United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Minneapolis, MN, Employer 

__________________________________________ 

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Docket No. 16-1658 

Issued: May 3, 2017 

Appearances: Case Submitted on the Record

Capp P. Taylor, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 15, 2016 appellant, through counsel, filed a timely appeal from a July 7, 2016 

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 this case. 

 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 issues are: (1) whether appellant established that he sustained a recurrence of 

disability commencing February 11, 2015 causally related to his March 7, 2013 employment 

injury; and (2) whether he sustained a back injury as a consequence of his employment injury. 

FACTUAL HISTORY 

On March 13, 2013 appellant, then a 35-year-old medical support assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on March 7, 2013 he fractured his right ankle 

when he slipped and fell while stepping out of his vehicle in the employing establishment 

parking lot. He stopped work. On March 14, 2013 appellant underwent right ankle surgery. 

OWCP accepted his claim for closed fracture of the right ankle and paid compensation benefits. 

On July 25, 2013 appellant returned to part-time limited-duty work for four hours per 

day. He stopped work again on July 29, 2013 and filed a claim for recurrence of disability (Form 

CA-2a). OWCP accepted appellant’s recurrence of disability claim and expanded the acceptance 

of his claim to include right knee medial collateral ligament (MCL) sprain. It paid wage-loss 

compensation benefits. Appellant returned to work part time on October 3, 2013. He stopped 

work again on November 17, 2013.3 On May 25, 2014 appellant returned to his original 

position. 

Appellant continued to receive medical treatment and underwent diagnostic 

examinations. In a May 28, 2014 magnetic resonance imaging (MRI) scan examination report of 

the right knee, Dr. Nathan D. Block, a Board-certified diagnostic radiologist, observed slight 

surface irregularity of the undersurface of the medial meniscal body and mild thickening of the 

MCL near its femoral attachment without signal abnormality suggestive of old resolved sprain. 

He reported that the examination was otherwise negative. In an August 4, 2014 computerized 

tomography (CT) scan report of the right ankle, Dr. Eric J. Weinberg, a Board-certified 

diagnostic radiologist, noted postoperative changes along the distal fibula. No definite residual 

fracture line or acute findings were confirmed. 

In a January 15, 2015 progress note, Dr. Fernando A. Pena, a Board-certified orthopedic 

surgeon, examined appellant for status post right ankle surgery performed on March 14, 2013. 

He related appellant’s complaints of continued problems and difficulties to the ankle, including 

spasms. Dr. Pena reported a completely benign examination with full range of motion of the 

ankle, hind foot, and midfoot joints. Neurovascular examination was also grossly intact. He 

diagnosed status post right ankle open reduction internal fixation (ORIF). Dr. Pena explained 

that he still did not understand the source of appellant’s pain, especially since the August 2014 

CT scan did not show any obvious pathology. He recommended an additional MRI scan to 

explain the source of appellant’s spasms and cramping. Dr. Pena indicated that appellant could 

work with restrictions. 

 

 3 Appellant filed various claims for wage-loss compensation beginning November 18, 2013. In a decision dated 

April 21, 2014, OWCP denied his claim for disability compensation beginning November 18, 2013. Appellant did 

not appeal the April 21, 2014 decision. 
3

Appellant underwent the requested MRI scan examination by Dr. Berta Kvamme, a 

Board-certified diagnostic radiologist, who indicated in a February 6, 2015 report that appellant 

had mild degenerative changes involving the lumbar spine with a component of probable mild 

congenital central stenosis to the thecal sac with a superimposed prominent posterior epidural fat 

pac and bulge with mild-to-moderate central stenosis at L4-L5. 

On February 11, 2015 appellant stopped work again and filed wage-loss compensation 

claims (Form CA-7) for the period February 11 to April 4, 2015. 

Dr. Pena continued to treat appellant. In work status reports dated February 11 and 20, 

2015, he indicated that appellant was unable to work on February 11, 2015 until he had a lumbar 

spine consultation which was pending workers’ compensation approval. 

