United States Department of Labor

Employees’ Compensation Appeals Board

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C.P., Appellant

and

DEPARTMENT OF THE ARMY, 

INSTALLATION MANAGEMENT 

COMMAND, LAWSON ARMY AIRFIELD, 

Fort Benning, GA, Employer

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Docket No. 18-0665

Issued: November 8, 2018

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 8, 2018 appellant filed a timely appeal from an August 23, 2017 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

 

1 5 U.S.C. § 8101 et seq.

2 The record on appeal includes evidence received after OWCP issued its August 23, 2017 decision. The Board’s 

jurisdiction is limited to the evidence in the case record that was before OWCP at the time of its final decision. 

Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1). 
2

ISSUE

The issue is whether appellant has met his burden of proof to establish a lumbar condition 

causally related to the accepted September 10, 2013 employment incident. 

FACTUAL HISTORY

This case has previously been before the Board.

3

 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On September 11, 2013 appellant, then a 32-year-old firefighter, filed a traumatic injury 

claim (Form CA-1) alleging that, on September 10, 2013, he injured his back while pulling a hose 

load of 1.75” attack line of fire apparatus in the performance of duty. He stopped work on 

September 10, 2013.

By decision dated November 25, 2013, OWCP denied the claim, finding that appellant had 

not established a medical diagnosis in connection with the claimed work incident. It further noted 

that the medical evidence of record did not contain a well-rationalized opinion based on objective 

findings on whether and how any diagnosed condition was attributable to identified work 

activities.

On November 7, 2014 appellant requested reconsideration. 

By decision dated December 3, 2014, OWCP modified the prior decision to reflect that fact 

of injury had been established, but the claim remained denied as causal relationship had not been 

established. 

On January 26, 2015 appellant, through counsel, appealed to the Board. By decision dated 

June 2, 2015, the Board affirmed OWCP’s December 3, 2014 decision, finding that the medical 

evidence of record was insufficient to establish that appellant’s diagnosed back conditions were 

caused or aggravated by the accepted September 10, 2013 employment incident.4

On February 8, 2016 OWCP received appellant’s February 3, 2016 request for 

reconsideration. 

In a January 27, 2016 report, Dr. Gary Dawson, a Board-certified neurologist, noted that 

appellant developed pain in the lower back from preexisting pathology in the lumbar spine that 

was not painful until his injury. He indicated that appellant’s magnetic resonance imaging (MRI) 

scan revealed degenerative disc disease and spondylosis. Dr. Dawson concluded that appellant’s 

pain was causally related to the accepted employment incident. 

By decision dated February 17, 2016, OWCP denied appellant’s request for 

reconsideration of the merits of his claim, finding that Dr. Dawson’s January 27, 2016 report was 

 

3 Docket No. 15-600 (issued June 2, 2015). 

4

Id.
3

cumulative and substantially similar to medical evidence already of record. It found that

Dr. Dawson offered a medical conclusion about causal relationship, but failed to explain with

medical rationale how the specific work incident on September 10, 2013 caused or contributed to

the diagnosed condition.

On March 17, 2016 appellant requested reconsideration. He provided a duplicate copy of

Dr. Dawson’s January 27, 2016 report.

OWCP also received medical reports from Dr. Glenn E. Fussell, a Board-certified family 

practitioner, dated from February 24, 2013 through April 1, 2016. In his April 1, 2016 report,

Dr. Fussell noted a chronology of events related to appellant’s lumbar conditions. On February 9, 

2013, as appellant pushed a sliding bay door open, the door jammed and jolted his back causing 

back pain. On February 22, 2013, as appellant was opening a hangar door, the weather stripping 

on the door caught, the door jammed, and as appellant tried to pull the door open, he experienced 

back pain and tingling down to his hips. Dr. Fussell saw appellant on February 22, 2013 and his 

lumbar x-ray evidenced a loss of lordosis, which suggested an injury and spasm. During an office 

visit in July 2013, appellant reported that he was pulling a hose load of 1.75” attack line of the fire 

apparatus and injured his back. On October 21, 2013, while on light duty, he turned a door knob 

in the sleeping quarters and experienced a back spasm that caused him to fall. Dr. Fussell further 

noted that appellant reported having back pain, worse in the morning during a November 15, 2013 

visit. He noted that a November 2015 MRI scan revealed multilevel degenerative changes with 

some abutment of the nerve roots and multilevel neural foraminal stenosis at L4-5 and L5-S1. The 

MRI scan also revealed a broad-based posterior disc osteophyte complex with bilateral facet 

arthropathy causing abutment of the L5 and S1 nerve roots. Dr. Fussell indicated that the MRI 

scan report did not reveal that appellant had spondylosis or spinal stenosis. 

Dr. Fussell opined that appellant had nerve root impingement from posterior disc 

osteophytes. He noted that the cause of the impingement was the osteophyte complexes. 

Dr. Fussell indicated that the work injury did not cause the osteophytes to occur, but could have 

aggravated the compression with some soft tissue swelling, which should have been temporary 

and resolved with his light-duty time at work.

By decision dated June 9, 2016, OWCP reviewed appellant’s case on the merits, but denied 

modification of its prior decisions. It found that the medical evidence of record did not include a 

rationalized medical opinion based on objective medical evidence which established causal 

relationship between the diagnosed conditions and the September 10, 2013 employment incident.

