United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.L., Appellant

and

DEPARTMENT OF JUSTICE, DRUG 

ENFORCEMENT ADMINISTRATION, 

Springfield, VA, Employer

__________________________________________

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Docket No. 19-1053

Issued: January 8, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On April 12, 2019 appellant, through counsel, filed a timely appeal from a March 25, 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 to consider 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 March 25, 2019 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 her diagnosed 

conditions were causally related to the accepted March 19, 2014 employment incident.

FACTUAL HISTORY

This case was previously before the Board.4 The facts and circumstances as set forth in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows. 

On March 24, 2014 appellant, then a 50-year-old account technician, filed a traumatic 

injury claim (Form CA-1) alleging that on March 19, 2014 she sustained an injury when she was 

struck by a gate as she was entering the worksite while in the performance of duty. She reported 

getting hit on the nose by the gate and sustaining a neck and shoulder injury, nose fracture, extreme 

swelling of the face, and a bruised neck and collar bone. Appellant first sought emergency medical

treatment on March 19, 2014. 

In an April 29, 2014 progress note, Dr. Matthew Clarke, Board-certified in family 

medicine, noted that he had treated appellant for neck and back complaints. 

In a May 21, 2014 attending physician’s report (Form CA-20) and a prescription note, John 

Mullin, a certified physician assistant, documented appellant’s treatment. 

In a May 13, 2014 report, Dr. Lily Belfi, a Board-certified diagnostic radiologist, provided 

diagnostic findings pertaining to an x-ray of the cervical spine. An impression of mild grade 1 

retrolisthesis of C4-5, moderate left-sided neural foraminal narrowing at C4-5, and mild left-sided 

neuroforaminal narrowing at C3-4 and C5-6 was noted. 

In a June 18, 2014 note, Dr. Jean Xiao, Board-certified in internal medicine, reported that 

appellant was unable to work due to a work-related condition sustained on March 19, 2014. He 

diagnosed neck and back pain and provided work restrictions. 

In a development letter dated June 24, 2014, OWCP notified appellant that her claim was 

initially administratively handled to allow medical payments as it appeared to involve a minor 

injury resulting in minimal or no lost time from work. However, appellant’s claim had been 

reopened because a claim for wage-loss compensation had been received. OWCP advised her of 

the type of medical and factual evidence needed to establish her claim and afforded her 30 days to 

respond.

In a June 18, 2014 narrative report, Dr. Xiao reported that appellant sustained a workrelated injury on March 19, 2014. He noted that she sustained injury to her neck, back, face, 

shoulder, and hands when a gate fell on her.

In a June 29, 2014 form report, Dr. Xiao again reported that appellant was injured on 

March 19, 2014 when she was performing accounting work. He diagnosed unspecified backache, 

cervicalgia, and unspecified derangement of joint of shoulder region. When asked if the incident 

 

4 Docket No. 16-0342 (issued July 26, 2016).
3

as described by appellant was the competent medical cause of her injury/illness, Dr. Xiao checked 

the box marked “yes.”

In a July 9, 2014 Form CA-20, Dr. Michael Hearns, Board-certified in occupational 

medicine, diagnosed traumatic neck pain, headaches, bilateral shoulder pain, and chest wall pain. 

He noted that the injury occurred on March 19, 2014 when appellant was hit by a gate at her job.

Dr. Hearns checked the box marked “no” when asked if the condition was caused or aggravated 

by the employment incident. 

By decision dated July 25, 2014, OWCP denied appellant’s claim finding that the evidence 

of record was insufficient to establish an injury because she had not submitted medical evidence 

containing a diagnosis in connection with the accepted March 19, 2014 employment incident. It 

noted that the medical evidence submitted contained a diagnosis of “pain” which is a symptom, 

but not a diagnosed medical condition. 

On August 11, 2014 appellant requested review of the written record before a

representative of OWCP’s Branch of Hearings and Review.