In consultation notes dated February 27 and March 27, 2015, Gretchen Zachel, a certified 

physician assistant, indicated that appellant was seen for follow-up of significant pain from an 

employment injury. She noted that a lumbar spine MRI scan showed mild degenerative changes 

in appellant’s lumbar spine. Upon examination, Ms. Zachel observed vertebral tenderness, 

spasm, paraspinal tenderness, and trigger points in appellant’s lumbar spine. She also related 

appellant’s complaints of pain with lumbar spine extension and lateral rotation to both sides and 

pain to palpation over right and left facet joints. Examination of the lower extremities revealed 

large degenerative changes and decreased range of motion. Ms. Zachel diagnosed right lower 

extremity pain, back pain, and neck pain. 

By letter dated April 1, 2015, OWCP advised appellant that the evidence of record was 

insufficient to establish his claims for disability compensation for the period February 11 to 

March 21, 2015 due to a worsening of his March 7, 2013 employment injury. It noted that the 

medical evidence received referred to a back condition, but OWCP had only accepted appellant’s 

claim for a right knee and ankle condition. OWCP requested that appellant respond to an 

attached questionnaire and submit medical evidence to establish that he was unable to work 

during the claimed period due to a spontaneous change and worsening of his accepted 

conditions. Appellant was afforded 30 days to submit the requested evidence. 

Dr. Pena examined appellant again and indicated in a progress note dated April 6, 2015 

that appellant was not approved for workers’ compensation with regards to appellant’s low back 

pain. He diagnosed status post right ankle ORIF. Dr. Pena explained that he could neither 

guarantee nor rule out that appellant’s back condition was connected to his ankle injury. He 

opined that there was a possibility that appellant had some aggravation of his back given the fact 

that he had been limping and walking unevenly on his ankle joint. Dr. Pena again opined that 

appellant was unable to work beginning February 11, 2015. 

By decision dated April 22, 2015, OWCP denied appellant’s claim for compensation for 

a recurrence of disability for the period February 11 to April 4, 2015 finding that the medical 

evidence of record failed to establish that he was unable to work as a result of his March 7, 2013 

employment injury. It determined that the medical evidence was insufficient to demonstrate that 

he sustained a change or worsening of his accepted right knee and ankle conditions to the extent 

that he was unable to work. 
4

On May 19, 2015 OWCP received appellant’s request, through counsel, for a hearing 

before an OWCP hearing representative. Appellant continued to file various wage-loss 

compensation claims (Form CA-7). 

Dr. Matthew Thorson, Board-certified in pain medicine and anesthesiology, related in an 

April 23, 2015 report that appellant complained of pain in his neck, upper back with spasm, right 

foot, right knee, and right hip. He noted that the precipitating event was an employment injury. 

Dr. Thorson reviewed appellant’s history and indicated that an imaging study revealed right knee 

MCL partial tear and mild lumbar stenosis. Upon examination, he observed no acute distress. 

Dr. Thorson diagnosed right knee arthralgia, right knee sprain, chronic pain syndrome, and 

lumbar spinal stenosis. He reported that appellant’s low back was not related to his accepted 

injury, but his knee was. Dr. Thorson noted that appellant had become a chronic pain, narcotic 

patient because of the length of time it had taken to get his knee injection approved. 

Appellant continued to receive treatment from Ms. Zachel for follow-up of pain 

management. In an April 24, 2015 consultation note, Ms. Zachel provided physical examination 

findings similar to her previous reports. Examination of the lower extremities revealed large 

joint degenerative changes and decreased range of motion. Ms. Zachel diagnosed neck pain, 

back pain, and right lower extremity pain. 

In progress notes dated May 19 to October 27, 2015, Courtney Freeman, a physician 

assistant, related appellant’s complaints of pain in his neck radiating to the bilateral shoulders, 

upper and lower back, right ankle, right foot, right knee, and right hip. She diagnosed chronic 

pain syndrome, thoracic pain, lumbar spinal stenosis, right knee arthralgia, and right knee 

sprain/strain. In an August 10, 2015 form, Ms. Freeman indicated that appellant was unable to 

work beginning August 10, 2015. 

Dr. Pena continued to treat appellant. In an October 26, 2015 follow-up report, he noted 

that appellant complained of pain and swelling on the lateral ankle and increasing back pain after 

wearing a walking boot. Dr. Pena related that appellant had been back to work intermittently 

between May 2014 and March 2015, but was not currently working. On examination, he 

observed full range of motion of the ankle, hind foot, and midfoot joints. Neurovascular 

examination was intact. Dr. Pena diagnosed right ankle pain of unknown etiology and status 

post right ankle surgery. He indicated that he informed appellant of the possibility that the 

walking boot and altering his gait were contributing factors to his hip and back pain. On a 

separate form, Dr. Pena noted that appellant was unable to work beginning October 27, 2015. In 

a December 14, 2015 order form, he recommended physical therapy to address pain and swelling 

likely due to the disuse of the ankle. 

