United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.A., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

RANDOLPH AIR FORCE BASE, Bexar, TX, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0248 

Issued: April 14, 2016 

Appearances: Case Submitted on the Record

Brett E. Blumstein, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On November 25, 2015 appellant, through counsel, filed a timely appeal from an 

August 31, 2015 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 has met his burden of proof to establish a traumatic injury 

in the performance of duty. 

FACTUAL HISTORY 

On November 27, 2012 appellant then a 43-year-old maintenance mechanic, filed a 

traumatic injury claim (Form CA-1), alleging that on November 13, 2012, while moving his 

 1

 5 U.S.C. § 8101 et seq. 
2

belongings to another workstation, he injured his upper back, lower back, legs, and neck. He 

stopped work on November 16, 2012. The employing establishment controverted appellant’s 

claim. 

By letter dated December 4, 2012, OWCP advised appellant of the type of evidence 

needed to establish his claim, particularly requesting that he submit a physician’s reasoned 

opinion addressing the relationship of his claimed condition and specific work factors. 

In a statement dated November 26, 2012, appellant indicated that on November 13, 2012 

he was moving his belongings to another department, and when he bent over to pick up a box, it 

slipped, and he jerked to keep the box from falling, and he felt pain in his low back and neck. He 

noted the pain radiated into his ankle. 

Appellant submitted a September 14, 2012 work status form from a physician assistant 

who noted that appellant’s lumbar spine had been treated and that he could return to work 

September 14, 2012 with restrictions. 

In a November 21, 2012 report, Dr. James Key, a Board-certified orthopedist, treated 

appellant for neck pain. Appellant reported working as a mechanic and on November 13, 2012 

he moved a box to a cubicle and felt neck and low back pain which radiated into both legs. 

Dr. Key noted appellant’s history was significant for two prior low back surgeries on 

December 21, 2010 and February 28, 2012. On examination, findings included tenderness to 

palpation of the neck and low back, muscle spasms, limited range of motion of the lumbar and 

cervical spine, and positive straight leg test. Dr. Key diagnosed lumbar disc displacement, 

lumbar sprain and strain, and neck sprain and strain. He opined that after reviewing appellant’s 

job duties and based on his physical examination, appellant sustained an on-the-job injury 

directly related to the performance of his job duties. In a work status report dated November 28, 

2012, Dr. Key noted that appellant was under his care for a work-related injury which occurred 

on November 21, 2012. In duty status reports dated November 21 and December 10, 2012, he 

noted that appellant sustained a cervical and lumbar spine injury due to a lifting injury/incident 

and was disabled from work. 

In a January 17, 2013 decision, OWCP denied appellant’s claim for a traumatic injury 

finding the evidence did not support that the claimed events occurred as alleged. 

On February 19, 2013 appellant requested reconsideration. His representative provided a 

statement addressing how the claimed injury occurred. 

Appellant also provided additional medical evidence. In letters of disability dated 

December 10, 2012 and January 29, 2013, Dr. Key noted that appellant worked as a mechanic 

and on November 13, 2012 he was asked to move a box and felt neck and low back pain which 

radiated into both legs. He reiterated that appellant’s history was significant for two low back 

surgeries on December 21, 2010 and February 28, 2012. Dr. Key recommended that appellant 

be off work due to his clinical presentation of increasing pain and dysfunction and difficulties 

with activities of daily living. 

In January 29 and February 25, 2013 reports, Dr. Key treated appellant for neck and low 

back pain. He noted appellant’s employment as a mechanic and that on November 13, 2012 
3

appellant moved a box and felt a sudden discomfort to his neck and low back, which radiated 

into his legs. Dr. Key diagnosed lumbar and cervical disc displacement, lumbar sprain and 

strain, and neck sprain and strain. He again opined that, after reviewing appellant’s job duties 

and his physical examination, appellant sustained an injury directly related to the performance of 

his job duties. 