In support of her claim, appellant submitted medical reports dated March 19, 2014 by

Dr. Resa Lewiss, Board-certified in emergency medicine. Dr. Lewiss reported that appellant was 

at work when a gate hit her on the nose and left shoulder. She diagnosed contusion at multiple 

sites and noted the external cause of injury as accident on industrial premises. 

Handwritten treatment notes dated March 26 through August 13, 2014 were also 

submitted. While many of the reports did not contain a legible signature, it appears that some of 

the reports were signed by Mr. Mullin.

In a June 5, 2014 diagnostic report, Dr. Belfi reported that an x-ray of the 

acromioclavicular (AC) joint, facial bones, left shoulder, right shoulder, chest, and lumbar spine 

revealed no acute fracture or dislocation. 

In an August 11, 2014 Form CA-20, Dr. Hearns diagnosed herniated disc of the neck and 

back. He checked the box marked “no” when asked if the conditions were caused or aggravated 

by the employment activity, noting that appellant was hit by a gate. 

In a September 26, 2014 report, Dr. Puneet S. Pawha, a Board-certified diagnostic 

radiologist, provided findings pertaining to a magnetic resonance imaging (MRI) scan of the 

cervical spine.

In an October 9, 2014 report, Dr. Houman Danesh, Board-certified in physical medicine 

and rehabilitation, diagnosed cervical radiculopathy and left shoulder impingement.

By decision dated February 18, 2015, OWCP’s hearing representative affirmed the July 25, 

2014 decision finding that the evidence of record failed to provide a medical diagnosis which could 

be reasonably attributed to the March 19, 2014 employment incident.

On June 25, 2015 appellant, through counsel, requested reconsideration. Counsel argued 

that the medical reports submitted were not properly considered or developed by OWCP and that 

they established that her injury was causally related to the March 19, 2014 employment incident. 
4

He referenced Dr. Xiao’s June 19, 2014 report as the basis for his claim. Counsel noted that the 

physician provided a diagnosis of cervicalgia and also established that the diagnosed medical 

condition was causally related to the work injury. No other evidence was submitted with his

arguments.

By decision dated November 3, 2015, OWCP denied appellant’s request for 

reconsideration finding that she neither raised substantive legal questions nor included relevant 

and pertinent new evidence.

On December 16, 2015 appellant, through counsel, appealed to the Board. By decision 

dated July 26, 2016, the Board affirmed the November 3, 2015 decision finding that OWCP 

properly denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C. 

§ 8128(a).

5

 

On May 8, 2017 appellant requested reconsideration of the claim before OWCP.

In support of her claim, appellant submitted medical reports dated November 23 and

December 10, 2015 from Dr. Stephen Silver, a Board-certified orthopedic surgeon. Dr. Silver 

described the March 19, 2014 employment incident when she was walking into work through two 

gates when the second gate fell and hit her hard; crushing her chest, head, and face. Appellant had 

sought treatment for her conditions, but complained of continued neck and shoulder pain. 

Dr. Silver reviewed diagnostic testing pertaining to the bilateral shoulders and recommended right 

and left shoulder arthroscopy. A December 4, 2015 MRI scan of the right and left shoulder was 

provided.

In a January 14, 2016 operative report, Dr. Silver noted a preoperative diagnosis of left 

shoulder impingement, AC joint degenerative joint disease, and labral tear. He reported a 

postoperative diagnosis of superior labrum complex tear, subacromial bone spur, and AC joint 

spur. Appellant underwent surgical arthroscopy of the left shoulder, debridement, biceps tenotomy 

of detached superior labrum, subacromial decompression, and distal clavicle excision. 

In a June 8, 2017 operative report, Dr. Silver noted that he had performed appellant’s right 

shoulder arthroscopy for the diagnosed conditions of right shoulder superior labral tear from

anterior to posterior, impingement, and AC joint degenerative joint disease.

By decision dated November 16, 2017, OWCP reviewed the merits of the claim, but denied 

modification of its prior decision, finding that the evidence of record failed to provide a medical 

diagnosis which could be reasonably attributed to the March 19, 2014 employment incident. 

On February 2, 2018 appellant requested reconsideration.

