United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

CENTRAL TEXAS VETERANS HEALTH 

CARE SYSTEM, Waco, TX, Employer 

__________________________________________ 

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Docket No. 14-1831 

Issued: February 18, 2015 

Appearances: Case Submitted on the Record

Debra Hauser, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 18, 2014 appellant, through counsel, filed a timely appeal from the May 6, 

2014 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 lumbar intervertebral disc disease (IVD) and 

radiculopathy as a consequence of her accepted injuries. 

On appeal appellant, through counsel, argues that OWCP improperly referred to the 

second opinion physician as the referee physician, that if he was the referee physician he was 

improperly selected, and that the second opinion was insufficient and lacked medical rationale. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On March 5, 2005 appellant, then a 55-year-old nurse, filed a traumatic injury claim 

alleging that on February 28, 2005 she suffered a dislocation of T3, T4, and T5 when assisting to 

control a psychotic patient. On March 31, 2005 OWCP accepted appellant’s claim for 

sprain/strain, lumbosacral joint ligament. On July 6, 2012 OWCP expanded the list of accepted 

conditions to include sprain of lumbar and thoracic region of back and closed dislocation of 

lumbar and thoracic vertebra. 

Appellant began her treatment with Dr. Les Benson, a Board-certified neurologist, on 

July 18, 2013. Dr. Benson diagnosed appellant with lumbar IVD, radiculopathy, closed 

dislocation lumbar vertebra, closed dislocation thoracic vertebra, lumbar sprain, and thoracic 

sprain. He referred appellant for rehabilitation therapy and a new magnetic resonance imaging 

(MRI) scan of the right lumber spine. 

In an August 27, 2013 imaging report, Dr. Kathleen A. Sorensen, a Board-certified 

radiologist, found spondylitic changes of the lumbar spine with mild narrowing of the canal at 

T11-12 and L4-5 and mild foraminal narrowing at multiple levels. She also found a left adrenal 

lesion. 

In a September 13, 2013 letter, Dr. Benson stated that appellant had been evaluated for 

closed dislocation lumbar vertebra, closed dislocation thoracic vertebra, lumbar sprain, and 

thoracic sprain. He opined that appellant’s diagnosis should be upgraded to include lumbar IVD 

and radiculopathy, which were directly related to the accepted conditions. Dr. Benson noted that 

an MRI scan was performed over a year ago which reported that she exhibited IVD. He also 

noted that appellant had an electromyogram study on August 5, 2013. Dr. Benson also submitted 

electrodiagnostic results from an examination done by Dr. Jonathan Walker, a Board-certified 

neurologist, on August 5, 2013. Dr. Walker determined that appellant’s nerve conduction 

velocity electromyography evinced abnormal amplitudes and velocities of the Peroneal motor 

bilaterally along with abnormal electromyography findings suggestive of a possible compressive 

nerve root irritation at the L5 level bilaterally, which is consistent with a radiculopathy. 

By letter dated October 10, 2013, appellant’s counsel requested that OWCP expand her 

claim to include the conditions of lumbar IVD and radiculopathy. 

On October 24, 2013 OWCP referred appellant’s case to an OWCP medical adviser. In 

an October 24, 2013 report, OWCP medical adviser noted that there was a significant gap in the 

records regarding treatment of appellant’s condition from 2005 to 2012. He noted that the initial 

accepted diagnoses under this claim in 2005 did not include conditions involving degeneration or 

displacement of lumbar discs or radiculopathy, despite findings of disc degeneration and 

protrusion on the MRI scan of 2005. OWCP medical adviser noted that this is correct as such 

conditions existed prior to the employment-related incident and were, more likely than not, the 

result of the aging process rather than trauma. Likewise, he opined that the findings noted by 

Dr. Benson on his most recent studies are again more consistent with the aging process than the 

injury of February 28, 2005, as it is consistent with the natural history of these degenerative 

processes over the course of several years. Accordingly, OWCP medical adviser suggested that 

appellant’s claim not be upgraded to include the diagnoses proposed by Dr. Benson. 
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By decision dated October 29, 2013, OWCP denied appellant’s claim for a consequential 

injury. 

In a February 6, 2014 response to OWCP medical adviser’s report, Dr. Benson disagreed 

with the assessment made by OWCP medical adviser. He noted that, although appellant quite 

likely has conditions that are degenerative in nature, her conditions, whether degenerative or not, 

were aggravated by the work injury, which would qualify them to be accepted by OWCP. 

Dr. Benson noted that appellant did not experience these symptoms leading up to the incident, 

and the diagnostic studies confirm his findings. He therefore opined that based on her objective 

findings, it was his medical opinion with reasonable medical certainty that appellant’s IVD and 

radiculopathy were, at the very least, exacerbated as a direct result of the employment injury that 

occurred on February 28, 2005. In a February 14, 2014 report, Dr. Benson noted that the kind of 

trauma appellant experienced made her accepted conditions worse, and that her OWCP claim 

should be upgraded to included IVD and radiculopathy or radiculitis. 

By letter dated February 18, 2014, appellant, through counsel, requested reconsideration. 

Counsel argued that OWCP medical adviser’s opinion was not valid, that he did not explain why 

he believed appellant’s medical conditions were degenerative, that at most his opinion of OWCP 

medical adviser created a conflict in the medical evidence which required referring appellant’s 

case to an impartial medical examiner, that Dr. Benson explained why appellant’s accepted 

conditions should be upgraded, and that consequential injuries should be included as accepted 

conditions. 

