United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.H., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

SHIPYARD, Portsmouth, VA, Employer

__________________________________________

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Docket No. 21-0579

Issued: December 9, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 3, 2021 appellant, through counsel, filed a timely appeal from a February 8, 

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 8, 2021 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 his burden of proof to establish that acceptance of 

his claim should be expanded to include cervical myelopathy with radiculopathy and lumbar 

radiculopathy causally related to the accepted December 10, 2015 employment injury.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision and order are incorporated herein by reference. The relevant facts 

are as follows.

On January 8, 2016 appellant, then a 64-year-old electrician, filed a traumatic injury claim 

(Form CA-1) alleging that on December 10, 2015 he bruised his right hip when he tripped and fell, 

landing on a two-way radio in his right pocket. 

An August 2, 2016 magnetic resonance imaging (MRI) scan of the lumbar spine revealed 

foraminal stenosis from L3 to S1, central canal stenosis, and grade one anterolisthesis from L3 to 

5 with advanced facet arthropathy. An MRI scan of the cervical spine dated November 15, 2016 

revealed advanced cervical degenerative disc disease with cord impingement, findings suggestive 

of myelomalacia, and high-grade foraminal stenosis with nerve root impingement bilaterally. 

In a December 7, 2016 duty status report (Form CA-17), Dr. Karl F. Bowman, Jr., a Boardcertified orthopedic surgeon, diagnosed facet arthropathy of the lumbar spine, lumbar spinal 

stenosis and spondylosis, and right hip osteoarthritis. He indicated that appellant was unable to 

work.

In a December 13, 2016 attending physician’s report (Form CA-20), Dr. Mark B. Kerner, 

a Board-certified orthopedic surgeon, diagnosed cervical myelopathy and checked a box marked 

“Yes” indicating that the condition was caused or aggravated by employment, noting that 

appellant’s symptoms had begun after an employment injury.5In a January 20, 2017 CA-20 form, 

he diagnosed cervical myelopathy and radiculopathy and again checked a box marked “Yes”

indicating that the condition was caused or aggravated by the described employment activity of a 

fall at work. Dr. Kerner related that after the incident appellant had experienced increasing neck 

pain and arm pain with numbness. He indicated that the cord contusion resulted in a spinal cord 

injury with “central cord syndrome.”

On November 22, 2016 Dr. Kerner noted that appellant had complained of increasing neck 

and arm pain and numbness after a fall at work. He diagnosed severe cervical stenosis and “areas 

of gliosis, clearly myelopathic with ongoing cervical stenosis with a cord contusion causing what 

4 Docket No. 18-1238 (issued January 18, 2019); Order Remanding Case, Docket No. 19-1801 (issued 

September 9, 2020).

5

In December 7, 2016 and January 17, 2017 CA-20 forms, Dr.Bowman diagnosed lumbar spine pain and facet 

arthropathy, cervical radiculopathy, bilateral carpal tunnel syndrome, right hip osteoarthritis, and stenosis of the 

lumbar spine. 
3

appears to be a cord injury with central cord syndrome.” Dr. Kerner recommended a 

decompression and fusion.

On December 2, 2016 Dr. Kerner performed an anterior cervical discectomy and fusion 

and multiple levels.6 

By decision dated April 17, 2017, OWCP denied appellant’s traumatic injury claim. It 

found that the medical evidence was insufficient to establish a diagnosed condition caused or 

aggravated by the accepted employment incident. 

In an April 27, 2017 report, Dr. Bowman related that he had initially evaluated appellant 

on May 16, 2016 for cervical radiculopathy, cervical arthritis, and carpal tunnel syndrome. He 

noted that x-raysrevealed advanced cervical arthritis that compressed the spinal cord necessitating 

surgery. Dr. Bowman discussed appellant’s history of a fall on December 10, 2015 at work. He 

opined that the “fall certainly could have aggravated [appellant’s] preexisting medical condition 

to the point that it would have exceeded a symptom threshold requiring an intervention for his 

resolution of neurological symptoms.”

On May 23, 2017 appellant requested reconsideration. 

In a July 27, 2017 CA-20 form, Dr. Kerner diagnosed cervical myelopathy and 

radiculopathy and checked a box marked “Yes” indicating that the condition was caused or 

aggravated by the described employment activity of a fall at work. He found that the injury to the 

spinal cord had caused in central cord syndrome.

