United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.C., Appellant 

and 

DEPARTMENT OF THE ARMY, ANNISTON 

ARMY DEPOT, Anniston, AL, Employer 

__________________________________________ 

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Docket No. 15-424 

Issued: April 29, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On December 16, 2014 appellant, through counsel, filed a timely appeal of a 

November 3, 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish total disability 

from September 25 through December 31, 2012 and from January 14 through 24, 2013 due to his 

accepted lumbar strain. 

On appeal counsel argued that OWCP’s decision was contrary to fact and law. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On January 21, 2011 appellant, then a 42-year-old welder, filed a traumatic injury claim 

alleging that on December 22, 2010 he sprained or pulled a muscle in his lower back standing up 

from the break room table. He sought treatment on January 18, 2011 and Dr. Morton S. 

Rickless, an orthopedic surgeon, noted that appellant had an injury to his back in 2007 which 

was work related. Appellant underwent a magnetic resonance imaging (MRI) scan on 

January 18, 2011 which demonstrated an L2-3 central annular tear with a broad-based disc 

protrusion and L4-5 disc osteophyte complex. On April 18, 2011 OWCP accepted his claim for 

lumbar sprain. It authorized leave buyback intermittently from February 14 through May 9, 

2011 for 117.5 hours. Appellant returned to light-duty work on April 26, 2011 with restrictions. 

OWCP paid compensation benefits from October 20 through November 15, 2011. 

On November 16, 2011 Dr. Thomas A. Wilson, Jr., a Board-certified neurosurgeon, 

diagnosed lumbar disc degeneration. On April 18, 2012 he reported that appellant experienced a 

lumbar strain in the area of preexisting lumbar degenerative disease. Dr. Wilson reported that 

appellant could continue to work with a 20-pound lifting restriction and limited bending and 

stooping. Appellant underwent a functional capacity evaluation on July 6, 2012 which 

demonstrated that appellant could work at the medium level lifting up to 50 pounds occasionally 

and 25 pounds frequently. Dr. Wilson reviewed this evaluation on July 11, 2012 and opined that 

appellant could return to work with the limitations set forth within his functional capacity 

evaluation. 

The record indicates that appellant has a service-related condition of post-traumatic stress 

disorder. In a letter dated June 14, 2012, the Department of Veterans Affairs noted that appellant 

had 30 percent service-related disability. 

In a note dated September 19, 2012, Dr. Wilson noted that appellant reported increased 

back pain with pain extending into his right hip and posterior thigh. He found moderate right 

lumbar tenderness and slightly antalgic gait. Dr. Wilson noted, “This patient is experiencing an 

exacerbation of his underlying degenerative disc disease.” He recommended an epidural block 

and instructed that appellant could continue working under restrictions. 

In a letter dated October 15, 2012, OWCP requested that Dr. Wilson address the causal 

relationship between appellant’s current condition and his accepted employment injury. 

Dr. Wilson completed a note on December 21, 2012 and wrote that appellant reported 

increased pain and had received epidural blocks, most recently in September 2012. He found 

diffuse lumbar tenderness and decreased range of motion of the lumbar spine with an antalgic 

gait. Dr. Wilson diagnosed chronic back pain with recent exacerbation secondary to lumbar 

degenerative disease. He indicated that appellant was temporally totally disabled through 

December 31, 2012. Appellant underwent an MRI scan commencing January 7, 2013 which 

suggested an annular tear at L4-5 and no definite acute disc protrusion or significant central or 

foraminal stenosis. In a note dated January 10, 2013, Dr. Wilson released appellant to return to 

work with his previous restrictions on January 24, 2013. In his treatment note dated January 10, 

2013, he reviewed appellant’s MRI scan and found degenerative changes at L2-3 and L4-5. 

Dr. Wilson noted that there was no significant disc herniation or nerve root encroachment. He 
3

opined that appellant was totally disabled for two weeks and could then return to light-duty work 

under his previous restrictions. 

Appellant filed claims for compensation requesting wage-loss compensation from 

September 25 through December 31, 2012 and from January 14 through 24, 2013. 

Appellant underwent an electromyogram (EMG) and nerve conduction velocity test on 

February 14, 2013 which revealed normal functional strength and reflexes in the bilateral lower 

extremities. He exhibited mild alteration in sensation along the proximal posterior lateral thighs. 

Appellant had no electrodiagnostic evidence of acute radiculopathy, significant generalized 

neuropathy, compression neuropathy, or myopathy. 

In a letter dated March 22, 2013, OWCP requested additional medical evidence in 

support of appellant’s claim. It allowed 30 days for a response. Appellant sought treatment at 

the emergency room on May 3, 2013 due to lower back pain radiating down his right leg. He 

received a diagnosis of back pain. Dr. Wilson completed an undated note responding to 

OWCP’s request for information and reported that appellant continued to experience back and 

leg pain secondary to lumbar degenerative disease, that his work injury aggravated his 

underlying degenerative condition, that appellant could work with restrictions consistent with his 

functional capacity evaluation and that appellant might require further medical treatment for his 

condition. 

