United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.K., Appellant

and

TENNESSEE VALLEY AUTHORITY, 

DIVISION OF NUCLEAR POWER, 

Soddy Daisy, TN, Employer

__________________________________________

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Docket No. 17-1259

Issued: July 16, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 19, 2017 appellant, through counsel, filed a timely appeal from a March 3, 2017 

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 the case.3

 

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.

3 The record provided to the Board includes evidence received after OWCP issued its March 3, 2017 decision. The 

Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the 

Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

ISSUE

The issue is whether appellant has met his burden of proof to establish a lumbar injury 

causally related to the accepted March 22, 2016 employment incident. 

FACTUAL HISTORY

On April 21, 2016 appellant, then a 43-year-old craftsman, filed a traumatic injury claim 

(Form CA-1) alleging that on March 22, 2016 he experienced a back strain during the performance 

of his federal employment duties, which then worsened over a period of three weeks. He related

that on March 22, 2016 he was one of three craftsmen who removed four wash screens for divers, 

each screen weighed between 350 to 400 pounds. While removing the second screen, one of the 

other craftsmen lost control of the screen and he experienced a low back strain while trying to hold 

the screen. Appellant stopped work April 21, 2016. 

On the Form CA-1 the employing establishment acknowledged that appellant was engaged 

in moving screens on March 22, 2016 and that a screen had shifted or slipped and came to rest on 

the grating below. However, it disputed that the entire weight of the basket was placed on 

appellant. The employing establishment advised that a 14-foot screen weighed 338 pounds and a 

10-foot screen weighed 242 pounds. It further related that appellant did not mention any back 

injury in an e-mail he sent that day and he did not lose time from work until the second week of 

April 2016. 

An undated work release from Erlanger North Emergency Department noted that appellant 

could return to work without restriction on April 18, 2016. 

In an April 7, 2016 report, Dr. Mark G. Freeman, a Board-certified orthopedic surgeon, 

evaluated appellant for right hip complaints. Appellant indicated that he had an S1 joint injection 

six to seven months prior at the chiropractor’s office and that the pain went away. However, the 

pain returned three weeks ago. Appellant denied having any accidents or injuries. Dr. Freeman

provided an impression of right hip impingement syndrome. He opined that he did not believe 

that appellant’s hip was the cause of his complaints and recommended an evaluation of appellant’s 

spine. Other medical history was significant for lumbar spine fusion, femoral acetabular 

impingement, and obesity. 

An April 13, 2016 lumbar spine computerized tomography (CT) scan indicated that 

appellant was status post spinal fusion from L2 through S1. The scan revealed L3 on L4 and LI 

on L2 retrolisthesis with intervertebral disc space narrowing and vacuum disc phenomenon and 

severe L3-4 spinal stenosis secondary to disc bulging and ligamentum flavum hypertrophy

hyperfrophy and osteophytes. No acute compression fracture was seen. An impression was 

provided of multilevel lumbar spondylosis with severe L3-4 spinal stenosis. 

In an April 18, 2016 note, Gary Elledge, a certified family nurse practitioner, noted 

appellant’s history that he hurt his lower back approximately three weeks prior while moving some 

heavy screens. He also noted that appellant had undergone lumbar spinal fusion in 1998. Nurse 

Elledge noted that appellant’s April 13, 2015 CT scan showed multilevel spondylosis, severe L4-

5 spinal stenosis, and status post L2-S1 transpedicular spinal fusion. 
3

An April 21, 2016 lumbar spine magnetic resonance imaging (MRI) scan revealed severe 

L3 spinal stenosis secondary to large disc bulging and retrolisthesis, status post L2-S1 

transpedicular spinal fusion, and mild L1-2 spinal stenosis. 

In an April 21, 2016 report, Eric A. Henderson, a physician assistant, noted appellant’s 

history of L2 thru S1 posterior fusion in 1999 and cervical fusion in 2014. He reported that 

appellant presented with a three-week history of progressive back pain after carrying a 400-pound 

object overhead, which a coworker dropped, and he was forced to catch in an awkward motion. 

