United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.T., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL AIR 

STATION, Point Mugu, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-427 

Issued: April 21, 2015 

Appearances: Case Submitted on the Record

Raquell Krueger-Denio, for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 16, 2014 appellant, through his representative, filed a timely appeal from a 

November 6, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant sustained an injury on August 28, 2013 in the performance 

of duty, as alleged. 

FACTUAL HISTORY 

On September 3, 2013 appellant, then a 44-year-old firefighter, filed a traumatic injury 

claim alleging that on August 28, 2013 he sustained pain and pressure in his lower back and legs 

 1

 5 U.S.C. § 8101 et seq. 
2

after emptying “trash and office furniture out of a trailer” behind the fire station. He stopped 

work on August 28, 2013. The employing establishment did not controvert the claim. 

In a disability certificate dated August 29, 2013, Dr. Russell Nelson, a Board-certified 

orthopedic surgeon, diagnosed appellant’s status post lumbar fusion. He found that appellant 

was totally disabled until September 3, 2013. On September 3, 2013 Dr. Nelson diagnosed 

lumbago and status post fusion and found that appellant was unable to work until 

September 24, 2013. 

By letter dated September 17, 2013, OWCP advised appellant that his claim originally 

appeared to be minor and thus it had approved a limited amount of medical expenses. It was 

now formally adjudicating his case. OWCP requested that appellant provide additional factual 

information, including why he was working on a day that appeared to be a nonscheduled 

workday. It further requested that he submit a detailed medical report from his attending 

physician addressing the causal relationship between any diagnosed condition and work factors. 

In a disability certificate dated October 10, 2013, Dr. Nelson diagnosed status post 

lumbar fusion and found that appellant could return to his usual work duties on 

October 11, 2013. 

By decision dated October 22, 2013, OWCP denied appellant’s claim on the grounds that 

the medical evidence was insufficient to show that he sustained a medical condition causally 

related to the accepted August 28, 2013 work incident. 

On August 12, 2014 appellant, through his representative, requested reconsideration. The 

representative noted that appellant had a history of prior work injuries to his lumbar spine in 

2007 and 2009 for which he underwent a fusion at L4-5 and L5-S1. In January 2011, appellant 

returned to work without restrictions. On August 28, 2013 he experienced back pain after 

moving office furniture and other heavy items out of a trailer. The next day, the pain radiated 

into appellant’s lower right extremity. Dr. Nelson found that appellant was totally disabled from 

August 28 until October 9, 2013. Appellant’s representative asserted that appellant had met his 

burden to show an injury on August 28, 2013 through the newly submitted May 20, 2014 report 

from Dr. Nelson. She also maintained that a magnetic resonance imaging (MRI) scan study 

dated July 15, 2014, “which was ordered for a new injury sustained this year,” revealed 

“objective findings related to this injury on appeal.” 

A July 15, 2014 MRI scan study showed retrolisthesis at L2 and L3-4, an osteophyte 

impinging on the right nerve roots and status post surgery at L4-5 and L5-S1. 

In a report dated May 20, 2014, Dr. Nelson evaluated appellant for continued back pain. 

He diagnosed status post lumbar fusion from L4 to S1 and “[s]tatus post recent aggravation of 

lumbar musculature and scar tissue around the fusion.” Dr. Nelson stated: 

“In an attempt to clarify [his] status, [appellant] sustained prior lumbar injuries 

that resulted in fusion [at] L4-5 and L5-S1. He had returned to work full duty 

when he aggravated this area producing pain and symptomatology which caused 

him to come off of work. Although it does not appear [that appellant] sustained a 

permanent aggravation, he did require time off of work and medications. 
3

[Appellant] also required therapy. This was to treat scar tissue and muscular 

around his lumbar fusion area. This involved a period of temporary disability 

from August 29 through October 9, 2013. I ordered this disability to allow 

[appellant] to recover from this work-related aggravation of his prior fusion area.” 

In a supplemental report dated August 4, 2014, Dr. Nelson related that, subsequent to 

appellant’s 2007 and 2009 injuries, he sustained an injury on August 8, 2013 with symptoms of 

pain radiating into the right buttock. Appellant was disabled from August 20 to October 19, 

2013, at which time he resumed his usual employment. Dr. Nelson described another injury at 

work on July 1, 2014, resulting in a herniation at L3-4. He advised that the “initial injury lifting 

the office furniture weakened the disc space at L3-4 and may well have produced the annual 

tear” and “may well have been the initial insult at the L3-4 disc area.” In an addendum dated 

November 24, 2014, Dr. Nelson clarified that appellant sustained an injury on August 28, 2013 

rather than August 8, 2013. 

By decision dated November 6, 2014, OWCP denied modification of its October 22, 

2013 decision. It found that the medical evidence from Dr. Nelson was insufficient to establish 

that appellant sustained an injury on August 28, 2013 as he did not reach a definite diagnosis, 

provide an accurate date of injury, or sufficiently address causation. 

On appeal, appellant’s representative describes his history of injury and the August 28, 

2013 work incident. She argues that Dr. Nelson’s May 20, 2014 report is sufficient to meet 

appellant’s burden of proof and notes that an aggravation of a preexisting condition is 

compensable. Appellant’s representative also asserts that Dr. Nelson’s reference to an August 8, 

2013 injury was a typographical error. She contends that OWCP’s decisions do not contain 

findings of fact and a statement of reasons in accordance with 20 C.F.R. § 10.126. Appellant’s 

representative notes that OWCP did not analyze the July 15, 2014 MRI scan study. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA2 has the burden of establishing 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 filed within the applicable time 

limitation; that an injury was sustained while in the performance of duty as alleged; and that any 

disability and/or specific condition for which compensation is claimed are causally related to the 

employment injury.3 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

To determine whether an employee sustained a traumatic injury in the performance of 

duty, OWCP must determine whether “fact of injury” is established. First, an employee has the 

burden of demonstrating the occurrence of an injury at the time, place, and in the manner 

 2

 5 U.S.C. § 8101 et seq. 

3 Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003). 

