United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.T., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS BENEFITS ADMIISTRATION 

REGIONAL OFFICE, Oakland, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1222 

Issued: March 9, 2017 

Appearances: Case Submitted on the Record

Daniel M. Goodwin, Esq., for the appellant1

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 May 17, 2016 appellant, through counsel, filed a timely appeal from a January 4, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether appellant met his burden of proof to establish that he developed a 

lumbar condition causally related to factors of his federal employment. 

FACTUAL HISTORY 

On January 26, 2015 appellant, then a 44-year-old veterans rating service representative, 

filed an occupational disease claim (Form CA-2) alleging that he developed degenerative joint 

disease of the lumbar spine as a result of his federal employment duties. He first became aware 

of his condition and of its relationship to his employment on October 1, 2009. Appellant notified 

his supervisor on March 13, 2015. On the reverse side of the claim form appellant’s supervisor 

stated that, beginning December 29, 2014, appellant teleworked and only came into the office 

one day a week. 

In an accompanying narrative statement, appellant reported that he began working for the 

employing establishment in August 2009 at which time he was provided a standard sized chair 

and desk. He explained that, because he was 6 foot 5 inches and 215 pounds, he requested a 

chair that would fit him better as he experienced lumbar pain and discomfort in the chair he was 

provided. Appellant noted that his job entailed sitting for eight hours per day and prior to 

working for the employing establishment he had never worked an office job. He reported that, 

despite trying other chairs that were in his office, he could not find one that suited his size, and 

his requests for a properly fitting chair went unanswered. Appellant noted that the chair he was 

provided was adjustable up to 21 inches from the floor whereas the ergo metric evaluation found 

that his chair base should be 24 to 25 inches off the ground. He further reported that he had no 

significant or chronic back problems and stated that sitting for eight hours per day in a chair that 

was significantly too small caused his chronic back problem. 

By letter dated March 19, 2015, appellant’s supervisor related that appellant received all 

the appropriate equipment identified during a workstation ergonomic evaluation conducted on 

September 10, 2012. He stated that appellant received a chair that met his needs for an 

adjustable workstation, an ergonomic keyboard and mouse, dual monitors, and Dragon software. 

The supervisor further explained that appellant currently teleworked and was only required to 

come into the office one day a month. 

By letter dated April 6, 2015, the employing establishment controverted the claim 

relating that every attempt had been made to accommodate appellant. 

In an August 12, 2014 diagnostic report, Dr. Tereasa Simonson, a Board-certified 

diagnostic radiologist, reported that an x-ray of the lumbar spine revealed mild facet hypertrophy 

at the lower two lumbar levels. 

In a September 12, 2014 medical report, Dr. Juon-kin K. Fong, a Board-certified 

orthopedic surgeon, reported that the August 12, 2014 x-ray of the lumbar spine was remarkable 

for mild facet changes with narrowing of the neuroforaminae at L4-5-S1. He explained that the 

presence of these hypertrophic changes in the facets suggested early degenerative joint disease of 

the facets due to activities such as prolonged sitting and repetitive bending and lifting. Dr. Fong 
3

reported that increasing the load on these structures would precipitate inflammation of the facet 

joints leading to localized muscle spasm and pain with decreased motion and activity tolerance. 

He noted that appellant’s work required prolonged sitting at ergonomically inadequate 

workstations (due to his height), thus increasing the pressure in the lower spine. As such, the 

combination of the prolonged sitting and poor ergonomics precipitated appellant’s back injury 

and symptoms. 

By letter dated April 20, 2015, OWCP informed appellant that the evidence of record was 

insufficient to support his claim. Appellant was advised of the medical and factual evidence 

necessary and was afforded 30 days to submit the requested evidence. 

In a March 12, 2013 diagnostic report, Dr. George D. Chu, a Board-certified diagnostic 

radiologist, reported that an x-ray of the lumbar spine revealed mild degenerative facet changes 

of the lower lumbar spine, no significant degenerative disc disease, trace dextroscoliosis, and no 

evidence of acute vertebral body compression fracture. 

On May 15, 2015 appellant responded to OWCP’s request for additional evidence. He 

stated that he had not received medical treatment for his lower back condition until March 12, 

2013 when an x-ray revealed mild degenerative facet changes of the lower lumbar spine and 

trace dextroscoliosis. Appellant argued that the employing establishment ignored his requests 

for ergonomic accommodations despite numerous complaints. He reported that his ergonomic 

evaluation was not conducted until September 10, 2012 and that he was not provided with all of 

the recommended accommodations. Appellant stated that an electric height adjustable 

workstation was recommended so that he could stand while working, but this equipment was not 

provided until eleven months after the recommendation. In support of his claim, he submitted emails which documented his requests for the equipment. 

