United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Augusta, ME, Employer 

__________________________________________ 

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Docket No. 14-1699 

Issued: January 22, 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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 1, 2014 appellant, through counsel, filed a timely appeal from a May 16, 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 her burden of proof to establish that her back 

condition is causally related to a July 17, 2012 employment incident, as alleged. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On July 23, 2012 appellant, then a 40-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that she herniated a disc on the left side of her back on July 17, 2012 as a result 

of assisting a patient who was on the floor while in the performance of duty.2 

In an August 10, 2012 letter, OWCP notified appellant of the deficiencies of her claim 

and afforded her 30 days to submit additional evidence and respond to its inquiries. 

Appellant submitted a narrative statement dated September 7, 2012 and a July 16, 2012 

report from Andrew Guppy, a physician’s assistant, who diagnosed herniated disc at L4-5, 

lumbar radiculopathy, and sciatica left. 

In a July 17, 2012 report, Dr. Dennis McCann, an emergency department physician, 

diagnosed “back pain, known L5 herniation.” 

A July 12, 2012 magnetic resonance imaging (MRI) scan of the lumbar spine revealed a 

slightly enlarging left paracentral L4-5 herniated nucleus pulposus (HNP). 

In his reports dated July 2 through October 1, 2012, Dr. John Van Summern, a Boardcertified family practitioner, indicated that appellant was seen on July 20, 2012 for back pain 

exacerbated by trying to assist a patient who was on the floor at work. He diagnosed backache, 

herniated disc at L4-5 and lumbar radiculopathy. Dr. Van Summern stated that appellant had a 

previous lumbar disc herniation and the force of the patient pulling her downward as she bent 

over to help him caused an exacerbation of her back pain. 

On September 7, 2012 the employing establishment controverted the claim indicating that 

appellant did not follow established facility policies during a nonemergent situation. It stated 

that, on the date of injury, appellant responded to a room bell call in a patient room. When she 

entered the room she was directed to a patient who was on the floor. The patient was alert and 

had no emergent medical needs besides the fact that the patient was naked on the floor. The 

employing establishment indicated that at this point appellant disregarded its policies and took it 

upon herself to try to assist the patient by herself in attempting to cover him with a blanket and 

though she was trying to help him up, he grabbed onto her, trying to pull himself up and 

exacerbated her preexisting low back condition. 

Appellant submitted a series of medical reports, including a January 23, 2009 report from 

Dr. Sara Charnecki, a family medicine specialist, who diagnosed lumbar strain and herniated disc 

at L4-5. 

By decision dated October 12, 2012, OWCP found that appellant sustained a diagnosed 

medical condition while within the performance of duty, but denied the claim finding that she 

had failed to establish a causal relationship between her back condition and the July 17, 2012 

employment incident due to lack of supportive medical evidence. 

 2

 Appellant, through counsel, also filed claims for wage-loss compensation for the period September 9 through 

October 6, 2012. 
3

On October 30, 2012 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. 

In a January 15, 2013 report, Dr. Alan Ross, a Board-certified physiatrist, diagnosed 

multifactorial low back pain and sacroiliac pain. He stated that appellant had low back pain off 

and on since 2011. Dr. Ross indicated that the pain always resolved and the last episode was in 

June 2012. Following a return to work, appellant tried to stand up on July 17, 2012 and a patient 

pulled on both her shoulders and she had severe low back pain ever since. Dr. Ross opined that 

appellant’s back conditions were causally related to the July 17, 2012 employment incident. 

A telephonic hearing was held before an OWCP hearing representative on 

March 5, 2013. 

Appellant submitted a March 6, 2013 MRI scan of the lumbar spine, which showed an 

enlarging left paracentral L4-5 HNP and a March 22, 2013 report from Mr. Guppy who stated 

that the MRI scan did not explain her severe low back pain process which was ongoing. 

The employing establishment submitted statements dated March 11 and 19, 2013, 

indicating that appellant knew that she had a preexisting back condition and failed to comply 

with the “Safe Patient Handling and Movement Policy” on the date of injury. 

By decision dated May 9, 2013, the hearing representative affirmed with additional 

analysis the October 12, 2012 decision.3

 

On August 26, 2013 appellant, through counsel, requested reconsideration and submitted 

an August 13, 2013 report from Dr. Ross who diagnosed myofascial dysfunction, segmental 

dysfunction, discopathic pain, and lumbar ligamentous instability. Dr. Ross opined that the 

July 17, 2012 employment incident was sufficient to cause the increase in appellant’s disc hernia 

and marked the onset of her symptoms, which persisted from July 17, 2012 to the present. He 

“unequivocally state[d] that her present low back pain and disability [were] due to the work 

injury of July 17, 2012.” 

By decision dated November 27, 2013, OWCP denied modification of the May 9, 2013 

decision. 

