United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.S., Appellant 

and 

DEPARTMENT OF THE NAVY, FIRE 

STATION, San Diego, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1932 

Issued: February 4, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 3, 2014 appellant filed a timely appeal from a July 29, 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 met his burden of proof to establish a traumatic injury in 

the performance of duty on July 20, 2013. 

FACTUAL HISTORY 

On July 31, 2013 appellant, then a 50-year-old firefighter, filed a traumatic injury claim 

(Form CA-1) alleging that on July 20, 2013, he injured his lower back when he attempted to pick 

 1

 5 U.S.C. § 8101 et seq. 
2

up a drip oil pan and felt a twinge in his lower back. He stated that he was able to finish his shift 

that day, but that the pain got progressively worse during the week. 

In a work status report dated July 25, 2013, Dr. Eduardo A. Borquez, Board-certified in 

emergency medicine, stated that appellant should be off work from July 25 through 29, 2013. 

In a work status report dated July 31, 2013, Dr. Daniel G. Wallace, a Board-certified 

internist, stated that appellant should be off work from August 1 through 8, 2013 and that he 

could return to work on August 9, 2013. 

In a progress report dated July 31, 2013, Dr. Wallace diagnosed appellant with chronic 

low back pain. 

On August 7, 2013 Dr. Truong D. Nguyen, Board-certified in preventative medicine, 

diagnosed appellant with lumbar radiculopathy and back pain. He stated that appellant’s 

symptoms had been present since July 20, 2013, when he was finishing a 72-hour shift at the 

employing establishment, reached down to pick up a pan, and experienced acute, sharp, 

excruciating pain. Dr. Nguyen noted that appellant had a history of lumbar disc herniation 

followed by three epidural steroid injections. He stated, “Findings and diagnosis are consistent 

with history of injury, and in my opinion the condition is work related, based on the history 

provided by the patient.” Dr. Nguyen included the results of an x-ray of appellant’s lumbar spine 

taken in July 2013 in his report, which found normal height and alignment of vertebral bodies; 

no evidence of fracture or osseous lesion; and a narrowing of the disc space at L4-5 consistent 

with degenerative disc disease. 

In a work status report dated August 7, 2013, Dr. Nguyen stated that appellant should be 

off work from August 7 through 22, 2013. On August 22, 2013 he stated that appellant should 

be off work from August 22 through 29, 2013. 

In an attending physician’s report dated August 22, 2013, Dr. Richard H. Chen, Boardcertified in emergency medicine, diagnosed appellant with lumbago. He noted that appellant 

gave a history of injury of bending over to pick up an oil drip pan when he felt a twinge in his 

lower back. Appellant stated that he finished his shift, but felt intense pain in his lower back on 

the next day. Dr. Chen referred to Dr. Nguyen’s August 7, 2013 report on the determination of 

whether appellant’s condition resulted from an employment activity. He noted that appellant had 

a history of chronic low back pain and lumbar disc herniation. 

In progress notes dated August 23, 2013, Dr. Nguyen diagnosed appellant with lumbar 

radiculopathy and a herniated intervertebral disc. 

On August 29, 2013 Dr. Nguyen stated that appellant was improving with conservative 

therapy. He reviewed a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine, 

which noted “a broad dis[c] bulge at L4-5 with a superimposed central protrusion, slightly small 

since 2006.” The MRI scan report also noted a moderate central canal narrowing and mild 

bilateral neural foraminal narrowing. Dr. Nguyen stated, “Findings and diagnosis are consistent 

with history of injury, and in my opinion the condition is work related, based on the history 

provided by the patient.” 
3

On August 29, 2013 Dr. Nguyen recommended work restrictions of standing 

occasionally, walking occasionally, bending at the waist occasionally, and no torso twisting, 

climbing ladders, use of scaffolds, or lifting more than 10 pounds between August 29 and 

September 5, 2013. He released appellant from all restrictions in a report dated 

September 5, 2013. Appellant returned to work full duty with no restrictions on 

September 5, 2013. 

By letter dated September 23, 2013, OWCP informed appellant of the evidence needed to 

support his claim and sent him a questionnaire for completion. 

On October 4, 2013 appellant responded to OWCP’s inquiries. He noted that he first 

consulted Dr. Borquez on July 25, 2013 with regard to his injury. Between the date of injury and 

the date appellant first received medical attention, he experienced extreme pain, such that he was 

unable to stand, sit, or walk without crutches. He applied heat and ice to the lower back area at 

home. Appellant stated that he had “no symptoms of the latest back injury before the injury on 

July 20, 2013 occurred.” 

By decision dated October 23, 2013, OWCP denied appellant’s claim. It found that he 

had not submitted sufficient evidence to establish a causal relationship between his diagnosed 

conditions and the incident of July 20, 2013. OWCP accepted that appellant was a federal 

civilian employee who filed a timely claim; that the incident occurred; that a medical condition 

had been diagnosed; and that he was within the performance of duty. 

On November 5, 2013 appellant requested a hearing before an OWCP hearing 

representative. 