By decision dated July 2, 2013, OWCP denied appellant’s claim for compensation for the 

periods September 25 to December 31, 2012 and from January 14 through 24, 2013 as the 

medical evidence did not establish that his diagnosed condition of degenerative disc disease was 

related to his employment injury. Counsel requested an oral hearing before an OWCP hearing 

representative on July 23, 2013. 

Dr. Hugh G. Maddox, a Board-certified anesthesiologist, provided a note dated July 30, 

2013 and listed appellant’s date of injury as December 22, 2010. He reported that appellant had 

been working light duty. Dr. Maddox diagnosed degenerative disc disease of the lumbar spine 

with suspected annual tear and facet joint arthropathy of the lumbar spine. 

The employing establishment offered appellant a permanent light-duty position as a 

general clerk on September 19, 2013. It stated that this position would accommodate appellant’s 

restrictions. Appellant accepted this position on September 30, 2013. 

Dr. Maddox administrated a transformational epidural at S1 bilaterally on 

September 20, 2013. On November 5, 2013 he examined appellant and opined that appellant had 

an annular tear. He diagnosed degenerative disc disease of the lumbar spine, suspected annual 

tears with axial pain, facet joint arthropathy of the lumbar spine, and nonemployment-related 

post-traumatic stress disorder. 

Appellant testified at the oral hearing before an OWCP hearing representative on 

December 23, 2013. He stated that he had a similar work-related injury in 2007. Appellant 

stated in September 2012 his lower back injury was aggravated to the point that he was unable to 

move about, get out of bed, or work. He stated that he briefly returned to work in January 2013 

and stopped work on January 14, 2013 because his condition deteriorated. 
4

Dr. Wilson completed a note on December 23, 2013 and opined that appellant’s diagnosis 

was preexisting lumbar disc degeneration which was aggravated by his work injury. He stated, 

“This does not represent a significant structural problem.” 

Appellant filed additional claims for additional periods of compensation. 

By decision dated February 4, 2014, OWCP denied appellant’s additional claims for 

compensation for the periods November 4 to 14, and November 18 to 28, 2013. In a decision 

dated February 28, 2014, it denied his additional claims for compensation for the periods 

September 27 to October 17, and October 21 to 31, 2013.2

An OWCP hearing representative issued a decision on March 14, 2014 regarding the 

periods of disability claimed from September 25 through December 31, 2012 and January 14 

through 24, 2013. He found the appellant had not submitted the necessary medical opinion 

evidence to establish disability for the periods claimed due to his accepted employment injury. 

In a letter dated May 22, 2014, counsel requested that OWCP expand appellant’s claim to 

accept the additional condition of aggravation of preexisting lumbar disc degeneration. He 

resubmitted the note from Dr. Wilson dated December 23, 2013 and the January 7, 2013 MRI 

scan. 

Counsel requested reconsideration on October 15, 2014 and stated that he was submitting 

a document from the employing establishment dated February 4, 2014 in support of this request. 

The February 4, 2014 memorandum stated that appellant had not responded to requests for 

information regarding his ability to safely and efficiently perform the duties of his position of 

welder or the offered position of general clerk. The employing establishment stated that 

appellant could use leave-without-pay through February 14, 2014 at which point he would be 

considered absent without leave if he did not provide requested medical information or return to 

duty on February 18, 2014. 

By decision dated November 3, 2014, OWCP denied modification of its prior decision 

finding that appellant had not met his burden of proof to establish disability from September 25 

through December 31, 2012 and from January 14 through 24, 2013. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3

 has the burden of establishing the essential 

elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury.4

 The term disability is 

defined as the incapacity because of an employment injury to earn the wages the employee was 

 2

 As the February 4 and 28, 2014 decisions were issued more than 180 days prior to December 16, 2014 the date 

of appellant’s appeal to the Board, these decisions are not properly before the Board on appeal. See 20 C.F.R. 

§ 501.3(e). 

3

 5 U.S.C. §§ 8101-8193. 

4 G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 
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receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning 

capacity.5 

Whether a particular injury causes an employee to be disabled for employment and the 

duration of that disability are medical issues which must be proved by a preponderance of the 

reliable, probative, and substantial medical evidence.6

 Findings on examination are generally 

needed to support a physician’s opinion that an employee is disabled for work. When a 

physician’s statements regarding an employee’s ability to work consist only of repetition of the 

employee’s complaints that he hurts too much to work, without objective findings of disability 

being shown, the physician has not presented a medical opinion on the issue of disability or a 

basis for payment of compensation.7 The Board will not require OWCP to pay compensation for 

disability in the absence of any medical evidence directly addressing the specific dates of 

disability for which compensation is claimed. To do so would essentially allow employees to 

self-certify their disability and entitlement to compensation.8 

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

causal relationship is rationalized medical evidence.9

 Rationalized medical evidence is medical 

evidence which includes a physician’s detailed medical opinion on the issue of whether there is a 

causal relationship between the claimant’s diagnosed condition and the implicated employment 

