United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Washington, DC, Employer

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Docket No. 21-0848

Issued: October 7, 2022

Appearances: Case Submitted on the Record

Russell T. Uliase, 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 May 18, 2021 appellant, through counsel, filed a timely appeal from a November 19, 

2020 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 November 19, 2020 decision, appellant submitted additional evidence to 

OWCP. 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 her burden of proof to expand the acceptance of her 

claim to include an additional right lower extremity condition as causally related to the accepted 

June 13, 2013 employment injury.

FACTUAL HISTORY

On June 13, 2013 appellant, then a 47-year-old computer specialist, filed a traumatic injury 

claim (Form CA-1) alleging that on June 13, 2013 she sustained injury when she was working at 

home and slipped on a wet step and fell while in the performance of duty. She did not stop work. 

OWCP assigned OWCP File No. xxxxxx013 and initially accepted her claim for contusions of the 

lower back and pelvis; permanent aggravation of disc herniation at L4-5; and permanent 

aggravation of lumbar spondylosis and radiculopathy at L5-S1. On May 20, 2015 it expanded

acceptance of appellant’s claim to include left buttocks contusion (resolved).

On November 18, 2016 Dr. Barrett Woods, a Board-certified orthopedic surgeon, 

performed OWCP-authorized lumbar laminectomy at L4-5 with instrumented fusion atL5-S1. He

provided post-surgery medical care and appellant also received medical treatment for her multiple 

conditions from Dr. Richard A. Domsky, a Board-certified emergency medicine physician, and

Dr. Joshua Armstrong, an osteopath and Board-certified physiatrist.

On August 21, 2018 appellant underwent surgical repair of right tibial fracture. The 

surgery was not authorized by OWCP.

On September 7, 2018 appellant filed a Form CA-1 alleging that on August 20, 2018 she 

sustained injury in the form of fracture of her right tibia and fibula. OWCP assigned OWCP File 

No. xxxxxx203. By decision dated December 4, 2018, issued under OWCP File No. xxxxxx203, 

OWCP denied appellant’s claim for an August 20, 2018 traumatic injury, finding that she had not

met her burden of proof to establish that she sustained an injury in the performance of duty on 

August 20, 2018. It administratively combined OWCP File No. xxxxxx203 and OWCP File No. 

xxxxxx013, designating the latter as the master file.

On February 28, 2019 OWCP referred appellant, along with the case record and a statement 

of accepted facts (SOAF), for a second opinion examination and evaluation with Dr. Noubar 

Didizian, a Board-certified orthopedic surgeon. It requested that he provide an opinion regarding 

whether appellant continued to have disability or residuals related to the accepted June 13, 2013 

employment injury. OWCP also requested that Dr. Didizian indicate whether appellant’s current

lower extremity condition was related to the accepted June 13, 2013 employment injury.

In a report dated March 20, 2019, Dr. Didizian discussed appellant’s factual and medical 

history and detailed the findings of his physical examination. He provided an extensive summary 

of the medical reports of attending physicians who treated her multiple medical conditions.

Dr. Didizian opined that the June 13, 2013 employment injury caused an exacerbation of 

appellant’s preexisting degenerative back condition, which resulted in appellant developing a foot 

drop condition. He noted:

“[T]he neurosurgeon as well as Dr. Woods make a good case that the preexisting 

condition was aggravated/exacerbated by the incident of June 13, 2013, resulting 
3

in foot drop and a herniated disc. Obviously, the aggravation stayed with the 

patient, since conservative therapy, including epidurals, did not resolve her 

problem, eventually necessitating surgery by Dr. Woods on November 18, 2016.” 

Dr. Didizian also indicated that the subsequent August 20, 2018 right tibia plateau fracture 

with compartment syndrome “had nothing to do with the present illness of June 13, 2013.” He 

opined that the August 20, 2018 injury was a separate incident for which appellant underwent 

multiple surgeries and stayed out of work for an extended period. Dr. Didizian indicated that, due 

to the June 13, 2013 employment injury, appellant had restricted range of motion of the lumbar 

spine and problems with “post-surgical mobility” and that she also had disability related to the 

June 13, 2013 employment injury. In another portion of the report, he indicated, “[Appellant] is 

able to perform her regular duties.”