By letter dated November 1, 2013, Dr. Nguyen stated that appellant’s back injury of 

July 20, 2013 was an exacerbation of a previously stable condition. He stated: 

“[Appellant] has a history of lumbar dis[c] herniation but had been working full 

duty without restriction and without chronic pain medication. From time to time, 

his back may flare due to repetitive strain to his low back. [Appellant] did, 

however, not have any permanent disability. In this case, he reported acute onset 

of symptoms during the latter half of his 72 hours shift as a firefighter at the 

[employing establishment]. [Appellant’s] work as a firefighter involves lifting, 

bending, pulling, squatting, climbing, and crawling all while wearing heavy 

personal protective equipment. This history along with his physical 

exam[ination] findings leads me to believe that [appellant] in fact suffered from 

an injury that arose during the course of performing his usual and customary 

duties as a firefighter. The ‘action of attempting to lift up a drip pan’ was merely 

a contributing factor that triggered muscle spasms of [appellant’s] low back 

exacerbating his lumbar dis[c] herniation.” 

Appellant submitted several statements from coworkers in support of his claim. 

A hearing before an OWCP hearing representative was held on May 12, 2014. At the 

hearing, appellant testified that after he bent over to pick up an oil pan, he felt a twinge in his 

back, and noted that he had felt this once before. He stated that he had a work-related herniated 
4

disc injury in 2005 or 2007 and that he was off for seven months at the time of that back injury.2

Appellant stated that his physicians explained to him that his herniated disc would never 

completely resolve, and that duties of his employment could aggravate his condition. He noted 

that he went to physical therapy for treatment of his condition before returning to full duty. 

By decision dated July 29, 2014, the hearing representative affirmed the decision dated 

October 23, 2013, denying appellant’s claim on the grounds that he had not submitted sufficient 

medical evidence to establish a causal relationship between his condition and the incident of 

July 20, 2013. She found that, while the letter of November 1, 2013 from Dr. Nguyen linked the 

symptom of muscle spasm and exacerbation of a preexisting lumbar disc herniation to the 

incident of July 20, 2013, he did not provide rationale for his opinion. The hearing 

representative noted that the August 29, 2013 report of Dr. Nguyen showed that the disc 

herniation condition was smaller than in 2006. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3 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.4 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.5

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

performance of duty it must first be determined whether a fact of injury has been established.6 

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.7

 Second, the 

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

establish that the employment incident caused a personal injury.8

 2

 The Board notes that appellant had two prior claims accepted by OWCP on January 6 and November 6, 2006 

under claim numbers xxxxxx962 and xxxxxx727, respectively. The International Classification of Diseases, 9th 

Revision (ICD9), code for the diagnosis accepted under case number xxxxxx727 was for sprain and strain of the 

lumbosacral region. 

3 Supra note 1. 

4 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006). 

5 S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989). 

6 B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4. 

7 D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005). 

8 C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras, 

supra note 4. 
5

The claimant has the burden of establishing by the weight of reliable, probative and 

substantial evidence that the condition for which compensation is sought is causally related to a 

specific employment incident or to specific conditions of employment.9 An award of 

compensation may not be based on appellant’s belief of causal relationship. Neither the mere 

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

the disease or condition was caused or aggravated by employment factors or incidents is 

sufficient to establish a causal relationship.10

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is a causal relationship between the employee’s diagnosed condition and 

compensable employment factors.12 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 the specific employment factors identified by the employee.13

ANALYSIS 

Appellant alleged that, on July 20, 2013, he injured his lower back when he attempted to 

pick up a drip oil pan and felt a twinge in his lower back. OWCP accepted that the July 20, 2013 

incident occurred as alleged. It denied appellant’s claim on October 23, 2013 and affirmed this 

denial on July 29, 2014, finding that there was insufficient medical evidence to establish an 

injury causally related to the employment incident. 

OWCP denied the claim on the grounds that appellant had not submitted evidence 

containing a rationalized medical opinion on causal relationship. The medical evidence bearing 

on the issue of causal relationship consists primarily of reports from Dr. Nguyen. On August 7, 

2013 Dr. Nguyen diagnosed appellant with lumbar radiculopathy and back pain. He stated that 

appellant’s symptoms had been present since July 20, 2013, when he was finishing a 72-hour 

shift at the employing establishment, reached down to pick up a pan, and experienced acute, 

sharp, excruciating pain. Dr. Nguyen noted that appellant had a history of lumbar disc herniation 

followed by three epidural steroid injections. He stated, “Findings and diagnosis are consistent 

with history of injury, and in my opinion the condition is work related, based on the history 

provided by the patient.” On August 29, 2013 Dr. Nguyen stated that appellant was improving 

with conservative therapy. He reviewed an MRI scan of appellant’s lumbar spine, which noted 

“a broad dis[c] bulge at L4-5 with a superimposed central protrusion, slightly small since 2006.” 

 9 Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996). 

