United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.A., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

WEAPONS STATION EARLE, Colts Neck, NJ, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-1652

Issued: May 21, 2021

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On September 22, 2020 appellant, through counsel, filed a timely appeal from an April 2, 

2020 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.

 

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 his burden of proof to expand the acceptance of the 

claim to include lumbar radiculopathy, lumbar degenerative disc disease, and neurological changes

in the extremities causally related to his accepted January 18, 2018 employment injury.

FACTUAL HISTORY

On January 18, 2018 appellant, then a 54-year-old materials handler, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he strained and bruised his low back when he 

slipped on ice and fell backward on concrete stairs while in the performance of duty. He stopped 

work on January 19, 2018.

In a January 29, 2018 report, Dr. Nasser Ani, a Board-certified orthopedic surgeon, 

recounted appellant’s complaints of lower back pain and numbness and tingling in the lower 

extremities following a January 18, 2018 slip and fall incident at work. He reported lumbar 

examination findings of mildly limited range of motion and muscle stiffness. Straight leg raise 

testing was positive on the left. Dr. Ani diagnosed lumbar intervertebral disc displacement, lumbar 

intervertebral disc degeneration, and lumbar radiculopathy.

In a January 29, 2018 attending physician’s report (Form CA-20), Dr. Ani noted a 

January 18, 2018 date of injury. He reported that an x-ray scan showed abnormal findings of 

degenerative disc disease at L4-5 and L5-S1 with disc bulge and herniation at L3-S1, intervertebral 

disc degeneration, lumbar radiculopathy, and lumbar spondylosis. Dr. Ani checked a box marked 

“Yes” indicating that appellant’s condition was caused or aggravated by the described employment 

activity. He noted “aggravated by slip [and] fall at work.”

In a February 1, 2018 work capacity evaluation form (Form OWCP-5c), Dr. Ani indicated 

that appellant was unable to work.

In a February 14, 2018 development letter, OWCP informed appellant that, when his claim 

was first received, it appeared to be a minor injury that resulted in minimal or no lost time from 

work and; therefore, payment of a limited amount of medical expenses was administratively 

approved without formal consideration of the merits of his claim. It, however, reopened his claim 

for consideration of the merits because he had not yet returned to full-time work, and that his claim 

would now be formally adjudicated. OWCP advised appellant of the deficiencies of his claim, 

requested additional factual and medical evidence, and provided a questionnaire for his 

completion. It afforded him 30 days to respond.

OWCP subsequently received reports and referral notes dated February 12 through

March 19, 2018 by Dr. Ani. Dr. Ani recounted the January 18, 2018 employment incident and 

noted appellant’s continued complaints of lumbar pain with numbness and tingling in the lower 

extremities. He provided examination findings and diagnosed lumbar intervertebral disc 

displacement, lumbar intervertebral disc degeneration, lumbar radiculopathy, and lumbar 

spondylolisthesis.
3

On February 20, 2018 appellant underwent a lumbar spine magnetic resonance imaging 

(MRI) scan, which revealed disc bulges at L3-4, L4-5, and L5-S1 with herniation at L3-4 and L4-

5, Grade 1 listhesis at L5-S1, and moderate L3-4 central canal stenosis.

In a March 5, 2018 work status form, Dr. Ani indicated that appellant could work with 

restrictions of no pushing, no pulling, and no heavy manual labor.

On March 5, 2018 appellant accepted a light-duty job offer with the employing 

establishment.

In a March 21, 2018 letter, Dr. Ani related that on January 29, 2018 he examined appellant 

and diagnosed lumbar disc herniation, degeneration, and lumbar radiculopathy. He opined that 

these diagnoses were directly caused by appellant’s traumatic injury that occurred at work when 

he slipped and fell down on stairs. Dr. Ani provided examination findings. He explained that a 

diagnosis of disc herniation would occur with a sudden jerking of the spine, which occurred when 

appellant slipped and fell due to black ice. Dr. Ani indicated that this mechanism of injury was 

synonymous with the description appellant provided and would also causes a spondylolisthesis 

when the vertebra slips forward and the spine becomes unstable. He reported that appellant’s 

preexisting lumbar condition was aggravated by the January 18, 2018 work accident.

