United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

Z.L., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

HARRY S. TRUMAN MEMORIAL VETERANS 

HOSPITAL, Columbia, MO, Employer 

__________________________________________ 

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Docket No. 16-1291 

Issued: December 2, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 2, 2016 appellant filed a timely appeal of a March 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 over 

the merits of the case.2

ISSUE 

The issue is whether appellant has met her burden of proof to establish that she developed 

an occupational disease in the performance of duty. 

 

 1 5 U.S.C. § 8101 et seq. 

2

 With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider 

new evidence on appeal; see 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On December 7, 2015 appellant then a 50-year-old details clerk, filed an occupational 

disease claim (Form CA-2), alleging that she developed C6-7 cervical stenosis with 

radiculopathy as a result of constantly twisting her upper body while performing her work duties. 

She first became aware of her condition on August 4, 2015 and realized that it was related to her 

employment on October 18, 2015. Appellant did not stop work. 

By letter dated January 11, 2016, OWCP advised that the evidence of record was 

insufficient to establish that she actually experienced the incident alleged to have caused the 

injury. It also noted that there was no physician’s opinion as to how work activities caused or 

aggravated a medical condition. OWCP provided a questionnaire and asked that appellant 

specifically describe the employment-related activities that contributed to her condition, how 

often she performed the activities, and report any activities outside her employment. It also 

requested the employing establishment provide comments from a knowledgeable supervisor. 

Appellant submitted a procedure note for a C7-T1 translaminar epidural steroid injection 

under fluoroscopic guidance dated December 17, 2015 performed by Candice Langley, a 

nonspecific healthcare provider, for neck and left upper extremity pain. In a January 4, 2016 

employing establishment evaluation note, a nurse advised that appellant presented for a follow 

up from a December 7, 2015 injury. Appellant had a steroid injection on December 17, 2015 and 

was referred to an orthopedist for evaluation. The nurse diagnosed C7 neuroforaminal stenosis 

on the left due to disc bulge at that level with neuropathy. 

The employing establishment submitted a statement from Derrick Hensley, chief of 

patient benefits, dated February 9, 2016, who noted that the employing establishment concurred 

with appellant’s allegations. Mr. Hensley advised that appellant’s back was to the door at her 

workstation which required her to turn 180 degrees to engage with or acknowledge anyone 

entering her work space. This occurred 10 to 15 times daily during the employee’s regularly 

scheduled tour of duty. He indicated that to minimize the effects of appellant’s activities he had 

appellant’s workstation rotated 180 degrees so that she faced the entrance and no longer had to 

rotate to engage/acknowledge anyone entering her work space and would no longer be startled 

by people approaching her from behind unannounced. 

Dr. Christina L. Goldstein, a Board-certified orthopedist, noted having treated appellant 

for progressive left arm and neck pain since August 2015. Appellant described the left arm pain 

as constant electric shock which radiated down to her hand and fingers and was associated with 

numbness as well as subjective weakness. Dr. Goldstein noted no improvement in appellant’s 

condition with physical therapy or an epidural steroid injection. Findings on examination 

revealed tenderness to palpation over C5 to C7, tenderness to palpation over the left-sided 

cervical paraspinals and trapezius muscle, positive left-sided Spurling sign, paresthesias with 

light touch palpation in the left C5, C6, and C7 distributions, and mild hyperreflexia in the left 

biceps. She noted a magnetic resonance imaging (MRI) scan of the cervical spine showed loss 

of cervical lordosis with two level disc desiccation at C5-6 and C6-7, and an eccentric disc bulge 

at C5-6 with foraminal stenosis at C6-7 with probable exiting C7 nerve compression. 

Dr. Goldstein indicated that the MRI scan showed disc herniations at both C5-6 and C6-7. She 

recommended a repeat MRI scan to confirm the presence of her disc herniation at C6-7 as her 
3

symptoms were inconsistent with the diagnostic imaging. Appellant reported that her physicians 

found a mass in her breast which is currently being investigated. 