4 See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004). 
4

alleged, by a preponderance of the reliable, probative, and substantial evidence.5 Second, the 

employee must submit sufficient evidence, generally only in the form of medical evidence, to 

establish a causal relationship between the employment incident and the alleged disability and/or 

condition for which compensation is claimed.6

 An employee may establish that the employment 

incident occurred as alleged, but fail to show that his or her disability and/or condition relates to 

the employment incident.7

ANALYSIS 

Appellant alleged that he sustained an injury to his lower back on August 28, 2013 after 

moving heavy furniture and trash from a trailer. OWCP accepted that the August 28, 2013 

incident occurred at the time, place, and in the manner alleged. The issue, consequently, is 

whether the medical evidence establishes that he sustained an injury as a result of this incident. 

The Board finds that appellant has not established that the August 28, 2013 employment 

incident resulted in an injury. The determination of whether an employment incident caused an 

injury is generally established by medical evidence.8

In a disability certificate dated August 29, 2013, Dr. Nelson diagnosed status post lumbar 

fusion and opined that appellant could not work until September 3, 2013. On September 3, 2013 

he diagnosed lumbago and status post fusion and found that appellant remained totally disabled. 

On October 10, 2013 Dr. Nelson diagnosed status post lumbar fusion and advised that appellant 

could return to work with no restrictions. In these reports, however, he did not address the cause 

of appellant’s condition and disability. Medical evidence that does not offer any opinion 

regarding the cause of an employee’s condition is of diminished probative value on the issue of 

causal relationship.9

 

On May 20, 2014 Dr. Nelson diagnosed status post lumbar fusion from L4 to S1 with a 

recent aggravation of scar tissue and the lumbar musculature around the site of the fusion. He 

noted that appellant had resumed his regular work after the fusion, but subsequently aggravated 

the area. Dr. Nelson found that appellant was disabled from work for the period August 29 

through October 9, 2013 as he required recovery from a “work-related aggravation of 

[appellant’s] prior fusion area.” He did not, however, discuss the history of the August 28, 2013 

work injury or provide any rationale for his finding that appellant was disabled from 

employment. 

In order to establish causal relationship, a physician’s opinion must be based on a 

complete and accurate factual and medical background and must be supported by medical 

 5 David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999). 

6 Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997). 

7 Id.

8 Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002). 

9 S.E., Docket No. 08-221 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003). 
5

rationale explaining the nature of the relationship of the diagnosed condition and the specific 

employment incident.10 

In a report dated August 4, 2014, Dr. Nelson indicated that on August 8, 2013 appellant 

experienced pain radiating into the right buttock after an August 8, 2013 injury. He found that 

appellant was disabled from this injury from August 20 to October 19, 2013. Dr. Nelson 

determined that when appellant lifted office furniture he possibly sustained an “initial insult at 

the L3-4 disc area” that may have caused an annual tear. In an addendum dated November 24, 

2014, he clarified that appellant sustained the injury on August 28, 2013, rather than 

August 8, 2013. Dr. Nelson did not, however, provide a firm diagnosis or explain how, with 

reference to the mechanism of injury, it caused any diagnosed condition. A physician must 

provide a narrative description of the employment incident and a reasoned opinion on whether 

the employment incident described caused or contributed to appellant’s diagnosed medical 

condition.11 Further, Dr. Nelson’s finding that lifting furniture may have caused an injury at 

L3-4 is couched in speculative terms, and the Board has held that medical opinions which are 

speculative or equivocal in character have little probative value.12 

As appellant has not submitted reasoned medical evidence based on a complete factual 

history addressing whether he sustained an injury on August 28, 2013, he has not met his burden 

of proof. 

On appeal, appellant’s representative maintains that Dr. Nelson’s reports are sufficient to 

meet appellant’s burden of proof and notes that an aggravation of a preexisting condition is 

compensable. She also asserts that Dr. Nelson’s reference to an August 8, 2013 injury was a 

typographical error. The representative is correct in her assertion that an aggravation of a 

preexisting condition is compensable, but only upon proper proof of such aggravation. 

Moreover, as discussed, however, Dr. Nelson’s reports do not contain a reasoned opinion on 

causation and thus are insufficient to meet appellant’s burden of proof. 

Appellant’s representative also contends that OWCP did not provide adequate findings of 

fact and a statement of reasons and did not analyze the MRI scan study.13 OWCP, however, 

weighed the medical reports submitted and made findings regarding their probative value. The 

July 15, 2014 MRI scan study did not address causation and was obtained for “a new injury 

sustained this year;” consequently, it is not probative.14

 10 See Charles W. Downey, 54 ECAB 421 (2003); Roger Dingess, 47 ECAB 123 (1995). 

11 See John W. Montoya, 54 ECAB 306 (2003). 

12 L.R. (E.R.), 58 ECAB 369 (2007); Kathy A. Kelley, 55 ECAB 206 (2004). 

13 OWCP’s regulations provide that a decision “shall contain findings of fact and a statement of reasons.” 

20 C.F.R. § 10.126. 

14 See J.E., Docket No. 13-508 (issued May 16, 2013). 
6

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not established that he sustained an injury on 

August 28, 2013 in the performance of duty, as alleged. 

ORDER 

IT IS HEREBY ORDERED THAT the November 6, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 21, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board