By decision dated August 21, 2017, OWCP denied modification of its April 17, 2017 

decision. 

In a January 30, 2018 report, Dr. David D. Alcantara, a Board-certified physiatrist, noted 

that appellant had experienced an employment-related fall on December 10, 2015 causing cervical 

myelopathy due to severe cord compression treated with a decompression and fusion at multiple 

levels.7 Subsequent to the injury, he “presented as myelopathic, meaning an upper motor neuron 

injury, concordant with [a] neck injury, resulting in signs of decreased strength, sensation, and 

hyperreflexia.” Dr. Alcantara related that appellant had preexisting cervical spinal stenosis that 

was often an asymptomatic condition. He asserted that appellant’s fall had caused a nerve injury, 

noting that the “forces sustained during a fall combined with central stenosis can compress and/or 

strike the spinal cord with sufficient force to injure it.” Dr. Alcantara indicated that appellant had 

symptoms in all the extremities, but less on the left lower extremity, which was suggestive of an 

injury to the right central cervical spine. He related, “In short, [appellant’s] impairment/disability 

is related directly to the injury sustained by his fall. Degenerative and genetic factors predisposed 

6 Dr. Kerner provided progress reports subsequent to the surgery on January 20 and May 16, 2017. In a 

December 13, 2016 Form CA-17, he diagnosed cervical myelopathy and checked a box marked “Yes” that the history 

provided by appellant corresponded to that on the form of a neck injury in a fall. 

7 Dr. Alcantara on July 24, 2017 evaluated appellant for right lower extremity weakness, noting that appellant

complained of weakness on the right side after a fall. 
4

to this injury. There are other aforementioned factors that contribute to his full breadth of 

symptoms, but their contribution is limited and for all intents and purposes can be disregarded.”

On February 8, 2018 appellant, through counsel, requested reconsideration.8 

By decision dated March 29, 2018, OWCP modified in part and affirmed in part its 

August 21, 2017 decision. It accepted appellant’s claim for a contusion of the right thigh. OWCP 

found, however, that the medical evidence was insufficient to show that he sustained right hip 

osteoarthritis, cervical myelopathy with radiculopathy, or lumbar radiculopathy causally related to 

the December 10, 2015 employment injury.

On April 9, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

By decision dated April 26, 2018, OWCP denied appellant’s request for a telephone 

hearing under 5 U.S.C. § 8124(b). After exercising its discretion, it noted that the underlying issue 

in the case could equally well be addressed through the reconsideration process. 

On June 4, 2018 appellant appealed the March 29 and April 26, 2018 decisions to the 

Board. 

On June 11, 2018 appellant filed a claim for compensation (Form CA-7)for disability from 

work for the period December 12, 2016 to September 14, 2017. 

In a report dated August 13, 2018, Dr. Bowman discussed appellant’s history of a 

December 10, 2015 injury when appellant fell on a two-way radio bruising his right hip and thigh. 

He noted that appellant had preexisting arthritis and that after appellant’s injury appellant had pain 

and reduced motion in his right leg and an antalgic gait. Dr. Bowman opined that appellant’s 

myositis ossificans resulting from appellant’s thigh contusion had “likely significantly 

contribut[ed] to his persistent alteration in gait.” He indicated that appellant might require a total 

hip replacement at a future date.

By decision dated November 7, 2018, OWCP denied appellant’s disability claim for the 

period December 12, 2016 through September 14, 2017 causally related to his accepted 

employment injury. 

On November 7, 2018 OWCP expanded acceptance of appellant’s claim to include 

myositis ossificans traumatic of the right thigh and an aggravation of unilateral primary 

osteoarthritis of the right hip. 

