United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.C., Appellant 

and 

DEPARTMENT OF JUSTICE, ALCOHOL, 

TOBACCO, FIREARMS & EXPLOSIVES, 

Washington, DC, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-197 

Issued: May 5, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 5, 2014 appellant filed a timely appeal from an October 22, 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 this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish a back condition 

causally related to a March 21, 2014 employment incident. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 21, 2014 appellant, then a 40-year-old special agent, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his lower back on March 21, 2014 as a result of 

pursuing and apprehending a suspect on foot in the performance of duty. 

In an April 23, 2014 report, Dr. Vaughan Allen, a Board-certified neurosurgeon, found 

that appellant had persistent low back pain and bilateral leg pain, left greater than right. He 

noted that appellant was a federal employee and had extensive treatment, epidurals, and physical 

therapy. Dr. Allen opined that appellant needed a laminectomy and fusion surgery. 

Appellant underwent a lumbar laminectomy at L5-S1 and posterolateral lumbar fusion 

performed by Dr. Paul McCombs, a Board-certified neurosurgeon, on May 1, 2014. In a followup report dated June 30, 2014, Dr. McCombs found appellant doing extremely well two months 

after his surgery and released him to full duty without restrictions. 

On July 3, 2014 appellant requested authorization for his May 1, 2014 back surgery. 

In a July 10, 2014 letter, OWCP stated that when appellant’s claim had been received, it 

appeared to be a minor injury, which resulted in minimal or no lost time from work, and payment 

of a limited amount of medical expenses was administratively approved. It reopened the claim 

for consideration because appellant had requested authorization for surgery. OWCP requested 

additional evidence and afforded appellant 30 days to respond to its inquiries. 

Appellant submitted a narrative statement dated July 15, 2014 explaining that he had 

begun seeing his primary care physician in December 2013 for low back pain. He stated that he 

had experienced significant relief from epidural injections until the March 21, 2014 employment 

incident, which significantly exacerbated his condition. 

A December 20, 2013 magnetic resonance imaging (MRI) scan revealed an 

anterolisthesis of L5 on S1, disc desiccation, mild broad-based disc bulge with mild central canal 

stenosis, hypertrophic degenerative changes involving the facet joints, and moderately severe 

neuroforaminal narrowing on the left with impingement of the exiting L5 nerve root. 

In an April 23, 2014 report, Dr. McCombs diagnosed spondylolisthesis at L5-S1 and 

reported that appellant had “been struggling with this since November of 2012.” He opined that 

appellant was unable to perform the duties of his federal employment and recommended surgical 

intervention. 

By decision dated August 15, 2014, OWCP denied appellant’s claim as the medical 

evidence was insufficient to establish a causal relationship between his back condition and the 

March 21, 2014 employment incident. 

On September 3, 2014 appellant requested reconsideration and submitted an August 27, 

2014 report from Dr. McCombs who diagnosed a preexisting condition of spondylolisthesis at 

L5-S1 which he “may have been able to live with had it not been for the injury that [he] 

sustained as a result of pursuing an armed suspect and fighting with him for a weapon.” He 

opined that, if the incident had not occurred, appellant “may have been able to tolerate [his] 
3

spondylolisthesis without the need for operative intervention going forward.” Dr. McCombs 

explained that he saw “this commonly with spondylolisthesis, in which patients are 

asymptomatic, and then their nerve compromise is brought to clinical light as a result of an 

accident such as [appellant’s] or a motor vehicle accident.” 

In a September 12, 2014 letter, OWCP requested a supplemental report from 

Dr. McCombs and afforded him 30 days to respond to its inquiries. 

In a report dated September 24, 2014, Dr. McCombs reiterated his opinion that 

appellant’s L5-S1 spondylolisthesis was aggravated by the March 21, 2014 employment 

incident. He stated that appellant “had a preexisting spondylolisthesis that was not clinically 

significant until the time of his accident” and resulted in the need for operative intervention. 

Physical examination findings included deficits involving the L5 nerve root, which was affected 

and resulted in weakness of the dorsiflexion of the foot, as well as numbness in the L5 

distribution. Dr. McCombs based his opinion on the history of injury provided by appellant and 

the objective findings of his physical examination. 