Appellant noted that he felt a pop in his low back. An assessment of L4-3 stenosis with 

radiculopathy, right L4, L5, S1 parathesias, and history of L2 through S1 posterior fusion by

Dr. Broadstone in 1999 was provided. 

In an April 22, 2016 return to work note, Mr. Henderson indicated that appellant had back 

and lower extremity pain and would remain off work until surgical evaluation on May 16, 2016. 

He also noted that appellant had missed work for the above problems since April 11, 2016. 

In a May 2, 2016 report, Dr. Daniel Kueter, a Board-certified neurosurgeon, indicated that 

appellant underwent a successful cervical decompression and fusion in 2014. Appellant reported 

that his right leg went numb in March 2016, which he thought was caused by 400 pounds of 

equipment and weight imposed on his back. Dr. Kueter indicated that appellant was disabled and 

unable to work due to this condition. He diagnosed previous anterior cervical decompression and 

fusion with revision, L2 through S1 posterior spinal decompression and fusion, new onset severe 

right lumbar radiculopathy after a workers’ compensation incident, lumbar disc rupture L3-4 right, 

and lumbar stenosis L5-S1 right. Dr. Kueter recommended an expedited lumbar laminotomy and 

discectomy at L2-4 on the right and a lumbar laminectomy with partial facetectomy at L5-S1 on 

the right. He noted that spinal fusion would have to be explored. In an accompanying May 2, 

2016 note, Dr. Kueter indicated that appellant was evaluated for severe low back, hip, and right 

leg pain. He noted that appellant was to remain off work for the month of May. 

OWCP, by development letter dated May 18, 2016, advised appellant that it had paid a 

limited amount of medical expenses as his injury appeared minor and was not controverted. 

However, it was now formally adjudicating his claim. OWCP requested that appellant submit 

additional factual and medical information, including a detailed report from his attending physician 

addressing causal relationship between any diagnosed condition and the identified work incident. 

Appellant was afforded 30 days in which to provide the requested information.

In a May 23, 2016 statement, appellant explained that another worker had lost his handhold 

on the screen that they were carrying and that the screen tried to flip away, which put all the weight 

on him. He indicated that he delayed reporting his injury and in seeking treatment because he did 

not realize that he was hurt badly when the incident occurred. Appellant reported that he had no 

back problems between his low back surgery in 1998 and the March 22, 2016 screen handling 

incident. 

In a May 25, 2016 report, Dr. Kueter essentially repeated the contents of his earlier May 2, 

2016 report. 
4

On June 2, 2016 Dr. Kueter performed laminectomy, foraminotomy and facetectomy, and 

microdiscectomy. Treatment was for the diagnoses of acute lumbar strain, lumbar radiculopathy, 

spinal stenosis, and disc bulge at L5-S1. 

In a June 9, 2016 letter, Dr. Brenda K. Sowter, a senior employing establishment physician

and osteopathic manipulative therapy specialist, acknowledged that, during the March 22, 2016 

incident, that there was a slipping of the equipment during maneuvering, the weight of 350 pounds 

was distributed amongst three workers. She noted that appellant did not indicate any pain or 

symptoms at the time of the incident and did not voice any complaints or injury occurring after the 

incident. It was not until four weeks later (and time away from work) that appellant returned to 

work and then indicated that he had sustained an injury to his back. Dr. Sowter further noted that 

he has had extensive surgery previously to his back and that he had indicated through witness 

statements that “‘there was no issue with the disc, but [that] there was some issue with pins from 

a previous surgery.’” She additionally advised that the treating physician’s diagnosis of lumbar 

stenosis supported a longstanding and slow process to form in the spine and was not sustained as 

a result of an alleged work injury. Dr. Sowter concluded that, given the circumstances validated 

by eye witnesses and participants in the work event, the significant delay in reporting the alleged 

injury and the preexisting diagnosis and prior surgery, the claim should be deemed a nonworkrelated injury. 