By decision dated January 18, 2019, the Board affirmed OWCP’s March 29, 2018 decision 

denying appellant’s request to expand acceptance of his claim to include right hip osteoarthritis, 

8 On February 1, 2018 Dr.Bowman advised that he had treated appellant for a right leg and hip injury after he 

tripped and fell on December 10, 2015, landing on a two-wayradio in appellant’sright front pocket. He diagnosed a 

tear of the right hip musculature and an exacerbation of preexisting osteoarthritis of the right hip due to appellant’s 

employment injury. 
5

cervical myelopathy with radiculopathy, and lumbar radiculopathy causally related to the accepted 

December 10, 2015 employment injury.9 

In a report dated April 12, 2019, Dr. Alcantara advised that the mechanism of injury of 

appellant falling to the ground was sufficient to cause a spinal cord injury. He related, “While my 

review of the records does not appear to support a significant delay in [appellant’s] symptoms, 

more likely representing an underreporting of symptoms, a delay of onset is plausible given the 

pathophysiology of spinal cord injury, which can include a subacute component of vascular 

injury.” Dr. Alcantara advised that the record supported that appellant had complained of 

symptoms that correlated to a spinal cord injury around the time of his injury. He opined that his 

“cervical myelopathic injury is directly (proximately) related to the incident of December 10, 2015 

with reasonable medical certainty.”

Dr. Bowman continued to submit progress reports regarding his treatment of appellant. 

By decision dated April 29, 2019, OWCP’s hearing representative set aside the 

November 7, 2018 decision denying appellant’s claim for disability from December 12, 2016 to 

September 14, 2017. He found that Dr. Bowman’s reports were sufficient to warrant further 

development regarding whether appellant had sustained additional employment-related conditions 

and whether he had experienced employment-related disability.

On May 7, 2019 appellant, through counsel, requested reconsideration of OWCP’s denial 

of appellant’s request to expand acceptance of his claim. 

On May 16, 2019 OWCP referred appellant to Dr. Kevin F. Hanley, a Board-certified 

orthopedic surgeon, for a second opinion examination. 

In a report dated June 5, 2019, Dr. Hanley provided his review of appellant’s history of 

injury and the medical evidence of record. He diagnosed a quadriceps contusion of the right thigh 

with the development of myositis ossificans, advanced cervical spinal stenosis with a fixed cervical 

cord injury and residual central cord syndrome, bilateral hip arthritis, lumbar spinal stenosis, and 

carpal tunnel syndrome. Dr. Hanley related that appellant had not sustained a hip, back, or neck 

injury at the time of appellant’s fall “as none of those areas were complained of at the time.” He 

indicated that appellant had an ataxic gait disorder due to neurologic compromise. Dr. Hanley 

opined that appellant had sustained only a quadriceps contusion and myositis ossificans due to the 

December 10, 2015 employment injury. He related, “I do not believe that the work injury 

aggravated an underlying existing condition, to include [appellant’s] hip arthritis or his lumbar 

degenerative disease.” Dr. Hanley opined that appellant’s disability from December 12, 2016 to 

September 14, 2017 was unrelated to appellant’s accepted employment injury and that the 

“symptomatology from the work-related condition has resolved.”

On July 11, 2019 Dr. Bowman reviewed a May 22, 2018 MRI scan of appellant’s right hip 

and pelvis. He attributed appellant’s limp to a permanent aggravation of osteoarthritis of the right 

hip due to his December 10, 2015 employment injury. In a Form CA-20 of even date, Dr. Kerner 

diagnosed cervical myopathy and checked a box marked “Yes” to indicate that the condition 

9

Supra note 4.
6

resulted from the described employment activity of a fall causing neck pain and progressive 

numbness and tingling in the arms. 

In a supplemental report dated July 24, 2019, Dr. Hanley advised that Dr. Kerner had 

determined that appellant’s limp was not antalgic or resulting from pain, but instead a limp arising 

from a neurological condition due to damage to the spinal cord in the cervical area. He opined 

that appellant’s progressive, degenerative cervical condition was not due to a traumatic injury, 

noting that appellant did not complain of an injury to his neck or head at the time of his fall. 

Dr. Hanley reiterated that he “did not aggravate anything ongoing in [appellant’s] hip” and that if 

there was a brief period of aggravation it was “temporary, if at all.” 

By decision dated August 2, 2019, OWCP denied modification of its denial of appellant’s 

request to expand acceptance of his claim.10 It advised that the report from Dr. Alcantara was 

insufficient to support that appellant’s fall caused cervical myelopathy.

By decision dated August 15, 2019, OWCP denied appellant’s claim for disability from 

December 12, 2016 to September 14, 2017. 