On July 6, 2015 appellant responded to an OWCP development questionnaire. He 

reported that, from the beginning of his employment, he was required to sit down to use the 

computer workstation, which did not fit his body due to his height. Appellant opined that his 

chair was too small for his frame and caused his lower back injury. He explained that, initially, 

he would sit for 8 hours per day, 5 days per week, with 20 hours of mandatory overtime per 

month, for over a year. On days of mandatory overtime appellant had to sit in the inadequate 

chair for 10 hours per day. He reported that, currently, he was accommodated with the 

adjustable height desk recommended by the ergonomic evaluation so he could alternate between 

standing and sitting. Appellant explained that both his office desk and home desk were 

adjustable. He reported that he began teleworking on December 24, 2014. For the first few 

months, appellant was required to come into the office once a week while his current schedule 

required him to come in once a month. He reported no prior injury to his back. Appellant noted 

having previously filed a workers’ compensation claim for his cervical spine and right ulnar 

nerve.3

 

In support of his claim, appellant submitted medical reports dated May 26 and July 2, 

2015 from Dr. Fong. Dr. Fong reported that appellant had previously been evaluated on June 30 

and August 19, 2014 for back complaints from prolonged sitting at his job. He noted that 

 3

 The Board notes that the record contains no other information pertaining to OWCP File No. xxxxxx391. 
4

appellant was 6 foot 5 inches, but his workstation chair was only 23 inches high, causing him to 

sit in an awkward position with his back and neck significantly flexed in order to work at his 

desk. Dr. Fong noted that, on June 30, 2014, appellant’s examination revealed muscle spasm in 

the lower back in the paravertebral muscles, along with some decrease in flexion. An August 12, 

2014 x-ray of appellant’s lumbar spine revealed mild facet changes with narrowing of the 

neuroforaminae at L4-5-S1, but with very wide foramina so that the narrowing was unlikely to 

lead to any neurologic issues. Dr. Fong explained that the presence of these hypertrophic 

changes in the facets suggested early degenerative disc disease of the facets due to activities such 

as prolonged sitting, especially in an ergonomically poor position as appellant was, along with 

repetitive bending and lifting. He reiterated that increasing the load on these structures would 

precipitate inflammation of the facet joints leading to localized muscle spasm and pain with 

decreased motion and activity tolerance. Dr. Fong advised that such activities should be 

modified to prevent worsening. He noted that appellant’s work required prolonged sitting at 

ergonomically inadequate workstations (due to his height), thus increasing the pressure in the 

lower spine. As such, the combination of the prolonged sitting and poor ergonomics precipitated 

appellant’s lumbar spine facet degenerative disc disease and was the reason he was having 

continued back dysfunction. Dr. Fong opined that, with reasonable medical probability, there 

had been no previous aggravation, either temporary or permanent, because appellant had no 

symptoms that could have been aggravated prior to the work exposure as discussed above. 

By decision dated July 10, 2015, OWCP denied appellant’s claim finding that the 

medical evidence of record failed to establish that his diagnosed back conditions were causally 

related to his federal employment duties. 

On October 9, 2015 appellant, through counsel, requested reconsideration of OWCP’s 

decision. Counsel noted that an October 9, 2015 medical report from Dr. Fong established 

appellant’s occupational disease claim. He further argued if the work-related conditions 

contributed to his condition, then the injury should be considered employment related. 

In the October 9, 2015 medical report, Dr. Fong repeated the assertions and findings 

made in his prior reports. In addition, he noted that studies have revealed that sitting in improper 

positions, as when a chair is too low, can increase pressure on the lumbar spine to three times the 

body weight, accelerating degenerative changes to the spine. In terms of when the ergonomic 

adjustments were made, Dr. Fong noted that the employing establishment did not accommodate 

appellant’s ergonomic requests until November 2013, approximately 16 months since the onset 

of his symptoms, leaving him exposed to the same substandard conditions that prompted the 

onset of his symptoms in 2011. 

By decision dated January 4, 2016, OWCP denied modification of the July 10, 2015 

decision, finding that the medical evidence of record failed to establish that appellant’s 

diagnosed lumbar condition was causally related to his accepted federal employment duties. 

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 
5

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 

employment injury.4

 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or an occupational disease.5

In order to determine whether an employee actually sustained an injury in the 

performance of duty, OWCP begins with an analysis of whether fact of injury has been 

established. Generally, fact of injury consists of two components which must be considered in 

conjunction with one another. The first component to be established is that the employee 

actually experienced the employment incident which is alleged to have occurred.6 The second 

component is whether the employment incident caused a personal injury and generally can be 

established only by medical evidence. 

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.7 

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

opinion evidence based on a complete factual and medical background, supporting such a causal 

relationship.8 The opinion of the physician 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. This 

medical opinion must include an accurate history of the employee’s employment injury and must 

explain how the condition is related to the injury. The weight of medical evidence is determined 

by its reliability, its probative value, its convincing quality, the care of analysis manifested, and 

the medical rationale expressed in support of the physician’s opinion.9

ANALYSIS 

OWCP denied appellant’s claim as the evidence of record failed to establish causal 

relationship between his employment duties as a veteran’s rating service representative and his 

 4 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989). 

