United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WEST LOS ANGELES VA MEDICAL 

CENTER, Los Angeles, CA, Employer

__________________________________________

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Docket No. 23-0690

Issued: December 5, 2023

Appearances: Case Submitted on the Record

Brett Elliot Blumenstein, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 17, 2023 appellant, through counsel, filed a timely appeal from an October 20, 

2022 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 established a medical condition causally related to the 

accepted November 23, 2018 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as presented 

in the prior order are incorporated herein by reference. The relevant facts are as follows.

On December 6, 2018 appellant, then a 56-year-old medical doctor, filed a traumatic injury 

claim (Form CA-1) alleging that on November 23, 2018 she injured her upper arms, neck, lower 

back, and left leg, and sustained a skin abrasion of her upper back and lower neck when she fell 

backwards off a chair onto the floor while in the performance of duty. OWCP assigned this claim 

OWCP File No. xxxxxx860.

Appellant sustained a prior traumatic injury on January 9, 2017 when she slipped and fell 

on a wet floor. OWCP assigned this claim OWCP File No. xxxxxx259 and accepted it for 

intervertebral disc disorders with radiculopathy, lumbar region; sprain of ligaments of thoracic 

spine; sprain of other parts of lumbar spine and pelvis; and unspecified sprain of left hip.

In support of her claim under OWCP File No. xxxxxx860, appellant submitted a 

December 3, 2018 emergency treatment report signed by a nurse practitioner releasing appellant 

to work with restrictions.

In a development letter dated June 27, 2019, OWCP informed appellant of the deficiencies 

of her claim. It explained the type of factual and medical evidence needed and attached a 

questionnaire for her completion. OWCP afforded appellant 30 days to submit the requested 

evidence.

By decision dated July 30, 2019, OWCP denied appellant’s claim in OWCP File xxxxx860, 

finding that the evidence of record was insufficient to establish that the November 23, 2018 

incident occurred, as alleged. It concluded, therefore, that the requirements had not been met to 

establish an injury as defined by FECA.

A December 17, 2018 report from Dr. Francis M. Ferrante, a Board-certified internist and 

anesthesiologist, and Dr. Varun Shahi, an emergency medicine specialist, discussed appellant’s

history of a March 2017 L3-4 microdiscectomy. Drs. Ferrante and Shahi advised that appellant

had recently fallen off a chair, aggravating the pain in her low back and experiencing “new neck 

pain.” Their examination demonstrated tenderness to palpation of left paraspinal region and 

decreased sensation over left medial thigh and leg. Drs. Ferrante and Shahi noted that an 

August 28, 2018 lumbar spine magnetic resonance imaging (MRI) scan revealed minor

postsurgical residual enhancements in the left L3-4 neural foramen, a December 2018

electromyogram/nerve conduction velocity (EMG/NCV) study was normal, and a December 2018 

pelvis MRI scan demonstrated abnormal T2 hyperintensity and mild increased caliber of the left 

3 Order Remanding Case, Docket No. 22-0191 (issued May 26, 2022).
3

L4 nerve compatible with segmental left L4 mononeuropathy. They provided differential 

diagnoses of lumbar radiculopathy, complex regional pain syndrome (CRPS), plexopathy, 

myofascial pain, polyneuropathy, cervical paraspinal muscle strain, cervical fracture, and cervical 

radiculopathy.4

In a report dated December 18, 2018, Dr. Felicia C. Yu, and Dr. Isabella Lai, both Boardcertified internists, related appellant’s history of left leg and hip pain in January 2017 after a fall, 

followed by a March 2017 microdiscectomy at L3-4. They noted that she had strained the muscles 

in her neck after falling off a chair. Drs. Yu and Lai diagnosed muscle strain of the left thigh, left 

anterior leg pain, low back pain radiating to the left leg, acute lumbar radiculopathy, status post 

lumbar discectomy, lumbar spinal stenosis, neck strain, neck pain, and chronic left-sided low back 

pain with left sciatica.

On December 20, 2018 Dr. Ferrante noted that appellant’s recent fall off a chair had 

aggravated her lower back pain, and he held appellant off work pending reevaluation in view of 

her second fall superimposed on her initial disabling injury.

On January 2, 2019 Dr. Arash D. Kohanteb, Board-certified in emergency medicine, noted 

that appellant had experienced intermittent neck pain and headaches since falling off a chair and 

hitting her head a month prior. Dr. Kohanteb diagnosed neck strain and a nonintractable headache 

of unspecified chronicity and type.

In reports dated January 16 and 29, 2019, Dr. Justin G. Laube, a Board-certified internist, 

related that appellant recently fell of a chair and strained her neck muscles, noting that she had a 

previous fall in January 2017. He diagnosed spinal stenosis of lumbar region, stress, caregiver 

burden, muscle strain of left thigh, anterior left leg pain, status post lumbar discectomy, strain of 

neck muscle, and low back sprain. In the January 29, 2019 report, Dr. Laube added diagnoses of 

low back pain radiating to left leg, acute lumbar radiculopathy, neck pain, and chronic left-sided 

low back pain with sciatica.