10 P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). 

11 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 

57 ECAB 642, 649 (2006). 

12 J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006). 

13 I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989). 
6

The MRI scan report also noted a moderate central canal narrowing and mild bilateral neural 

foraminal narrowing. Dr. Nguyen stated, “Findings and diagnosis are consistent with history of 

injury, and in my opinion the condition is work related, based on the history provided by 

[appellant].” By letter dated November 1, 2013, he stated that appellant’s back injury of July 20, 

2013 was an exacerbation of a previously stable condition. Dr. Nguyen opined: 

“[Appellant] has a history of lumbar dis[c] herniation but had been working full 

duty without restriction and without chronic pain medication. From time to time, 

his back may flare due to repetitive strain to his low back. [Appellant] did, 

however, not have any permanent disability. In this case, he reports acute onset 

of symptoms during the latter half of his 72 hours shift as a firefighter at the 

[employing establishment]. [Appellant’s] work as a firefighter involves lifting, 

bending, pulling, squatting, climbing, and crawling all while wearing heavy 

personal protective equipment. This history along with his physical 

exam[ination] findings leads me to believe that he in fact suffered from an injury 

that arose during the course of performing his usual and customary duties as a 

firefighter. The ‘action of attempting to lift up a drip pan’ was merely a 

contributing factor that triggered muscle spasms of [appellant’s] low back 

exacerbating his lumbar dis[c] herniation.” 

The Board finds that appellant has established a firm diagnosis of lumbar disc herniation, 

but that the reports of Dr. Nguyen are insufficiently rationalized to establish causal relationship. 

Dr. Nguyen did not provide a full explanation of how the incident of July 20, 2013, in particular, 

aggravated appellant’s preexisting work-related condition.14 However, although his opinion may 

not be fully rationalized, proceedings under FECA are not adversarial in nature and OWCP is not 

a disinterested arbiter. Appellant has the burden to establish entitlement to compensation; 

however, OWCP shares responsibility in the development of the evidence to see that justice is 

done.15

This case is similar to the case of L.M.16 In L.M., appellant alleged aggravation of a 

preexisting knee condition after stepping off of a curb. A physician stated that she had stepped 

on a curb and as a result experienced a sharp pain in her knee, which he advised was a sprain of 

the knee from stepping on the curb and noted that the sprained knee already evidenced the 

presence of some chondromalacia. He indicated that this led to an acute exacerbation of a 

preexisting condition, notably the chondromalacia of the patella, and persistent pain. OWCP 

denied appellant’s claim, finding that she had not submitted sufficient medical evidence to 

establish a causal relationship. The Board set aside this decision and remanded the case for 

further development, stating that, while this opinion was not sufficient to meet her burden of 

 14 The Board notes that, contrary to the hearing representative’s observation that the August 29, 2013 report 

showed that appellant’s lumbar disc condition was “smaller than in 2006,” the report actually states that an MRI 

scan revealed “a broad dis[c] bulge at L4-5 with a superimposed central protrusion, slightly small since 2006.” 

Hence, on its face, the note states that appellant’s condition had been small since 2006, not that it had shrunk in size 

since that time. 

15 See Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983). 

16 Docket No. 13-1402 (issued February 7, 2014). 
7

proof with regard to her claim for an aggravation of a preexisting knee condition, it raised a 

substantial inference between her claimed condition and the employment incident, and was 

sufficient to require OWCP to further develop the medical evidence. The Board noted that there 

was no opposing medical evidence of record. 

In this case, the medical evidence clearly establishes that appellant was diagnosed with 

aggravation of lumbar disc herniation by Dr. Nguyen, and that he opined that the incident of 

July 20, 2013 aggravated this preexisting work-related condition. As in L.M., Dr. Nguyen’s 

opinion on causal relationship was not fully rationalized, but was supported by a statement on 

causation, findings on examination, and a statement of how the traumatic incident contributed to 

an aggravation of a preexisting condition. OWCP has a responsibility to further develop the case 

record: it contains affirmative statements of causation, supported by physical findings, and an 

explanation of how the traumatic incident of July 20, 2013 caused an aggravation. Therefore, 

while the medical reports of record do not provide a fully rationalized medical opinion 

explaining how the July 20, 2013 incident caused an aggravation of appellant’s lumbar disc 

herniation, they are consistent in indicating that appellant sustained an employment-related 

injury and raise a substantial inference between appellant’s claimed condition and the 

employment incident. The Board concludes that this evidence is sufficient to require further 

development of the case record.17

On remand, OWCP should refer appellant, the case record, and a statement of accepted 

facts to an appropriate specialist to determine whether he suffered an injury due to the July 20, 

2013 employment incident and how it relates to his prior injuries accepted by OWCP as work 

related. After such further development of the case record as it deems necessary, a de novo

decision shall be issued. 

CONCLUSION 

The Board finds that this case is not in posture for decision, as further development of the 

medical evidence is warranted. 

 17 See Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, 41 ECAB 354, 356-57 (1989); see also

R.C., Docket No. 13-408 (issued January 10, 2014). 
8

ORDER 

IT IS HEREBY ORDERED THAT the July 29, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action 

consistent with this decision. 

Issued: February 4, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board