United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.N., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Oakdale, LA, Employer

__________________________________________

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Docket No. 18-1193

Issued: December 28, 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 21, 2018 appellant, through counsel, filed a timely appeal from a March 27, 2018

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 in this 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 Board notes that, following the March 27, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

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

the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish right neck and arm,

right lower back, and right leg injuries causally related to an accepted September 11, 2017

employment incident.

FACTUAL HISTORY

On September 14, 2017 appellant, then a 47-year-old cook supervisor, filed a traumatic 

injury claim (Form CA-1) alleging that on September 11, 2017, while opening a food service door 

that was stuck, he injured his right neck and arm, right lower right back, and right leg. He did not 

stop work. 

In a September 25, 2017 development letter, OWCP requested that appellant submit 

additional factual and medical information including a comprehensive medical report from his 

treating physician regarding how specific work incidents contributed to his claimed injuries. It

afforded him 30 days to submit the requested information. 

Appellant was treated by Dr. Robert C. Smith, a Board-certified family practitioner, on 

September 18 and 25, and October 2, 2017, for cervical pain and right upper and lower extremity 

pain. He reported that on September 11, 2017 he attempted to open a food service door that was 

stuck, which caused pain in his cervical region, right upper extremity, and lumbar region radiating 

into his right lower extremity. Appellant was treated in the emergency room and discharged with 

medications. Findings on examination revealed L5 radiculopathy, weakness of the extensors and 

intrinsic muscles of the right hand, back pain, decreased range of motion, and radiating pain. 

Appellant’s history noted as significant for an anterior cervical discectomy and fusion surgery. 

Dr. Smith opined that appellant was totally disabled from work. In an attending physician’s report 

(Form CA-20) dated September 18, 2017, he noted that on September 11, 2017 appellant reported 

pulling a door at work and injuring his neck, back, and right upper and lower extremity. Dr. Smith 

diagnosed right L5 radiculopathy and right C6 radiculopathy and checked a box marked “yes” that 

appellant’s condition was caused or aggravated by an employment activity. He noted that 

appellant was totally disabled from September 11, 2017. Other work capacity evaluations (Form 

OWCP-5c) dated September 18 to October 23, 2017, from Dr. Smith noted that appellant was 

totally disabled from work. Similarly, in duty status reports (CA-17 forms) dated September 18

to October 23, 2017, he diagnosed right L5 radiculopathy and right C6 radiculopathy and noted 

that appellant was totally disabled for work. 

The employing establishment completed a form granting authorization for examination 

and/or treatment (Form CA-16) on September 18, 2017. On the form Dr. Smith indicated that on 

September 11, 2017 appellant reported pulling a stuck door at work injuring his neck, back, and 

right upper and lower extremity. He diagnosed right L5 radiculopathy and right C6 radiculopathy 

and checked a box marked “yes” that appellant’s condition was caused or aggravated by an 

employment activity. Dr. Smith prescribed steroids, muscle relaxants, pain medication, and 

ordered diagnostic testing. He noted that appellant was totally disabled from work as of 

September 11, 2017.

An x-ray of the cervical spine dated September 20, 2017 revealed stable fusion hardware 

position and spondylitic changes. A lumbar magnetic resonance imaging (MRI) scan dated 
3

September 20, 2017 revealed a large right paracentral disc protrusion/extrusion at L4-5 causing 

severe central stenosis, associated bilateral foraminal stenosis, moderate-to-severe left lateral 

recess, and foraminal stenosis at L5-S1 due to disc bulge, facet atrophy, and spondylosis at other 

levels.

On October 12, 2017 Dr. Erich Wolf, a Board-certified neurosurgeon, treated appellant for 

low back pain and associated weakness. Appellant reported that, while at work on September 11, 

2017, he pulled a door and felt a pop down the right side of his body. His history was significant 

for an anterior cervical discectomy and fusion performed in January 2014. Findings on 

examination revealed tenderness of the entire right lumbar spine, low back pain, severe radicular 

pain, decreased muscle strength, hypoesthesia at L4, L5, and S1, and positive straight leg raising 

on the right. Dr. Wolf diagnosed intervertebral disc disorders with radiculopathy and right foot 

drop. 

