United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BLOOMFIELD VETERANS CENTER, 

East Orange, NJ, Employer

__________________________________________

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Docket No. 22-0401

Issued: June 29, 2022

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. MCGINLEY, Alternate Judge

JURISDICTION

On January 25, 2022 appellant, through counsel, filed a timely appeal from an October 21, 

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 to consider the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish that he sustained a 

condition causally related to the accepted March 14, 2014 employment incident.

FACTUAL HISTORY

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

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

follows.

On March 17, 2014 appellant, then a 41-year-old technology specialist, filed a traumatic 

injury claim (Form CA-1) alleging that on March 14, 2014 he developed a possible back strain due 

to lifting heavy objects while in the performance of duty. He stopped work on March 18, 2014.

By decision dated July 9, 2014, OWCP denied appellant’s traumatic injury claim, finding 

that the factual evidence was insufficient to establish that the March 14, 2014 incident occurred as 

alleged. Consequently, it found that the requirements had not been met to establish an injury as 

defined by FECA.

On July 10, 2014 appellant provided additional factual evidence and explained that on 

March 14, 2014 he was directed to install printers, three of which weighed over 75 pounds each,

and had to be unpacked from boxes. He noted that, while unpacking and lifting the heavy printers, 

he felt that he had pulled something in his back. After the initial pull, appellant’s back pain 

increased and continued to worsen after he went home.

Appellant submitted reports dated from Dr. Boqing Chen, a Board-certified physiatrist,

describing the alleged March 14, 2014 employment incident of moving printers at work and

diagnosing radicular low back pain from lumbar radiculopathy and low back pain. Dr. Chen

concluded that the conditions likely resulted from discogenic pain or facet joint pain or 

sprain/strain. He opined that there was causal relationship between appellant’s acute onset back 

pain and the heavy lifting that he performed on March 14, 2014.

Appellant requested a review of the written record from a representative of OWCP’s 

Branch of Hearings and Review on August 6, 2014.

By decision dated February 4, 2015, an OWCP hearing representative affirmed, as 

modified, OWCP’s July 9, 2014 decision, finding that the evidence was sufficient to establish that 

the March 14, 2014 incident occurred as alleged. However, the claim remained denied as the 

medical evidence of record did not establish causal relationship between the diagnosed condition 

and the accepted March 14, 2014 employment incident. 

Counsel requested reconsideration on January 25, 2016 and submitted additional notes 

from Dr. Chen in which he provided a description of appellant’s work incident and diagnosed low 

back pain, radiculopathy of the thoracolumbar region, spondylosis with radiculopathy in the 

3 Docket No. 16-1786 (issued January 30, 2017).
3

lumbar region, cervicocranial syndrome, spondylosis with radiculopathy in the cervical region, 

and cervicalgia. He opined that appellant experienced a work-related injury. 

By decision dated May 19, 2016, OWCP denied modification of the February 4, 2015 

decision.

Appellant, through counsel, appealed to the Board. By decision dated January 30, 2017,

4

the Board affirmed the May 19, 2016 OWCP decision, finding that the medical evidence was 

insufficiently rationalized to establish causal relationship between his accepted March 14, 2014 

employment incident and his diagnosed conditions.

On August 28, 2017 appellant, through counsel, requested reconsideration. In an 

August 19, 2017 report, Dr. Chen noted his history of injury and diagnosed cervical radiculopathy, 

lumbar radiculopathy, low back pain, and thoracic back pain. He opined that there was a causal 

relationship between appellant’s acute onset back pain and his March 14, 2014 heavy lifting.

By decision dated June 6, 2019, OWCP denied modification of its prior decision.

On May 22, 2020 appellant, through counsel,requested reconsideration. In a May 21, 2020 

report, Dr. Chen found that appellant had developed or aggravated low back pain after he 

performed heavy lifting at work on March 14, 2014. He noted that heavy lifting was a risk factor 

for low back pain and that appellant lifted more than 75 pounds. Dr. Chen opined that the repetitive 

heavy lifting with his low back bent at an angle placed thousands of pounds of weight on 

appellant’s low back, which was why he had developed a low back injury and aggravated his low 

back pain on March 14, 2014 at work.

By decision dated August 17, 2020, OWCP denied modification of its prior decision.