In a November 24, 2015 report, Cole Weiske, a certified physician assistant, related 

appellant’s complaints of right knee pain since a March 2013 employment injury. He reviewed 

appellant’s history and conducted an examination. Mr. Weiske diagnosed lower extremity 

segmental dysfunction, right knee sprain, and right knee joint pain. He opined that all diagnoses 

were causally related to the March 7, 2013 accident. 

A hearing was held on December 22, 2015. Appellant, who was represented by counsel, 

confirmed that his last day of work was February 10, 2015. He described his duties as a medical 
5

support assistant, which included proper scheduling of appointments, completing doctor’s orders 

for patients, assisting patients to the appropriate department, and performing clerical duties such 

as faxing and data entry. Appellant noted that his job was primarily sedentary, but he walked 

around a bit to locate doctors or nurses. He testified that he began to notice back pain around 

April 2013 when he was placed in a walking boot. Appellant explained that he used a walking 

boot until May 2013, then he used a hinged knee brace, and a cane. He alleged that his back pain 

worsened during the time. Appellant believed that his knee injury and the boot caused uneven 

walking which contributed to his back condition. 

Appellant further discussed the medical providers who were treating him for his lower 

extremity and back pain. He noted that Dr. Pena initially advised him not to work in 

February 2015 due to persistent right ankle, right knee, and lower back pain. Appellant related 

that Dr. Thorson also submitted various requests for injections and a knee scope for his right 

knee, but OWCP denied those requests. He reported that Dr. Thorson took him out of work in 

September or October 2015. Counsel asserted that Dr. Pena and Dr. Thorson would be 

submitting statements within 30 days. 

In a decision dated February 10, 2016, an OWCP hearing representative affirmed the 

April 22, 2015 decision which denied appellant’s recurrence of disability claim. He found that 

the evidence of record did not support disability from work beginning February 11, 2015 due to 

the worsening or residuals of the March 7, 2013 employment injury. The hearing representative 

further determined that the medical evidence of record lacked sufficient rationale to establish that 

appellant sustained a consequential lumbar condition due to his March 7, 2013 employment 

injury. 

On April 11, 2016 appellant, through counsel, requested reconsideration. In a statement 

dated April 7, 2016, counsel noted that in a March 29, 2016 report, Dr. Thorson discussed his 

opinion that appellant’s altered gait caused or at least contributed to appellant’s lumbar 

condition. He asserted that the evidence demonstrated that appellant suffered a consequential 

injury to his lumbar spine and that he had additional restrictions which rendered him incapable of 

performing his job. Counsel requested that OWCP accept the consequential lumbar condition 

and pay wage-loss compensation from February 11, 2015 forward. Appellant resubmitted 

diagnostic examination reports and Dr. Pena’s reports from 2015. 

Dr. Thorson examined appellant again and in a report dated March 29, 2016, he indicated 

that he had treated appellant since January 2014 for work-related injuries to the right ankle and 

right knee. He explained that appellant had a history of a severely fractured right ankle and right 

medial collateral ligament injury of the right knee. Dr. Thorson related that he subsequently 

treated appellant for low back pain secondary to lumbar spinal stenosis and spondylosis. He 

opined that appellant developed the low back issue secondary to the initial lower extremity issue. 

Dr. Thorson explained that appellant had to walk with an altered gait, which may have advanced 

the low back pain issue. He opined that based on the February 2015 MRI scan findings of spinal 

stenosis and spondylosis, clinical correlation of pain and gait pattern, and overall patient history, 

it was within a reasonable degree of medical certainty “that the altered gait caused by the initial 

right ankle and right knee injuries caused or at least materially contributed to the lumbar 

stenosis/spondylosis.” Dr. Thorson reported that with regard to the low back condition, appellant 

was capable of working with restrictions. 
6

In a report dated May 11, 2016, Dr. Pena indicated that he treated appellant regarding his 

right ankle pain. He noted that appellant’s last visit was on October 26, 2015. Dr. Pena related 

that appellant wished to discuss his workmen’s compensation case and asked about a letter from 

his lawyer. He reported no new symptoms or other concerns. Dr. Pena reported that an 

examination was not performed and diagnosed status post right ankle ORIF surgery completed 

on March 14, 2013. 