On August 20, 2019 appellant, through counsel, requested a telephonic hearing on the 

August 15, 2019 decision before a representative of OWCP’s Branch of Hearings and Review. 

On August 27, 2019 appellant, through counsel, appealed the August 2, 2019 decision to 

the Board. 

Appellant submitted progress reports from Dr. Arthur W. Wardell, a Board-certified 

orthopedic surgeon, describing his treatment of appellant for a contusion of the right thigh and 

osteoarthritis of the right hip. 

By decision dated February 10, 2020, OWCP’s hearing representative set aside the 

August 15, 2019 decision. He found that Dr. Hanley failed to use the statement of accepted facts 

(SOAF) as the basis for his opinion, noting that he had determined that appellant’s hip condition 

was unrelated to the accepted employment injury. The hearing representative instructed OWCP 

to refer appellant to a new second opinion examiner to determine whether appellant was disabled 

from December 12, 2016 to September 14, 2017 due to his thigh contusion, myositis ossificans, 

and aggravation of hip osteoarthritis.

On February 27, 2020 OWCP referred appellant to Dr. James Schwartz, a Board-certified 

orthopedic surgeon, for a second opinion examination on the issue of disability from employment. 

In a report dated March 20, 2020, Dr. Schwartz diagnosed cervical spondylosis spinal cord 

myelomalacia that was “unaccepted as related to December 10, 2015 date of injury [and] not 

clearly related by history,” an accepted right thigh contusion with myositis ossificans, and an 

accepted aggravation of unilateral primary osteoarthritis of the right hip. He advised that appellant 

10 OWCP indicated that it was denying modification of the January 18, 2019 Board decision; however, Board 

decisions and orders are final as to the subject matter appealed and such decisions and orders are not subject to review, 

except by the Board. See 20 C.F.R. § 501.6(d).
7

missed work from December 12, 2016 to September 14, 2017 due to cervical spinal surgery. 

Dr. Schwartz opined that the employment-related conditions had resolved.

By decision dated April 17, 2020, OWCP denied appellant’s disability claim for the period 

December 12, 2016 to September 14, 2017. 

On April 24, 2020 appellant, through counsel, requested a telephonic hearing on the 

August 2, 2019 decision before a representative of OWCP’s Branch of Hearings and Review. 

By decision dated September 1, 2020, OWCP terminated appellant’s medical benefits 

effective September 2, 2020. 

By order dated September 9, 2020, the Board set aside the August 2, 2019 decision and 

remanded the case for proper consideration of the evidence of record, to be followed by a de novo 

decision on appellant’s expansion claim.

11

 The Board found that OWCP had failed to reference 

or review Dr. Hanley’s report in issuing its August 2, 2019 decision.

In a report dated September 14, 2020, Dr. Wardell opined that appellant had sustained an 

injury to his spinal cord on December 10, 2015 “from which [appellant] was predisposed due to 

preexisting cervical spinal stenosis. He related, “Dr. Schwartz is correct in saying that this cervical 

cord injury has not been accepted as related to his December 10, 2015 injury, but the causality is 

not in doubt. Had it not been for [appellant’s] fall, his spinal cord would not have been crushed, 

resulting in his chronic cervical myelopathy, and this is a large component of his continuing 

disability.” Dr. Wardell also disagreed that appellant had recovered from his hip injury. 

By decision dated October 26, 2020, OWCP’s hearing representative vacated the April 17, 

2020 decision and remanded the case for Dr. Schwartz to review Dr. Wardell’s September 14, 

2020 report. 

By decision dated February 8, 2021, OWCP denied modification of its August 2, 2019 

decision. It found that the opinion of Dr. Hanley constituted the weight of the evidence and 

established that appellant’s cervical and lumbar conditions were unrelated to appellant’s accepted 

employment injury.

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.12

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.13 A physician’s opinion on whether there is a causal relationship 

11 Order Remanding Case, F.H., Docket No. 19-1801 (issued September 9, 2020).

12 J.R., Docket No. 20-0292 (issued June26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); JajaK. 

Asaramo, 55 ECAB 200, 204 (2004).

