United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Elmer, NJ, Employer

__________________________________________

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Docket No. 21-1080

Issued: October 18, 2022

Appearances: Case Submitted on the Record

Anthony S. Arenas, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 1, 2021 appellant, through her representative,filed a timely appeal from an April 6, 

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.

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 her burden of proof to establish a medical condition

causally related to the accepted August 4, 2015 employment incident. 

FACTUAL HISTORY

On August 19, 2015 appellant, then a 56-year-old customer service supervisor, filed a 

traumatic injury claim (Form CA-1) alleging that on August 4, 2015, she was walking to her desk 

when an oversized parcel slid and hit her foot, causing her to fall and hit her right arm on a chair 

while in the performance of duty. She alleged injuries to her lower back and to her right arm, hip, 

leg, and foot.

In a September 2, 2015 report and return to work note, Dr. Garo Avetian, an osteopathic 

physician specializing in internal medicine, indicated that appellant was evaluated for injuries 

sustained in a work-related incident on August 4, 2015. He recounted that appellant was walking 

at work when a large package slid, hit her foot, and caused her to fall over. Dr. Avetian noted that 

appellant complained of severe pain from her low back down to her hip, leg, and foot on the right

side. On examination of appellant’s thoracic and lumbar areas of the spine, he observed limited 

range of motion and pain with flexion and extension and positive straight leg raise testing on the 

left with pain. Dr. Avetian diagnosed thoracic and lumbar sprains, possible lumbar radiculopathy, 

and right hip, right elbow, and right calf and foot sprains. He opined that appellant’s injuries were 

a direct result of her August 4, 2015 work-related accident. 

Dr. Avetian completed duty status reports (Forms CA-17) dated September 2 through

October 7, 2015 and an attending physician’s report (Form CA-20) dated September 9, 2015. He

noted a date of injury of August 4, 2015 and diagnoses of thoracic and lumbar sprains, and upper 

arm joint pain. Dr. Avetian checked a box marked “Yes” indicating that the condition was caused 

or aggravated by the described employment activity. He indicated that appellant could return to 

modified-duty work on November 30, 2015 and noted specific restrictions. 

Appellant submitted an unsigned authorization for examination and/or treatment (Form 

CA-16). In Part B of the Form CA-16, Dr. Avetian reported that a large parcel struck appellant’s 

left ankle and she fell down. 

In letters dated September 10 and October 20, 2015, the employing establishment 

controverted appellant’s claim. It noted that she did not report the alleged August 4, 2015 injury 

until 15 days later and did not seek medical attention until September. The employing 

establishment also contended that appellant did not properly complete paperwork. It further 

alleged that when she was on annual leave from March 23 through April 4, 2015 she had an offduty back injury. The employing establishment submitted work excuse notes dated April 1 and 2 

and May 6, 2015. 

In a September 30, 2015 report, Dr. Avetian described the August 4, 2015 employment 

incident. He provided examination findings and diagnosed thoracic sprain, lumbar sprain, possible 

lumbar radiculopathy, right hip sprain, right elbow sprain, and right calf and foot pain. Dr. Avetian 
3

recommended a lumbar MRI scan because he felt that appellant’s current symptoms were a direct 

result of the August 4, 2015 work incident. 

OWCP also received an August 11, 2015 note by Kristin LeBeau, a nonphysician clinician, 

who indicated that appellant was treated in their clinic for a serious medical condition and could 

return to work on August 15, 2015 with strict medical restrictions. 

In a development letter dated November 10, 2015, OWCP informed appellant of the 

deficiencies of her claim. It advised her of the type of factual and medical evidence necessary to 

establish her claim and attached a questionnaire for her completion. OWCP afforded appellant 30 

days to submit the requested evidence. 

In a November 20, 2015 letter, W.M., a Postmaster, asserted that appellant had not 

established a new traumatic injury claim. She indicated that appellant did not report the incident 

according to standard operating procedure and contended that appellant had the custodian write a 

statement as if she had witnessed the alleged August 4, 2015 incident. OWCP received an 

employing establishment routing slip signed by appellant who described the August 4, 2015 

incident. It also received a handwritten statement dated November 20, 2015 by an individual with 

an illegible signature who indicated that she did not see appellant fall down. 