In a January 23, 2019 narrative report, Dr. Ferrante related that appellant’s November 23, 

2018 fall from a chair at work “resulted in a severe whiplash neck injury and an exacerbation of 

the symptoms of her previous lower back/left leg injury.” He noted that the fall intensified her 

chronic lower back pain and left leg radiculopathy and held her off work “to allow her to recover 

from an acute work-related injury.” In a report of even date, Dr. Ferrante noted that appellant

attributed her neck pain to a fall from a chair in November 2018. He listed the same differential 

diagnoses as in his December 17, 2018 report. Dr. Ferrante provided similar reports dated

March 26 and August 6, 2019.

In a February 11, 2019 progress report, Dr. Yu related appellant’s history of injury and 

diagnosed neck pain, anterior left leg pain, lumbar spinal stenosis, low back pain radiating into the 

left leg, lumbar radiculopathy, chronic left-sided low back pain with sciatica, status post lumbar 

discectomy, right trapezius muscle strain, and chronic left knee pain. She provided similar 

progress reports dated April through November 2019.

4 A December 17, 2018 cervical spine x-ray revealed mild degenerative disc disease between C4 and C7. 
4

On August 6, 2019 Dr. Ferrante repeated appellant’s history of injury and opined that the 

November 23, 2018 fall had intensified her chronic lower back pain and the left leg radiculopathy. 

On October 8, 2019 he related her history of falling from a chair and recommended facet injections 

from C3 to C7, noting that her neck pain had recently increased.

On September 3, 2019 Dr. Laube related that appellant fell off a chair and strained her neck 

muscles. He diagnosed anterior left leg pain, stress, neck pain, and a muscle strain of the left thigh.

In a report dated February 3, 2020, Dr. Ferrante discussed appellant’s complaints of neck 

pain radiating into her upper back and chronic left hip and leg pain. He provided diagnoses of

lumbar radiculopathy, CRPS, plexopathy, myofascial pain, polyneuropathy, cervical whiplash, 

cervical spondylosis, and paraspinal muscle strain. In a February 5, 2020 work excuse note, 

Dr. Ferrante held appellant off work until February 14, 2020 due to worsening neck pain status 

post whiplash injury due to fall and worsening left leg pain from leg radiculopathy status post slip 

and fall. 

On February 12, 2020 Dr. Jakun Ing, a Board-certified anesthesiologist, related that

appellant’s left leg and lower back pain from the accepted January 9, 2017 employment injury 

persisted after surgery and had “markedly intensified after the fall from a chair at work on 

November 23, 2018 when she sustained a severe neck whiplash injury and severe ongoing neck 

and upper back pain, muscle spasms, headaches, and markedly reduced neck mobility. ” Dr. Ing 

opined that a lack of reasonable accommodation at work had exacerbated her left leg and neck

pain.

On February 24, 2020 appellant, through counsel, requested reconsideration. In support of 

her request, she submitted an undated statement describing the circumstances surrounding her fall 

from a chair at work on November 23, 2018, as well as a statement from a coworker, who found 

appellant on the floor next to her chair after the fall on November 23, 2018.

Appellant submitted a March 26, 2020 narrative report from Dr. Ferrante under OWCP 

File No. xxxxxx259 in which he discussed her January 2017 slip and fall and noted that she 

sustained a whiplash injury from the November 2018 fall from a chair, which resulted in persistent 

neck and upper back pain. He diagnosed protrusion of intervertebral lumbosacral disc, status post 

L3-L4 microdiscectomy, lumbar radiculopathy, lower back muscle spasm, whiplash injury, and 

neck muscle spasm.

By decision dated November 12, 2020, OWCP modified its July 30, 2019 decision to find 

that appellant had factually established the occurrence of the November 23, 2018 employment 

injury and submitted medical evidence containing a diagnosis. It further found, however, that the 

medical evidence was insufficient to show that she sustained a diagnosed medical condition 

causally related to the accepted November 23, 2018 employment incident.

OWCP subsequently received a May 20, 2020 narrative report from Dr. Ferrante under 

OWCP File No. xxxxxx259, noting that appellant’s left leg and lower back pain “markedly 

intensified” after the accepted November 23, 2018 employment incident when she sustained a 
5

severe neck whiplash injury, severe neck and upper back pain, muscle spasms, headaches, and 

markedly reduced neck mobility.5

On February 24, 2021 Dr. Ferrante again reviewed appellant’s history injury on January 9, 

2017 and November 23, 2018. He advised that her fall from a nonergonomic chair at work on 

November 23, 2018 had caused a severe whiplash injury to her neck resulting in neck and upper 

back pain, muscle spasms, headaches, reduced neck mobility, and right arm pain and numbness. 6

On April 9, 2021 appellant, through counsel, requested reconsideration.

