United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.G., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

ELMENDORF AIR FORCE BASE, AK, 

Employer

__________________________________________

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Docket No. 17-1748

Issued: June 6, 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 August 9, 2017 appellant, through counsel, filed a timely appeal from a March 6, 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 to consider the merits of the claim.

 

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.
2

ISSUE

The issue is whether appellant has met his burden of proof to expand the acceptance of his

claim to include the additional condition of spinal stenosis as causally related to his February 19, 

2015 employment injury.

FACTUAL HISTORY

On September 5, 2012 appellant, then a 58-year-old airfield clearing equipment operator, 

filed a claim for a traumatic injury (Form CA-1), alleging that he injured his right shoulder as he 

was cutting a downed tree while in the performance of duty. OWCP assigned the claim File No. 

xxxxxx338 and, on October 10, 2012, accepted closed fracture of the right scapula.

On May 6, 2013 appellant underwent a lumbar spine magnetic resonance imaging (MRI) 

scan which demonstrated disc degenerative changes resulting in severe central spinal stenosis at 

L4-5 as well as mild central spinal stenosis at L3-4 and moderate central spinal stenosis at L5-S1 

with lateral recess impingement bilaterally at L5-S1. In a June 28, 2013 report, Dr. Robert J. Hall, 

a Board-certified orthopedic surgeon, noted appellant’s reports of back pain with pain radiating 

down in his legs and numbness in his feet.

Dr. Mark E. Flanum, a Board-certified orthopedic surgeon, examined appellant on July 3, 

2013 for lumbar disc displacement and spinal stenosis with lumbar radiculopathy and weakness. 

He recommended surgical decompression and two-level fusion. On October 2, 2013 Dr. Flanum 

noted that appellant sustained a fall from a piece of equipment earlier this year and began having 

substantial low back pain with numbness and tingling. He diagnosed symptomatic spinal stenosis 

secondary to facet and ligamentum flavum hypertrophy as well as lumbar disc displacement.

On February 26, 2015 appellant filed a traumatic injury claim (Form CA-1) alleging that 

he injured his shoulder, back, leg, and head on February 19, 2015 when his foot slipped out of the 

ladder on a snow removal truck, causing him to fall onto a concrete floor.3 OWCP assigned the 

claim File No. xxxxxx528, and on April 2 and 7, 2015, accepted complete right rotator cuff rupture 

and right biceps tendon rupture. On April 7, 2015 appellant underwent right shoulder arthroscopy 

with open rotator cuff repair and open biceps tenodesis. OWCP authorized compensation 

benefits.4

On July 6, 2015 appellant underwent a lumbar spine MRI scan which demonstrated disc 

extrusion at L4-S1, moderate facet arthropathy with severe canal stenosis at L3-4, and moderately 

severe neural foraminal stenosis at L4-S1 and L3-4. In a report dated August 24, 2015, Dr. Flanum

reviewed appellant’s MRI scan and diagnosed acquired lumbar spondylolisthesis, lumbar 

spondylosis, rotator cuff rupture, and lumbar spinal stenosis. He recommended lumbar 

 

3 Appellant also has a prior traumatic injury claim under OWCP File No. xxxxxx992, in which he alleged that, on 

March 28, 2013, he fell from his loader and bruised his right elbow, hip, shoulder, ribs, and back. OWCP denied the

claim by decision dated August 7, 2013. File No. xxxxxx992 is not presently before the Board.

4 OWCP File Nos. xxxxxx338 and xxxxxx528 have been administratively combined, with the latter serving as the 

master file.
3

decompression because of the retrolisthesis of L5 on S1 as well as severe spinal stenosis. 

Dr. Flanum noted that appellant reported that he had no substantial back symptoms before his

claimed March 26, 2013 workplace injury. He noted that appellant had some existing spondylosis, 

but was asymptomatic until the March 26, 2013 workplace injury.

Appellant’s field nurse reported on August 12, 2015 that he also injured his back when he 

fell on a concrete floor and that appellant would like to have this aspect of his claim addressed. 

She noted that he had multiple injuries due to falls at work which included a broken scapula in 

2012, falling out of loader in 2013, and falling from his truck in 2015.

On November 25, 2015 appellant submitted a report from Dr. Flanum dated

October 2, 2013. In this report Dr. Flanum diagnosed spinal stenosis and noted that appellant fell 

from a piece of equipment at work which resulted in a substantial increase in low back pain and 

leg symptoms. On December 10, 2015 appellant submitted a report from Dr. Flanum dated 

October 26, 2015 which indicated that he treated appellant for low back pain and spinal stenosis. 

He noted, “The patient reports that prior to his workplace injury, he had no substantial back or leg 

symptoms. Consequentially, I do believe that his workplace injury was the precipitating cause for 

his current need for surgery.”

In a January 12, 2016 letter, OWCP requested that appellant provide additional medical 

evidence addressing causal relationship between his diagnosed spinal stenosis and his February 19, 

2015 employment injury. It afforded him 30 days to respond.

By decision dated February 19, 2016, OWCP denied appellant’s request to expand the 

acceptance of his February 19, 2015 claim to include the additional condition of spinal stenosis. 

It found that the medical evidence of record did not support a causal relationship between his

diagnosed spinal stenosis and his February 19, 2015 employment injury.