5 Michael E. Smith, 50 ECAB 313 (1999). 

6 Elaine Pendleton, supra note 4 at 1143 (1989). 

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

8 See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983). 

9 James Mack, 43 ECAB 321 (1991). 
6

lumbar facet degenerative disc disease The Board finds that this case is not in posture for 

decision and must be remanded for further development of the medical evidence.10 

OWCP accepted that appellant engaged in prolonged sitting in his employment as a 

veterans rating service representative. The issue is whether appellant established that his 

employment caused a lumbar injury. 

The Board finds that the medical evidence of record is sufficient to require further 

development of the case record. It is well established that proceedings under FECA are not 

adversarial in nature and while the claimant has the burden of establishing entitlement to 

compensation, OWCP shares responsibility in the development of the evidence to see that justice 

is done.11 

In medical reports dated September 12, 2014 through October 9, 2015, Dr. Fong provided 

a detailed medical history, physical examination findings, and a review of diagnostic testing. 

The Board notes that, while none of his reports are completely rationalized, they are consistent in 

indicating that appellant sustained an employment-related injury.12 

Dr. Fong described appellant’s employment duties, noting that work required him to sit in 

a chair for prolonged periods of time. He explained that appellant was 6 foot 5 inches while his 

workstation chair was only 23 inches high, causing him to sit in an awkward position with his 

back and neck significantly flexed. Dr. Fong described appellant’s physical examination 

findings, which revealed muscle spasm in the lower back in the paravertebral muscles, along 

with some decrease in flexion. He reviewed diagnostic testing, explaining that an August 12, 

2014 x-ray of the lumbar spine revealed mild facet changes due to narrowing of the 

neuroforaminae at L4-5-S1. Dr. Fong explained that the presence of these hypertrophic changes 

in the facets suggested early degenerative disc disease of the facets due to activities such as 

prolonged sitting, especially in an ergonomically poor position as appellant was, along with 

repetitive bending and lifting. He explained that increasing the load on these structures would 

precipitate inflammation of the facet joints, leading to localized muscle spasm and pain with 

decreased motion and activity tolerance. 

Dr. Fong noted that appellant’s work required prolonged sitting at ergonomically 

inadequate workstations (due to his height), thus increasing the pressure in the lower spine. As 

such, the combination of the prolonged sitting and poor ergonomics precipitated appellant’s 

lumbar spine condition was the cause of the continued back dysfunction. Dr. Fong further 

described the mechanism of injury by stating that sitting in improper positions, as when a chair is 

too low, can increase pressure on the lumbar spine to three times the body weight, accelerating 

degenerative changes to the spine. He explained that ergonomic adjustments were not made for 

 10 J.C., Docket No. 12-0107 (issued May 24, 2012). 

11 Phillip L. Barnes, 55 ECAB 426 (2004); William J. Cantrell, 34 ECAB 1233 (1993); see also Virginia Richard, 

claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell, 36 ECAB 

699 (1985). 

12 S.M., Docket No. 13-0534 (issued June 21, 2013); Frank B. Gilbreth, Docket No. 02-1310 (issued 

May 14, 2003). 
7

some time, leaving appellant exposed to substandard conditions. Dr. Fong opined, with 

reasonable medical probability, that appellant had no symptoms that could have been aggravated 

prior to the work exposure. 

While Dr. Fong did not fully describe the mechanism of the injury, he provided a clear 

opinion based on examination findings and an accurate factual and medical background, that 

prolonged sitting and poor ergonomics precipitated appellant’s lumbar spine facet degenerative 

disc disease.13 He demonstrated an understanding of appellant’s employment duties and 

discussed how these factors caused or aggravated his condition. Dr. Fong provided a medical 

history and based his findings on diagnostic testing and physical examination.14 

Although Dr. Fong’s reports are insufficient to meet appellant’s burden of proof to 

establish his claim, they are sufficient to require OWCP to further develop the medical evidence 

and the case record.15 

The Board will remand the case for further development of the medical evidence. On 

remand, OWCP should prepare a statement of accepted facts (SOAF) and provide a timeline as 

to when appellant received the various ergonomic equipment requested. It should then refer 

appellant, along with an updated SOAF and the case record, to an appropriate Board-certified 

physician to obtain a rationalized opinion as to whether his lumbar injuries are causally related to 

his federal employment duties, directly or through aggravation, precipitation, or acceleration.16 

Following this and any other development deemed necessary, OWCP shall issue an appropriate 

merit decision on his occupational disease claim. 

CONCLUSION 

The Board finds this case is not in posture for decision. 

 13 R.W., Docket No. 08-0275 (issued June 3, 2008). 

14 L.R., Docket No. 12-0239 (issued August 17, 2012). 

15 See Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989). 

16 P.A., Docket No. 09-0319 (issued November 23, 2009). 
8

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decision dated January 4, 2016 is set aside and the case is remanded for further development 

consistent with this decision. 

Issued: March 9, 2017 

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