On October 13, 2017 Dr. Wolf performed an emergency right L4-5 microlumbar 

discectomy with fluoroscopy and diagnosed L4-5 right herniated nucleus pulpous with 

radiculopathy. 

Appellant was treated by Dr. Smith on October 23, 2017 for postoperative follow-up and 

staple removal. Dr. Smith noted a history of injury and diagnosed spinal stenosis lumbar region, 

and radiculopathy of the lumbar and cervical regions. Findings on examination revealed back 

pain, cervical pain, decreased range of motion, muscular weakness, numbness in the right lower 

extremity, redness around the surgical site, mild cellulitis, and slight exudates from the proximal 

staple, complicated by cigarette smoking. Appellant remained disabled from work.

By decision dated November 9, 2017, OWCP denied appellant’s claim for compensation

because the evidence of record was insufficient to establish that the diagnosed medical conditions

were causally related to the accepted employment incident. 

Appellant was treated by Dr. Smith in a follow up on November 6 and 15, 2017. Dr. Smith

noted a history of injury on September 11, 2017 and prior disc herniation surgery. Appellant 

presented with right lower leg pain and loss of function, chronic cervical pain, and weakness in 

the right upper extremity. Dr. Smith diagnosed spinal stenosis and radiculitis of the lumbar and 

cervical region. He opined that appellant’s complaints were consistent with the mechanism of 

injury that occurred on September 11, 2017. Dr. Smith further noted that the progressive loss of 

motor function was consistent with the mechanism of injury and the clinical findings. He advised 

that appellant was totally disabled. In a work capacity evaluation (OWCP-5c) dated November 15, 

2017, Dr. Smith noted that appellant was totally disabled from work. Similarly, in a duty status 

report (Form CA-17) dated November 15, 2017, he diagnosed right L5 radiculopathy and right C6 

radiculopathy and noted that appellant was totally disabled. 

On December 5, 2017 appellant was treated by a nurse practitioner post right L4-5 lumbar 

microdiscectomy. The nurse practitioner diagnosed right drop foot and referred him for physical 

therapy. 

In an amended decision dated December 19, 2017, OWCP denied appellant’s claim for 

compensation because the evidence of record was insufficient to establish that the diagnosed 

medical conditions were causally related to the accepted employment incident. 
4

Appellant requested reconsideration on December 27, 2017. 

In a December 18, 2017 report, Dr. Smith diagnosed spinal stenosis and radiculitis of the 

lumbar and cervical region. He found that the report of injury and the mechanism thereof, was 

“consistent with clinical findings and is consistent with the transfer of energy that created the 

pathology in this patient.” Dr. Smith opined that this was evidence that the injury occurred from 

the actions that the patient described. In work capacity evaluations (Form OWCP-5c) dated 

December 18, 2017 to January 19, 2018, he noted that appellant was totally disabled from work. 

Similarly, in duty status reports (CA-17 forms) dated December 18, 2017 to January 19, 2018,

Dr. Smith diagnosed right L5 and C6 radiculopathy and noted that appellant was totally disabled

from work. In other reports dated January 5 to 19, 2018, he treated appellant in follow ups for

pain and numbness in the lumbar spine and left lower extremity, weakness and changes in 

sensation of his left lower extremity. Dr. Smith diagnosed spinal stenosis and radiculopathy of the 

lumbar and cervical region and recommended a new MRI scan of the lumbar spine. He continued 

to opine that appellant was disabled from work. On February 26, 2018 Dr. Smith noted appellant’s 

complaints of progression of the left L5 radiculopathy with changes in sensation. Appellant 

remained totally disabled. On March 14, 2018 Dr. Smith released appellant to return to work light

duty. Also submitted were toxicology reports dated October 2, 2017 to March 5, 2018.