In a March 23, 2018 decision, OWCP denied appellant’s claim. It accepted that the 

January 18, 2018 incident occurred as alleged and that lumbar conditions had been diagnosed; 

however, it denied his claim, finding that he had had not established causal relationship between 

the accepted employment incident and the diagnosed conditions.

On April 17, 2018 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. By decision dated July 25, 2018, the hearing representative set 

aside the March 23, 2018 decision and remanded the case for additional development of the 

medical evidence.

Appellant submitted lumbar operative reports dated December 13, 2002 and April 20, 

2005, which indicated that he underwent left L4-5 hemilaminectomy, left medial facetectomy, and 

left microlumbar discectomy.

OWCP subsequently referred appellant, along with a statement of accepted facts (SOAF), 

a copy of the case record, and a series of questions, to Dr. Howard M. Pecker, a Board-certified 

orthopedic surgeon, for a second opinion evaluation regarding whether appellant sustained a 

medical condition causally related to the January 18, 2018 employment incident. In a 

September 27, 2018 report, Dr. Pecker accurately described the January 18, 2018 employment 

incident and discussed the medical records that he had reviewed. He indicated that appellant’s low 

back pain had markedly improved. Upon examination of appellant’s lumbar spine, Dr. Pecker 

observed no paravertebral spasm. Neurologic testing of the lower extremities revealed decreased 

strength in the right ankle and cavus deformity of the right foot. Dr. Pecker reported that appellant 

sustained a temporary aggravation of preexisting lumbar degenerative disease on January 18, 2018 

that would have ceased after three months of the slip and fall injury.

By decision dated October 17, 2018, OWCP accepted appellant’s claim for temporary 

aggravation of preexisting degenerative changes of the lumbar spine.
4

By separate decision of even date, OWCP denied appellant’s claim for lumbar 

radiculopathy, lumbar degenerative disc changes, and neurological changes in the extremities. It 

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

these diagnosed conditions and the accepted January 18, 2018 employment incident.

On October 25, 2018 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on March 11, 2019.

Appellant continued to receive treatment from Dr. Ani and submitted reports and referral 

notes dated December 3, 2018 through January 24, 2019. Dr. Ani recounted appellant’s 

complaints of low back pain, numbness, and tingling in the lower extremities. He provided 

examination findings and diagnosed intervertebral disc displacement of the lumbar spine, 

intervertebral disc degeneration of the lumbar spine, lumbar radiculopathy, lumbar 

spondylolisthesis, and lumbar spondylolysis. In a December 26, 2018 report, Dr. Ani noted his 

disagreement with Dr. Pecker’s September 27, 2018 report and asserted that appellant also 

sustained lumbar herniation and listhesis as injuries related to the January 18, 2018 work incident.

In a March 5, 2019 letter, Dr. Bruce R. Rosenblum, a Board-certified neurosurgeon, 

indicated that appellant was under his care for lumbar radiculopathy and was scheduled for lumbar 

spine surgery on March 8, 2019.

By decision dated April 16, 2019, an OWCP hearing representative set aside the 

October 17, 2018 decision. He found that a conflict in medical opinion evidence existed between

Dr. Ani, appellant’s treating physician, and Dr. Pecker, an OWCP second opinion examiner,

regarding whether appellant sustained additional conditions causally related to the January 18, 

2018 employment injury. As such, the hearing representative remanded the case for referral for 

an impartial medical examination in order to resolve the conflict of medical evidence.