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

background of the claimant, must be one of reasonable medical certainty, and must be supported 

by medical reasoning explaining the nature of the relationship between the diagnosed condition 

and the specific employment factors identified by the claimant.10 Neither the 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 

causal relationship.11

ANALYSIS 

OWCP accepted that appellant sustained a lumbar strain on April 18, 2011. The factual 

and medical evidence establishes that appellant had a preexisting back injury from 2007 and that 

he has an underlying lumbar degenerative disease. Appellant returned to light-duty work and 

then claimed periods of total disability September 25 through December 31, 2012 and from 

January 14 through 24, 2013. OWCP denied this claim by decision dated July 2, 2013. An 

 5

 20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no 

loss of wage-earning capacity). 

6 See Fereidoon Kharabi, 52 ECAB 291 (2001). 

7 Id.

8 Id.

9 Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

10 Leslie C. Moore, 52 ECAB 132 (2000). 

11 Dennis M. Mascarenas, 49 ECAB 215 (1997). 
6

OWCP hearing representative affirmed the denial on March 14, 2014. Appellant has the burden 

of establishing by the weight of the substantial, reliable, and probative evidence that he was 

disabled for work for the claimed period due to his accepted injury.12

In support of his claim for periods of total disability, appellant submitted a series of 

reports from Dr. Wilson. On September 19, 2012 Dr. Wilson examined appellant due to his 

complaints of increased back pain with pain extending into his right hip and posterior thigh. He 

opined that appellant was experiencing an exacerbation of his underlying degenerative disc 

disease. On December 21, 2012 Dr. Wilson diagnosed chronic back pain with recent 

exacerbation secondary to lumbar degenerative disease. He indicated that appellant was 

temporarily totally disabled through December 31, 2012. In his treatment note dated January 10, 

2013, Dr. Wilson reviewed appellant’s MRI scan and found degenerative changes at L2-3 and 

L4-5. He stated that appellant was totally disabled for two weeks and could then return to lightduty work under his previous restrictions. These reports do not support that appellant’s 

condition from September 19 to December 31, 2012 and from January 15 to 24, 2013 was due to 

his accepted employment injury of lumbar sprain. Dr. Wilson instead attributed appellant’s 

condition to his underlying degenerative disc disease which has not been accepted as 

employment related. 

Dr. Wilson completed an undated note and stated that appellant continued to experience 

back and leg pain secondary to lumbar degenerative disease, that his work injury aggravated his 

underlying degenerative condition, and that appellant could work with restrictions consistent 

with his functional capacity evaluation. Dr. Wilson completed a note on December 23, 2013 and 

stated that appellant’s diagnosis was preexisting lumbar disc degeneration which was aggravated 

by his work injury. These reports are not sufficient to establish that appellant was totally 

disabled for the periods alleged. While Dr. Wilson opined that appellant’s work injury 

aggravated his underlying condition, he did not provide any medical reasoning in support of his 

conclusions. He also failed to provide any specific periods of disability during which appellant’s 

underlying condition was aggravated by his diagnosed lumbar strain. Without specific periods of 

disability supported by medical rationale, these reports are insufficient to meet appellant’s 

burden of proof. 

Appellant submitted emergency room notes diagnosing back pain. The Board has held 

that the mere diagnosis of “pain” does not constitute the basis for payment of compensation.13 

These notes do not attribute appellant’s current condition to his accepted employment injury of 

lumbar strain and do not support his claim for specific periods of total disability due to his 

accepted employment injury. 

Dr. Maddox examined appellant beginning July 30, 2013 and listed appellant’s date of 

injury as December 22, 2010. He diagnosed degenerative disc disease of the lumbar spine with 

suspected annual tear and facet joint arthropathy of the lumbar spine. Dr. Maddox did not opine 

that appellant’s accepted work condition of lumbar strain caused or aggravated his underlying 

degenerative disc disease. He did not provide any opinion on the causal relationship between his 

 12 Alfredo Rodrique, 47 ECAB 437 (1996); J.S., Docket No. 14-1929 (issued February 23, 2015). 

13 Robert Broome, 55 ECAB 339 (2004). 
7

diagnosis and appellant’s employment. Without such medical opinion evidence, Dr. Maddox’s 

reports are insufficient to establish appellant’s claim for compensation for periods of total 

disability. 

The Board finds that appellant has not submitted the necessary medical opinion evidence 

to establish that his disability from September 25 through December 31, 2012 and from 

January 14 through 24, 2013 was due to his accepted employment injury of lumbar strain. 

Contrary to counsel’s argument, the Board finds no error of fact or law on the part of OWCP. 

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 has not met his burden of proof to establish that he was 

totally disabled from September 25 through December 31, 2012 and from January 14 through 

24, 2013 due to his accepted lumbar strain. 

ORDER 

IT IS HEREBY ORDERED THAT the November 3, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 29, 2015 

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