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

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

complete factual and medical background.14 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.15

ANALYSIS

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

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s March 29, 2018 decision because the Board 

considered that evidence in its January 18, 2019 decision and found that it was insufficient to 

establish that OWCP should expand acceptance of his claim. Findings made in prior Board 

decisions are res judicata absent further review by OWCP under section 8128 of FECA. 16 The 

Board, therefore, need not review the evidence addressed in the prior appeal.

Subsequent to appellant’s appeal to the Board, OWCP expanded acceptance of the claim 

to include an aggravation of unilateral osteoarthritis of the right hip.

OWCP referred appellant to Dr. Hanley for a second opinion examination to determine 

whether acceptance of appellant’s claim should be expanded to include additional employmentrelated conditions and whether he had established disability from employment. Based on his 

reports, it denied appellant’s request to expand acceptance of his claim. 

In a June 5, 2019 report, Dr. Hanley diagnosed a quadriceps contusion of the right thigh 

with the development of myositis ossificans, advanced cervical spinal stenosis with a fixed cervical 

cord injury and residual central cord syndrome, bilateral hip arthritis, lumbar spinal stenosis, and 

carpal tunnel syndrome. He attributed the quadriceps contusion and myositis ossificans to the 

December 10, 2015 employment injury. Dr. Hanley opined that appellant had not sustained any 

other condition due to the work injury, including an aggravation of arthritis of the hip or lumbar 

degenerative joint disease. In a supplemental report dated June 24, 2019, he found appellant’s 

degenerative cervical condition unrelated to his December 10, 2015 employment injury and again 

advised that he had not aggravated any ongoing hip condition, or at most had sustained a temporary 

aggravation for a brief period. OWCP, however, accepted that appellant sustained an aggravation 

of right hip osteoarthritis as a result of the December 10, 2015 employment injury.

OWCP’s procedures provide that the findings of an OWCP referral physician or impartial 

medical specialist must be based on the factual underpinnings of the claim, as set forth in the 

14 F.A., Docket No. 20-1652 (issued May 21, 2021); M.V., Docket No. 18-0884 (issued December 28, 2018); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

15 Id.

16 D.A., Docket No. 19-1965 (issued February 10, 2021); G.B., Docket No. 19-1448 (issued August 21, 2020).
9

SOAF.17 OWCP’s procedures and Board precedent dictate that when OWCP’s referral physician 

or impartial medical specialist renders a medical opinion based on a SOAF, which is incomplete 

or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the 

probative value of the opinion is seriously diminished or negated altogether.18 As Dr. Hanley 

determined that appellant had not sustained an aggravation of hip osteoarthritis, or at most had 

sustained only a temporary aggravation, he failed to rely on the SOAF and thus his report is not 

based upon an accurate history.19 Consequently, his report is of diminished probative value and 

insufficient to constitute the weight of the evidence.

20

Proceedings under FECA are not adversarial in nature, and while appellant has the burden 

to establish entitlement to compensation, OWCP shares responsibility in the development of the 

evidence.21 It has an obligation to see that justice is done.22 Accordingly, once OWCP undertakes 

to develop the medical evidence further, it has the responsibility to do so in a manner that will 

resolve the relevant issues in the case.23 

The Board, therefore, finds that the case must be remanded to OWCP for further 

development. On remand, OWCP shall refer appellant and a SOAF to a physician in the 

appropriate field of medicine to resolve the issue of whether acceptance of his claim should be 

expanded to include additional employment-related conditions. After this and such further 

development as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

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

17 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.810.11a 

(September 2019).

18 Id. at Chapter 3.600.3(10) (October 1990); J.R., Docket No. 19-1321 (issued February 7, 2020); M.D., Docket 

No. 18-0468 (issued September 4, 2018); Paul King, 54 ECAB 356 (2003).

19 Id. at Chapter 3.600.3 (October 1990); V.K., Docket No. 19-0422 (issued June 10, 2020).

20 Id. See also L.F., Docket No. 20-0459 (issued January 27, 2021).

21 See M.G., Docket No. 18-1310 (issued April16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

22 See A.J., Docket No. 18-0905 (issued December 10, 2018); WilliamJ. Cantrell, 34 ECAB 1233, 1237 (1983).

23 T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).
10

ORDER

IT IS HEREBY ORDERED THAT the February 8, 2021 decision of the Office of 

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

consistent with this decision of the Board.

Issued: December 9, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board