OWCP subsequently referred appellant, along with an updated SOAF,3for an impartial 

medical examination to resolve the conflict of medical evidence. In a May 27, 2019 report,

Dr. Ian B. Fries, a Board-certified orthopedic surgeon serving as an impartial medical examiner 

(IME), noted his review of the SOAF and appellant’s medical records. He noted that the SOAF 

did not include appellant’s accepted diagnosis. Dr. Fries described the January 18, 2018 work 

injury and noted that appellant had previous lumbar surgeries in 2002 and 2005. Upon physical 

examination, he observed that appellant walked with a normal gait, but could not tiptoe on the 

right. Examination of appellant’s lower extremities revealed clear atrophy of his right calf, 

compared to the left, and mild varus in his left knee. Dr. Fries reported that lumbar examination 

demonstrated full range of motion and no tenderness about his low back. He indicated that current 

findings were consistent with chronic preexisting problems temporarily aggravated on 

January 18, 2018. Dr. Fries explained that no mechanism of injury could cause multilevel 

degenerative changes. He also reported that, while the neurological changes in the right lower 

extremity were new, these findings were not consistent with a slip and fall trauma. In response to 

OWCP’s questions, Dr. Fries indicated that he could not provide all diagnoses or conditions 

 

3 The SOAF, dated April 18, 2019, did not mention accepted appellant’s claim for temporary aggravation of 

preexisting degenerative changes of the lumbar spine.
5

causally related to the January 18, 2018 employment incident without recent medical records, 

including MRI scan and operative findings.

In a June 4, 2019 letter, Dr. Rosenblum indicated that appellant was status post lumbar 

spine surgery and may return to light duty on June 4, 2019.

In a June 24, 2019 development letter, OWCP requested that appellant provide a copy of 

the March 8, 2019 operative report and all medical records from Dr. Rosenblum. It afforded him 

30 days to submit the requested information.

On July 19, 2019 OWCP received Dr. Rosenblum’s March 8, 2019 operative report, which 

noted preoperative diagnoses of status post prior left L4-5 decompression and microdiscectomy 

with recurrent left lumbar radiculopathy and left L3-4 lateral recess subarticular neural foraminal 

stenosis. Appellant also submitted a March 2, 2019 lumbar spine MRI scan, which revealed stable 

grade 1 anterolisthesis of L5 upon S1, prior left hemilaminectomy at L4-5 with no residual or 

recurrent disc herniation, and moderate-to-severe canal stenosis, as well as left paracentral disc 

herniation with annular fissure at L3-4.

In a July 30, 2019 letter, Dr. Rosenblum indicated that appellant was status post lumbar 

spine surgery and was to remain on light-duty sedentary work for an additional eight weeks.

In an August 16, 2019 addendum report, Dr. Fries noted his review of the July 22, 2019 

SOAF and additional medical records. He indicated that the March 8, 2019 surgery revealed 

findings consistent with residuals of prior operations and spinal degeneration and no specific 

traumatic injury findings. Dr. Fries explained that no disc herniation was noted during the surgery. 

In response to OWCP’s questions, he responded that there were no additional lumbar spine or 

lower extremity conditions causally related to the January 18, 2018 work injury.

By decision dated September 13, 2019, OWCP denied expansion of appellant’s claim to 

include degenerative disc changes of the lumbar spine, lumbar radiculopathy, and neurological 

changes in the extremities. It found that the special weight of the medical evidence rested with

Dr. Fries, the IME, who determined in May 27 and August 16, 2019 reports that appellant did not 

have any disability, residuals nor additional conditions causally related to the accepted January 18, 

2018 employment injury.

On September 19, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on January 17, 2020.

