United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.C., Appellant 

and 

DEPARTMENT OF THE NAVY, MARINE 

CORPS LOGISTICS BASE BARSTOW -- 

YERMO ANNEX, Yermo, CA, Employer 

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Docket No. 14-1945 

Issued: August 17, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 8, 2014 appellant timely appealed the June 10, 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 the claim. 

ISSUE 

The issue is whether appellant sustained an occupational disease in the performance of 

duty on or about October 3, 2012. 

FACTUAL HISTORY 

Appellant, a 52-year-old former painter, filed an occupational disease claim (Form CA-2) 

on December 3, 2012 alleging that he injured his back while operating a forklift. He explained 

 1

 5 U.S.C. §§ 8101-8193. 
2

that on October 3, 2012 he was driving a forklift when he felt a pop, and then severe pain in his 

mid and low back. Appellant also experienced numbness and pain in his right forearm. He 

reported that he had been driving a forklift for more than a year and all the jarring, bouncing, and 

road bumps damaged his back. Appellant stopped work on October 3, 2012. He has a 

previously accepted occupational disease claim for a lumbar injury arising on or about May 20, 

2008 (file number xxxxxx037). OWCP accepted the claim for lumbar disc displacement without 

myelopathy and lumbar spinal stenosis. On July 9, 2008 appellant underwent a decompressive 

laminectomy with instrumentation and fusion at L2-S1. He also has an accepted claim for a 

July 28, 2009 traumatic injury involving the left hip/thigh and left pelvic region (file number 

xxxxxx086).2

Dr. John C. Steinmann, a Board-certified orthopedic surgeon, initially examined 

appellant on October 13, 2012. He noted that appellant was a forklift driver with complaints 

referable to his lumbar spine. Dr. Steinmann also noted a prior work-related lumbar injury on 

May 20, 2008, which resulted from lifting a heavy item while appellant worked as a painter. 

Appellant reported having been diagnosed with spinal stenosis, and after an unsuccessful period 

of conservative treatment he underwent spine surgery with instrumentation. Dr. Steinmann 

noted that appellant returned to work approximately four months after surgery. He also noted 

that appellant was treated for a left hip injury and had undergone hip replacement surgery. 

Dr. Steinmann further indicated that appellant reached maximum medical improvement (MMI) 

in April 2010 and was released. He had not received follow-up treatment for appellant’s spine 

since his release. Appellant reported that, after he began driving his forklift on October 3, 2012, 

he felt a “pop” and an increase in low back pain. Prior to this incident, his low back pain was 8 

on a scale of 1 to 10. Since then, appellant’s pain was “15” on a scale of 1 to 10. He also 

reported grinding in his low back and tingling down his right arm. On physical examination, 

Dr. Steinmann noted tenderness in the lumbar spine and markedly diminished range of motion, 

but no motor or sensory deficits. Appellant’s x-rays revealed pseudarthrosis at L2-3 with 

dislodged hardware and complete disc space collapse at that level. However, the remaining 

fusion from L3 to S1 appeared to be solid. Dr. Steinmann diagnosed status post L2-S1 posterior 

instrumented fusion and failed fusion at L2-3, with loose and dislodged hardware. He explained 

that the pop appellant felt in his back likely represented the final dislodgment of his hardware at 

L2-3. Dr. Steinmann recommended reconstructive surgery to include removal of the hardware 

from L2 to the sacrum, exploration of the fusion mass, and treatment of the pseudarthrosis at 

L2-3. He found appellant temporarily totally disabled. 

In a January 21, 2013 supplemental statement, appellant indicated that he had been 

injured in May 2008 while working as a heavy armor painter and had undergone surgery in 

July 2008 to stabilize his lumbar spine. He also noted having undergone an OWCP-approved 

left total hip replacement in 2009. Appellant indicated that he returned to work in April 2010, 

but was unable to perform heavy armor painting. Because of his restrictions, the employing 

 2

 The complete records associated with appellant’s May 2008 and July 2009 employment injuries are not 

currently accessible by the Board. 
3

establishment assigned various other duties, including work as warehouse inventory specialist -- 

materials handler, which involved operating a forklift.3 In August 2011, it reassigned appellant 

to work full time as a forklift operator in the mechanical heavy equipment (MHE) department. 

Appellant further stated that, while operating a forklift on October 3, 2012, he felt a “pop” and 

increased low back pain. He stated that he stopped work and reported the incident to his 

supervisor. Appellant later sought treatment from Dr. Steinmann, who diagnosed failed fusion at 

L2-3 and dislodgment of hardware at L2-3, and recommend further lumbar surgery. 

Appellant attributed his latest lumbar complaints to his duties as an MHE forklift driver. 

He explained that he operated a forklift for approximately nine hours each day and drove to all 

areas of the base transporting parts, and supplies among various departments. The terrain 

appellant covered included dirt roads, uneven roads, broken pavement, and maneuvering up and 

down ramps. Appellant stated that there was an extreme amount of bouncing, jarring, and 

vibrating when operating the forklift, which had no suspension. He claimed that operating a 

forklift over extreme road conditions since August 2011 caused his current back problems. 