By decision dated July 7, 2016, OWCP denied modification of the February 10, 2016 

decision. It determined that the medical evidence of record attributed appellant’s current 

symptoms and inability to work to low back pain, and not his accepted right ankle and leg 

conditions. OWCP found that appellant failed to establish that his low back condition or his 

inability to work on February 11, 2015 was causally related to the March 7, 2013 employment 

injury. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA 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.4 For each period of disability claimed, an employee has the burden of establishing a 

causal relationship between his or her recurrence of disability and the accepted employment 

injury.5

OWCP’s implementing regulations define a recurrence of disability as an inability to 

work, after an employee has returned to work, caused by a spontaneous change in a medical 

condition, which resulted from a previous injury or illness without an intervening injury or new 

exposure to the work environment.6 This term also means an inability to work that takes place 

when a light-duty assignment made specifically to accommodate an employee’s physical 

limitations due to his or her work-related injury or illness is withdrawn, (except when such 

withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reduction-inforce) or when the physical requirements of such an assignment are altered so that they exceed 

his or her established physical limitations.7

When an employee claims a recurrence of disability causally related to an accepted 

employment injury, he or she has the burden of establishing by the weight of the reliable, 

probative, and substantial medical evidence that the claimed recurrence of disability is causally 

related to the accepted injury.8 This burden includes the necessity of furnishing evidence from a 

qualified physician who, on the basis of a complete and accurate factual and medical history, 

concludes that the disabling condition is causally related to the employment injury and supports 

 4

 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 

5 Dominic M. Descaled, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-09 (1982). 

6

 20 C.F.R. § 10.5(x). 

7 Id. 

8 Alfredo Rodriguez, 47 ECAB 437 (1996). 
7

that conclusion with sound medical reasoning.9

 For each period of disability claimed, the 

employee must establish that he was disabled for work as a result of the accepted employment 

injury. The Board will not require OWCP to pay compensation for disability for which 

compensation is claimed. To do so would essentially allow an employee to self-certify his or her 

disability and entitlement to compensation.10

ANALYSIS -- ISSUE 1 

OWCP accepted that on March 7, 2013 appellant sustained a closed fracture of the right 

ankle and MCL sprain of the right knee when he slipped and fell at work. He underwent right 

ankle surgery and was placed off work. On May 25, 2014 appellant returned to work. He 

stopped work again on February 11, 2015 and filed various claims for wage-loss compensation. 

OWCP denied appellant’s recurrence of disability claims finding that he had failed to provide 

sufficient medical evidence to establish that his March 7, 2013 work-related injuries changed or 

worsened to the extent that he was no longer able to work. The Board finds that the medical 

evidence of record is insufficient to establish that appellant was disabled from work beginning 

February 11, 2015 as a result of his work-related injury. 

Appellant received medical treatment from Dr. Pena during the claimed period of 

disability. In work status reports dated February 11 to April 6, 2015, he indicated that appellant 

could not work beginning February 11, 2015 until he underwent a lumbar consultation. 

Although Dr. Pena advised that appellant could not work beginning February 11, 2015, he did 

not provide any opinion on the cause of appellant’s inability to work. The Board has found that 

medical evidence which does not offer any opinion regarding the cause of disability is of limited 

probative value on that issue.11 Dr. Pena further related in an October 26, 2015 report that 

appellant had been on and off work between May 2014 and March 2015. He noted that appellant 

complained of increasing pain in his lateral ankle and back. Dr. Pena diagnosed right ankle pain 

of unknown etiology and status post right ankle surgery. In a work status form, he noted that 

appellant was unable to work. However, Dr. Pena did not address any specific period of 

disability, but merely noted in general terms that appellant had been off work intermittently from 

May 2014 and March 2015. Moreover, he failed to explain whether appellant’s inability to work 

was causally related to his March 7, 2013 employment injury or otherwise provide medical 

reasoning for why appellant’s current symptoms or disability was due to his work-related right 

knee and ankle injuries. For these reasons, the Board finds that Dr. Pena’s reports are 

insufficient to establish appellant’s recurrence of disability claim.12

Appellant also received treatment from various physician assistants, including 

Ms. Zachel, Ms. Freeman, and Mr. Weiske in reports dated February 27 to November 24, 2015. 