On November 30, 2015 appellant responded to OWCP’s development questionnaire. She 

described the August 4, 2015 work incident and explained her delay in seeking a medical 

condition. Appellant reported that she had a previous slip and fall injury on February 21, 2015.

Appellant submitted a November 5, 2015 lumbar spine magnetic resonance imaging (MRI)

scan, which revealed lumbar spondylosis, L2-3, L3-4, and L5-S1 disc desiccation with annular 

disc bulge, L3-4 central annular tear, L4-5 annular disc bulge effacing the thecal sac, and mild-tomoderate foraminal stenosis at multiple levels. 

In a December 7, 2015 report, Dr. Avetian indicated that on February 21, 2015 appellant 

had suffered a slip and fall incident at work. He noted that her injury had resolved and she was 

able to return to work on June 15, 2015. Dr. Avetian reported that upon review of the latestlumbar

MRI scan results, he could state with certainty that appellant’s injuries and symptoms were related 

to the August 4, 2015 work incident. He explained that comparing appellant’s previous MRI scan 

with the new one, it clearly showed foraminal stenosis at multiple levels tha t was not present 

before. Dr. Avetian reported that when the parcel slid off a cart and caused appellant to fall down, 

“this trauma caused her inflammation to her low back with tissues thickening, compressing the 

nerve roots and spinal cord and as a result spinal stenosis.”

In a December 1, 2015 report, Dr. David Gigliotti, an osteopathic physician specializing in 

family medicine, recounted that appellant was previously treated for a February 21, 2015 slip and 

fall injury at work. He explained that on August 4, 2015 appellant sustained another work-related 

injury and was seen in his office on August 11, 2015. 

By decision dated December 18, 2015, OWCP accepted that the August 4, 2015 incident 

occurred as alleged and that medical conditions had been diagnosed; however, it denied her claim 

finding that she had failed to establish causal relationship between the accepted employment 

incident and the diagnosed conditions. 
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On June 15, 2016 appellant requested reconsideration and submitted medical evidence. 

Appellant submitted several diagnostic reports dated March 1, 2016. A right shoulder MRI 

scan revealed acromioclavicular degenerative joint disease and partial-thickness anterior 

insertional supraspinatus tear. A right knee MRI scan demonstrated meniscal tear of the medial 

and lateral compartments and degenerative changes. A right elbow MRI scan showed probable 

partial thickness tear of the humeral attachment of the radial collateral ligament. A right hip MRI 

scan revealed T2 hyperintensity at the right gluteal/trochanteric insertion consistent with 

tendinitis/tendinosis or mild partial tear. A right wrist MRI scan showed no abnormality or 

significant anatomic findings. 

An April 13, 2016 upper extremity electromyography and nerve conduction velocity 

(EMG/NCV) study demonstrated lumbar radiculopathy affecting the L4 and L5 root levels 

bilaterally, right tibial motor neuropathy, and bilateral prolonged H reflex, suggestive of bilateral 

S1 radiculopathy.

In an undated report, Dr. Bradley Bodner, an osteopathic physician specializing in physical 

medicine and rehabilitation, noted a date of injury of August 4, 2015. He reported examination 

findings of reduced range of motion of the cervical and lumbar spines and diagnosed persistent 

post-traumatic cervicalgia and lumbago, lumbar radiculopathy, lumbar intervertebral disc 

displacement, and right elbow injury and possible ulnar nerve injury. 

In a June 6, 2016 narrative report, Dr. Gerald M. Vernon, an osteopathic physician 

specializing in family medicine, described appellant’s February 21, 2015 slip and fall injury and 

return to work on June 15, 2015. He recounted that on August 4, 2015 appellant was walking 

towards her desk when a large package struck her on the left side, causing her to fall down on her 

right side. Dr. Vernon noted that upon impact on the ground appellant injured her right shoulder, 

arm, elbow, wrist, and right knee. On examination of appellant’s lumbar spine, he reported 

decreased range of motion and direct tenderness over the L4-5 and L5-S1 interspaces. 