By decision dated April 2, 2020, the hearing representative affirmed the September 13, 

2019 decision.
6

LEGAL PRECEDENT

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.4

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.5 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.6 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 

employment injury.7

Section 8123(a) of FECA provides that, if there is a disagreement between the physician 

making the examination for the United States and the physician of the employee, OWCP shall 

appoint a third physician (known as a referee physician or IME) who shall make an examination.8 

This is called a referee examination and OWCP will select a physician who is qualified in the 

appropriate specialty and who has no prior connection with the case.9 When there exists opposing 

medical reports of virtually equal weight and rationale and the case is referred to an IME for the 

purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized 

and based upon a proper factual background, must be given special weight.10

ANALYSIS

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

the claim to include lumbar radiculopathy, lumbar degenerative disc disease, and neurological 

changes in the extremities causally related to his accepted January 18, 2018 employment injury.

OWCP properly determined that a conflict in medical evidence existed between appellant’s 

treating physician, Dr. Ani, who diagnosed additional employment-related conditions, and

Dr. Pecker, who determined that the only condition causally related to the January 18, 2018 

employment incident was temporary aggravation of preexisting lumbar degenerative disease, 

 

4

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., 

Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

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

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

7

Id.

8 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

9 20 C.F.R. § 10.321.

10 K.D., Docket No. 19-0281 (issued June 30, 2020); J.W., Docket No. 19-1271 (issued February 14, 2020); 

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).
7

resolved. It referred him to Dr. Fries for an impartial medical examination to resolve the conflict 

in medical evidence, pursuant to 5 U.S.C. § 8123(a).

In a May 27, 2019 report, Dr. Fries described the January 18, 2018 work injury and noted 

appellant’s preexisting lumbar injury. He reported that examination of appellant’s lower 

extremities revealed atrophy of the right calf, compared to the left, and mild varus in the left knee. 

Examination of appellant’s lumbar spine demonstrated full range of motion and no tenderness 

about his low back. Dr. Fries indicated that his current findings were consistent with chronic 

preexisting problems temporarily aggravated on January 18, 2018. He explained that, while the 

neurological changes in the right lower extremity were new, these findings were not consistent 

with a slip and fall trauma. In an August 16, 2019 addendum report, Dr. Fries noted his review of 

the updated SOAF and additional medical records. He concluded that there were no additional 

lumbar spine or lower extremity conditions causally related to the January 18, 2018 work injury. 

The Board finds that Dr. Fries accurately described the accepted employment injury and 

noted his review of the medical record, including the updated July 22, 2019 SOAF. Dr. Fries

performed a thorough clinical examination and provided detailed findings. He is a specialist in 

the appropriate field and reached a reasoned conclusion regarding whether appellant’s claim 

should be expanded, noting that there was no evidence to find causal relationship between 

additional lumbar and lower extremity conditions and the accepted employment injury.11 

Dr. Fries’ opinion, as set forth in his May 27 and August 16, 2019 reports, constitute probative and 

reliable evidence. The Board, therefore, finds that Dr. Fries’ opinion is entitled to the special 

weight accorded to an IME with regard to the issue of whether acceptance of appellant’s claim 

should be expanded to include additional lumbar and lower extremity conditions.12 Consequently, 

appellant has not met his burden of proof to expand the accepted conditions of his claim.

On appeal counsel argues that Dr. Fries’ medical opinion was not sufficiently rationalized 

to exclude additional lumbar conditions, specifically paracentral disc herniation at L3-4. As 

explained above, however, Dr. Fries’ medical opinion was sufficiently rationalized to establish 

that appellant did not sustain additional conditions causally related to the accepted January 18, 

2018 employment injury and, thus, was entitled to the special weight of the medical evidence.

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.

CONCLUSION

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

the claim to include lumbar radiculopathy, lumbar degenerative disc disease, and neurological 

changes in the extremities causally related to his accepted January 18, 2018 employment injury.

 

11 See R.R., Docket No. 19-0086 (issued February 10, 2021); see also D.S., Docket No. 18-0353 (issued 

February 18, 2020).

12 W.C., Docket No. 19-1740 (issued June 4, 2020); M.M., Docket No. 16-1655 (issued April 4, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the April 2, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 21, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees' Compensation Appeals Board

Janice B. Askin, Judge

Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees' Compensation Appeals Board