Appellant submitted a duty status report from Dr. Rojelio E. Solano, a chiropractor, dated 

April 26, 2013. Dr. Solano noted that he previously had a rupture and fusion at L5-S1 and that 

he was disabled from work. In reports dated April 29 to June 11, 2013, he noted that appellant 

complained of neck and low back pain which radiates into his hands and feet. Dr. Solano 

diagnosed lumbar fusion reinjury, cervical disc injury, muscle spasm, and inflammation. 

Appellant was treated by Dr. Ray Altamirano, Board-certified in family medicine, from April 26 

to May 24, 2013 for low back pain after a lifting injury at work on November 13, 2012. 

Dr. Altamirano diagnosed L4-S1 back injury. Appellant also submitted physical therapy 

records.2

 

In a decision dated June 19, 2013, OWCP denied appellant’s claim, as modified. It found 

that, although the claimed incident was accepted, it denied the claim because the medical 

evidence failed to establish that his diagnosed conditions were causally related to the accepted 

incident. 

Appellant requested reconsideration. He submitted a July 22, 2013 MRI scan of the 

cervical spine which revealed posterior central, paracentral disc protrusion with thecal sac 

impingement, left posterolateral disc bulge, canal stenosis at C3-4, posterior central, paracentral 

disc protrusion with thecal sac impingement with canal narrowing at C4-5, C5-6 and C6-7, and 

posterior central bulge at C7-T1. A lumbar spine MRI scan of the same date showed posterior 

central, paracentral disc abnormality compatible with protrusion/disc osteophyte with thecal sac 

impingement and spinal stenosis, left posterolateral disc bulge, mild spinal stenosis at L3-4, 

posterior central, left posterolateral disc bulge, and postsurgical changes at L6-S1. 

By report dated August 14, 2013, Dr. Leonel Reyes, a Board-certified family practitioner, 

noted seeing appellant for a November 13, 2012 traumatic injury to his neck and low back. 

Appellant reported feeling pain in his neck and lower back when he lifted a box on 

November 13, 2012 as he was moving his personal belongings from one cubicle to another. 

Dr. Reyes opined that appellant’s cervical herniated disc, cervical radiculopathy, lumbar 

herniated disc, and lumbar radiculopathy were a direct result of the traumatic injury he sustained 

 2

 The medical evidence submitted also included diagnostic test results. A November 19, 2012 lumbar spine 

computerized tomography scan showed significant multilevel disc disease at L3-4 where a central disc bulge with 

osteophyte resulted in central spinal stenosis with impingement on the L4 nerve roots, and anterior interbody fusion 

at L5-S1 with bilateral foraminal crowding but no significant central spinal stenosis. A January 17, 2013 cervical 

spine x-ray reflected moderate spondylosis change, cervical muscle spasms, and atlantoaxial osteoarthritic change. 

A January 17, 2013 lumbar spine x-ray revealed completed fusion at L5-S1 with residual scoliosis, mild spondylosis 

change and mobility at four disc levels. A January 17, 2013 magnetic resonance imaging (MRI) scan of the cervical 

spine showed moderate-to-severe spondylosis changes with disc protrusion/herniations and osteophyte formation at 

C3 to 7, uncovertebral and facet hypertrophy with neural foraminal narrowing, and kyphosis suggesting anterior disc 

height loss. A January 17, 2013 lumbar MRI scan dated revealed completed fusion at L5-S1 with scarring at the 

nerve root and disc protrusion/herniations at L3-4 without spinal stenosis. 
4

on November 13, 2012 when he lifted the box. He noted that appellant had a previous back 

injury while in the service and underwent lumbar surgeries on December 21, 2010 and 

February 28, 2012. Dr. Reyes noted that appellant was subsequently released to full duty with 

no restrictions. He opined that appellant’s old injury had no relevance to the new traumatic 

injury he sustained on November 13, 2012 when lifting a box. Dr. Reyes noted that the new 

incident aggravated appellant’s preexisting back condition. 

In a decision dated November 1, 2013, OWCP denied modification of the decision dated 

June 19, 2013. 