On April 3, 2019 OWCP requested thatDr. Didizian produce a supplemental report, which 

clarified his March 20, 2019 report. In an April 25, 2019 report, Dr. Didizian provided a summary 

of appellant’smedical treatment since suffering an employment injury on June 13, 2013. He noted 

that the chronology of events indicated that, even though appellant had prior back problems, she 

was functioning well on full duty, and the June 13, 2013 incident materially increased her 

symptomatology and necessitated surgical intervention. Dr. Didizian indicated that his definition 

of permanent aggravation involved the permanent worsening of the underlying condition due to 

employment factors. He noted, “I think it satisfies the criteria that will satisfy the [Department of 

Labor].” Dr. Didizian advised that consistent neurologic deficits in the toe and ankle extensors on 

the left constituted a pathology that needed to be addressed since the condition had not improved 

after “the present illness” that was addressed by the surgery. He indicated that appellant had 

material findings on physical examination and radiologic studies at the time of her surgery.

Dr. Didizian noted, “[i]t is also my medical opinion that the fact the patient did well 

postoperatively certainly points in the direction that it was as stated by the incident of June 13,

2013, and it was not a placebo effect.”

On July 14, 2019 Dr. Woods requested, on appellant’s behalf, expansion of the acceptance 

of her claim to include fracture of the right tibial plateau causally related to the accepted June 13, 

2013 employment injury. He indicated that appellant had lumbar radiculopathy due to the June 13, 

2013 injury and opined that, despite some improvement with radicular pain after the November 18, 

2016 surgery, the “persistent functional limitation resulted in her having another fall, which was 

traumatic resulting in a severe tibial plateau fracture that required [several] more operations on her 

leg.” Dr. Woods noted that appellant had persistent and permanent weakness in her left leg when 

he last saw her on June 17, 2019. He concluded that appellant’s August 20, 2018 fall and 

consequential right leg fracture were due to the nerve damage related to the accepted June 13, 2013 

employment injury.

By decision dated January 27, 2020, OWCP denied appellant’s claim, finding that she had 

not met her burden of proof to establish expansion of the acceptance of her claim to include an 

additional right lower extremity condition as causally related to the accepted June 13, 2013 

employment injury. On February 3, 2020 appellant, through counsel, requested a hearing before 

a representative of OWCP’s Branch of Hearings and Review. Prior to the hearing, OWCP’s 

hearing representative issued an April 21, 2020 decision vacating the January 27, 2020 decision 

and remanding the case to OWCP for further development of the evidence. The hearing 

representative directed OWCP to obtain a supplemental report from Dr. Didizian.
4

On remand OWCP requested that Dr. Didizian produce a supplemental report, which 

clarified his prior reports dated March 20 and April 25, 2019. In particular, it requested that he 

provide further explanation of whether he believed that appellant’s right tibia/fibula fracture was 

“consequentially connected” to the accepted June 13, 2013 employment injury.

In a supplemental June 18, 2020 report, Dr. Didizian advised that, in his April 25, 2019

report, he had indicated that the August 20, 2018 injury had nothing to do with the “work injury.” 

He noted that, to support this statement, he reviewed numerous reports, which supported that 

appellant did not have weakness in the lower extremities neurologically, including a February 8,

2017 report in which Dr. Armstrong indicated that the manual muscle strength was 5/5 in 

appellant’s bilateral hip flexors,hip extensors, knee flexors, knee extensors, and ankle dorsiflexors.

Dr. Didizian noted that, in a March 6, 2017 report, Dr. Woods indicated that appellant had 

symmetric lower extremity strength and reflexes and, in a June 26, 2017 report, he noted that she 

had no focal deficits neurologically. Dr. Didizian also indicated that Dr. Armstrong noted in a

September 28, 2017 report that appellant complained of left groin and anterior thigh symptoms 

and the neurological examination showed motor strength 5/5 in the hip flexors, hip extensors, knee 

flexors, knee extensor, and ankle dorsiflexors. In a March 8, 2018 report, Dr. Armstrong also 

indicated that manual muscle testing was 5/5 at L5-S1 and diagnosed acute bilateral low back pain 

without sciatica. Dr. Didizian noted, “[t]he fact was for the last one year prior to the incident of 

August 20, 2018, her neurologic examination was intact and her motor strength was 5/5.” He

further noted that it was his opinion that “tibial and fibular fractures on the right side has [sic] 

nothing to do with the original injury which was related to the lower back and the back surgery.”

By decision dated June 23, 2020, OWCP’s denied appellant’s claim, finding that she had 

not met her burden of proof to establish expansion of acceptance of the claim to include an 

additional right lower extremity condition causally related to the accepted June 13, 2013 

employment injury.

Appellant, through counsel, requested a review of the written record by a representative of 

OWCP’s Branch of Hearings and Review. By decision dated November 19, 2020, OWCP’s 

hearing representative affirmed the June 23, 2020 decision.

