

herniation was not supported by medical literature. He indicated that degenerative changes were 

seen frequently in the general population with, more often than not, no particular cause or 

precipitating event and that this was reasonably indicated for appellant. Dr. Knoebel also noted 

that there was no scientific literature which indicated an increased incidence of cervical disc 

herniation associated with shoulder injuries; rather, neck pain and problems were common in the 

general population. Thus, he concluded that appellant’s onset of disc herniation with radiculopathy 

in May 2010 was reasonably nonindustrial.6

 

6 Dr. Knoebel also provided an opinion regarding appellant’s onset of left shoulder pain in December 2012 with 

subsequent left shoulder surgery in January 2014.
5

By decision dated June 27, 2018, OWCP denied appellant’s request to expand the 

acceptance of her claim to include the additional diagnoses of a cervical spine injury. It found that 

the special weight of the medical evidence rested with the opinion of Dr. Knoebel, who opined in 

his April 18, 2018 report that the right C6-7 disc herniation and subsequent surgery could not 

reasonably have been caused, contributed to, aggravated by, accelerated or precipitated by the 

November 8, 2005 employment injury.

On July 3, 2018 counsel requested a telephonic hearing before an OWCP hearing 

representative. A telephonic hearing was held on October 22, 2018. 

In an August 20, 2018 letter, Dr. Giovanniello reiterated that appellant’s cervical condition 

was causally related to the November 8, 2005 employment injury. He opined that the cervical 

condition was precipitated by altered body mechanics which resulted in increased strain and stress 

on the cervical spine. The increased strain and stress to the cervical spine eventually resulted in 

pain and ultimately a cervical disc herniation. Dr. Giovanniello also expressed his concern that

Dr. Knoebel did not consider the effects of altered biomechanics from the right shoulder injury to 

the cervical spine.

By decision dated December 7, 2018, an OWCP hearing representative affirmed the 

June 27, 2018 decision. The hearing representative found that Dr. Knoebel’s opinion carried the 

special weight of the medical opinion evidence.

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.7

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.8 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.9 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment factor(s).10

When an injury arises in the course of employment, every natural consequence that flows 

from that injury likewise arises out of the employment, unless it is the result of an independent 

intervening cause attributable to a claimant’s own intentional misconduct.11 Thus, a subsequent 

 

7 R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

8 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

9 M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10 Id.

11 See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson 

& Lex K. Larson, The Law of Workers’ Compensation Law 10-1 (2006).
6

injury, be it 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.12

Section 8123(a) of FECA provides that if there is disagreement between an OWCPdesignated physician and the employee’s physician, OWCP shall appoint a third physician who 

shall make an examination.13 For a conflict to arise the opposing physicians’ viewpoints must be 

of virtually equal weight and rationale.14 Where OWCP has referred the case to an impartial 

medical examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if 

sufficiently well-reasoned and based upon a proper factual background, must be given special 

weight.15

ANALYSIS

The Board finds that this case is not in posture for decision as there remains an unresolved 

conflict in medical opinion.

OWCP determined that a conflict in the medical opinion evidence was created between

Dr. Giovanniello, appellant’s treating physician, who opined that acceptance of appellant’s claim 

should be expanded to include diagnosed cervical conditions (a disc herniation at C6-7 and C7 

radiculopathy), and Dr. Brown, OWCP’s referral physician, who concluded that there was no 

causal relationship between the November 8, 2005 employment injury and appellant’s cervical 

conditions. Dr. Giovanniello opined that altered body mechanics from the accepted employment 

injury caused appellant’s cervical condition, years after the initial injury, which suggests a 

consequential injury.

OWCP properly referred appellant to Dr. Knoebel for an impartial medical examination in 

order to resolve the conflict in medical evidence, pursuant to 5 U.S.C. § 8123(a).16 In an April 18, 

2018 report, Dr. Knoebel noted his review of the SOAF and the medical record and provided 

examination findings. He concluded that appellant’s cervical condition, which manifested itself 

five years after the original employment injury and had associated findings of right C6-7 disc 

herniation with resultant surgery could not reasonably been caused, contributed to, aggravated by, 

accelerated or precipitated by the November 8, 2005 employment injury. Dr. Knoebel noted that 

the medical records subsequent to the November 8, 2005 employment incident indicated that 

appellant had right trapezial pain and right-sided paracervical pain with negative Spurling’s sign 

for radiculopathy and with no objective evidence of neurologic abnormalities of the right upper 

extremity. He related that the medical literature did not support that a right shoulder dysfunction 

resulted in biomechanical disorders which precipitated a cervical disc herniation. Dr. Knoebel

also found that the medical literature did not support an increased incidence of cervical disc 

 

12 S.M., id.; Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

13 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

14 Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

15 Gary R. Sieber, 46 ECAB 215, 225 (1994).

16 See K.C., Docket No. 18-0378 (issued June 18, 2019). 
7

herniation associated with shoulder injuries. He thus concluded that appellant’s onset of disc 

herniation with radiculopathy in May 2010 was reasonably nonindustrial.

While the Board finds that Dr. Knoebel’s report is based on a proper factual background, 

it lacks the medical reasoning necessary to resolve the existing conflict of medical opinion 

evidence.17 He did not explain why appellant’s accepted right shoulder conditions would not have 

caused altered body mechanics and a subsequent cervical condition.18 Moreover, while

Dr. Knoebel referenced medical literature supporting his conclusion regarding causal relationship, 

he did not sufficiently explain how the medical literature applied to appellant’s specific 

circumstances.

19

 To be entitled to the special weight, his opinion must contain clear, persuasive 

rationale on the critical issue in the claim.20 However, Dr. Knoebel’s report does not contain such 

rationale. 

On remand OWCP should obtain a supplemental opinion from Dr. Knoebel regarding 

causal relationship between the November 8, 2005 employment injury and appellant’s cervical 

conditions and whether she sustained a consequential cervical condition due to the November 8, 

2005 employment injury. If Dr. Knoebel is unable or unwilling to elaborate on his conclusion 

regarding causal relationship, or if his supplemental report is also vague, speculative, or lacking in 

rationale, OWCP must submit the case record and a detailed SOAF to a new impartial specialist 

for the purpose of obtaining a rationalized medical opinion on the issue.21 Following this and any 

other development deemed necessary, it shall issue a de novo decision.

CONCLUSION

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

 

17 D.B., Docket No. 17-1845 (issued February 16, 2018).

18 See P.J., Docket No. 18-1738 (issued May 17, 2019).

19 See A.G., Docket No. 18-0281 (issued July 12, 2018); R.O., Docket No. 08-1133 (issued October 8, 2008); 

William C. Bush, 40 ECAB 1064, 1075 (1989) (excerpts from publications lack probative value in resolving medical 

questions unless a physician shows the applicability of the general medical principles discussed in the articles to the 

specific factual situation in a case).

20 A.R., Docket No. 17-1358 (issued February 1, 2018).

21 See J.W., Docket No. 15-0020 (issued August 17, 2016); Harold Travis, 30 ECAB 1071, 1078 (1979).
8

ORDER

IT IS HEREBY ORDERED THAT the December 7, 2018 decision of the Office of 

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

consistent with this decision.

Issued: September 24, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board