By decision dated May 7, 2021, OWCP denied modification of its November 12, 2020 

decision.

In a narrative report dated July 14, 2021, Dr. Ferrante again discussed appellant’s history 

of injury beginning on January 9, 2017 and related that her fall from a chair on November 23, 2018 

at work had aggravated the pain in her back, hip, and left leg, and caused a severe whiplash injury 

of the neck and strains/sprains of the neck, back, bilateral shoulders more on the right, and right 

arm ulnar neuropathy with paresthesia of the right arm. In a report of even date submitted under 

OWCP File No. xxxxxx259, he noted that the November 2018 fall led to skin abrasions, 

paresthesia to bilateral upper extremities, and a whiplash injury, which contributed to neck, upper 

back, and shoulder muscle strains, myofascial pain syndrome, cervical radiculopathy, ulnar 

neuropathy, reduced neck mobility, and occipital headaches. Dr. Ferrante also noted that the fall

exacerbated appellant’s lower back pain, left radiculopathy, and left leg pain.

On September 15, 2021 appellant requested reconsideration.

An October 19, 2021 narrative report from Dr. Ferrante under OWCP File No. xxxxxx259 

discussed appellant’s accepted January 9, 2017 employment injury and explained that appellant’s 

fall from a chair on November 23, 2018 “acutely exacerbated her lower back pain.” He noted, 

however, that symptoms related to the November 2018 fall had resolved and that a subsequent 

lumbar spine MRI scan did not demonstrate worsening of the findings seen in imaging predating 

the fall.

By decision dated October 21, 2021, OWCP denied modification of its May 7, 2021 

decision.

On November 18, 2021 appellant appealed to the Board.

Appellant subsequently submitted an August 17, 2021 narrative report from Dr. Ferrante

in which he explained that her fall from a chair on November 23, 2018 markedly worsened her 

previous lower and upper back sprains, left leg radiculopathy, neuropathic pain, L3 -L4 

5 MRI scans of the cervical, thoracic, and cervical spines obtained on December 18, 2020 demonstrated mild 

degenerative changes of the cervical spine, a small central disc protrusion at T6-7, a small disc protrusion at L3-4, and 

severe disc degeneration and disc height loss at L4-5 and L5-S1.

6 A March 10, 2021 EMG/NCV study revealed mild left ulnar neuropathy at the elbow. On March 25, 2021

Dr. Ferrante performed a cervical epidural injection and noted a pre- and postoperative diagnosis of cervical 

radiculopathy. 
6

radiculopathy, and back sprains and pains. He opined that, “[d]uring the fall from the chair, she 

sustained a severe neck whiplash injury, neck and upper thoracic sprains and strains, myofascial 

pain syndrome of these regions, cervical radiculopathy, right ulnar neuropathy with paresthesia, 

cervicalgia, and occipital headaches,” noting that the nerve injury was confirmed by an abnormal 

EMG/NCV study on March 10, 2021. Additionally, Dr. Ferrante noted that appellant had been 

examined by multiple providers between the accepted January 2017 injury and the accepted 

November 23, 2018 employment incident, and that none of these providers saw or treated appellant 

for any diagnoses related to those that appeared after the fall. He asserted that the fact that these 

symptoms and findings arose immediately after the work-related fall “eliminat[ed] any doubt that 

the current symptoms and conditions are due to the injury that [appellant] sustained on 

November 23, 2018.”

Appellant continued to submit medical evidence under OWCP File No. xxxxxx259. On 

October 25, 2021 she underwent a spinal cord stimulator trial performed by Dr. Ferrante. In 

progress reports dated October 5 through November 9, 2021, Dr. Ferrante noted that appellant’s 

November 2018 fall from a chair transiently exacerbated her low back and left lower extremity 

radicular pain.

In a February 21, 2022 second opinion report under OWCP File No. xxxxxx259,

Dr. Surasak Phuphanich, a Board-certified neurologist, reviewed appellant’s history of injury and 

treatment for the accepted January 9, 2017 employment injury and the accepted November 23, 

2018 employment incident. He noted findings of localized tenderness of the lower cervical spine 

with limited range of motion, which correlated with abnormal MRI scan findings of degenerative 

change at C4-C7, as well as mild tenderness along the lumbar spine with limitation of 

thoracolumbar movement and mild weakness of left leg associated with decreased sensation. 

Dr. Phuphanich diagnosed L3-4 disc herniation with left L4 radiculopathy status post L3-4 

microdiscectomy, left foraminal disc/lateral disc bulge at L5-S1 with mild neural foraminal 

stenosis, low back pain with muscle spasm, whiplash neck injury with degenerative disc disease 

between C4 and C7 and muscle spasm, and right ulnar nerve neuropathy from entrapment at elbow. 