Appellant underwent L4-5 and L5-S1 posterior lumbar interbody fusion and 

decompression on March 5, 2016. In a letter dated May 25, 2016, OWCP informed appellant that 

his spinal surgery was not authorized.

Dr. Flanum completed a note on May 23, 2016 and reported that appellant sustained an 

injury on March 28, 2013 at work and that prior to this injury he did not have any complaints of 

low back pain or radicular symptoms. He noted that while appellant “undoubtedly” has some 

preexisting spondylosis, this condition was not symptomatic until the March 28, 2013 employment 

injury. Dr. Flanum concluded, “Consequently it continues to be my medical opinion that the 

workplace injury on or about March 28, 2013 was the cause of his need for surgical intervention.”

In a letter dated January 25, 2017, appellant, through counsel, requested reconsideration of 

the February 19, 2016 decision. In support of this request, counsel resubmitted appellant’s lumbar 

MRI scans, Dr. Flanum’s October 2, 2013, October 26, 2015, and May 23, 2016 reports, and 

appellant’s March 5, 2016 operative report.

By decision dated March 6, 2017, OWCP denied appellant’s request to expand the 

acceptance of his February 19, 2015 claim to include his diagnosed spinal stenosis. It found that 

the medical evidence submitted was of insufficient probative value to establish his claim and 

modify the November 25, 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.5

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

opinion evidence supporting such causal relationship.6 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.7

Neither the mere fact that a disease or condition manifests itself during a period of 

employment, nor the belief that the disease or condition was caused or aggravated by employment 

factors or incidents is sufficient to establish causal relationship.8

ANALYSIS

The Board finds that appellant has not met his burden of proof to expand the acceptance of 

his claim to include the additional condition of spinal stenosis as causally related to his 

February 19, 2015 employment injury.

Appellant has two claims for traumatic injury accepted by OWCP, the September 5, 2012 

fall in which he fractured his right shoulder, and the February 19, 2015 fall which resulted in 

complete right rotator cuff rupture and right biceps tendon rupture with resulting surgery. He is 

currently alleging that, as a result of his February 19, 2015 employment injury, he sustained spinal 

stenosis requiring surgery.

In support of his claim for spinal stenosis causally related to his February 19, 2015 

employment injury, appellant submitted a series of reports from Dr. Flanum. On October 2, 2013

Dr. Flanum attributed appellant’s spinal stenosis to a fall from a piece of equipment. This report 

predates appellant’s February 19, 2015 employment injury and attributes his condition to his 

March 26, 2013 employment incident which was not accepted by OWCP. Therefore, this report 

is irrelevant to the current issue of causation and is of limited probative value regarding this claim.9

In a report dated August 24, 2015, Dr. Flanum noted that appellant had some existing 

spondylosis, but was asymptomatic until the claimed March 26, 2013 workplace injury. In his 

 

5

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

6 M.S. Docket No. 17-0105 (issued December 7, 2017); see 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 

234 (1983).

7 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

8 Dennis M. Mascarenas, 49 ECAB 215 (1997).

9 D.R., Docket No. 16-0528 (issued August 24, 2016).
5

report dated October 26, 2015, he indicated that he treated appellant for low back pain and spinal 

stenosis. Dr. Flanum noted, “The patient reports that prior to his workplace injury, he had no 

substantial back or leg symptoms. Consequentially, I do believe that his workplace injury was the 

precipitating cause for his current need for surgery.” An award of compensation may not be based 

on surmise, conjecture, speculation, or upon appellant’s own belief that there is a causal 

relationship between his claimed condition and his employment.10 As Dr. Flanum does not 

provide a rationalized opinion regarding causal relationship between appellant’s spinal stenosis

condition and the accepted February 19, 2015 employment injury, these reports lack probative 

value.

Dr. Flanum completed a note on May 23, 2016 and reported that appellant sustained an 

injury at work on March 28, 2013 and that, prior to that injury, he did not have any complaints of 

low back pain or radicular symptoms. He noted that while appellant “undoubtedly” had some 

preexisting spondylosis, this condition was not symptomatic until the claimed March 28, 2013 

employment injury. Dr. Flanum concluded, “[c]onsequently it continues to be my medical opinion 

that the workplace injury on or about March 28, 2013 was the cause of his need for surgical 

intervention.” As noted previously, OWCP has not accepted that appellant sustained a traumatic 

injury on March 28, 2013. This report does not address any causal relationship between 

appellant’s accepted February 19, 2015 employment injury and his diagnosed spinal stenosis. This 

report is also not relevant to the current issue of causation and is insufficient to establish appellant’s 

claim for spinal stenosis as a result of his February 19, 2015 employment injury.

11

Appellant has submitted no medical evidence addressing the alleged causal relationship 

between his diagnosed condition of spinal stenosis and his February 19, 2015 employment injury

by direct causation, aggravation, or acceleration. Without evidence of causal relationship between 

his accepted employment injury and his diagnosed condition, he has not met his burden of proof 

to establish the additional condition of spinal stenosis as due to his February 19, 2015 employment 

injury.

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 his burden of proof to expand the acceptance of 

his claim to include the additional condition of spinal stenosis causally related to his February 19, 

2015 employment injury.

 

10 R.W., Docket No. 15-0345 (issued September 20, 2016); Robert A. Boyle, 54 ECAB 381 (2003).

11 Supra note 9.
6

ORDER

IT IS HEREBY ORDERED THAT the March 6, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 6, 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