On April 1, 2014 appellant, through counsel, requested reconsideration and submitted a 

March 3, 2014 report from Dr. Ross who reviewed her medical history and reiterated his medical 

opinions. Dr. Ross stated that her six flares of low back pain between 2004 and July 17, 2012 

consistently resolved after several days of bed rest and were not precipitated by any trauma or 

injury, but occurred after a minor provocation. He indicated that, in contrast, the employing 

incident on July 17, 2012 was caused by a definite injurious event. 

 3

 The hearing representative further found that the July 17, 2012 employment incident did not rise to the level of 

willful misconduct as there was no evidence of premeditation or intentional failure to follow agency policy or 

reckless or wanton acts of disregard of probable injurious consequences. 
4

By decision dated May 16, 2014, OWCP denied modification of its November 27, 2013 

decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4

 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 injury5 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.6 

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.7

 

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.8 

ANALYSIS 

OWCP has accepted that the employment incident of July 17, 2012 occurred at the time, 

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

the July 17, 2012 employment incident. The Board finds that she did not meet her burden of 

proof to establish a causal relationship between the condition for which compensation is claimed 

and the employment incident. 

 4 See supra note 1. 

5

 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). 

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

1143 (1989). 

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

8 Id. See Gary J. Watling, 52 ECAB 278 (2001). 
5

In his reports, Dr. Ross diagnosed multifactorial low back pain, sacroiliac pain, 

myofascial dysfunction, segmental dysfunction, discopathic pain, and lumbar ligamentous 

instability. He stated that appellant had low back pain off and on since 2011. Dr. Ross indicated 

that the pain always resolved and the last episode was in June 2012. Following a return to work, 

appellant tried to stand up on July 17, 2012 and a patient pulled on both her shoulders and she 

had severe low back pain ever since. Dr. Ross opined that her back conditions were causally 

related to the July 17, 2012 employment incident. In a March 3, 2014 report, he stated that 

appellant’s six flares of low back pain between 2004 and July 17, 2012 consistently resolved 

after several days of bed rest and were not precipitated by any trauma or injury, but occurred 

after a minor provocation. Dr. Ross indicated that, in contrast, the employing incident on 

July 17, 2012 was caused by a definite injurious event. The Board finds that he failed to provide 

a rationalized opinion explaining how factors of appellant’s federal employment, such as being 

pulled down by a patient at work, caused or aggravated her back condition. Dr. Ross noted that 

her condition occurred while she was at work, but such generalized statements do not establish 

causal relationship because they merely repeat her allegations and are unsupported by adequate 

medical rationale explaining how her physical activity at work actually caused or aggravated the 

diagnosed conditions.9

 He failed to provide an opinion adequately addressing how the July 17, 

2012 incident contributed to appellant’s preexisting back condition. Thus, the Board finds that 

the reports from Dr. Ross are insufficient to establish that she sustained an employment-related 

injury. 

In his reports, Dr. Van Summern diagnosed backache, herniated disc at L4-5, and lumbar 

radiculopathy and indicated that appellant was seen on July 20, 2012 for back pain exacerbated 

by trying to assist a patient who was on the floor at work. He stated that she had a previous 

lumbar disc herniation and the force of the patient pulling her downward as she bent over to help 

him caused an exacerbation of her back pain. Dr. Van Summern noted that appellant’s condition 

occurred while she was at work when she was pulled downward as she bent over to help a patient 

who was on the floor at work. The Board finds that he did not provide sufficient medical 

rationale explaining how her condition was caused or aggravated by being pulled down by a 

patient at work on July 17, 2012 as he failed to provide sufficient explanation of 

pathophysiologically how her ongoing condition was exacerbated. Therefore, the Board finds 

that the reports from Dr. Van Summern are insufficient to establish appellant’s claim. 

On July 17, 2012 Dr. McCann diagnosed “back pain, known L5 herniation.” He failed to 

provide an opinion addressing how the July 17, 2012 employment incident contributed to 

appellant’s preexisting back condition. Thus, the Board finds that she did not meet her burden of 

proof with this submission. 

In support of her claim, appellant submitted reports from Mr. Guppy, a physician’s 

assistant, and MRI scans dated July 12, 2012 and March 6, 2013. These documents do not 

constitute competent medical evidence as they do not contain rationale by a physician relating 

 9 See K.W., Docket No. 10-98 (issued September 10, 2010). 
6

her disability to her employment.10 As such, the Board finds that appellant did not meet her 

burden of proof with these submissions. 

Appellant also submitted a series of medical reports, including a January 23, 2009 report 

from Dr. Charnecki, who diagnosed lumbar strain and herniated disc at L4-5. The Board finds 

that this medical evidence predates the July 17, 2012 employment incident and, therefore, lacks 

probative value to establish her claim. 

As appellant has not submitted any rationalized medical evidence to support her 

allegation that she sustained an injury causally related to a July 17, 2012 employment incident, 

she has failed to meet her burden of proof to establish a claim for compensation. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the 

reasons stated above, the Board finds counsel’s arguments are not substantiated. 

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 her burden of proof to establish that her back 

condition is causally related to a July 17, 2012 employment incident, as alleged. 

 10 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). 
7

ORDER 

IT IS HEREBY ORDERED THAT the May 16, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 22, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board