LEGAL PRECEDENT

The claimant bears the burden of proof to establish a claim for a consequential injury.4 As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, establishing causal relationship. The opinion must be 

one of reasonable medical certainty and must be supported by medical rationale explaining the 

nature of the relationship of the diagnosed condition and the specific employment factors or 

employment injury.5 Causal relationship is a medical issue and the medical evidence required to 

establish causal relationship is rationalized medical evidence.6 Neither the mere fact that a disease 

or condition manifests itself during a period of employment, nor the belief that the disease or 

4 V.K., Docket No. 19-0422 (issued June10, 2020); A.H., Docket No. 18-1632 (issued June1, 2020); I.S., Docket 

No. 19-1461 (issued April30, 2020).

5 K.W., Docket No. 18-0991 (issued December 11, 2018).

6 G.R., Docket No. 18-0735 (issued November 15, 2018).
5

condition was caused or aggravated by employment factors or incidents, is sufficient to establish 

causal relationship.7

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, the question is whether compensability should be extended to a 

subsequent injury or aggravation related in some way to the primary injury. 8 The basic rule is that, 

a subsequent injury, whether an aggravation of the original injury or a new and distinct inju ry, is 

compensable if it is the direct and natural result of a compensable primary injury.9 When an injury 

arises in the course of employment, every natural consequence that flows from that injury likewise 

arises out of the employment, unless it is the result of an independent intervening cause attributable 

to the claimant’s own conduct.10

ANALYSIS

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

The Board has held that, while the claimant has the burden to establish entitlement to 

compensation, OWCP shares responsibility in the development of the evidence. 11 Accordingly, 

once OWCP undertakes to develop the medical evidence further, it has the responsibility to do so 

in the proper manner.12 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.13

The Board notes that reports of Dr. Didizian, the OWCP referral physician, are in need of 

clarification with respect to the question of whether appellant has met the burden of proof to 

expand acceptance of appellant’s claim to include an additional right lower extremity condition as 

causally related to the accepted June 13, 2013 employment injury. In his initial report dated 

March 20, 2018, Dr. Didizian opined that the June 13, 2013 employment injury caused an 

exacerbation of appellant’s preexisting degenerative back condition, which resulted in appellant 

developing a foot drop condition. He noted: 

“[T]he neurosurgeon as well as Dr. Woods make a good case that the preexisting 

condition was aggravated/exacerbated by the incident of June 13, 2013, resulting 

in foot drop and a herniated disc. Obviously, the aggravation stayed with the 

patient, since conservative therapy, including epidurals, did not resolve her 

problem, eventually necessitating surgery by Dr. Woods on November 18, 2016.” 

7

Id.

8 K.S., Docket No. 17-1583 (issued May 10, 2018).

9

Id.

10 A.M., Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004).

11 See D.V., Docket No. 17-1590 (issued December 12, 2018); Russell F. Polhemus, 32 ECAB 1066 (1981).

12 See A.K., Docket No. 18-0462 (issued June19, 2018); Robert F. Hart, 36 ECAB 186 (1984).

13 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).
6

These statements raise the question of whether the accepted June 13, 2013 employment 

injury contributed to the occurrence of appellant’s August 20, 2018 fall at home, which resulted in 

a fracture of the right tibial plateau. In the March 20, 2019 report, Dr. Didizian also indicated, 

without elaboration, that the subsequent August 20, 2018 right tibia plateau fracture “had nothing 

to do with the present illness of June 13, 2013.” However, he did not explain how this statement 

comported with his other statements in the same report that appellant continued to have limitations 

and disability related to the June 13, 2013 employment injury. 

Dr. Didizian produced supplemental April 25, 2019 and June 18, 2020 reports at the 

request of OWCP. In his June 18, 2020 report, he opined that the August 20, 2018 fall was not 

related to the June 13, 2013 employment injury because appellant generally exhibited 5/5 strength

in her lower extremities in the year prior to the August 20, 2018 fall. In these reports, however,

Dr. Didizian did not address his earlier statements about appellant having a foot drop condition 

related to the accepted June 13, 2013 employment injury. In addition, he indicated in his 

supplemental April 25, 2019 report that consistent neurologic deficits in the toe and ankle 

extensors on the left constituted a pathology that needed to be addressed since the condition had 

not improved after “the present illness” that was addressed by the surgery. Dr. Didizian did not 

clearly identify the cause of this condition. He did not address whether the condition had resolved 

and his opinion on appellant’s consequential injury claim requires further clarification.

Therefore, the Board finds that the case must be remanded for clarification to determine

whether to expand acceptance of appellant’s claim to include an additional right lower extremity 

condition as causally related to the accepted June 13, 2013 employment injury. OWCP shall

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.14 After this and such other 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 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).
7

ORDER

IT IS HEREBY ORDERED THAT the November 19, 2020 merit 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: October 7, 2022

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