Examination of appellant’s bilateral hips showed good internal and external rotation and positive 

abduction test. Dr. Vernon indicated that examination of appellant’s right knee revealed 

tenderness over the lateral and medial joint line and positive patella grind. Examination of 

appellant’s right shoulder demonstrated tenderness over the apex of the shoulder and anterior and 

interior of the acromioclavicular (AC) joint. On examination of appellant’s right elbow,

Dr. Vernon observed tenderness over the medial epicondyle and pain with localized tenderness on 

resisted pronation and positive Tinel’s sign over the elbow. He diagnosed reaggravation of prior 

lumbar spine injury, post-traumatic lumbar radiculopathy at L4 and L5, post-traumatic right tibial 

neuropathy, post-traumatic bilateral S1 radiculopathy, post-traumatic tendinopathy of the right 

gluteal/trochanteric insertion, post-traumatic partial thickness tear of the anterior insertional 

supraspinatus tear, post-traumatic horizontal tear of the anterior horn and tear of lateral meniscus 

of the right knee, post-traumatic partial thickness tear of the humeral attachment of the radial 

collateral ligament in the right wrist, and post-traumatic sprain/strain of the right wrist. 

Dr. Vernon explained that appellant’s February 21, 2015 work-related incident resulted in 

lumbar spine injuries. He noted that she underwent treatment for approximately four months and 

returned to work on June 15, 2015. Dr. Vernon recounted that on August 4, 2015 appellant 

suffered another work-related injury, which caused a permanent aggravation of her previous 
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lumbar condition and “a new direct causation of her right hip, knee, shoulder, elbow, and wrist.”

He noted that diagnostic and clinical findings were consistent with the way that the right side of 

appellant’s body struck the floor when she fell. 

By decision dated September 13, 2016 decision, OWCP denied modification of the 

December 18, 2015 decision. 

On August 3, 2017 appellant, through counsel, requested reconsideration and submitted 

medical evidence.

In a July 7, 2017 addendum report, Dr. Vernon indicated that he had reviewed appellant’s 

description of the August 4, 2015 incident. He reported that the description of the August 4, 2015 

incident was consistent with the objective findings and injuries sustained by appellant.

By decision dated November 1, 2017, OWCP denied modification of the September 13, 

2016 decision.

On October 31, 2018 appellant, through her then-counsel, requested reconsideration and 

submitted medical evidence.

In an October 29, 2018 addendum report, Dr. Vernon indicated that he had reviewed all of 

appellant’s medical records, including her imaging studies, and opined that her right shoulder, 

right hip, pelvis area, and right knee injuries were a direct result of the August 4, 2015 work injury. 

He reported: “[t]his mechanism of injury is consistent with someone that has been struck on one 

side and has fallen to the outside and puts her arm or hand out, that is the typical type of injury that 

you would see when falling to the side, using your arm to stabilize the fall with the transmission 

of injury right up through hand, wrist, elbow, and shoulder and also injuring the right side of her 

pelvis and her right knee.”

OWCP also received a December 17, 2015 report by Dr. Vernon. He described the 

February 21, 2015 and August 4, 2015 fall injuries at work. Dr. Vernon provided examination 

findings and diagnosed lumbosacral sprain, lumbar disc syndrome, possible lumbar facet 

syndrome, sprain of the right SI joint, IT band syndrome, right trochanteric bursitis, right shoulder 

sprain, right knee sprain, right cubital tunnel syndrome, right carpal tunnel syndrome, and right 

pronator syndrome. He concluded that “[t]he mechanism of injury sustained on [August 4, 2015]

is consistent with her injuries and ongoing pain syndrome with the intensity and character of her 

pain being much worse following the second accident.”

By decision dated February 28, 2019, OWCP denied modification of the November 1, 

2017 decision.

On February 26, 2020 appellant, through her then-representative, requested 

reconsideration. 

