United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

SYRACUSE VA MEDICAL CENTER,

Syracuse, NY, Employer

__________________________________________

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Docket No. 21-0711

Issued: December 7, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 9, 2021 appellant filed a timely appeal from a February 22, 2021 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 February 22, 2021 decision, OWCP received additional evidence. 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 a medical condition 

causally related to the accepted May 16, 2020 employment incident.

FACTUAL HISTORY

On May 16, 2020 appellant, then a 54-year-old practical nurse, filed a traumatic injury 

claim (Form CA-1) alleging that on that date, she sustained middle and lower back injuries when 

a patientshe was assisting stumbled and fell into her, while in the performance of duty. She did 

not stop work. OWCP assigned the claim OWCP File No. xxxxxx288.4 

In a medical report dated May 20, 2020, Dr. Warren Wulff, a Board-certified orthopedic 

surgeon, indicated that appellant described a recent incident at work where she tried to catch an 

unstable patient who fell against the wall. He noted her history of back surgery on October 23, 

2019, including lumbar laminectomy and bilateral decompression at L5-S1, and noted that the 

May 16, 2002 employment incident had caused increased pain in her neck and lower back, 

numbness in her feet, and referred pain into both arms and down the left lateral hip and thigh. 

Dr. Wulff obtained x-rays and performed a physical examination which revealed: mildly limited 

cervical and lumbar range of motion due to pain; tenderness over the left and right paraspinal areas 

at L3, L4, and L5; and diminished sensation in the right lower extremity and foot. He diagnosed 

lower back pain, neck pain, and lumbar radiculitis, and opined that the incident described was a 

competent medical cause of appellant’s injuries.

In an August 5, 2018 development letter, OWCP informed appellant of the deficiencies of 

her claim. It advised her of the type of factual and medical evidence needed to establish her claim 

and requested a narrative medical report from her treating physician containing a detailed 

description of findings and a diagnosis, explaining how her work incident caused or aggravated a 

medical condition. OWCP afforded her 30 days to submit the necessary evidence.

OWCP thereafter received medical notes of Dr. Wulff, which predated the May 16, 2020 

employment incident. In a February 6, 2019 note, Dr. Wulff indicated that appellant related 

complaints of neck, mid back and jaw pain, which she attributed to her repetitive work duties as a 

nurse. He further noted that she was already taking a muscle relaxer for preexisting low back pain 

and lumbar radiculitis and diagnosed neck and thoracic spine pain. In follow-up notes dated

April 26 and August 6, 2019, Dr. Wulff indicated that appellant continued to complain of cervical 

spine, thoracic spine, and right upper extremity pain, and he diagnosed cervical radiculopathy, mid 

back pain, and neck pain.

In a narrative report dated August 13, 2020, Dr. Aaron J. Bianco, a Board-certified 

orthopedic surgeon, noted that appellant described a history of assisting an unsteady patient, who 

fell into a wall and dragged her down with him. He noted that she immediately felt as if something 

in her neck and back were broken, and that her back was “on fire.” Dr. Bianco performed a 

physical examination, which revealed limited range of motion of the cervical and lumbar spine 

4 Appellant has a previously accepted January 27, 2009 traumatic injury claim under OWCP File No. xxxxxx704 

for displacement of lumbar intervertebral disc without myelopathy. She also has a previously accepted March 4, 2010 

traumatic injury claim under OWCP File No. xxxxxx015 for thoracic or lumbosacral neuritis or radiculitis and sprain 

of back, lumbar region. 
3

and tenderness over the lumbar paraspinal musculature. He reviewed x-rays of the cervical spine

dated May 20, 2020, which were normal, and of the lumbar spine of even date, which revealed 

mild disc space narrowing at L5-S1. Dr. Bianco also reviewed July 29, 2020 magnetic resonance 

imaging (MRI) studies of the cervical spine, which showed disc bulging at C4-5 and C6-7 and 

lumbar spine, which demonstrated mild bilateral foraminal stenosis at L5 and chronic moderate 

bilateral foraminal stenosis at L5-S1. He diagnosed: lumbosacral radiculitis; lumbar herniated 

disc; cervical stenosis; and lumbar stenosis. Dr. Bianco opined that the force of the patient 

dragging appellant down to the floor as she exerted force to try to keep him standing was the cause 

of the injury to her low back and neck.

By decision dated September 11, 2020, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish causal relationship between the

diagnosed medical conditions and the accepted May 16, 2020 employment incident. 

Consequently, it found she had not met the requirements to establish an injury and/or a medical 

condition.

On September 22, 2020 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review, which took place on January 14, 2021.

Appellant also submitted an updated copy of Dr. Bianco’s August 13, 2020 report, 

containing an October 31, 2020 addendum noting that he had reviewed additional medical records 

and diagnostic studies. Dr. Bianco explained that he had compared an April 26, 2017 MRI scan 

of the cervical spine and a July 23, 2018 MRI scan of the lumbar spine with the July 29, 2020 

studies, and found the results were essentially unchanged. He opined that the weight of the patient,

as he came down, caused strain on the muscles in appellant’s neck and back, which aggravated her 

preexisting March 4, 2010 back injury and a September 1, 2017 neck injury.