In a January 21, 2013 report, Dr. Steinmann reviewed his initial findings and surgery 

recommendation from October 13, 2012. He noted that the requested lumbar surgery had not yet 

been authorized. Dr. Steinmann also noted appellant’s description of his forklift operator duties, 

which included driving to all areas of the base over “dirt roads, uneven roads, broken pavement, 

and maneuvering up or down ramps.” He stated that appellant’s forklift operator position was 

probably in excess of his work restrictions, which required “sedentary work.” Dr. Steinmann 

reiterated that, while driving a forklift appellant heard a pop and experienced increased pain, and 

afterwards, appellant was noted to have dislodgment of his superior set screws at L2-3, 

indicating an L2-3 pseudarthrosis. He stated “It appears that [appellant] has aggravated or 

accelerated the failure at L2-3 by performing duties as a forklift driver as opposed to following 

sedentary work restrictions.” Dr. Steinmann continued to find appellant temporarily totally 

disabled. 

In a decision dated March 15, 2013, OWCP denied appellant’s occupational disease 

claim. It found Dr. Steinmann’s January 21, 2013 report insufficient to establish a causal 

relationship between appellant’s current lumbar condition and his duties as a forklift operator. 

On February 28, 2014 appellant requested reconsideration.4

 OWCP received his request 

on March 11, 2014. 

Additional evidence submitted since the March 15, 2013 decision included follow-up 

progress reports from Dr. Steinmann dated February 9 and March 15, 2013. Dr. Steinmann 

continued to find appellant totally disabled and reiterated that the need for further surgery to 

 3

 Appellant submitted May 20, 2010 work restrictions from Dr. Joseph E. Tauber, a Board-certified orthopedic 

surgeon, who referenced appellant’s May 2008 and July 2009 employment injuries and advised that he reached 

MMI under both claims. His “permanent” work restrictions included: (1) sedentary work only (2) no excessive 

walking or standing; (3) no bending, stooping, or squatting; (4) no lifting more than 10 to 15 pounds; and (5) must 

be allowed to change positions as needed for comfort. 

4

 Appellant’s former representative initially requested a review of the written record, which he later withdrew. 

On April 15, 2013 the Branch of Hearings and Review accepted his petition to withdraw the hearing request. 
4

repair his pseudarthrosis at L2-3. In a March 15, 2013 progress report, he stated “It appears that 

[appellant’s] back is an industrial injury and it also appears that he aggravated or accelerated the 

failure at L2-3 by performing duties as a forklift driver as opposed to following sedentary work 

restrictions.” 

In an April 25, 2013 report, Dr. Tauber indicated that appellant was permanently disabled 

from all employment. He noted that appellant was previously employed working on a forklift, 

and before that he had been a painter. Dr. Tauber reported continuing sciatic complaints. He 

also noted that appellant had previously undergone a total hip replacement and spinal surgery. 

According to Dr. Tauber, appellant could not even perform sedentary duties, and was a candidate 

for additional spinal surgery.5

 

OWCP also received two October 1, 2013 operative reports from Dr. Gowriharan 

Thaiyananthan, a Board-certified neurosurgeon. One report indicated that Dr. Thaiyananthan 

performed a lumbar interbody fusion at L2-3. The postoperative diagnoses included: L2-3 

pseudarthrosis, L2-3 degenerative disc disease (DDD), L2-3 central canal stenosis, lumbago, and 

L2-3 lumbar radiculopathy. The other October 1, 2013 operative report noted that 

Dr. Thaiyananthan removed hardware at L2-S1, and performed a re-arthrodesis/fusion with 

instrumentation at T10 through S1. Appellant’s postoperative diagnoses included: 

thoracolumbar degenerative disc disease (“DDD”), lumbosacral scoliosis, pseudarthrosis, 

mechanical hardware failure, and lumbago. 

In an October 22, 2013 report, Dr. Thaiyananthan indicated that appellant had been under 

his care since June 2013, and had recently undergone surgery on October 1 and 7, 2013.6

 He 

referenced appellant’s May 20, 2008 lumbar injury and subsequent surgery in July 2008, as well 

as appellant’s July 28, 2009 left hip injury, and October 22, 2009 total hip arthroplasty. 

Dr. Thaiyananthan also noted the October 3, 2012 forklift incident when appellant felt and heard 

a “pop” in his back. Additionally, he described appellant’s prior duties as a painter, and his 

status post April 2010 assignments as a warehouse materials handler. Dr. Thaiyananthan also 

noted appellant’s position as an MHE forklift operator from August 2011 through 

October 3, 2012. He indicated that appellant had not worked since October 2012, and following 

his latest surgeries he continued to be totally disabled. Although he anticipated some 

improvement with appellant’s pain level over time, Dr. Thaiyananthan indicated that, even with 

the recent corrective surgery, it was unlikely appellant would recover sufficiently to return to any 

type of gainful employment for the foreseeable future. Appellant’s diagnoses included: 

thoracolumbar DDD, lumbosacral scoliosis, severe spinal stenosis, spondylolisthesis, lumbar 

radiculopathy, status post July 2008 spinal decompression and fusion at L2-S1, failed lumbar 

surgery syndrome with multilevel pseudarthroses and hardware failure, status post October 1, 

2013 lumbar interbody fusion at L2-3, status post October 7, 2013 extreme lateral interbody 

fusion and T10-S1 hardware removal and rearthrodesis, history of left hip avascular necrosis or 

osteonecrosis, and status post October 2009 total left hip arthroplasty. Dr. Thaiyananthan did not 

 5

 Although he did not specifically address the cause of appellant’s current lumbar complaints, Dr. Tauber 

referenced claim file number xxxxxx037, with a May 20, 2008 date of injury. 

