United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.C., Appellant 

and 

DEPARTMENT OF THE ARMY, 

Fort Belvoir, VA, Employer 

__________________________________________ 

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Docket No. 16-1073 

Issued: July 13, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 25, 2016 appellant filed a timely appeal from a February 11, 2016 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.2

ISSUE 

The issue is whether appellant met her burden of proof to establish a recurrence of 

disability causally related to her January 12, 2011 employment injury. 

 1

 5 U.S.C. § 8101 et seq.

2

 Together with her appeal request appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated November 16, 2016, the Board denied the request as appellant’s arguments on appeal 

could be adequately addressed in a decision based on a review of the case as submitted on the record. Order 

Denying Request for Oral Argument, Docket No. 16-1073 (issued November 16, 2016). 
2

FACTUAL HISTORY 

On April 28, 2011 appellant, then a 44-year-old contract specialist (working under a term 

appointment) filed an occupational disease claim (Form CA-2) alleging that she developed a 

herniated disc at C6 due to sitting at her computer at work for long periods of time. She listed 

her date of injury as January 18, 2011. On March 10, 2011 appellant underwent an anterior 

cervical discectomy and fusion at C4-7 with C6 corpectomy. She was paid wage-loss 

compensation for the period April 24 to May 7, 2011 and June 5 to 8, 2011. Appellant used 

personal leave for the remaining dates. 

In a statement dated May 23, 2011, appellant noted that she had served in Iraq as a 

contract specialist beginning July 20, 2009 and had worked at a computer for 12 hours a day 

seven days a week. On June 9, 2011 she listed her duties of wearing a 30-pound bullet-proof 

vest and 8-pound helmet during any travel period, carrying two 20- to 30-pound duffle bags, 

running from rocket and mortar attacks two to three times a week with her protective gear, 

hiding in concrete bunkers, and occasionally striking her head on those bunkers due to her 

height. Appellant explained that she was required to relocate her office twice, which entailed 

lifting heavy boxes, computers, monitors, and office furniture and equipment weighing up to 70 

pounds. She was also required to work as the postal clerk picking up mail and walking with 

heavy boxes. These duties were in addition to appellant’s computer duties. 

The employing establishment terminated appellant’s position on June 15, 2011 due to the 

expiration of her appointment. 

OWCP accepted appellant’s claim on July 22, 2011 for intervertebral disc disorder with 

myelopathy. In a report dated August 4, 2011, OWCP’s medical adviser determined that 

appellant’s March 10, 2011 surgery was necessary and warranted due to her work-related injury 

and should be approved. 

On November 23, 2011 appellant filed a claim for compensation (Form CA-7) for the 

period June 19 to October 23, 2011. OWCP denied that claim by decision dated 

January 4, 2012. Appellant requested reconsideration and, by decision dated May 30, 2012, a 

hearing representative denied modification of the earlier decision. After a second request for 

reconsideration, on September 24, 2012, OWCP accepted appellant’s claim for total disability 

for the period June 19 through October 23, 2011 based on the second opinion report of 

Dr. Willie E. Thomas, a Board-certified orthopedic surgeon, and treating physician reports from 

Drs. Mia Finkelston and Eric Dawson, both orthopedic surgeons. It found the overwhelming 

weight of the medical evidence supported that appellant continued to be disabled due to the 

approved surgery.3

 3

 Appellant worked in the private sector for Phoenix Systems from October 23, 2011 to January 5, 2012 and for 

MAIC, Inc. from June 1, 2012 to August 2013. 
3

Appellant filed another claim on March 4, 2013 alleging a recurrence of disability from 

January 5 to June 1, 2012. She later returned to private-sector work in June 2012.4

 

In a letter dated May 15, 2013, OWCP informed appellant that she was entitled to 

medical care due to her accepted condition, but denied any disability for the requested period 

because her appointment at the employing establishment had terminated on June 15, 2011. It 

found her wage loss resulted from an end to her term appointment rather than due to her accepted 

medical condition. OWCP also advised appellant that she could not receive wage-loss 

compensation during the same period that she was receiving schedule award benefits. 