Appellant again requested reconsideration on November 27, 2013. In a November 18, 

2013 report, Dr. Reyes noted a history of injury and diagnosed cervical herniated disc, cervical 

radiculitis, lumbar herniated disc, and lumbar radiculitis. He opined that appellant’s cervical disc 

herniation, cervical radiculopathy, lumbar herniated disc, and lumbar radiculopathy were a direct 

result of the November 13, 2012 traumatic injury he sustained when he lifted a box of his 

belongings at work. Dr. Reyes noted that appellant had previous injury to his back while in the 

service and underwent lumbar surgeries on December 21, 2010 and February 28, 2012. He 

clarified appellant’s work status after the lumbar surgeries and indicated that appellant had been 

under restrictions ever since the last surgery in 2012.3

 Dr. Reyes opined that appellant’s old 

injury had no relevance to the new November 13, 2012 injury. He opined that the new incident 

aggravated appellant’s preexisting back condition and was a new injury. 

In a decision dated February 21, 2014, OWCP denied modification. 

On April 17, 2014 appellant again requested reconsideration. He submitted an April 4, 

2014 report from Dr. Reyes which provided clarification of the mechanism of injury. Appellant 

reported that on November 13, 2012 he was collecting his personal belongings in a box to move 

to another cubicle and was unplugging the electrical equipment and hit his head on the bottom of 

the desk. He reported the weight of the objects in the box was approximately 10 pounds and, as 

he went to lift the box, he jerked to the side to keep objects from falling from the box and had 

low back pain which radiated to his legs. Dr. Reyes opined that appellant’s cervical disc 

herniation, cervical radiculopathy, lumbar herniated disc, and lumbar radiculopathy were a direct 

result of the November 13, 2012 traumatic injury when he hit his head at the bottom of the desk. 

He noted appellant’s previous service-related injury and lumbar surgeries and that he had 

subsequently been released to full duty with no restrictions. Dr. Reyes reiterated that appellant’s 

old injury had no relevance to the November 13, 2012 new injury. 

In a decision dated July 16, 2014, OWCP again denied the claim and found that the 

history provided by Dr. Reyes in his April 4, 2014 report was not consistent with the history 

previously provided by appellant. 

 3

 Appellant provided a February 28, 2012 operative report from Dr. Frank Kuwamura, a Board-certified 

orthopedist, who performed an anterior lumbar interbody fusion at L5-S1 through retroperitoneal and diagnosed 

lumbar disc postlaminectomy syndrome at L5-S1 with bilateral leg radiculopathy, severe stenosis and degenerative 

disc disease at L5-S1. 
5

On June 2, 2015 appellant’s counsel again requested reconsideration. Appellant 

submitted a July 18, 2014 report from Dr. Ernesto Garza, a Board-certified general surgeon, who 

noted that Dr. Reyes was no longer practicing in that office and he was taking over appellant’s 

care for his on-the-job injury and conditions due to that injury. Dr. Garza noted that appellant 

was undergoing conservative treatment with oral medications. 

In a decision dated August 31, 2015, OWCP denied modification of the decision dated 

July 16, 2014. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish 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 of FECA, that an injury was sustained 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. These are the essential elements of each and every compensation claim 

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

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

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

There are two components involved in establishing fact of injury. First, the employee must 

submit sufficient evidence to establish that he actually experienced the employment incident at 

the time, place, and in the manner alleged. Second, the employee must submit medical evidence 

to establish that the employment incident caused a personal injury.5

Rationalized medical opinion evidence is generally required to establish causal 

relationship. The opinion of the physician must be based on a complete factual and medical 

background, 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 claimant.6

ANALYSIS 

It is undisputed that, on November 13, 2012, appellant lifted a box of his belongings 

while moving from his cubicle to another workstation. However, he has not submitted sufficient 

medical evidence to establish that his diagnosed medical conditions were caused or aggravated 

by the November 13, 2012 incident. 