Appellant submitted an April 20, 2015 lumbar spine MRI scan, which showed loss of 

height and signal at L2-3 and L5-S1, preserved vertebral body heights, and Schmori’s nodes seen 

at the inferior L1, superior L3, and opposing L3-4 endplates. 
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In a February 19, 2020 report, Dr. Mark A. Seldes, a Board-certified family medicine 

specialist, described that on August 4, 2015 a large, oversized parcel fell down and struck appellant 

on her left foot and ankle, causing her to fall down hard on the right side hitting her right hip, right 

leg, right knee, right foot, right shoulder, right arm, right hand, and lumbar spine. He noted that 

she had a previous slip-and-fall injury at work on February 21, 2015 and had returned to work with 

restrictions on June 15, 2015. Dr. Seldes discussed the medical treatment that appellant received 

and her diagnostic studies. He recounted her current complaints of daily pain, difficulty 

performing her activities of daily living, and difficulty staying asleep. 

Upon examination of appellant’s bilateral shoulders, Dr. Seldes observed tenderness to 

palpation over the anterolateral and posterior aspects and positive Neer’s and Hawkins tests. 

Examination of appellant’s right elbow revealed tenderness to palpation over the lateral and medial 

aspects and limited range of motion. Dr. Seldes reported that examination of appellant’s lumbar 

spine revealed tenderness to palpation lateral to the midline in the dorsal lumbar spine area and 

over the bilateral sacroiliac joints. Examination of appellant’s right hip showed tenderness to 

palpation over the anterolateral aspect of the right hip joint and examination of the right knee 

revealed tenderness to palpation over the lateral and medial joint line and limited range of motion. 

Dr. Seldes diagnosed lumbar radiculopathy, right shoulder rotator cuff tear, right trochanteric 

bursitis, right knee medial meniscus tear, right knee lateral meniscal tear, and right elbow radial 

collateral ligament tear. He opined that appellant suffered a work-related injury on August 4, 2015 

when she was struck by a parcel at work.

A lumbar x-ray examination report dated July 14, 2016, showed moderate scoliosis, disc 

space narrowing at the L3-4 level, and degenerative changes at the L3-4 level. 

By decision dated April 1, 2020, OWCP denied modification of the February 28, 2019 

decision. 

On June 11, 2020 appellant, through her then-representative, requested reconsideration.

In a May 19, 2020 report, Dr. Seldes noted his disagreement with the April 1, 2020 denial 

decision. He recounted his previous examination findings and appellant’s diagnostic studies. 

Dr. Seldes reported: “it is my opinion with clinical evaluation, diagnostic review, history and 

evaluation of the patient directly that it is with reasonable medical certainty that this patient 

suffered a work-related injury on [August 4, 2015] when she was struck by a parcel at work in her 

left ankle and foot and knocked down on the right side of her body.”

By decision dated September 4, 2020, OWCP denied modification of the April 1, 2020 

decision. 

On March 24, 2021 appellant, through her then-representative, requested reconsideration.

In a December 28, 2020 report, Dr. Seldes described the February 21 and August 4, 2015 

fall injuries at work and the medical treatment that appellant received. He compared appellant’s 

April 17, 2015 and November 5, 2015 lumbar spine MRI scans. Dr. Seldes indicated that appellant 

had a preexisting injury on February 21, 2015, which eventually resolved so that appellant could 

return to work. He opined that the subsequent August 4, 2015 injury aggravated her underlying 

injuries on February 21, 2015. Dr. Seldes requested that OWCP accept appellant’s claim for 
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lumbar radiculopathy, right shoulder rotator cuff tear, right trochanteric bursitis, right knee 

meniscal tear, right knee lateral meniscal tear, and right elbow radial collateral ligament tear. 

By decision dated April 6, 2021, OWCP denied modification of the September 4, 2020 

decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including that the individual is an employee of the United 

States within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation of FECA,4that 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.5 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.6

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, OWCP must first determine whether fact of injury has been established. 7 

There are two components involved in establishing fact of injury. First, the employee must submit 

sufficient evidence to establish that he or she actually experienced the employment incident at the 

time, place, and in the manner alleged.8 Second, the employee must submit evidence, in the form 

of probative medical evidence, to establish that the employment incident caused a personal injury. 9 

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

opinion evidence.10 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 

3

Id.

4

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

153 (1989). 

5

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

ECAB 312 (1988).

6 R.R., Docket No. 19-0048 (issued April25, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., 

Docket No. 13-1402 (issued February 7, 2014); DeloresC.Ellyett, 41 ECAB 992 (1990).