By decision dated March 27, 2018, OWCP denied modification of its December 19, 2017

decision. 

LEGAL PRECEDENT

A claimant seeking benefits under FECA4 has the burden of proof to establish the essential 

elements of his or her claim by the weight of the reliable, probative, and substantial evidence, 

including that an injury was sustained in the performance of duty as alleged, and that any specific 

condition or disability claimed is causally related to the employment injury.5

To determine if 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 in conjunction with one another. 

The first component is whether the employee actually experienced the employment incident that 

allegedly occurred.6 The second component is whether the employment incident caused a personal 

injury.7 An employee may establish that an injury occurred in the performance of duty as alleged, 

but fail to establish that the disability or specific condition for which compensation is being 

claimed is causally related to the injury.8

 

4

Id.

5 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6 Elaine Pendleton, 40 ECAB 1143 (1989).

7 T.H., 59 ECAB 388, 393 (2008); John J. Carlone, 41 ECAB 354 (1989).

8 Shirley A. Temple, 48 ECAB 404, 407 (1997).
5

Causal relationship is a medical question that generally requires rationalized medical 

opinion evidence to resolve the issue.9 A physician’s opinion on whether there is causal 

relationship between the diagnosed condition and the implicated employment factor(s) must be 

based on a complete factual and medical background.10 Additionally, the physician’s opinion must 

be expressed in terms of a reasonable degree of medical certainty, and must be supported by 

medical rationale, explaining the nature of the relationship between the diagnosed condition and 

appellant’s specific employment factor(s).11

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.12

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish right neck and 

arm, right lower back, and right leg injuries causally related to an accepted September 11, 2017 

employment incident.

In support of his claim, appellant submitted reports from Dr. Smith dated September 18 to 

October 23, 2017. Dr. Smith noted that appellant reported that, while attempting to open a food 

service door at work on September 11, 2017, he felt pain in his cervical region, right upper 

extremity, and lumbar region radiating into the right lower extremity. He repeated the history of 

injury as reported by appellant, but he did not provide his own opinion regarding whether the 

diagnosed conditions were work related. The mere recitation of patient history does not suffice 

for purposes of establishing causal relationship between a diagnosed condition and the 

employment incident.13 Without explaining physiologically how the accepted employment 

incident caused or contributed to the diagnosed conditions, the physician’s reports are of limited 

probative value.14

In a September 18, 2017 attending physician’s report (Form CA-20), Dr. Smith noted that 

appellant reported pulling a door at work which was stuck injuring his neck, back, right upper 

extremity and right lower extremity. He diagnosed right L5 radiculopathy and right C6 

radiculopathy and checked a box marked “yes” indicating that appellant’s condition was caused 

or aggravated by an employment activity. The Board has held that when a physician’s opinion on 

causal relationship consists only of checking “yes” to a form question, without explanation or 

 

9 Robert G. Morris, 48 ECAB 238 (1996).

10 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11 Victor J. Woodhams, id. 

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

13 See J.G., Docket No. 17-1382 (issued October 18, 2017).

14 See A.B., Docket No. 16-1163 (issued September 8, 2017).
6

rationale, that opinion is of diminished probative value and is insufficient to establish a claim.15 

Therefore, this report is insufficient to establish appellant’s claim.

Work capacity evaluations (OWCP-5c) and duty status reports (CA-17 forms) dated 

September 18, 2017 to January 19, 2018, from Dr. Smith diagnosed right L5 radiculopathy and 

right C6 radiculopathy and noted that appellant was totally disabled. However, Dr. Smith did not

specifically address whether the September 11, 2017 employment incident caused or aggravated a

diagnosed medical condition. The Board has held that medical evidence that does not offer an 

opinion regarding the cause of an employee’s condition is of no probative value on the issue of 

causal relationship.16 Therefore, these reports are insufficient to meet appellant’s burden of proof.