Thereafter, OWCP received a February 14, 2013 report from Dr. Dawson who noted 

multiple levels of cervical discopathies. He found that there was no major motor involvement 

and that appellant’s condition was relatively stable. Dr. Dawson found that appellant could work 

with lifting restrictions of 10 pounds regularly and 20 pounds intermittently. Appellant was not 

to lift over her shoulders particularly on the left. 

Appellant underwent a cervical magnetic resonance imaging (MRI) scan on June 21, 

2013 which demonstrated large central C2-3 and C3-4 disc protrusions producing significant 

spinal canal compromise. It also reflected a previous anterior cervical fusion from C4 through 

C7. Dr. Dawson examined appellant on June 26, 2013 and reviewed her MRI scan. He found 

two new disc ruptures superior to the old three that had been fused. Dr. Dawson opined that the 

new disc ruptures were “basically evolutionary” of her underlying condition. He reported that 

appellant had nerve impingement. Dr. Dawson indicated that appellant was totally disabled. On 

November 8, 2013 he noted that appellant had a somewhat depressed demeanor. Dr. Dawson 

reviewed cervical x-rays and found that the fusion from C4-6 was not a complete bone fusion 

and that the fusion mass was being held together by two semi-parallel plates with fixating screws 

that were developing lucency. He diagnosed cervical discopathy and cervicodorsal myofasciitis 

with nerve irritability. Dr. Dawson provided work restrictions. 

In a note dated March 18, 2014, Dr. Dawson diagnosed continued problems with cervical 

discopathy and multilevel cervical disc with nerve impingement. He opined that appellant was 

developing failure of the more mobile units. Dr. Dawson found increased tone and spasm of the 

cervicodorsal musculature and weakness to extension of the right elbow with fasciculations as 

well as trace grasp strength weakness bilaterally. 

On July 1, 2014 Dr. Dawson described appellant’s pain, spasm, and stiffness in the neck 

and shoulder area. He noted that appellant had difficulty sleeping and was developing possible 

depressive affect. Dr. Dawson diagnosed cervical disc protrusion with a malunion overall. He 

provided restrictions including no lifting more than 10 pounds and no bending, pushing, lifting, 

or pulling. Dr. Dawson recommended a semi-sedentary lifestyle. In a note dated August 26, 

2014, he indicated that appellant was capable of only the lightest of activities of daily living with 

no lifting, pushing, pulling, bending, twisting, or stooping. Appellant had severe pain in the left 

 4

 By decision dated April 30, 2013, OWCP granted a schedule award for 47 percent permanent impairment of 

appellant’s right upper extremity for the period March 10, 2012 through December 31, 2014. Appellant requested a 

lump-sum payment. She provided OWCP with her employment records. OWCP provided appellant with a lumpsum payment of her schedule award on March 21, 2014 in the amount of $79,168.44. 
4

neck and shoulder area and was distressed. She demonstrated severe weakness to extension of 

the right elbow with some cog-wheeling in both upper extremities. Dr. Dawson found definite 

motor and sensory impairment. On September 16, 2014 he noted that appellant had normal 

upper extremity muscle strength, but diminished trigger point to palpation. Dr. Dawson 

diagnosed multiple discopathies and nerve impingement. He noted that appellant had anxiety 

issues and trouble sleeping at night. On January 7, 2015 Dr. Dawson opined that appellant was 

totally disabled due to multiple cervical disc ruptures at the two superior levels, following 

surgery, with documented nerve impingement. 

Appellant advised OWCP, by letter dated January 8, 2015, that she had been offered an 

opportunity by the Department of State to deploy to Afghanistan, but that the offer had been 

withdrawn due to Dr. Dawson’s reports. She explained that she was filing numerous forms for 

compensation because, due to her employment injury, she had lost an opportunity to earn over 

$300,000.00. 

On January 8, 2015 OWCP received a claim for a schedule award (Form CA-7). It 

received a Form CA-7 for the period “November 2014 to the present,” and on January 21, 2015 

it received a Form CA-7 claiming wage-loss compensation for “LWEC.” She noted that she had 

worked in the private sector from February through November 2014 as a contract specialist. 