7 D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

8 D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

9 B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); JohnJ. Carlone, 41 ECAB 

354 (1989).

10 See S.A., Docket No. 18-0399 (issued October 16, 2018); see also RobertG.Morris, 48 ECAB 238 (1996).
8

the specific employment factor(s) identified by the employee. 11 The weight of the medical 

evidence is determined by its reliability, its probative value, its convincing quality, the care of 

analysis manifested, and the medical rationale expressed in support of the physician’s opinion.12

ANALYSIS

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

Appellant submitted reports by Dr. Vernon dated December 17, 2015 through

June 6, 2016. Dr. Vernon noted that appellant’s February 21, 2015 slip and fall injury and 

recounted that on August 4, 2015 a large package struck appellant on the left side, causing her to 

fall down on her right side. He noted that upon impact on the ground appellant injured her right 

shoulder, arm, elbow, wrist, and right knee. Dr. Vernon provided examination findings and 

diagnosed reaggravation of prior lumbar spine injury, post-traumatic lumbar radiculopathy at L4 

and L5, post-traumatic right tibial neuropathy, post-traumatic bilateral S1 radiculopathy, posttraumatic tendinopathy of the right gluteal/trochanteric insertion, post-traumatic partial thickness 

tear, post-traumatic horizontal tear of the anterior horn and tear of lateral meniscus of the right 

knee, post-traumatic partial thickness tear of the humeral attachment of the radial collateral 

ligament in the right wrist, and post-traumatic sprain/strain of the right wrist. He opined that on 

August 4, 2015 appellant sustained a permanent aggravation of her previous lumbar condition and 

new right hip, knee, shoulder, elbow, and wrist conditions. Dr. Vernon reported that the 

mechanism of injury is consistent with someone that has been struck on one side and has fallen to 

the outside and puts her arm or hand out, that is the typical type of injury that you would see when 

falling to the side, using your arm to stabilize the fall with the transmission of injury right up 

through hand, wrist, elbow, and shoulder and also injuring the right side of her pelvis and her right 

knee.

The Board finds that, while the reports of Dr. Vernon are not fully rationalized, he provided 

a pathophysiological explanation with regard to causal relationship. Thus, further development is 

required.

13

11 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 

ECAB 345 (1989).

12 James Mack, 43 ECAB 321 (1991).

13

. M.R., Docket No. 20-0101 (issued September 14, 2021); N.K., Docket No. 20-1634 (issued September 10, 2021); 

RichardE. Simpson, 55 ECAB 490, 500 (2004); JohnJ. Carlone, supra note 9.
9

It is well established that 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.14 OWCP has an obligation to see that justice is done.15 

The Board will, therefore, remand the case to OWCP for further development of the 

medical evidence regarding whether appellant sustained a medical condition causally related to 

the August 4, 2015 employment incident. On remand OWCP shall refer appellant, a statement of 

accepted facts, and the medical evidence of record to a physician in the appropriate field of 

medicine for a rationalized opinion on whether any of the diagnosed conditions are causally related 

to the accepted employment incident. If the physician opines that the diagnosed conditions are not 

causally related, he or she must explain with rationale how or why his or her opinion differs from 

that of Dr. Vernon. Following this and other further development as deemed necessary, OWCP 

shall issue a de novo decision regarding appellant’s claim. 

CONCLUSION

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

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

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); Michael Gallo, 29 ECAB 159, 161 (1978); WilliamN. Saathoff, 8 

ECAB 769, 770-71(1956). 

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

Gertrude E. Evans, 26 ECAB 195 (1974).
10

ORDER

IT IS HEREBY ORDERED THAT the April 6, 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.16

Issued: October 18, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

16 A completed Form CA-16authorization may constitute a contract for payment of medical expenses to a medical 

facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the 

employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See

20 C.F.R. § 10.300(c); J.D., Docket No. 22-0286 (issued June 15, 2022); V.S., Docket No. 20-1034 (issued 

November 25, 2020); J.G.,Docket No. 17-1062 (issued February 13, 2018); TracyP. Spillane, 54 ECAB 608 (2003).