By decision dated October 22, 2014, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA2

 has the burden of establishing 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 timely filed within the applicable time 

limitation period of FECA, that an injury3 was sustained in the performance of duty, as alleged, 

and that any disability or medical condition for which compensation is claimed is causally 

related to the employment injury.4 

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

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

A fact of injury determination is based on two elements. First, the employee must submit 

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

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

evidence, generally only in the form of medical evidence, to establish that the employment 

incident caused a personal injury. An employee may establish that the employment incident 

occurred as alleged but fail to show that his or her condition relates to the employment incident.5

 

 2 Id. 

3

 OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or 

series of events or incidents, within a single workday or shift. Such condition must be caused by external force, 

including stress or strain, which is identifiable as to time and place of occurrence and member or function of the 

body affected. 20 C.F.R. § 10.5(ee). 

4 See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 

1143 (1989). 

5 Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989). 
4

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

establish causal relationship is rationalized medical opinion evidence. The opinion of the 

physician must be based on a complete factual and medical background of the employee, 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 employee.6 

ANALYSIS 

OWCP has accepted that the employment incident of March 21, 2014 occurred at the 

time, place, and in the manner alleged. The issue is whether appellant’s back condition resulted 

from the March 21, 2014 employment incident. The Board finds that appellant did not meet his 

burden of proof to establish a causal relationship between the condition for which compensation 

is claimed and the employment incident. 

In an April 23, 2014 report, Dr. McCombs diagnosed spondylolisthesis at L5-S1 and 

noted that appellant had “been struggling with this since November of 2012.” On August 27, 

2014 Dr. McCombs stated that appellant had a preexisting condition of spondylolisthesis at L5-

S1 which he “may have been able to live with had it not been for the injury that [he] sustained as 

a result of pursuing an armed suspect and fighting with him for a weapon.” He opined that, if the 

incident had not occurred, appellant “may have been able to tolerate [his] spondylolisthesis 

without the need for operative intervention going forward.” Dr. McCombs explained that he saw 

“this commonly with spondylolisthesis, in which patients are asymptomatic, and then their nerve 

compromise is brought to clinical light as a result of an accident such as [appellant’s] or a motor 

vehicle accident.” On September 24, 2014 Dr. McCombs reiterated his opinion that appellant’s 

L5-S1 spondylolisthesis was aggravated by the March 21, 2014 employment incident, indicating 

that appellant “had a preexisting spondylolisthesis that was not clinically significant until the 

time of his accident.” 

The Board finds that Dr. McCombs’ reports are not based on an accurate history of 

appellant’s back condition. Dr. McCombs indicated that appellant had suffered from L5-S1 

spondylolisthesis since November 2012. However, he failed to provide a narrative setting forth a 

full and accurate history of appellant’s back condition, including a comparison of any diagnostic 

testing obtained after November 2012 with prior tests, and did not provide an opinion adequately 

addressing how the March 21, 2014 incident contributed to appellant’s preexisting back 

condition. The Board has held that medical opinions based on an inaccurate history have 

diminished probative value.7

 The Board finds that Dr. McCombs’ opinion is therefore of 

diminished probative value on the issue of causal relationship and insufficient to establish that 

appellant sustained an employment-related injury on March 21, 2014. 

 6 Id. See Gary J. Watling, 52 ECAB 278 (2001). 

7 See 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). See also Douglas M. McQuaid, 52 ECAB 382 

(2001); N.H., Docket No. 13-849 (issued July 17, 2013). 
5

In an April 23, 2014 report, Dr. Allen noted persistent low back pain and bilateral leg 

pain, left greater than right and that appellant had extensive treatment, epidurals, and physical 

therapy. This report did not, however, provide sufficient medical rationale explaining how 

appellant’s condition was caused or aggravated by pursuing and apprehending a suspect at work 

on March 21, 2014.8

In support of his claim, appellant submitted an MRI scan dated December 20, 2013. This 

document does not constitute competent medical evidence as it does not contain rationale by a 

physician relating appellant’s disability to his employment.9 As such, the Board finds that 

appellant did not meet his burden of proof with this submission. 

As appellant has submitted insufficiently rationalized medical evidence to support his 

allegation that he sustained an injury causally related to a March 21, 2014 employment incident, 

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

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 his back 

condition was causally related to a March 21, 2014 employment incident, as alleged. 

 8 See 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 See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons, 

podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the 

scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. 

Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989). 
6

ORDER 

IT IS HEREBY ORDERED THAT the October 22, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 5, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board