United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BRONX VETERANS MEDICAL CENTER, 

Bronx, NY, Employer

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Docket No. 17-0609

Issued: October 5, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

JURISDICTION

On January 18, 2017 appellant filed a timely appeal from an October 31, 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 this case.

ISSUE

The issue is whether appellant has met his burden of proof to establish that his claim 

should be expanded to include additional lumbar spine conditions as causally related to his 

accepted October 30, 2015 employment injury.

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 5, 2015 appellant then a 55-year-old air conditioning equipment mechanic, 

filed a traumatic injury claim (Form CA-1) alleging that, while moving a blood refrigerator out 

of an operating room closet from a stationary platform to a movable cart for transport on 

October 30, 2015, he sustained a lower left side muscle strain in his back. OWCP accepted 

appellant’s claim for lumbar strain. Appellant did not stop work. 

Appellant was treated by Dr. Ruth Kleinman, a Board-certified internist, on November 3, 

2015 for a back strain. He reported that he felt lower left back pain on October 30, 2015 when 

he and a coworker maneuvered a blood refrigerator out of the closet onto a rolling cart and. 

Appellant noted continuing to work and notified his supervisor. Dr. Kleinman indicated that 

appellant presented with muscle tightness in the left lower to mid back without radiation. She 

noted findings on examination of no pain with palpation of the lower to mid back, intact bilateral 

upper and lower extremity motor strength, intact reflexes, and decreased range of motion of the 

back. Dr. Kleinman diagnosed back strain and prescribed medication. She returned appellant to 

work with restrictions.

Appellant came under the treatment of Dr. Svetlana Ilizarov, Board-certified in physical 

medicine and rehabilitation and sports medicine, on November 10, 2015 for low back pain 

beginning October 30, 2015. He related that he was maneuvering a refrigerator out of a closet 

and onto a rolling cart at work, which caused lower left back pain. Appellant noted having no 

history of low back pain prior to this incident. He reported muscle tightness, no radiation to the 

legs, tightness in the left gluteal area, and no bladder or bowel dysfunction. Appellant had pain 

with forward flexion and left lateral bending as well as motor strength weakness in the extensor 

hallucis longus (EHL) and left hip flexors. Dr. Ilizarov diagnosed left-sided low back pain with 

some EHL weakness and possible herniated pulposus. On December 14, 2015 she treated

appellant for left sciatica. Appellant reported that his low back pain resolved completely, but he 

had ongoing left leg pain. Dr. Ilizarov noted findings of pain with forward flexion and left 

lateral bending, intact motor strength in the bilateral lower extremities, intact sensation and 

reflexes, and left calf pain with straight leg raises. She noted a November 30, 2015 magnetic 

resonance imaging (MRI) scan of the lumbar spine revealed L4-5 minimal-to-mild degeneration,

moderate left paracentral caudal disc herniation producing moderate indentation on the left 

ventral thecal sac, and minimal/mild left greater than right neural foraminal impingement. 

Dr. Ilizarov diagnosed left-sided low back pain since October 30, 2015 when he maneuvered a 

refrigerator out of a closet at work, resolved, and two weeks later when his low back pain 

improved he developed radiating pain to the left lateral calf.

On January 11, 2016 she noted that appellant reported less leg pain at night and that the 

low back pain had resolved. Dr. Ilizarov noted pain with forward flexion and left lateral bending 

to the distal leg, motor strength weakness at left EHL, and left hamstring pain with straight leg 

raises. She diagnosed left-sided low back pain since the October 30, 2015 work incident, 

resolved, radiation of pain to the left lateral calf, left L5 radiculopathy, and L4-5 left paracentral 

caudal herniated nucleus pulposus confirmed by MRI scan.

By letter dated March 31, 2016, OWCP advised appellant that his claim originally 

appeared to be a minor injury which resulted in minimal or no time loss from work. It indicated 
3

that the claim was administratively handled to allow limited medical payments, but the merits of 

the claim had not been formally adjudicated. OWCP advised that, because the medical benefits 

exceeded $1,500.00, the claim would be formally adjudicated. It requested that appellant submit 

additional information including a comprehensive medical report from his treating physician, 

including a reasoned explanation as to how the specific work factors or incidents identified by 

appellant had contributed to his claimed injury.

