United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.B., Appellant

and

U.S. DISTRICT COURT, SOUTHERN 

DISTRICT OF FLORIDA, Miami, FL, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 21-1291

Issued: April 28, 2022

Appearances: Case Submitted on the Record

Stephanie Leet, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On August 27, 2021 appellant, through counsel, filed a timely appeal from an August 4, 

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 left shoulder or 

cervical condition causally related to the accepted November 5, 2015 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances set forth in 

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

On December 4, 2015 appellant, then a 60-year-old executive services administrator, filed 

a traumatic injury claim (Form CA-1) alleging that on November 5, 2015 she injured her left 

shoulder and neck due to pushing and pulling carts and turning over white plastic folding chairs 

while in the performance of duty. She explained that she was pushing and pulling carts containing 

equipment and supplies for an employing establishment event. Appellant moved the carts from 

the loading dock to the freight elevator, up to the 13th floor, and then down a carpeted corridor to 

the lobby. She also inverted plastic folding chairs to remove wrapping, and then flipped the chairs 

upright. Appellant did not stop work. 

By decision dated February 12, 2016, OWCP denied appellant’s claim, finding that she 

had not submitted sufficient evidence to establish causal relationship between her diagnosed 

conditions and the accepted November 5, 2015 employment incident. 

On February 7, 2017 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence. 

By decision dated April 28, 2017, OWCP denied modification of its February 12, 2016 

decision. 

On October 11, 2017 appellant, through counsel, appealed to the Board. 

By decision dated May 13, 2019, the Board affirmed the April 28, 2017 OWCP decision, 

finding that appellant had not met her burden of proof to establish that her claimed left shoulder 

and neck conditionswere causally related to the accepted November 5, 2015 employment incident, 

as she had not submitted rationalized medical evidence to support her allegation. 4

On April 21, 2020 appellant, through counsel, requested reconsideration. 

In support of the request, appellant submitted a November 20, 2019 report from Dr. Neil 

Allen, a Board-certified internist and neurologist. Dr. Allen reviewed her history of injury and 

medical treatment, and noted that he conducted a physical examination. He argued that appellant’s

case should be accepted for aggravation of cervical spondylosis with radiculopathy and 

aggravation of cervical disc disorder with radiculopathy. Dr. Allen explained that the repetitive 

above-the-shoulder motions of reaching, pushing, pulling, lifting, flexing, and extending her

3 Docket No. 18-0071 (issued May 13, 2019).

4

Id.
3

cervical spine, led to an aggravation of an asymptomatic underlying condition. He related that 

appellant had denied having symptoms of her claimed conditions prior to the November 5, 2015

incident. Dr. Allen noted that, in general, age-related deterioration accompanied by repetitive 

activity could render intervertebral discs susceptible to breakdown. He opined that appellant’s 

cervical spine conditions were directly aggravated by the incident of November 5, 2015. 

By decision dated May 22, 2020, OWCP denied modification. 

On May 6, 2021 appellant, through counsel, again requested reconsideration. 

In support of the request, appellant submitted a report from Dr. Allen dated June 5, 2020

clarifying his prior report. Dr. Allen diagnosed aggravation of cervical spondylosis with 

radiculopathy at the C4-5, C5-6, and C6-7 levels, and aggravation of cervical disc disorder with 

radiculopathy at the C4-5, C5-6, and C6-7 levels. He explained that on November 5, 2015 as a 

result of reaching, pushing, pulling, and lifting, the musculature of appellant’s shoulders had 

fatigued and cervical paraspinal musculature activated to assist in shoulder elevation. Dr. Allen 

further explained that this change in structure resulted in increased stress and breakdown of the 

facet joints and discs at the C4-7 spinal levels, and that continuing to work in this compromised 

biomechanical state caused further deterioration.

By decision dated August 4, 2021, OWCP denied modification.

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 

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 

5

Id.

6 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

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).
4

employment incident at the time, 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 April 28, 2017 decision, because the Board considered that evidence 

in its May 13, 2019 decision, finding that it was insufficient to establish her claim. Findings made 

in prior Board decisions are res judicata absent any further review by OWCP under section 8128 

of FECA.12

On reconsideration appellant submitted a June 5, 2020 report from Dr. Allen clarifying his 

November 20, 2019 report. Dr. Allen diagnosed aggravation of cervical spondylosis with 

radiculopathy at the C4-5, C5-6, and C6-7 levels, and aggravation of cervical disc disorder with 

radiculopathy at the C4-5, C5-6, and C6-7 levels. He explained that on November 5, 2015 as a 

result of reaching, pushing, pulling, and lifting, the musculature of appellant’s shoulders had 

fatigued and cervical paraspinal musculature activated to assist in shoulder elevation. Dr. Allen 

further explained that this change in structure resulted in increased stress and breakdown of the 

facet joints and discs at the C4-7 spinal levels, and that continuing to work in this compromised 

biomechanical state caused further deterioration.

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

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).

13 C.R., Docket No. 20-1102 (issued January 8, 2021); K.P., Docket No. 18-0041 (issued May 24, 2019).
5

The Board finds that, while Dr. Allen’s June 5, 2020 report is not fully rationalized, itraises

an uncontroverted inference that appellant has a left shoulder and/or cervical condition causally 

related to the accepted November 5, 2015 employment incident.14 Although the report is

insufficient to meet appellant’s burden of proof to establish her 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 o pinion 

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 November 5, 2015 

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

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

shall issue a de novo decision.

CONCLUSION

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

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 March29, 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

ORDER

IT IS HEREBY ORDERED THAT the August 4, 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: April 28, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board