OWCP also received, on January 22, 2015, a claim for recurrence of disability (Form 

CA-2a) for the period August 23, 2013 to April 28, 2014 due to appellant’s January 18, 2011 

employment injury. Appellant claimed that she had sustained additional cervical disc herniations 

due to sitting at her computer for a full workday.5

Appellant submitted medical evidence in support of her numerous claims. In a report 

dated January 7, 2015, Dr. Dawson opined that appellant’s condition had worsened in the 

previous 22 months. He related appellant’s history of injury and her medical treatment. 

Dr. Dawson found that appellant had severe C6-7 motor and sensory impairments. He opined 

that her surgical fusion resulted in decompensation of the superior discs at C2-3 and C3-4 as 

demonstrated by her cervical spine MRI scan. Appellant demonstrated significant losses of 

reflexes in the upper and lower extremities with evidence of cord compression. Dr. Dawson 

opined that appellant’s percentage of permanent impairment for schedule award purposes had 

increased. He noted that appellant’s accepted injury had significantly evolved with the passage 

of time and that there were no intervening factors, such as a subsequent accident or injury. 

Dr. Dawson further opined that it was doubtful that appellant could carry out any practical 

workplace duties. 

On January 13, 2015 Dr. Dawson found pain, spasms, and stiffness with slight 

fasciculations present. He noted tenderness to C5-6 and C6-7 with motor and sensory deficits. 

 5

 Appellant filed another claim for compensation (Form CA-7) for the period August 2013 to November 2014. 

By letter dated January 14, 2015, OWCP advised appellant that it would not adjudicate that claim until it was 

completed by the employing establishment. Appellant also filed a new occupational disease claim (Form CA-2) 

alleging post-traumatic stress disorder (PTSD) due to her deployment in Iraq. OWCP has not issued a final decision 

regarding these issues and thus these claims will not be addressed by the Board. 20 C.F.R. § 501.2(c). 
5

Dr. Dawson found that appellant was in severe pain with slight webbing of the paraspinous 

musculature. 

In a note dated March 17, 2015, Dr. Dawson diagnosed multilevel cervical disc and nerve 

impingement with motor and sensory involvement. He noted that appellant was experiencing 

pain, spasm, stiffness with numbness, tingling, burning, and weakness and having difficulty 

sleeping. Dr. Dawson determined that she was totally disabled. On April 7, 2015 he repeated 

his findings and diagnosed multiple cervical discopathies, cervical nerve impingement and 

impediment, and possible psychiatric issues related to the injury. 

In a letter dated April 16, 2015, OWCP requested additional factual and medical evidence 

to substantiate appellant’s claim for a recurrence on May 20, 2013. It afforded appellant 30 days 

for a response. 

On April 16, 2015 OWCP requested that Dr. Dawson provide a permanent impairment 

rating. Dr. Dawson submitted a report dated April 24, 2015. He opined that appellant had 

reached maximum medical improvement as of that date. Dr. Dawson noted that MRI scans 

showed new disc ruptures both superior and inferior to the three fusion levels including the C2-3 

level. He noted, “The reason for this is not because of new injury, but because of the 

phenomenon of ascending disc phenomenon.... As the patient places any modest bit of stress to 

the area, because of the tendency for the disc immediately superior and inferior to the fusion 

levels to bear increased load, they will, without significant trauma, go on to develop degenerative 

changes, bulges[,] and even disc ruptures.” Dr. Dawson explained that this could occur simply 

by turning in bed at night and that this was a worsening of appellant’s condition, not a new 

injury. He diagnosed PTSD and recommended a psychiatric evaluation. Dr. Dawson provided 

work restrictions of no prolonged standing, and no bending, twisting, or stooping. He indicated 

that appellant had a five-pound lifting restriction and should have breaks as required. 

Dr. Dawson recommended an elevated keyboard or table as well as an orthopedic chair. He 

recommended additional diagnostic studies. On May 26, 2015 Dr. Dawson again requested 

electrodiagnostic studies. 

In a decision dated July 9, 2015, OWCP denied appellant’s claim for recurrence of 

disability for the period August 23, 2013 to April 28, 2014 finding that she had not established a 

change in the nature and extent of her accepted employment injury. It found no evidence that the 

accepted work condition had materially changed or worsened thereby causing total disability. 