On April 8, 2016 Dr. Ilizarov again treated appellant for worsening low back pain. She

noted appellant was unable to sit due to pain. Motor examination revealed weakness on the left 

at EHL, and reflexes were absent at bilateral knees. Dr. Ilizarov noted a history of injury and 

indicated that appellant had initially been treated for left-sided low back pain and weakness in 

the EHL. Appellant developed radiation of pain to the left lateral calf two weeks later and left 

L5 radiculopathy due to disc herniation confirmed by MRI scan. Dr. Ilizarov noted that 

appellant currently had severe left-sided low back pain radiating to the left calf. She

recommended an epidural injection and advised that appellant was off duty until April 15, 2016. 

On April 15, 2016 Dr. Ilizarov noted that appellant presented with significant symptom

improvement within three days of taking Etodolac. She recommended an epidural injection and 

returned appellant to work with restrictions.

In a decision dated May 10, 2016, OWCP accepted appellant’s claim for lumbar strain. It 

indicated that it continued to develop the additional diagnosed conditions which would be 

addressed in a different decision.

In a decision dated May 17, 2016, reissued on May 18, 2016, OWCP denied appellant’s 

request to expand his claim to include minimal-to-mild degeneration and moderate left disc 

herniation, L4-5 minimal/mild left greater than right neural foraminal impingement, L5 

radiculopathy, left side sciatica, mild-to-moderate desiccation of disc with mild diffuse bulging 

of annulus at L2-3, annual tear and mild central spinal stenosis at the L2-3 level. It found that 

the medical evidence of record was insufficient to establish that these diagnosed medical 

conditions were causally related to accepted work events.

On June 8, 2016 appellant requested an oral hearing which was held on August 23, 2016. 

He submitted additional evidence. In a June 3, 2016 report, Dr. Ilizarov treated appellant in 

follow up for low back pain and sciatica. Appellant reported feeling better, but experienced pain

localized to the left buttock and posterior thigh area. Dr. Ilizarov noted findings of intact motor 

strength except for left EHL weakness and reflexes were absent at the bilateral knees. She noted 

a history of injury and appellant’s subsequent treatment for left sided low back pain and 

weakness in the EHL. Appellant developed radiating of pain to the left lateral calf and L5 

radiculopathy due to disc herniation confirmed by MRI scan. On April 8, 2016 he presented 

with exacerbation of left lumbar radiculopathy due to disc herniation which had improved with 

Etodolac and he returned to work with restrictions. Dr. Ilizarov diagnosed lumbar back pain, 

lumbar disc herniation, and left lumbar radiculopathy which was causally related to the 

October 30, 2015 injury at work. She recommended light-duty work with restrictions.

By decision dated October 31, 2016, an OWCP hearing representative affirmed the 

May 18, 2016 decision.
4

LEGAL PRECEDENT

Where an employee claims that a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.2

Causal relationship is a medical issue that must be established by rationalized medical 

opinion evidence.3 Rationalized medical opinion evidence is medical evidence which includes a 

physician’s rationalized opinion on the issue of whether there is causal relationship between the 

claimant’s diagnosed condition and the implicated employment incident. 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 incident

identified by the claimant.4 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.5

ANALYSIS

Appellant alleges that he developed a lumbar strain, minimal-to-mild degeneration and 

moderate left disc herniation, L4-5 minimal/mild left greater than right neural foraminal 

impingement, L5 radiculopathy, left side sciatica, mild-to-moderate desiccation of disc with mild 

diffuse bulging of annulus at L2-3, annual tear, and mild central spinal stenosis at the L2-3 level

as a result of moving a refrigerator from a stationary platform to a movable cart for transport 

while at work on October 30, 2015. OWCP accepted the claim, as noted, for lumbar strain, but 

did not accept appellant’s claim for the additional conditions. The Board finds that the medical 

evidence is insufficient to establish that the above-noted conditions were causally related to the 

October 30, 2015 work injury. 

The medical records submitted most contemporaneously with the date of injury, note 

treatment for lower left back pain after appellant and a coworker maneuvered a blood refrigerator 

out of a closet onto a rolling cart. Specifically, notes from Dr. Kleinman, dated November 3, 

2015, report treatment for low back pain. Dr. Kleinman noted that appellant presented with 

muscle tightness in the left lower to mid back, no radiation, paresthesia, or incontinence. She

diagnosed back strain and returned appellant to work with restrictions. Dr. Kleinman noted no 

pain with palpation of the lower to mid back, bilateral upper and lower extremity motor strength 

was intact, and reflexes were intact. The Board has consistently held that contemporaneous 

evidence is entitled to greater probative value than later evidence.6 This report does not support 

 

2

Jaja K. Asaramo, 55 ECAB 200 (2004).