On August 13, 2021 appellant, through counsel, requested reconsideration. In an 

August 11, 2021 report, Dr. Chen asserted that appellant repetitively lifted more than 75 pounds

at work on March 14, 2014 and that this repetitive heavy lifting with his low back bent at an angle 

placed thousands of pounds of weight in his low back. He found that biomechanically heavy lifting 

with the lumbar spine in a standing and forward bent position could significantly increase 

intradiscal pressure and result in or aggravate lumbar disc herniation leading to discogenic low 

back pain. Dr. Chen concluded that it was his medical opinion that appellant had sustained a low 

back injury and aggravated low back pain on March 14, 2014 due to his employment incident.

By decision dated October 21, 2021, OWCP denied modification of its prior decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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 

4

Id.

5

Supra note 2.
4

limitation 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 whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. There 

are two components involved in establishing fact of injury. The first component is that the 

employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident at the time and place, and in the manner alleged. The second component is 

whether the employment incident caused a personal injury.9

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

condition and an employment incident is 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 specific employment factors 

identified by the employee.11

ANALYSIS

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

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

submitted prior to OWCP’s May 19, 2016 decision, because the Board considered that evidence 

in its January 30, 2017 decision, finding that it was insufficient to establish his claim. Findings 

made in prior Board decisions are res judicata absent any further review by OWCP under section 

8128 of FECA.12

6 C.B., Docket No. 21-1291 (issued April28, 2022); F.H., Docket No. 18-0869 (issued January 29, 2020); J.P.,

Docket No. 19-0129 (issued April26, 2019); Joe D. Cameron, 41 ECAB 153 (1989).

7 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

8 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

9 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L.,Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

10 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).

11 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).

12 See K.V., Docket No. 21-0008 (issued November 15, 2021); B.R., Docket No. 17-0294 (issued May 11, 2018); 

Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
5

On reconsideration appellant submitted an August 11, 2021 report from Dr. Chen 

describing the March 14, 2014 employment incident in which appellant repetitively lifted more 

than 75 pounds at work and explaining that this repetitive heavy lifting with his low back bent at 

an angle placed thousands of pounds of weight on his low back. Dr. Chen explained that 

biomechanically, heavy lifting with the lumbar spine in a standing and forward bent position could 

significantly increase intradiscal pressure and result in or aggravate lumbar disc herniation leading 

to discogenic low back pain. He concluded that appellant sustained a low back injury and 

aggravated low back pain on March 14, 2014 due to his employment incident.

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

is not a disinterested arbiter. While the claimant has the burden to establish entitlement to 

compensation, OWCP shares responsibility in the development of the evidence and to see that 

justice is done.13

The Board finds that, while Dr. Chen’s August 11, 2021 report is not fully rationalized, it 

raises an uncontroverted inference that appellant has a lumbar disc herniation leading to discogenic 

low back pain causally related to the accepted March 14, 2014 employment incident.14 Although 

the report is insufficient to meet appellant’s burden of proof to establish his claim, it is sufficient 

to require OWCP to further develop the medical evidence.15

The case shall, therefore, be remanded for further development of the medical evidence.

On remand OWCP shall prepare a statement of accepted facts and obtain a rationalized opinion 

from a physician in the appropriate field of medicine as to whether the accepted employment 

incident caused, contributed to, or aggravated the diagnosed conditions. 16 If the physician opines 

that the diagnosed conditions are not causally related to the accepted March 14, 2014 employment 

incident, he or she must explain with rationale how or why their opinion differs from that of

Dr. Chen. Following this and other such further development as deemed necessary, OWCP shall 

issue a de novo decision.

13 C.B., supra note 6; C.R., Docket No. 20-1102 (issued January 8, 2021); K.P., Docket No. 18-0041 (issued 

May 24, 2019).

14 See B.F., Docket No. 20-0990 (issued January 13, 2021); Y.D.,Docket No. 19-1200 (issued April6, 2020).

15 See M.S., Docket No. 20-1095 (issued March 29, 2022); A.D., Docket No. 20-0758 (issued January 11, 2021); 

C.R.,Docket No. 20-0366 (issued December 11, 2020); John J. Carlone, supra note 9; Horace Langhorne, 29 ECAB 

820 (1978).

16 C.G., Docket No. 20-1121 (issued February 11, 2021); A.G.,Docket No. 20-0454 (issued October 29, 2020).
6

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the October 21, 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: June 29, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board