In a report dated July 10, 2015, Dr. Dawson noted that appellant was not working and 

that she had multiple cervical disc ruptures that were moderately unstable with nerve irritability 

and impingement.6

 6

 On July 31, 2015 an OWCP medical adviser reviewed Dr. Dawson’s April 24, 2015 report and found that he 

had not provided a right upper extremity permanent impairment rating. In an additional report dated August 27, 

2015, he reviewed Dr. Dawson’s January 7, 2015 report and recommended a second opinion evaluation to determine 

appellant’s right upper extremity permanent impairment for schedule award purposes. As no final decision had been 

issued, the Board will also not address permanent impairment. 
6

On September 23, 2015 appellant underwent a nerve conduction velocity (NCV) study 

which demonstrated bilateral mid-cervical radiculopathy at C5-7 with active and chronic changes 

worse on the right. 

Dr. Dawson examined appellant on October 23, 2015 and found increased tone, spasm, 

and stiffness of the cervicodorsal musculature. He reported numbness, tingling, burning, and 

weakness. Dr. Dawson diagnosed cervical nerve impingement and PTSD. He found that 

appellant was totally disabled. He completed a narrative report on October 28, 2015 and 

reviewed appellant’s MRI scan. Dr. Dawson noted that on the June 21, 2013 MRI scan new 

large disc protrusions superior to the level of surgery were identified. He opined, “This is 

objective documentation of significant worsening, including rupture of discs, where are severe 

structural entities.” Dr. Dawson further noted that appellant had very poor motor innervations to 

the upper extremities as well as electrodiagnostic confirmation of involvement of the C5, C6, and 

C7 nerve roots. He found additional disc ruptures at C2-3 and C3-4 as demonstrated on an MRI 

scan. Dr. Dawson again diagnosed PTSD. 

Appellant requested reconsideration on November 10, 2015. On January 6, 2016 

Dr. Dawson examined appellant and found pain, spasm, and stiffness. He also reported 

increased numbness, tingling, burning, and weakness in the neck area. 

By decision dated February 11, 2016, OWCP denied modification of the July 9, 2015 

finding that appellant had not established that she stopped work due to her accepted employment 

injury of January 12, 2011. It found that, while Dr. Dawson had provided an argument that 

appellant’s condition had worsened, he failed to explain how the worsening was related to the 

accepted condition or contributed to the new conditions with sufficient medical rationale or 

reasoning. OWCP further found that Dr. Dawson had suggested that stress was also a reason for 

appellant’s inability to work. 

LEGAL PRECEDENT 

 An individual who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable, and 

probative evidence that the recurrence of the disabling condition for which compensation is 

sought is causally related to the accepted employment injury.7

 This burden includes the 

necessity of furnishing evidence from a qualified physician who, on the basis of a complete and 

accurate factual and medical history, concludes that the condition is causally related to the 

employment injury and supports that conclusion with sound medical reasoning.8

 It is an accepted principle of workers’ compensation law, and the Board has so 

recognized, that when the primary injury is shown to have arisen out of and in the course of 

employment, every natural consequence that flows from the injury is deemed to arise out of the 

 7 Kevin J. McGrath, 42 ECAB 109 (1990); John E. Blount, 30 ECAB 1374 (1974). 

8 Frances B. Evans, 32 ECAB 60 (1980). 
7

employment, unless it is the result of an independent intervening cause.9 As is noted by 

Professor Larson in his treatise: “[O]nce the work-connected character of any injury, has been 

established the subsequent progression of the condition remains compensable so long as the 

worsening is not shown to have been produced by an independent nonindustrial cause.”10 

 A medical report is of limited probative value on a given medical question if it is 

unsupported by medical rationale.11 Medical rationale includes a physician’s detailed opinion on 

the issue of whether there is a causal relationship between the claimant’s diagnosed condition 

and the implicated employment activity. The opinion of the physician must be based on a 

complete factual and medical background of the claim, 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 specific employment activity or factors identified by the 

claimant.12

ANALYSIS 

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

OWCP accepted appellant’s claim for intervertebral disc disorder with myelopathy. It 

approved her March 10, 2011 anterior cervical discectomy and fusion at the C4-7 levels with a 

C6 corpectomy. Appellant did not return to work at the employing establishment as her 

appointment had expired on June 15, 2011. She worked in the private sector. Appellant filed a 

Form CA-2a alleging on May 20, 2013 additional disc herniations. She stopped work on 

August 23, 2013 and returned on April 28, 2014, but stopped working again in November 2014. 