In November 21, 2012 to February 25, 2013 reports, Dr. Key noted treating appellant for 

radiating neck and low back pain which began on November 13, 2012 when he lifted a box at 

work. He noted appellant’s two prior back surgeries and diagnosed lumbar disc displacement, 

 4 Gary J. Watling, 52 ECAB 357 (2001). 

5

 T.H., 59 ECAB 388 (2008). 

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

lumbar sprain and strain, and neck sprain and strain. Dr. Key opined that after reviewing 

appellant’s job duties and based on his examination, appellant sustained an on-the-job injury 

directly related to his job duties. In status reports dated November 21 and 28, and December 10, 

2012, he noted treating appellant for a work-related lifting injury. In December 10, 2012 and 

January 29, 2013 letters of disability, Dr. Key noted that appellant related having neck and low 

back pain on November 13, 2012 after lifting a box of his belongings at work. Although he 

supported causal relationship, Dr. Key failed to provide sufficient medical rationale explaining 

the basis of his conclusion as to the causal relationship between appellant’s diagnosed conditions 

and the workplace lifting incident.7

 Dr. Key did not explain how lifting a box would have 

caused or aggravated the diagnosed conditions or why the current lumbar and cervical conditions 

were not otherwise due to the preexisting lumbar surgeries or age-related degenerative changes. 

Therefore, the reports from Dr. Key are insufficient to meet appellant’s burden of proof.8

Appellant was treated by Dr. Reyes on August 14, 2013 for a neck and low back injury 

which appellant reported occurred on November 13, 2012 while lifting and moving his 

belongings to another department. Dr. Reyes noted appellant’s previous lumbar surgeries on 

December 21, 2010 and February 28, 2012 and advised that appellant was later released to full 

duty with no restrictions. He opined that appellant’s old injury was unrelated to the new 

November 13, 2012 injury and noted that the new incident further aggravated his preexisting 

back condition. Dr. Reyes diagnosed cervical herniated disc, cervical radiculopathy, lumbar 

herniated disc, and lumbar radiculopathy as a direct result of the November 13, 2012 traumatic 

incident. On November 18, 2013 he reiterated his opinion on causal relationship, but clarified 

that, since his 2012 surgery, appellant had work restrictions. Dr. Reyes still maintained that 

appellant’s old injury was not relevant to his current condition. On April 4, 2014 he provided 

clarification of the mechanism of injury, noting that, in addition to lifting a box of his belongings 

on November 13, 2012, appellant also hit his head on the bottom of a desk after he unplugged 

electrical equipment. Dr. Reyes opined that appellant’s diagnosed cervical and lumbar 

conditions were a direct result of the traumatic injury he sustained on November 13, 2012 when 

he hit his head on the bottom of a desk. He also noted that appellant had been released to full 

duty following his 2010 and 2012 back surgeries. 

Dr. Reyes’ reports are insufficient to establish the claim as his reports were not based on 

an accurate or consistent history.9

 In his August 14, 2013 and April 4, 2014 reports, he stated 

that appellant was released to full duty after his February 2012 surgery while in his 

November 18, 2013 report, he acknowledged that appellant had restrictions after the most recent 

low back surgery. Furthermore, in his April 4, 2014 report, Dr. Reyes noted that appellant hit his 

head on the bottom of a desk. This history is markedly different than the history provided by 

appellant on the Form CA-1 and in a November 26, 2012 statement in which he reported 

gathering his belongings, but did not indicate that he hit his head. Thus, Dr. Reyes does not have 

 7 Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are 

entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001). 

8 See L.D., Docket No. 09-1503 issued April 15, (2010) (the fact that a condition manifests itself during a period 

of employment does not raise an inference that there is a causal relationship between the two). 