In an undated witness statement, M.S., a coworker, related that he spoke with appellant 

over the telephone on May 5, 2016. He indicated that appellant stated that he needed surgery and 

that there was no issue with the disc, “but [that] there was an issue with some pins from a previous 

surgery.” An unsigned, undated account of injury, which supported Dr. Sowter’s description of 

the incident, was also provided. 

By decision dated June 22, 2016, OWCP denied appellant’s claim. It found that the 

medical evidence of record contained insufficient rationale to establish that his diagnosed medical 

condition was causally related to the accepted March 22, 2016 employment incident. 

On July 8, 2016 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative, which was held on January 25, 2017. He further described the 

screen/basket-handling incident from March 22, 2016. Appellant indicated that he had never 

previously engaged in this particular screen-handling activity. He also confirmed that he returned 

to work in a light-duty capacity, but had intermittent absences due to pain until he stopped work 

completely to undergo the December 12, 2015 low back surgery. Appellant indicated that he 

remained off work. 

Additional evidence was received prior to and after the hearing. 

In a June 30, 2016 report, Dr. Kueter opined that appellant sustained a workers’ 

compensation injury on March 22, 2016 when a 400-pound wash screen from a frame was being 

carried and the weight was transferred to appellant. He noted that appellant immediately felt the 

onset of back pain, which progressively worsened over the next few weeks and worsened to include 

lumbar radiculopathy. Dr. Kueter summarized his examination of appellant on May 2, 2016 and 

indicated that he was diagnosed with workers’ compensation injury on that date. Immediate 

surgical intervention was recommended. Appellant underwent surgery on June 2, 2016, with 
5

significant improvement. Dr. Kueter concluded that appellant’s clinical symptomatology was 

consistent with a workers’ compensation injury due to heavy lifting performed on March 22, 2016, 

with significant weight burden transferred to his body and subsequent absorption by his spine. 

A copy of the June 5, 2016 operative report and a June 30, 2016 postoperative report from

Dr. Kueter were also received. 

In a July 7, 2016 note, Dr. Kueter released appellant to light-duty work with restrictions 

effective July 11, 2016. Appellant returned to work with restrictions effective July 11, 2016. 

On December 12, 2016 Dr. Kueter removed indwelling hardware from L2 through S1 

followed by a new posterior interbody and L3-4 fusion with instrumented hardware from L3 

through L5. In a January 9, 2017 report, Sarah C. Johnson, a physician assistant, reported on 

appellant’s status post hardware removal L2 through S1 with new posterior fusion L3 through L5. 

By decision dated March 3, 2017, an OWCP hearing representative affirmed OWCP’s 

June 22, 2016 decision. The hearing representative found the medical evidence was insufficient 

to establish “a work-related causation of or contribution to any low back condition” resulting from 

the March 22, 2016 employment-related lifting incident. 

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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 

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.5 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6

In order to determine whether an employee sustained a traumatic 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 that must be considered conjunctively. First, the 

employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident that is alleged to have occurred.7 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.8

 

4 Supra note 2.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7 Gary J. Watling, 52 ECAB 278 (2001).

8 Deborah L. Beatty, 54 ECAB 340 (2003).
6

The medical evidence required to establish causal relationship is generally rationalized 

medical opinion evidence. Rationalized medical opinion evidence is medical evidence which 

includes a physician’s rationalized 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 rationale explaining 

the nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.9

ANALYSIS

The Board finds that appellant has not established that the accepted March 22, 2016 

employment incident caused his diagnosed lumbar condition. 

The determination of whether an employment incident caused an injury is generally 

established by medical evidence.10

Dr. Freeman’s April 7, 2016 report is insufficient to establish the claim as he did not 

provide a history of injury11 or specifically address whether appellant’s employment activities had 

caused or aggravated the diagnosed right hip impingement syndrome.12

Appellant submitted several reports from Dr. Kueter. In his May 2 and 25, 2016 reports,

Dr. Kueter noted that appellant stated that his right leg went numb in March 2016, which he 

thought was caused by 400 pounds of equipment and weight imposed on his back. He indicated 

that it was a workers’ compensation injury. Dr. Kueter provided an impression of new onset severe 

right lumbar radiculopathy, lumbar disc rupture L3-4 right, and lumbar stenosis L5-SI right and 

recommended an expedited surgery. He also opined that appellant was totally disabled. However,

Dr. Kueter did not provide any medical rationale explaining the basis of his conclusory opinion 

regarding causal relationship between appellant’s back condition and the accepted work incident.13 

Therefore, his opinion is insufficient to meet appellant’s burden of proof.