By decision dated February 22, 2021, OWCP’s hearing representative affirmed the 

September 11, 2020 decision, finding that the medical evidence of record was insufficient to 

establish causal relationship between appellant’s diagnosed medical conditions and the accepted 

May 16, 2020 employment incident. She also instructed that, upon return of the file to OWCP, 

the current claim should be administratively combined with OWCP File Nos. xxxxxx015 and 

xxxxxx704.

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LEGAL PRECEDENT

An employee seeking benefits under FECA6 has the burden of proof to establish the 

essential elements of his or her claim, including 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 of FECA,7that 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 

5 OWCP administratively combined appellant’s previously accepted claims under OWCP File Nos. xxxxxx015 and 

xxxxxx704 with the present claim under OWCP File No. xxxxxx288, with itserving as the master file.

6

Supra note 1.

7 F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989). 
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employment injury.8 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.9

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. The second component is whether the employment incident 

caused a personal injury and can be established only by medical evidence. 10 

The medical evidence required to establish causal relationship between a claimed specific 

condition and an employment incident is rationalized medical opinion evidence. 11 The opinion of 

the physician must be based on a complete factual and medical background of the employee, 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 incident 

identified by the claimant.12

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship, therefore, involves aggravation, acceleration or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.13

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a medical

condition causally related to the accepted May 16, 2020 employment incident. 

In his narrative report dated August 13, 2020, Dr. Bianco indicated that appellant described 

a history of assisting an unsteady patient at work, who fell into a wall and dragged appellant down 

with him. He diagnosed lumbosacral radiculitis, lumbar herniated disc, cervical stenosis and 

lumbar stenosis. In an October 31, 2020 addendum to the August 13, 2020 report, Dr. Bianco 

reviewed additional medical records and compared MRI studies taken before and after the accepted 

employment incident. He noted the findings were essentially unchanged. Dr. Bianco opined that 

the weight and force of the patient dragging appellant down to the floor as she exerted force to try 

to keep him standing caused a strain on the muscles in her neck and back, which aggravated her 

8 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E.Chadden, Sr., 40 ECAB 312 (1988).

9 P.A., Docket No. 18-0559 (issued January29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

DeloresC.Ellyett, 41 ECAB 992 (1990).

10 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

11 S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); 

Robert G. Morris, 48 ECAB 238 (1996).

12 A.S., Docket No. 19-1955 (issued April9, 2020);LeslieC. Moore, 52 ECAB 132 (2000).

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); 

M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
5

preexisting neck and back injuries. While his report and addendum provided affirmative opinions,

which supported causal relationship, he did not provide a pathophysiological explanation as to 

how the accepted incident either caused or contributed to appellant’s diagnosed conditions.14 The 

Board has consistently held that complete medical rationalization is particularly necessary when 

there are preexisting conditions involving the same body part,15 and has required medical rationale 

differentiating between the effects of the work-related injury and the preexisting condition in such 

cases.16 Thus, the Board finds that the reports from Dr. Bianco are insufficient to establish causal 

relationship.

Dr. Wulff, in his May 20, 2020 report, similarly documented appellant’s complaints of pain 

and burning in her neck, shoulders and lower back, which he noted she attributed to an incident at 

work when she tried to catch an unstable patient who fell against the wall. He further noted her 

history of a prior lumbar laminectomy and bilateral decompression at L5-S1 on October 23, 2019, 

and indicated that she experienced increased neck and lower back pain, numbness in her feet, and 

referred pain into both arms and down the left lateral hip and thigh after the May 16, 2020 

employment incident. Dr. Wulff opined that the employment incident she described was a 

competent medical cause of the injuries. However, he did not provide rationale explaining how 

the accepted employment incident either caused or contributed to appellant’s diagnosed 

conditions.17 Furthermore, although Dr. Wulff February 6, April 26, and August 6, 2019 notes 

documented her prior neck and back complaints, his May 20, 2020 report does not provide medical 

rationale differentiating between the effects of the work-related injury and the preexisting 

conditions.

18

 As noted above, the Board has held that a report is of limited probative value 

regarding causal relationship if it does not contain medical rationale explaining how an 

employment activity could have caused or aggravated a medical condition.19 For these reasons, 

the Board finds that his reports are also insufficient to meet appellant’s burden of proof.

As appellant has not submitted rationalized medical evidence to support her claim that she 

sustained a neck or back condition causally related to the accepted May 16, 2020 employment 

incident, the Board finds that she has not met her burden of proof to establish her claim.

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

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

14 Supra note 12; J.G., Docket No. 20-0009 (issued September 28, 2020).

15 K.R., Docket No. 18-1388 (issued January 9, 2019).

16 See, e.g., J.G., supra note 14; A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 

(issued December 31, 2018); J.B., Docket No. 17-1870 (issued April11, 2018); E.D., Docket No. 16-1854 (issued 

March 3, 2017); P.O., Docket No. 14-1675 (issued December 3, 2015).

17 J.G., id.; Victor J. Woodhams, 41 ECAB 345 (1989).

18 Supra note 16.

19 Supra note 12.
6

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a medical 

condition causally related to the accepted May 16, 2020 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the February 22, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 7, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board