9 See Frank Luis Rembisz, 52 ECAB 147 (2000); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (medical opinions 

based upon an incomplete history have little probative value). 
7

a consistent and accurate history. He attributes, at least in part, appellant’s neck and back 

condition to having hit his head on desk, an event that is not supported by the evidence most 

contemporaneous with the claimed injury.10 The need for an accurate history is particularly 

important where appellant has a preexisting condition in a part of the body for which he now 

claims compensation benefits. Dr. Reyes did not otherwise provide sufficient medical rationale 

explaining the basis of his conclusory opinion regarding the causal relationship between 

appellant’s cervical and lumbar conditions and the established factors of employment.11 

Consequently, his reports are of limited probative value and insufficient to establish the claim. 

Appellant was treated by Dr. Altamirano on April 26, 2013 for low back pain after a 

lifting injury at work. Dr. Altamirano diagnosed L4-S1 back injury. In reports dated May 10 

and 24, 2013, he noted that appellant sustained a low back reinjury on November 13, 2012. The 

Board finds that, although Dr. Altamirano noted that appellant was injured at work, he did not 

provide any medical rationale to explain the basis of his conclusory opinion regarding the causal 

relationship between appellant’s lumbar and cervical conditions and the factors of employment.12 

Therefore, these reports are insufficient to meet appellant’s burden of proof. 

Appellant also submitted a July 18, 2014 report from Dr. Garza who noted that he was 

taking over the care of appellant for his on-the-job injury and his conditions due to the injury. 

This report is of limited probative value as Dr. Garza did not provide a history of injury13 or 

specifically explain how the November 13, 2012 work incident caused or aggravated a diagnosed 

medical condition. 

Appellant submitted reports from Dr. Solano, a chiropractor. However, these reports do 

not diagnose a spinal subluxation as demonstrated by x-ray.14 Section 8101(2) of FECA 

provides that chiropractors are considered physicians “only to the extent that their reimbursable 

services are limited to treatment consisting of manual manipulation of the spine to correct a 

subluxation as demonstrated by x-ray to exist and subject to regulation by the Secretary.”15 As 

Dr. Solano did not diagnose a spinal subluxation based on x-ray, his reports cannot be considered 

as competent medical evidence under FECA.16 

 10 The Board has held that contemporaneous evidence is entitled to greater probative value than later evidence. 

S.S., 59 ECAB 315 (2008). 

11 See supra note 7. 

12 See T.M., Docket No. 08-975, issued February 6, 2009 (a medical report is of limited probative value on the 

issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical 

rationale). 

13 Frank Luis Rembisz, 52 ECAB 147 2000) (medical opinions based on an incomplete history or which are 

speculative or equivocal in character have little probative value). 

14 Dr. Solano also did not address how the November 13, 2012 work incident caused a diagnosed medical 

condition. 

15 5 U.S.C. § 8101(2). 

16 See Susan M. Herman, 35 ECAB 669 (1984). 
8

Appellant submitted evidence from a physical therapist and a physician assistant. 

However, the Board has held that treatment notes signed by a physical therapist or physician 

assistant are of diminished probative value as these providers are not considered physicians 

under FECA.17 

The remainder of the medical evidence is of limited probative value as it does not provide 

an opinion on the causal relationship between the November 13, 2012 work incident and 

appellant’s diagnosed medical conditions. For this reason, this evidence is not sufficient to meet 

appellant’s burden of proof.18 

On appeal appellant’s counsel asserts that OWCP improperly denied the claim and that 

the submitted medical evidence is sufficient evidence to establish that on November 13, 2012 

appellant injured his lumbar and cervical spine when lifting a box and moving his belongings to 

another department. As noted above, the medical evidence is insufficient to establish that 

appellant’s current diagnosed conditions were causally related to the employment incident. 

Appellant has not submitted a physician’s report, based on an accurate history, which explains 

how the accepted work incident on November 13, 2012 caused or aggravated lumbar or cervical 

conditions. 

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 meet his burden of proof to establish a traumatic 

injury in the performance of duty. 

 17 See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical 

therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2). 

18 A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an 

employee’s condition is of limited probative value on the issue of causal relationship). 
9

ORDER 

IT IS HEREBY ORDERED THAT the August 31, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 14, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board