3 Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

4

Leslie C. Moore, 52 ECAB 132 (2000).

5

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not 

containing rationale on causal relationship are entitled to little probative value).

6

See Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971).
5

that the October 30, 2015 injury caused or aggravated any additional lumbar disc herniation, L4-

5 foraminal impingement, L5 radiculopathy, sciatica desiccation of a disc, bulging discs at L2-3,

or spinal stenosis at L2-3.

Appellant submitted reports from Dr. Ilizarov dated November 10 and December 14, 

2015 and January 11, April 8, and15, 2016. Dr. Ilizarov diagnosed left-sided low back pain 

since October 30, 2015, resolved, radiation of pain to the left lateral calf, left L5 radiculopathy,

and L4-5 left paracentral caudal herniated nucleus pulposus confirmed by MRI scan. On April 8, 

2016 she treated appellant for an exacerbation of left lumbar radiculopathy due to disc 

herniation. However, Dr. Ilizarov is merely repeating the history of injury as reported by 

appellant without providing her own opinion regarding these conditions were work related.7 

Furthermore, she failed to provide a rationalized opinion regarding the causal relationship 

between appellant’s conditions and the employment incident believed to have caused or 

contributed to such condition.8 

On June 3, 2016 Dr. Ilizarov treated appellant for low back pain and sciatica localized to 

the left buttock and posterior thigh area. She noted a history of injury and appellant’s initial 

treatment for left-sided low back pain and weakness which subsequently developed into radiating 

pain to the left lateral calf and left L5 radiculopathy. Dr. Ilizarov diagnosed lumbar back pain, 

lumbar disc herniation, and left lumbar radiculopathy which was causally related to the 

October 30, 2015 injury at work. The Board finds that, although Dr. Ilizarov supported causal 

relationship, she did not provide medical rationale explaining the basis of her conclusory opinion 

regarding the causal relationship between appellant’s lumbar disc herniation and left L5 

radiculopathy and the October 30, 2015 work injury.

9

 There is no medical explanation regarding 

how the moving of a refrigerator on October 30, 2015 caused or aggravated these conditions. 

Thus, this evidence is insufficient to meet appellant’s burden of proof. 

Likewise, the remainder of the medical evidence submitted did not specifically address 

how any mild degeneration and moderate left disc herniation, L4-5 minimal/mild left greater 

than right neural foraminal impingement, L5 radiculopathy, left side sciatica, mild-to-moderate 

desiccation of disc with mild diffuse bulging of annulus at L2-3, annual tear, and mild central 

spinal stenosis at the L2-3 level were due to the accepted work injury of October 30, 2015. 

Thus, these reports are insufficient to establish that any additional conditions are employment 

related.10

 

7 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). 

8

See Jimmie H. Duckett, supra note 5. 

9

See T.M., Docket No. 08-975 (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).

10 See 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).
6

Appellant also submitted physical therapy notes. The Board has held that treatment notes 

signed by a physical therapist have no probative value as physical therapists are not considered

physicians under FECA and is not competent to render a medical opinion.

11

 Thus, this evidence 

is insufficient to meet appellant’s burden of proof. 

On appeal appellant asserts that OWCP improperly denied his request to expand his

claim to include additional claimed conditions. He asserts that Dr. Ilizarov provided a 

rationalized medical opinion explaining how the above-named conditions were due to the 

accepted work injury of October 30, 2015. However, as noted above, the evidence submitted did 

not provide medical rationale from a physician explaining the causal relationship between 

appellant’s diagnosed conditions and the accepted work injury of October 30, 2015.12 Appellant 

also notes that OWCP’s hearing representative references “M.L.” in his decision. The Board 

finds that M.L.,

13 is a Board decision that was properly cited by the hearing representative in 

support of the proposition that a physician’s conclusory statement in support of causal 

relationship of a condition to a work injury which is not fortified with rationale is entitled to little 

probative value. 

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 did not meet his burden of proof to establish that his

additional claimed lumbar conditions were causally related to the October 30, 2015 employment

incident.

 

11 See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician 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).

12 See T.M., supra note 9.

13 Docket No. 16-0240 (issued March 9, 2016).
7

ORDER

IT IS HEREBY ORDERED THAT the October 31, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 5, 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