In his June 30, 2016 report, Dr. Kueter related that appellant underwent surgical 

intervention on June 2, 2016. He indicated that appellant sustained a workers’ compensation 

injury on March 22, 2016 when a 400-pound wash screen from a frame was being carried and the 

 

9 Solomon Polen, 51 ECAB 341 (2000).

10 Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

11 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).

12 A.D., 58 ECAB 149 (2006); Docket No. 06-1183 (issued November 14, 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).

13 See T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report is of limited probative value on the 

issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical 

rationale).
7

weight was transferred to appellant. Appellant immediately felt the onset of back pain, which 

progressively worsened over the next few weeks to include radiculopathy. Dr. Kueter concluded 

that appellant’s clinical symptomatology was consistent with a workers’ compensation injury due 

to heavy lifting performed on March 22, 2016, with significant weight burden transferred to his 

body and subsequent absorption by his spine. The Board finds that Dr. Kueter’s opinion is 

conclusory in nature without any additional explanation as to how appellant’s work activities

physiologically caused, precipitated, or aggravated the diagnosed lumbar conditions.14 The Board 

has held that the fact that a condition manifests itself or worsens during a period of employment 

or that work activities produce symptoms revelatory of an underlying condition does not raise an 

inference of causal relationship between a claimed condition and employment factors.15 

Dr. Kueter did not otherwise provide medical rationale explaining how or why appellant’s back 

condition was caused or aggravated by the accepted March 22, 2016 employment incident. A 

well-rationalized opinion is particularly warranted when there is a history of preexisting 

condition.16 For these reasons, Dr. Kueter’s report is insufficient to establish appellant’s claim.

Appellant submitted evidence from a nurse practitioner and a physician assistant.

However, these health care providers are not considered physicians under FECA.17 Thus, these 

records are of no probative medical value in establishing appellant’s claim. 

Appellant also submitted diagnostic test reports. These reports are of limited probative 

value as they fail to provide an opinion on causal relationship between his accepted employment 

incident and his diagnosed lumbar conditions. For this reason, this evidence is insufficient to meet 

appellant’s burden of proof.18

OWCP also received a report from Dr. Sowter, an employing establishment physician, 

dated June 9, 2016. Dr. Sowter noted appellant’s history of injury, as well as his medical history. 

She concluded that, given the circumstances validated by an eyewitness to the accepted 

employment incident, appellant’s delay in reporting the alleged injury, and his preexisting lumbar 

conditions, his current lumbar conditions were not work related. 

 

14 See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not 

fortified by medical rationale is of little probative value).

15 B.B., Docket No. 13-0256 (issued August 13, 2013); Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

16 See J.D., Docket No. 16-0887 (issued November 4, 2016); L.M., Docket No. 16-0143 (issued February 19, 2016).

17 See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and 

physical therapists are not competent to render a medical opinion under FECA); Sean O Connell, 56 ECAB 195 (2004) 

(reports by nurse practitioners and physician assistants are not considered medical evidence as these persons are not 

considered physicians under FECA). 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, 

dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their 

practice as defined by State law).

18 See A.D., supra note 12.
8

As appellant has not submitted medical evidence sufficient to establish that his diagnosed 

lumbar condition was causally related to the accepted March 22, 2016 employment incident, he 

has failed to meet his burden of proof.

On appeal, counsel contends that OWCP nitpicked the evidence. However, as explained 

above, appellant has not submitted sufficient medical evidence to establish his claim. 

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 failed to meet his burden of proof to establish a lumbar

injury causally related to the accepted March 22, 2016 employment incident. 

ORDER

IT IS HEREBY ORDERED THAT the March 3, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 16, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board