6

 According to Dr. Thaiyananthan, the hardware removal at L2-S1 and rearthrodesis/fusion with instrumentation 

at T10 through S1 occurred on October 7, 2013, rather than October 1, 2013 as noted on the operative report. 
5

offer an opinion on whether appellant’s duties as an MHE forklift operator either caused or 

contributed to his current lumbar condition. 

In a June 10, 2014 decision, OWCP reviewed the merits of the claim, but denied 

modification of the March 15, 2013 decision. It indicated that “none of the medical reports draw 

a connection between [appellant’s] back condition, the dislodged hardware and [his] forklift 

duties.” 

LEGAL PRECEDENT 

A claimant seeking benefits under FECA has the burden of establishing the essential 

elements of his or her claim by the weight of the reliable, probative, and substantial evidence, 

including that an injury was sustained in the performance of duty as alleged and that any specific 

condition or disability claimed is causally related to the employment injury.7

To establish that an injury was sustained in the performance of duty, a claimant must 

submit: (1) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; (2) a factual statement identifying employment factors 

alleged to have caused or contributed to the presence or occurrence of the disease or condition; 

and (3) medical evidence establishing that the diagnosed condition is causally related to the 

identified employment factors.8

ANALYSIS 

Appellant appeals from a merit decision of June 10, 2014 which denied his claim of an 

occupational disease on or about October 3, 2012 due to his work-related duties. Proceedings 

under FECA are not adversarial in nature and OWCP is not a disinterested arbiter. The claimant 

has the burden to establish entitlement to compensation; however, OWCP shares responsibility 

in the development of the evidence to see that justice is done.9 

When Dr. Steinmann first examined appellant on October 13, 2012, he diagnosed failed 

fusion at L2-3 with loose and dislodged hardware. He recommended reconstructive surgery to 

address the hardware failure and the noted pseudarthrosis. Dr. Steinmann explained that the 

October 3, 2012 pop appellant felt in his back likely represented the final dislodgment of his 

hardware at L2-3. In his January 21, 2013 report, he noted that appellant’s forklift operator 

duties involved driving to all areas of the base over “dirt roads, uneven roads, broken pavement 

and up or down ramps.” Dr. Steinmann stated that it appeared appellant had “aggravated or 

accelerated the failure at L2-3 by performing duties as a forklift driver....” He made a similar 

statement in his March 15, 2013 progress report noting that it appeared appellant’s back was an 

“industrial injury” and he apparently “aggravated or accelerated the failure at L2-3 by 

 7

 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a 

medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See 

Robert G. Morris, 48 ECAB 238 (1996). 

8 Victor J. Woodhams, 41 ECAB 345, 352 (1989). 

9 William J. Cantrell, 34 ECAB 1223 (1983). 
6

performing duties as a forklift driver as opposed to following sedentary work restrictions.” 

Contrary to OWCP’s finding, the record includes medical evidence that “draw[s] a connection 

between [appellant’s] back condition, the dislodged hardware and [his] forklift duties.” 

Although Dr. Steinmann did not provide a definitive statement on causal relationship, he 

nonetheless provided sufficient evidence of a link between appellant’s employment and his 

current lumbar condition to require further development of the occupational disease claim. 

Moreover, the current record does not include any rationalized medical evidence attributing 

appellant’s back condition to some other nonindustrial cause. Accordingly, the Board finds 

Dr. Steinmann’s opinion sufficient to require further development of the record by OWCP.10 

On remand, OWCP should double the current lumbar claim with appellant’s previously 

accepted lumbar injury (file number xxxxxx037) and his previously accepted left hip/thigh and 

left pelvic region injury (file number xxxxxx068.11 Also, it accepted his description of his MHE 

forklift operator duties without input from the employing establishment. OWCP should obtain a 

copy of appellant’s latest position description and also verify whether his description of the 

forklift’s lack of suspension and the base’s terrain are accurate. After combining the records and 

obtaining additional factual information from the employing establishment, it should refer him to 

an appropriate specialist, along with the case record and a statement of accepted facts. OWCP 

referral physician should provide an evaluation and a rationalized medical opinion on whether 

appellant’s current lumbar condition is causally related to his duties as a forklift operator or his 

previously accepted claims. After such further development of the case record as OWCP deems 

necessary, a de novo decision shall be issued. 

CONCLUSION 

The case is not in posture for decision. 

 10 See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978). 

11 See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8 

(February 2000). 
7

ORDER 

IT IS HEREBY ORDERED THAT the June 10, 2014 decision of the Office of 

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

consistent with this decision. 

Issued: August 17, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board