Other reports from Dr. Smith dated November 6 and 15, 2017 diagnosed spinal stenosis 

and radiculopathy of the lumbar and cervical region and noted that appellant’s progressive loss of 

motor function was consistent with the mechanism of injury that occurred on September 11, 2017. 

Similarly, on December 18, 2017 Dr. Smith diagnosed spinal stenosis and radiculopathy of the 

lumbar and cervical region and indicated that the report of this injury and the mechanism thereof 

was consistent with clinical findings and consistent with the transfer of energy that created the 

pathology. Dr. Smith noted that this was evidence that the injury occurred from the actions that 

the patient described. The Board finds that, although he supported causal relationship, he did not 

provide medical rationale explaining the basis of his conclusory opinion regarding the causal 

relationship between appellant’s lumbar and cervical conditions and the September 11, 2017 work 

incident. Dr. Smith did not explain the process by which pulling on a food service door would 

cause or aggravate the diagnosed conditions and why the conditions would not be related to 

nonwork-related conditions like age-related degenerative changes. Medical rationale was 

particularly necessary in this matter given that appellant had a prior anterior cervical discectomy 

and fusion performed on January 2014.17 As the opinion of appellant’s physician regarding causal 

relationship was conclusory and unexplained, it was insufficient to meet appellant’s burden of 

proof. 

Other medical evidence of record, including an x-ray of the cervical spine dated 

September 20, 2017, an MRI scan dated September 20, 2017, and toxicology reports are of limited 

probative value as they fail to provide a physician’s opinion on the causal relationship between 

appellant’s work incident and his diagnosed cervical and lumbar conditions.

18

 Thus, this evidence 

is insufficient to meet appellant’s burden of proof. 

Appellant was treated by Dr. Wolf on October 12, 2017 who diagnosed L4-5 right 

herniated nucleus pulposus with radiculopathy. He reported that, while at work on September 11, 

2017, he pulled a door and felt a pop down the right side of his body. Dr. Wolf performed an 

emergency right L4-5 microlumbar discectomy with fluoroscopy on October 13, 2017. While he 

repeated the history of injury as reported by appellant, he did not provide his own opinion 

 

15 D.D., 57 ECAB 734 (2006); Sedi L. Graham, 57 ECAB 494 (2006). 

16 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

17 See P.M., Docket No. 18-0543 (issued November 7, 2018). Michael S. Mina, 57 ECAB 379 (2006).

18 Id.
7

regarding whether his condition was work related.19 Therefore, these reports are insufficient to 

meet appellant’s burden of proof. 

On December 5, 2017 appellant was treated by a nurse practitioner who diagnosed right 

drop foot and surgical aftercare and referred him for physical therapy. The Board has held that 

treatment notes signed by nurse practitioners

20 are not considered medical evidence as this provider 

is not a physician under FECA21 and is not competent to render a medical opinion under FECA. 

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

Consequently, the Board finds that appellant has not met his burden of proof to establish 

that the accepted September 11, 2017 work incident caused or aggravated a diagnosed medical 

condition.22

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 establish right neck and 

arm, right lower back, and right leg injuries causally related to the accepted September 11, 2017

employment incident. 

 

19 Supra note 15.

20 Paul Foster, 56 ECAB 208 (2004) (where the Board found that a nurse practitioner is not a “physician” pursuant 

to FECA).

21 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 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).

22 The record contains a Form CA-16 signed by the employing establishment official on September 18, 2017. When 

an employing establishment properly executes a CA-16 form which authorizes medical treatment as a result of an 

employee’s claim for an employment-related injury, the CA-16 form creates a contractual obligation, which does not 

involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the 

claim. The period for which treatment is authorized by a CA-16 form is limited to 60 days from the date of issuance, 

unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003). The record 

is silent as to whether OWCP paid for the cost of appellant’s examination or treatment for the period noted on the 

form.
8

ORDER

IT IS HEREBY ORDERED THAT the March 27, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 28, 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