On March 28, 2014 OWCP referred appellant to Dr. Robert D. Harper, a Board-certified 

orthopedic surgeon, for a second opinion. In a March 28, 2014 opinion, Dr. Harper noted that 

the MRI scan of the spine conducted on April 8, 2005 showed diffused degenerative discs, 

moderate left foraminal stenosis at L3-4, mild central disc protrusion at L5-S1, and mild annular 

bulge at T11-12. He opined that the diffuse degenerative discs and the moderate left foraminal 

stenosis at L3-4 preexisted the injury as the time between the injury and the work-related injury 

was inadequate for the described changes to be caused by the injury. Dr. Harper noted that 

appellant has chronic lower back pain with degenerative changes, paraspinous tenderness in 

thoracic and lumbar spine, restricted lumbar motion, positive seated and supine straight leg 

raises, and diminished sensation in the left lower extremity. He concluded that, based on the 

somewhat conflicting information, the natural history of spine problems and reasonable medical 

probability, the employment-related injury of February 28, 2005 resolved on or before 2007. 

Dr. Harper opined that, while the findings indicate that appellant’s condition is not resolved and 

still active causing disability, there is insufficient information/evidence to conclude that the 

injury of February 28, 2005 produced, aggravated, or precipitated the current situation/condition/ 

recurrence. 

By decision dated May 6, 2014, OWCP denied modification of its October 29, 2013 

decision. 

LEGAL PRECEDENT 

The general rule respecting consequential injuries is that, when the primary injury is 

shown to have arisen out of and in the course of employment, every natural occurrence that 
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flows from the injury is deemed to arise out of the employment, unless it is the result of an 

independent intervening cause, which is attributable to the employee’s own intentional conduct.2 

The subsequent injury is compensable if it is the direct and natural result of a compensable 

primary injury.3

 With respect to consequential injuries, the Board has stated that, where an 

injury is sustained as a consequence of an impairment residual to an employment injury, the new 

or second injury, even though nonemployment related, is deemed, because of the chain of 

causation, to arise out of and in the course of employment and is compensable.4

 A claimant 

bears the burden of proof to establish the claim for consequential injury.5

Causal relationship is a medical issue,6

 and the medical evidence generally required to 

establish causal relationship is rationale medical opinion evidence. The opinion of the physician 

must be based on a complete factual and medical history of the claimant,7

 must be one of 

reasonable certainty,8

 and must be supported by medical rationale explaining the nature of the 

relationship between the diagnosed condition and the established incident or factor of 

employment.9

ANALYSIS 

OWCP accepted appellant’s claim for sprain/strain of the lumbosacral joint ligament, 

sprain of the lumbar and thoracic regions of the back, and closed dislocation of lumbar thoracic 

vertebra. Appellant, through counsel, asked that her claim be expanded to include diagnoses of 

lumbar IVD and radiculopathy. OWCP denied her claim for a consequential injury. 

The Board finds that appellant has not met her burden of proof to establish that the 

conditions of lumbar IVD and radiculopathy were a consequence of the February 28, 2005 

employment injuries. The only evidence offered in support of expansion of appellant’s claim is 

the reports by Dr. Benson. Although Dr. Benson opined that appellant’s IVD and radiculopathy 

were, at the very least, exacerbated by her employment injury, she does not provide a 

rationalized medical opinion that supports this conclusion. The Board has found that medical 

conclusions unsupported by rationale are of little probative value.10 Although Dr. Benson’s 

reports establish that appellant has IVD and radiculopathy, she does not provide an explanation 

or any diagnostic tests or examinations that explain the relationship of the conditions to her 

 2 Albert F. Ranieri, 55 ECAB 598 (2004). 

3 Id.; Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005). 

4 Kathy A. Kelley, 55 ECAB 206 (2004); see also C.S., Docket No. 11-1875 (issued August 27, 2012). 

5 S.P., Docket No. 14-900 (issued August 8, 2014). 

6 Mary J. Briggs, 37 ECAB 578 (1986). 

7 William Nimitz, Jr., 30 ECAB 567 (1979). 

8 See Morris Scanlon, 11 ECAB 384, 385 (1960). 

9 See William Enright, 31 ECAB 426, 430 (1980). 

10 M.P., Docket No. 14-1289 (issued September 26, 2014). 
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employment or the accepted conditions. The fact that appellant now experiences IVD and 

radiculopathy does not necessarily mean that it was related to her accepted conditions. 

Furthermore, the fact that appellant was asymptomatic prior to her employment injury is not a 

sufficient rationalization. Finally, the Board notes that there is no evidence of any bridging 

symptoms linking appellant’s IVD and radiculopathy to the accepted conditions.11

None of the remaining medical reports provide any support for appellant’s request to 

expand the claim. Neither Dr. Walker nor Dr. Sorensen addresses causal relationship. OWCP 

medical adviser suggested that the evidence was not sufficient to upgrade appellant’s claim to 

include the conditions of IVD and radiculopathy, as suggested by Dr. Benson. He noted that 

Dr. Benson’s findings were consistent with the aging process. Dr. Harper also does not link 

appellant’s IVD and radiculopathy to her accepted conditions. Accordingly, appellant has not 

submitted medical evidence sufficient to establish that her diagnosed conditions of IVD and 

radiculopathy were a consequence of the February 28, 2005 employment injuries. 

The Board notes that appellant’s counsel correctly contends that OWCP improperly 

referred to Dr. Harper as a referee physician. The Board finds that this is harmless error as the 

referral referenced the doctor as a second opinion physician and, as found above, appellant did 

not meet her burden of proof to provide rationalized medical evidence in support of her claim 

that her IVD and radiculopathy were a consequence of her accepted conditions. Thus, counsel’s 

contention is without merit. 

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(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant did not establish that she sustained lumbar IVD and 

radiculopathy as a consequence of her accepted injuries. 

 11 L.M., Docket No. 13-855 (issued September 12, 2013); Docket No. 10-2044 (issued August 22, 2011). 
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ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated May 6, 2014 is affirmed. 

Issued: February 18, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board