In support of her recurrence claim, appellant submitted a series of reports from 

Dr. Dawson. On June 26, 2013 Dr. Dawson reviewed her June 21, 2013 MRI scan and found 

two additional disc herniations at C2-3 and C3-4. He noted that these herniations were above 

appellant’s spinal fusion. Dr. Dawson opined that these were “basically evolutionary” of 

appellant’s accepted underlying condition. In his January 7, 2015 report, Dr. Dawson explained 

that appellant’s surgical fusion had resulted in deterioration of the higher level discs at C2-3 and 

C3-4. He noted that appellant’s accepted injury had evolved with the passage of time and that 

there were no intervening accidents or injuries. On April 24, 2015 Dr. Dawson explained that 

the additional herniated discs were due to “ascending disc phenomenon....” He noted, “As the 

patient places any modest bit of stress to the area, because of the tendency for the disc 

immediately superior and inferior to the fusion levels to bear increased load, they will, without 

significant trauma, go on to develop degenerative changes, bulges, or even disc ruptures.” 

Dr. Dawson further noted that disc ruptures following the surgery could have occurred by simply 

 9

 Larson, The Law of Workers’ Compensation § 13.00. See also Stuart K. Stanton, 40 ECAB 859 (1989); 

Charles J. Jenkins, 40 ECAB 362 (1988). 

10 Id. at § 13.11(a). 

11 T.F., 58 ECAB 128 (2006). 

12 A.D., 58 ECAB 149 (2006). 
8

turning in bed at night. He opined that appellant’s currently diagnosed condition was a 

worsening of her accepted employment injury and not a new injury. 

Applying the principles noted above, the Board finds that Dr. Dawson has provided a 

clear opinion that appellant’s current condition is causally related to her accepted employment 

injury. It has been accepted that once the work-connected character of any condition is 

established, the subsequent progression of that condition remains compensable so long as the 

worsening is not shown to have been produced by an independent nonindustrial cause.13 The 

Board further notes that Dr. Dawson has provided an explanation of how appellant’s additional 

herniated discs developed spontaneously due to the increased load caused by the surgery and that 

no additional activity or intervening injury was required.14 While Dr. Dawson’s reports are 

insufficient to meet appellant’s burden of proof to establish that these additional disc herniations 

were a direct result of appellant’s accepted work injury without any independent intervening 

cause, they are sufficiently supportive of a causal relationship with her accepted cervical 

condition and are therefore sufficient to require OWCP to further develop the medical 

evidence.15 

It is well established that proceedings under FECA are not adversarial in nature and that 

while the claimant has the burden to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence. It has an obligation to see that justice is 

done.16 On remand, OWCP should compile a statement of facts and refer appellant, together 

with the complete case record and questions to be answered, to an appropriate Board-certified 

specialist for a detailed opinion on the relationship of appellant’s current condition to the 

accepted employment injury and any period of disability therefrom. After this and such other 

development as OWCP deems necessary, it should issue a de novo decision. 

CONCLUSION 

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

 13 Foy E. Thomas, Docket No. 01-0500 (issued May 17, 2002). See also Dennis J. Lasanen, 41 ECAB 

933 (1990) (where the Board remanded the case for a determination of whether appellant’s recurrence of disability 

was a further medical complication flowing from the employment injury or whether it was caused by an independent 

intervening cause). 

14 Gary F. Voet, Docket No. 98-1175 (issued May 23, 2000). Compare C.W., Docket No. 07-1816 (issued 

January 16, 2009). 

15 E.J., Docket No. 09-1481 (issued February 19, 2010); Virginia Richard (Lionel F. Richard), 53 ECAB 430 

(2002); Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989). 

16 John J. Carlone, id.
9

ORDER 

IT IS HEREBY ORDERED THAT the February 11, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further development consistent 

with this decision of the Board. 

Issued: July 13, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board