 9 Nicolea Bruso, 33 ECAB 1138 (1982). 

10 Amelia S. Jefferson, 57 ECAB 183 (2005). 

11 J.H., Docket No. 15-1877 (issued May 3, 2016); Michael E. Smith, 50 ECAB 313 (1999). 

12 See William A. Archer, 55 ECAB 674 (2004) (the Board will not require OWCP to pay compensation for 

disability in the absence of medical evidence directly addressing the specific dates of claimed disability with 

medical rationale). 
8

These reports, however, are of no probative value to establish appellant’s recurrence of disability 

claim as physician assistants are not considered “physicians” under FECA.13 

There are no other medical reports of record which address the issue of appellant’s 

disability beginning February 11, 2015. The medical evidence of record fails to establish that 

appellant was unable to work beginning February 11, 2015 as a result of his March 7, 2013 

employment injury. The Board notes that a May 28, 2014 MRI scan examination of appellant’s 

right knee by Dr. Block and an August 4, 2014 CT scan report of appellant’s right ankle by 

Dr. Weinberg suggested no significant abnormalities. Accordingly, the medical evidence of 

record does not support a spontaneous change or worsening of appellant’s work-related right 

ankle and knee injuries to the extent that appellant was no longer able to work. 

The Board finds that appellant did not submit evidence to show a change in the nature 

and extent of his work-related right ankle and knee injuries. Therefore, appellant did not meet 

his burden of proof to establish a recurrence of disability beginning February 11, 2015 causally 

related to the March 7, 2013 employment injury. 

LEGAL PRECEDENT -- ISSUE 2 

It is an accepted principle of workers’ compensation law that, when the primary injury is 

shown to have arisen out of and in the course of employment, every natural consequence that 

flows from the injury is deemed to arise out of the employment, unless it is the result of an 

independent intervening event.14 Once the work-connected character of an injury has been 

established, the subsequent progression of that condition remains compensable so long as the 

worsening is not shown to have been produced by an independent, nonindustrial cause.15 The 

basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and 

distinct injury, is compensable if it is the direct and natural result of a compensable primary 

injury.16 

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

for a consequential injury.17 As part of this burden, he or she must present rationalized medical 

opinion evidence, based on a complete factual and medical background, showing causal 

 13 Section 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. As nurses, physician assistants, physical and occupational therapists are not “physicians” as defined 

by FECA, their medical opinions regarding diagnosis and causal relationship are of no probative medical value. 

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005). 

14 See Kathy A. Kelley, 55 ECAB 206 (2004); Carlos A. Marerro, 50 ECAB 170 (1998). 

15 Where a person has a preexisting condition that is not disabling, but which becomes disabling because of 

aggravation causally related to the employment, then regardless of the degree of such aggravation, the resulting 

disability is compensable. P.B., Docket No. 13-1866 (issued March 7, 2014); S.W., Docket No. 11-1678 (issued 

February 22, 2012); Arnold Gustafson, Docket No. 89-438 (issued October 30, 1989). 

16 See A. Larson, The Law of Workers’ Compensation § 10.01 (June 2010). 

17 J.A., Docket No. 12-603 (issued October 10, 2012). 
9

relationship. Rationalized medical evidence is an opinion of reasonable medical certainty and 

must be supported by sound medical rationale explaining the nature of the relationship of the 

diagnosed condition and the specific employment factors or employment injury.18

ANALYSIS -- ISSUE 2 

OWCP accepted appellant’s claim for closed fracture of the right ankle and MCL sprain 

of the right knee. Appellant alleges that he developed a lumbar condition as a result of walking 

with an altered gait due to his right ankle and right knee conditions. The Board finds that 

appellant has not established a consequential back injury as a result of his accepted right ankle 

and right knee injuries. 

Appellant submitted various reports by Dr. Thorson to support his claim for a 

consequential back injury. In an April 23, 2015 report, Dr. Thorson related appellant’s 

complaints of pain in his neck, upper back, right foot, right knee, and right hip. He reviewed 

appellant’s history and conducted an examination. Dr. Thorson diagnosed right knee arthralgia, 

right knee sprain, chronic pain syndrome, and lumbar spinal stenosis. He noted that “the low 

back is not related to this case.” In a March 29, 2016 report, Dr. Thorson indicated that he had 

treated appellant since January 2014 for work-related injuries to the right ankle and right knee. 