In a decision dated March 11, 2016, OWCP denied appellant’s claim, finding that the 

evidence of record did not support that the claimed injury or events occurred as alleged. It also 

found that the medical evidence was insufficient to establish a diagnosed medical condition 

causally related to factors of her federal employment. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim. When an employee claims that he or she sustained an 

injury in the performance of duty, he or she must submit sufficient evidence to establish that he 

or she experienced a specific event, incident, or exposure occurring at the time, place, and in the 

manner alleged. Appellant must also establish that such event, incident, or exposure caused an 

injury.3 

Whether an employee actually sustained an injury in the performance of duty begins with 

an analysis of whether fact of injury has been established.4 To establish fact of injury in an 

occupational disease claim, 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.5

An employee’s statement that an injury occurred at a given time and in a given manner is 

of great probative value and will stand unless refuted by strong or persuasive evidence.6 

Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement, 

however, must be consistent with the surrounding facts and circumstances and her subsequent 

course of action. An employee has not met his or her burden in establishing the occurrence of an 

injury when there are such inconsistencies in the evidence as to cast serious doubt upon the 

validity of the claim. Circumstances such as late notification of injury, lack of confirmation of 

injury, continuing to work without apparent difficulty following the alleged injury, and failure to 

obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement 

in determining whether a prima facie case has been established.7

 

3 See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB 

243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40 

ECAB 1143 (1989). 

4 S.P., 59 ECAB 184, 188 (2007). 

5 R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005). 

6 R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005). 

7 Betty J. Smith, 54 ECAB 174 (2002). 
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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.8

ANALYSIS 

OWCP denied appellant’s claim, finding that she failed to establish that the events 

occurred as alleged. In the present case, the evidence supports that appellant’s duties as a details 

clerk involved repetitively twisting her upper body while performing her work duties. There is 

no dispute that appellant was actually doing the job of a details clerk. Specifically, in a 

statement from Mr. Hensley, chief of patient benefits, noted that the employing establishment 

concurred with appellant’s allegations. Mr. Hensley advised that appellant’s back was to the 

door at her workstation which required her to turn 180 degrees to engage with or acknowledge 

anyone entering her work space which occurred 10 to 15 times daily during appellant’s regularly 

scheduled tour of duty. The Board finds that the evidence is undisputed that appellant was 

performing her work duties as a details clerk which included repetitively twisting her upper 

body. 

The Board further finds, however, that there is no medical evidence in the record at the 

time of OWCP’s March 11, 2016 decision which establishes that those repetitive duties 

performed around August 4, 2015 caused or aggravated the diagnosed C6-7 cervical stenosis 

with radiculopathy. On January 11, 2016 OWCP advised appellant of the type of medical 

evidence needed to establish her claim. 

Appellant was treated by Dr. Goldstein for progressive left arm and neck pain with 

radiculopathy beginning in August 2015. An MRI scan of the cervical spine revealed loss of 

cervical lordosis with two level disc desiccation at C5-6 and C6-7, disc bulge at C5-6 with leftsided foraminal stenosis and probable exiting C7 nerve compression. Dr. Goldstein noted 

findings on examination revealed tenderness to palpation over C5 to C7, tenderness over the 

cervical paraspinals and trapezius muscle, paresthesias in the left C5, C6, and C7 distributions, 

and mild hyperreflexia in the left biceps. However, this report is insufficient to establish the 

claim as Dr. Goldstein did not provide a history of injury9

 or specifically address whether 

appellant’s employment activities had caused or aggravated these conditions.10 

 8 Solomon Polen, 51 ECAB 341 (2000). 

9 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). 

10 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). 
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Appellant submitted a December 17, 2015 procedure note for a C7-T1 translaminar 

epidural steroid injection performed by Ms. Langley, a nonspecific healthcare provider. The 

Board has held that medical documents not signed by a physician and lacking proper 

identification do not constitute probative medical evidence and do not establish appellant’s 

claim. Thus, this document is insufficient to establish appellant’s claim.11

A January 4, 2016 treatment note was also submitted from a nurse. However, the Board 

has held that notes signed by a nurse are not considered medical evidence as nurses are not 

considered physicians under FECA.12 Thus, the treatment records from the nurse are of no 

probative medical value in establishing appellant’s 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 not met her burden of proof to establish that she 

developed an occupational disease in the performance of duty. 

 11 See R.M., 59 ECAB 690 (2008); Bradford L. Sullivan, 33 ECAB 1568 (1982) (where the Board held that a 

medical report may not be considered as probative medical evidence if there is no indication that the person 

completing the report qualifies as a “physician” as defined in FECA). 

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

and physical therapists are not competent to render a medical opinion under the 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). 
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ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated the March 11, 2016 is affirmed, as modified. 

Issued: December 2, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board