In support of her claim, appellant submitted a January 19, 2018 narrative report from

Dr. Silver. Dr. Silver reported that she was under his care for treatment of left and right shoulders

due to a work-related injury in March 2014. He reported first evaluating appellant on 

November 23, 2015 for a consultation when she was diagnosed with impingement of both 

shoulders, indicating partial rotator cuff and labral tears. Dr. Silver explained that her conditions 

 

5 Supra note 2.
5

required left and right shoulder surgery. He opined that appellant’s conditions were causally 

related to her March 19, 2014 employment incident.

By decision dated May 1, 2018, OWCP affirmed the November 16, 2017 decision, as 

modified, finding that the evidence of record established a diagnosed medical condition. It denied 

the claim, however, for failing to establish that the diagnoses were causally related to the accepted 

March 19, 2014 employment incident.

On March 20, 2019 appellant, through counsel, requested reconsideration of the May 1, 

2018 decision. Counsel submitted a January 28, 2019 medical report from Dr. Silver in support 

of the claim. 

In his January 28, 2019 report, Dr. Silver described appellant’s March 19, 2014 

employment incident. He discussed her course of treatment while under his care since 

November 23, 2015, reviewed diagnostic studies, and summarized the results of her left and right 

shoulder arthroscopy. Dr. Silver opined that appellant suffered an injury on March 19, 2014 when 

a gate fell on top of her, injuring both shoulders. He reported that his examination findings and

the MRI scans were consistent with bilateral shoulder labral tears and impingement which was 

trauma induced. Dr. Silver further noted that appellant underwent arthroscopy of the left shoulder 

on January 14, 2016 and the right shoulder on June 8, 2017, which confirmed the labral tears and 

impingement diagnoses. He opined that the injuries to both shoulders as described in his report 

were directly and causally related to the employment injury suffered on March 19, 2014.

By decision dated March 25, 2019, OWCP denied modification of the May 1, 2018 

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,6that 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.7 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.8

To determine if an employee has sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established. Fact of injury 

consists of two components that must be considered in conjunction with one another. The first 

 

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

153 (1989).

7

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

ECAB 312 (1988).

8 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

component is whether the employee actually experienced the employment incident that allegedly 

occurred.9 The second component is whether the employment incident caused a personal injury.10 

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve.11 The opinion of the physician must be based on a complete factual and 

medical background, 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.12

ANALYSIS

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

diagnosed conditions were causally related to the accepted March 19, 2014 employment incident.13 

The record reflects that following the March 19, 2014 employment incident appellant was 

seen by Dr. Lewiss in a hospital emergency room. Dr. Lewiss’ March 19, 2014 hospital report 

documented appellant’s history of injury, immediate medical treatment following the injury, and 

noted diagnoses of multiple site contusions. However, she merely repeated the history of injury 

as reported by appellant, without providing her own opinion regarding whether appellant’s 

condition was work related. The mere recitation of patient history does not suffice for purposes 

of establishing causal relationship between a diagnosed condition and the employment incident.14

Appellant was then treated by Drs. Clark and Xiao. Dr. Clark’s April 29, 2014 progress 

note and Dr. Xiao’s reports dated June 18 through 29, 2014 lack probative value as these reports 

failed to provide a firm medical diagnosis which could be related to the employment incident.15 

While Dr. Xiao’s reports noted pain, backache and cervicalgia, pain and cervicalgia are considered 

symptoms, not diagnoses and do not constitute a basis for payment of compensation.16

Dr. Hearns’ July 9 and August 11, 2014 form reports also do not provide support for a 

work-related injury as he diagnosed herniated disc of the neck and back and checked the box 

marked “no” when asked if the condition was caused or aggravated by the employment incident 

when appellant was hit by a gate. As he does not relate her conditions to the March 19, 2014 

employment incident, his reports are of no probative value.17 

 