He noted that he subsequently treated appellant for low back pain secondary to lumbar spinal 

stenosis and spondylosis. Dr. Thorson opined that appellant developed the low back issue 

secondary to the initial lower extremity issue. He explained that appellant had to walk with an 

altered gait, “which may have” advanced the low back pain issue. Dr. Thorson reported “that the 

altered gait caused by the initial right ankle and right knee injuries caused or at least materially 

contributed to the lumbar stenosis/spondylosis.” He indicated that appellant could work with 

restrictions. 

Although Dr. Thorson opined that appellant’s lumbar condition was causally related to 

the March 7, 2013 employment incident, he did not provide any medical rationale or explanation 

to support his conclusion. The Board has found that 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.19 Dr. Thorson attributed appellant’s subsequent back 

condition to his work-related right ankle and knee injuries because appellant had to walk with an 

altered gait. He did not, however, explain the mechanism of how appellant’s uneven walking 

caused or contributed to a subsequent lumbar condition. The Board has held that 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 a causal relationship.20 

A well-rationalized opinion based on medical rationale is particularly warranted in this 

case when Dr. Thorson did not attribute appellant’s lumbar condition to his work-related injuries 

 18 Id. 

19 T.M., Docket No. 08-975 (February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009). 

20 E.J., Docket No. 09-1481 (issued February 19, 2010). 
10

until two years after the March 7, 2013 employment injury. Moreover, the medical evidence of 

record demonstrates that a February 6, 2015 MRI scan of the lumbar spine by Dr. Kvamme 

showed mild degenerative changes with stenosis. Thus, it is unclear if appellant’s current lumbar 

complaints and inability to work relate to his March 7, 2013 employment injury or to previously 

degenerative changes.21 Accordingly, the Board finds that Dr. Thorson has failed to provide 

adequate medical rationale to support his conclusion that appellant sustained a consequential 

back injury. 

Appellant also received treatment from Dr. Pena for his back symptoms. In an April 6, 

2015 progress note, Dr. Pena noted that appellant was not approved for workers’ compensation 

with regards to the association between appellant’s low back pain and his right ankle. He 

explained that he could neither guarantee nor rule out the fact that appellant’s back was not 

causally connected to the ankle injury. Dr. Pena opined that there was a “possibility” that 

appellant had some aggravation of his back given the fact that he had been limping and walking 

unevenly on his ankle joint. He further indicated in an October 26, 2012 report that there was a 

“possibility” that appellant’s walking boot and altering his gait contributed to his hip and back 

pain. The Board notes that Dr. Pena’s opinion lacks probative value as it is vague, equivocal, 

and speculative in nature.22 He failed to provide any definitive explanation for how appellant 

developed a consequential back injury as a result of the March 7, 2013 employment injury. An 

award of compensation may not be based on surmise, conjecture, speculation, or upon 

appellant’s own belief that there is causal relationship between his claimed condition and his 

employment.23 Accordingly, these reports are insufficient to establish a consequential back 

injury. 

On appeal, counsel alleges that Dr. Thorson clearly opined that the altered gait caused by 

appellant’s work-related right ankle and right knee injuries caused or at least materially 

contributed to his lumbar stenosis/spondylosis. As explained above, however, Dr. Thorson’s 

reports lacked sufficient medical rationale to support his opinion on causal relationship. 

Appellant has not submitted sufficient medical evidence to establish that he sustained a 

consequential lumbar condition due to his March 7, 2013 employment injury. Accordingly, the 

Board finds that he failed to meet his burden of proof to establish his claim. 

Appellant may submit new evidence or argument as part of a formal 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. § 10.606 through § 10.607. 

CONCLUSION 

The Board finds that appellant has not established a recurrence of disability from work 

commencing February 11, 2015 causally related to his March 7, 2013 employment injury. The 

 21 R.E., Docket No. 14-868 (issued September 24, 2014). 

22 D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004). 

23 Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001). 
11

Board also finds that he has not established a consequential back injury causally related to his 

work-related right ankle and right knee injuries. 

ORDER 

IT IS HEREBY ORDERED THAT the July 7, 2016 merit decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 3, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board