He opined that appellant sustained a work-related back injury on January 9, 2017, which resulted

in a herniated disc at L3-4, and a second injury at work on November 23, 2018 when she fell 

backward from a chair. Dr. Phuphanich explained that when she fell from the chair, she hit her 

head and sustained an abrasion and neck and back pain and that this injury “further aggravated 

back, hip and left leg pain and caused a whiplash injury of the neck, back and shoulders, and right 

ulnar neuropathy.” He advised that appellant could perform light-duty work with restrictions and 

opined that her disability was “directly related to” the January 9, 2017 injury and “aggravated 

again” on November 23, 2018.

By order dated May 26, 2022, the Board set aside OWCP’s October 21, 2021 decision, 

finding that, for a full and fair adjudication, it was necessary to administratively combine OWCP 

File Nos. xxxxxx860 and xxxxxx259, so that all of the relevant claim files could be considered. 

The Board remanded the case to OWCP for further development followed by a de novo decision

regarding causal relationship.

7

7

Supra note 3.
7

On remand OWCP administratively combined the case files per the Board’s May 26, 2022 

order.8 By decision dated October 20, 2022, it denied modification of its May 7, 2021 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA9 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,10 that 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.11 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.12

To determine whether 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 

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

occurred at the time and place, and in the manner alleged.13 The second component is whether the 

employment incident caused a personal injury.14

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

condition and an employment incident is rationalized medical opinion evidence. 15 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 specific employment factors 

identified by the employee.16

8

Id.

9

Supra note 2.

10 S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); JoeD. 

Cameron, 41 ECAB 153 (1989).

11 M.H., Docket No. 19-0930 (issued June17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 

312 (1988).

12 S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); DeloresC. 

Ellyett, 41 ECAB 992 (1990).

13 R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

14 Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

15 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).

16 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).
8

ANALYSIS

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

In a February 21, 2022 second opinion report under OWCP File No. xxxxxx259,

Dr. Phuphanich related appellant’s history of injury and treatment and diagnosed L3-4 disc 

herniation with left L4 radiculopathy status post L3-4 microdiscectomy, left foraminal disc/lateral 

disc bulge at L5-S1 with mild neural foraminal stenosis, low back pain with muscle spasm, 

whiplash neck injury with degenerative disc disease between C4 and C7 and muscle spasm, and 

right ulnar nerve neuropathy from entrapment at elbow. He opined that appellant sustained a workrelated back injury on January 9, 2017, which resulted in a herniated disc at L3-4, and a second 

injury at work on November 23, 2018 when she fell backward from a chair. Dr. Phuphanich

explained that when she fell from the chair, she hit her head and sustained an abrasion and neck 

and back pain and that this injury “further aggravated back, hip and left leg pain and caused a 

whiplash injury of the neck, back and shoulders and right ulnar neuropathy.” He advised that 

appellant could perform light-duty work with restrictions and opined that her disability was 

“directly related to” the January 9, 2017 injury and “aggravated again” on November 23, 2018.

It is well established that proceedings under FECA are not adversarial in nature and, while 

appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.17 Accordingly, once OWCP undertakes to 

develop the medical evidence further, it has the responsibility to do so in the proper manner. 18 

Once OWCP starts to procure medical opinion, it must do a complete job in securing from its 

referral physician an opinion which adequately addresses the relevant issues. 19 

Dr. Phuphanich asserted that appellant sustained several medical conditions due to fall 

from a chair on November 23, 2018 but he did not fully explain the medical mechanics of how the 

conditions were sustained. The case must therefore be remanded for clarification from him to 

provide further explanation and medical rationale as to how appellant sustained injury on 

November 23, 2018 and to clarify the precise nature of any medical conditions and disability 

sustained as a result. If Dr. Phuphanich is unable to clarify or elaborate on his previous report, or 

if the supplementalreport lacksrationale, OWCP must submit the case record and a detailed SOAF 

to a new second opinion physician for the purpose of obtaining a rationalized medical opinion on 

the issue.20 After this and other such further development of the case record as OWCP deems 

necessary, it shall issue a de novo decision.

17 See J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); A.P., 

Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).

18 See A.K., Docket No. 18-0462 (issued June 19, 2018); Robert F. Hart, 36 ECAB 186 (1984).

19 T.B., Docket No. 20-0182 (issued April23, 2021); L.V., Docket No. 17-1260 (issued August1, 2018); MaeZ. 

Hackett, 34 ECAB 1421, 1426 (1983).

20 J.H., Docket No. 19-1476 (issued March 23, 2021); R.O., Docket No. 19-0885 (issued November 4, 2019);

Talmadge Miller, 47 ECAB 673 (1996).
9

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the October 20, 2022 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 5, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board