9 Elaine Pendleton, 40 ECAB 1143 (1989).

10 M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989). 

11 See K.C., Docket 17-1693 (issued October 29, 2018); Robert G. Morris, 48 ECAB 238 (1996).

12 S.S., Docket No. 18-1488 (issued March 11, 2019). 

13 R.V., Docket No. 18-1037 (issued March 26, 2019).

14 J.G., Docket No. 19-1116 (issued November 25, 2019); see J.G., Docket No. 17-1382 (issued October 18, 2017).

15 A.B., Docket No. 18-0577 (issued October 10, 2018).

16 T.G., Docket No. 19-09904 (issued November 25, 2019); P.H., Docket No. 07-1016 (issued August 15, 2007).

17 See P.D., Docket No. 18-1461 (issued July 2, 2019).
7

While the October 9, 2014 report of Dr. Danesh provided a diagnosis of cervical 

radiculopathy and left shoulder impingement, his opinion is of no probative value as he did not 

provide a history of injury and he failed to provide an opinion on the cause of appellant’s 

condition.18 The Board has held that medical evidence that does not offer an opinion regarding 

the cause of an employee’s condition is of no probative value.19 

OWCP also received medical reports dated November 23, 2015 through January 28, 2019 

from Dr. Silver. Dr. Silver diagnosed bilateral shoulder impingement and labral tears, which he 

opined were causally related to the March 19, 2014 employment incident. The Board finds that 

the reports of Dr. Silver are not well-rationalized.20 While Dr. Silver provided a firm medical 

diagnosis pertaining to the shoulders, he failed to provide a sufficient explanation, based on 

medical rationale, on the cause of appellant’s condition, only generally noting that the labral tears 

and impingement were trauma-induced.21 The Board has held that medical evidence that does not 

offer supporting rationale regarding the cause of an employee’s condition is of limited probative 

value.22 Dr. Silver’s general statement on causation failed to provide a sufficient explanation as 

to the mechanism of injury pertaining to this traumatic injury claim, namely, how a falling gate 

would cause tears and impingement to both shoulders.

23

 Without providing a rationalized opinion 

explaining how physiologically the accepted employment incident caused or contributed to the 

diagnosed conditions, his opinion is of limited probative value.24 As such, Dr. Silver’s report is 

insufficient to meet appellant’s burden of proof.25

While OWCP also received a number of diagnostic studies, the Board has held that 

diagnostic studies lack probative value as they do not address whether the employment incident 

caused any of the diagnosed conditions.26 Such reports are therefore insufficient to establish 

appellant’s claim.

 

18 K.G., Docket No. 18-1691 (issued May 1, 2019).

19 M.V., Docket No. 18-1132 (issued September 16, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); 

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009). 

20 R.C., Docket No. 19-0376 (issued July 15, 2019).

21 H.A., Docket No. 18-1466 (issued August 23, 2019).

22 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

23 See T.H., Docket No. 18-1736 (issued March 13, 2019); R.R., Docket No. 16-1901 (issued April 17, 2017).

24 D.W., Docket No. 19-0968 (issued October 9, 2019).

25 K.L., Docket No. 18-1018 (issued April 10, 2019).

26 F.D., Docket No. 19-0932 (issued October 3, 2019). 
8

The physician assistant notes are also of no probative value. Such healthcare providers are 

not considered “physician[s]” as defined under FECA.27 Consequently, their medical findings 

and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits.28 

The Board finds that the record lacks rationalized medical evidence establishing causal 

relationship between the March 19, 2014 employment incident and appellant’s diagnosed 

conditions.29 Thus, appellant has not met her burden of proof.

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s 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 her burden of proof to establish that her 

diagnosed conditions were causally related to the accepted March 19, 2014 employment incident. 

 

27 5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. K.C., Docket No. 19-0834 (issued October 28, 2019); E.T., Docket No. 17-0265 (issued May 25, 2018) 

(physician assistants are not considered physicians under FECA). 

28 N.B., Docket No. 19-0221 (issued July 15, 2019).

29 K.L., Docket No. 18-1029 (issued January 9, 2019).
9

ORDER

IT IS HEREBY ORDERED THAT the March 25, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 8, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board