United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.L., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

BIGHORN NATIONAL FOREST, 

Sheridan, WY, Employer 

__________________________________________ 

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Docket No. 15-158 

Issued: April 17, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 5, 2014 appellant, through counsel, filed a timely appeal of an August 4, 

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 the case. 

ISSUE 

The issue is whether appellant established that he sustained an injury causally related to 

factors of his federal employment. 

On appeal, appellant’s counsel contends that OWCP’s decision is contrary to fact and 

law. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 7, 2013 appellant, then a 51-year-old engineering equipment operator, filed an 

occupational disease claim alleging that he had degenerative disc disease, scoliosis, and a 

herniated disc causally related to factors of his federal employment. He noted that he had been 

an equipment operator for nearly 35 years, and that, beginning April 8, 2013, he started 

experiencing worsening low back pain. The employing establishment noted that appellant 

retired voluntarily on May 31, 2013. 

In a May 21, 2013 certificate of medical examination, Dr. Tracy Coe, an internist with a 

Board-certified subspecialty in medical oncology, listed appellant’s medical restrictions due to 

right leg weakness and neuropathic pain. 

By letter dated September 10, 2013, OWCP instructed appellant to submit further 

evidence in support of his claim. Appellant did not submit a timely response. 

By decision dated December 2, 2013, OWCP denied appellant’s claim as he failed to 

establish fact of injury. It explained that he did not submit any medical evidence containing a 

medical diagnosis in connection with his employment. 

An April 26, 2013 magnetic resonance imaging (MRI) scan of the lumbar spine was 

interpreted by Dr. Elliot Sandberg, a Board-certified radiologist, as evincing status post posterior 

decompression at L4-5; foraminal compromise at multiple levels, borderline canal stenosis L3-4; 

and herniated nucleus pulposus L2-3; and bulging annulus at L1-2. He noted that there does not 

appear to be significant progression when compared to the previous study. 

On July 31, 2014 appellant, through his attorney, requested reconsideration. In support 

of his request, he submitted a June 27, 2014 statement wherein he explained that the majority of 

his job involved operating a D-5 bulldozer in rocky, mountainous terrain which resulted in 

constant jolting and jarring to his body. Appellant also noted that the job required frequent 

heavy lifting as well as other strenuous activities. He noted that he usually operated the 

bulldozer from late April into November and then performed annual maintenance on all the fleet 

trailers during the winter months as well as snow removal and shoveling. Appellant noted that 

the trailer maintenance also required a lot of lifting of tires mounted on wheels which had a 

combined weight of 50 pounds or more. Also submitted were various treatment notes from 

medical providers. 

In a January 3, 2014 progress note, Dr. Coe noted that appellant had a herniated disc at 

L3-4 pending surgery. In a February 10, 2014 addendum, he noted borderline osteopenia. 

In a January 24, 2014 radiology report, Dr. Richard Oh, a Board-certified radiologist, 

noted a stable examination of appellant’s lumbosacral spine, with no significant change in severe 

multilevel degenerative disc disease of the lumbar spine. 

In a January 28, 2014 progress note, Dr. James A. Ulibarri, a Board-certified orthopedic 

surgeon, noted that appellant had probable right L3-4 radiculopathy secondary to stenosis at L3-

4, as well as foraminal stenosis on the right hand side and some disc component. He believed 

that the diagnosis could use a little clarification, and recommended diagnostic studies. 
3

Dr. Ulibarri assessed appellant with spinal stenosis of the lumbar region and lumbar herniated 

nucleus pulposus. 

Appellant also submitted notes by nurses and physicians assistants. 

By decision dated August 4, 2014, OWCP denied modification of the December 2, 2013 

decision. 

LEGAL PRECEDENT 

An employee seeking compensation under FECA2 has the burden of establishing the 

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

evidence,3 including that he or she is an “employee” within the meaning of FECA4 and that he or 

she filed his or her claim within the applicable time limitation.5 The employee must also 

establish that he sustained an injury in the performance of duty as alleged and that his disability 

for work, if any, was causally related to the employment injury.6

 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.7

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee must submit: (1) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; (2) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the employee.8 

Causal relationship is a medical issue9 and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. Rationalized medical 

opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether 

there is a causal relationship between the claimant’s diagnosed condition and the established 

incident or factor of employment. The opinion of the physician must be based on a complete 

factual and medical background of the claimant,10 must be one of reasonable medical certainty,11

                                                             2

 5 U.S.C. §§ 8101-8193. 

3

 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968). 

4

 See M.H., 59 ECAB 461 (2008); see 5 U.S.C. § 8101(1). 

5 R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122. 

6 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

7 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999). 

8 See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994). 

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

10 William Nimitz, Jr., 30 ECAB 567, 570 (1979). 

11 See Morris Scanlon, 11 ECAB 384, 385 (1960). 
4

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.12 

ANALYSIS 

Appellant asserts that he sustained an occupational disease in the performance of his 

work duties. OWCP denied his claim as it found that he did not establish a medical diagnosis in 

connection with his federal employment and thus failed to establish fact of injury. However, 

appellant submitted doctor’s reports interpreting diagnostic studies which clearly showed a 

medical condition. Dr. Sandberg found that based on the April 26, 2013 MRI scan appellant had 

foraminal compromise at multiple levels, borderline canal stenosis L3-4 and a herniated nucleus 

pulposus L2-3. Dr. Oh noted that based on his radiology report, appellant had severe multilevel 

degenerative disc disease of the lumbar spine. In addition, Dr. Coe noted in a January 3, 2014 

progress note that appellant had a herniated L3-4 and borderline osteopenia. Accordingly, 

appellant has established a medical diagnosis. 

However, appellant’s claim must still be denied as he failed to establish that his medical 

condition was causally related to the accepted factors of his federal employment. Drs. Ulibarri 

and Coe do not discuss any factors of appellant’s employment duties. Moreover, neither 

physician opines that appellant’s medically diagnosed condition was causally related to accepted 

factors of his federal employment. 

Furthermore, none of the physicians interpreting appellant’s radiology reports, i.e., 

Drs. Oh and Sandberg, address any of appellant’s employment factors. As these reports are 

diagnostic in nature, they were not intended to address the causal relationship between the 

diagnosed conditions and appellant’s employment factors. 

Appellant also submitted reports from nurses and physician assistants. However, reports 

of nurses and physician assistants do not constitute medical evidence as they are not physicians 

under FECA.13 Thus, they are insufficient to establish appellant’s claim. 

 As appellant has not submitted any rationalized medical evidence to support his 

allegation that he sustained an injury causally related to the accepted factors of his employment, 

he failed to meet his burden of proof to establish a claim for compensation.14

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. 

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

13 5 U.S.C. § 8101(2); see also K.S., Docket No. 14-1470 (issued October 21, 2014); G.G., 58 ECAB 389 (2007); 

Jerré R. Rinehart, 45 ECAB 418 (1994). 

14 See L.S., Docket No. 14-1699 (issued January 22, 2015). 
5

CONCLUSION 

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

related to factors of his federal employment. 

ORDER 

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

Compensation Programs dated August 4, 2014 is affirmed, as modified herein. 

Issued: April 17, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board