On June 8, 2017 appellant requested reconsideration. In a June 8, 2017 letter, counsel

presented several arguments. He also requested that the new medical evidence from Dr. Fussell 

dated July 6, 2016 be reviewed. 

In his July 6, 2016 report, Dr. Fussell essentially reiterated the contents of his April 1, 2016 

report. He reiterated the chronology and details of the events relating to appellant’s back 

conditions. Dr. Fussell opined “Therefore, it can be said that he has nerve root impingement from 

the posterior disc osteophytes. The cause of the impingement is the osteophyte complexes. The 

work injury did not cause the osteophytes to occur, but could have aggravated the compression 
4

with some soft tissue swelling, which should have been temporary, and should have resolved with 

his light[-]duty time at work.”

By decision dated August 23, 2017, OWCP denied modification of its prior decision. It 

found that appellant had not provided rationalized medical evidence explaining how the accepted 

employment incident of September 10, 2013 had caused or aggravated his back condition.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the 

essential elements of his or her claim including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that an injury was sustained in the performance of duty as alleged, 

and that any disability or specific condition for which compensation is claimed is causally related 

to the employment injury.6 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether the fact of injury has been established. 

There are two components involved in establishing fact of injury. First, the employee must submit 

evidence to establish that he actually experienced the employment incident at the time, place, and 

in the manner alleged.8 Second, the employee must submit evidence, in the form of medical 

evidence, to establish that the employment incident caused a personal injury.9

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. The opinion of the 

physician must be based on a complete factual and medical background of the claimant, must be 

one of reasonable 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.10

 

5 Supra note 1.

6 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

7

J.O., Docket No. 17-0789 (issued May 15, 2018); S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 

345 (1989). A traumatic injury refers to injury caused by a specific event or incident or series of events or incidents 

occurring within a single workday or work shift, whereas an occupational disease refers to an injury produced by 

employment factors which occur or are present over a period longer than a single workday or work shift. 20 C.F.R. 

§ 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).

8 See J.O., id.; Julie B. Hawkins, 38 ECAB 393 (1987).

9 See J.O., supra note 7; John J. Carlone, 41 ECAB 354 (1989).

10 See J.O., supra note 7; see also I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).
5

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a lumbar

condition causally related to the accepted September 10, 2013 employment incident.

In its prior decision dated June 2, 2015, the Board determined that the medical evidence of 

record was insufficient to establish that appellant’s diagnosed back conditions were caused or 

aggravated by his September 10, 2013 employment incident. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.11 The 

Board will, therefore, not review the evidence addressed in the prior appeal.

Appellant subsequently requested reconsideration and submitted additional medical 

evidence. 

In his January 27, 2016 report, Dr. Dawson noted that appellant developed pain in the 

lower back from preexisting pathology in the lumbar spine that was not painful until his injury. 

He indicated that appellant’s MRI scan revealed degenerative disc disease and spondylosis. 

Dr. Dawson concluded that there was a causal relationship between appellant’s pain and the workrelated injury. He, however, offered only a general conclusion on causal relationship. Dr. Dawson

did not offer a rationalized medical explanation regarding causal relationship between the 

diagnosed conditions and the September 10, 2013 employment incident. A mere conclusion 

without necessary rationale explaining why the physician believes that a claimant’s accepted 

employment incident resulted in the diagnosed condition is insufficient.12

While Dr. Fussell noted the September 10, 2013 work incident in his April 1 and July 6, 

2016 reports, he also noted that appellant had several other work-related incidents which caused 

injury to his back: on February 9, 2013, while pushing a bay door open; on February 22, 2013, 

while opening a hangar door; on July 26, 2013, when pulling on a hose line; and on October 21, 

2013 when appellant fell at work due to a back spasm. He failed to provide sufficient rationale 

based on objective medical findings to support that the diagnosed conditions were the result of the 

September 10, 2013 work incident and not related to the other work incidents he noted. Without 

explaining how, physiologically, the employment incident caused or contributed to the diagnosed 

conditions, Dr. Fussell’s reports are insufficiently rationalized and of limited probative value.13 

An explanation as to how, physiologically, the September 10, 2013 incident would have caused 

the diagnosed conditions is especially important given the number of other incidents appellant 

experienced in 2013, allegedly causing back injury. Furthermore, Dr. Fussell offered a speculative 

opinion on causal relationship as he concluded that the “work injury could have aggravated the 

compression with some soft tissue swelling, which should have been temporary and should have 

resolved with his light duty time at work.” As such his April 1 and July 6, 2016 reports are 

insufficient to meet appellant’s burden of proof.

 

11 See H.G., Docket No. 16-1191 (issued November 25, 2016).

12 D.O., Docket No. 18-0086 (issued March 28, 2018).

13 M.B., Docket No. 17-1647 (issued April 2, 2018); D.J., Docket No. 17-0364 (issued April 13, 2018).
6

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

Neither the fact that appellant’s condition became apparent during a period of employment, nor 

the belief that his condition was caused, precipitated, or aggravated by his employment, is 

sufficient to establish causal relationship.14 Causal relationship must be established by rationalized 

medical opinion evidence. The Board finds that the medical evidence of record is insufficient to 

establish a lumbar condition causally related to the September 10, 2013 employment incident. 

Consequently, appellant has not met his burden of proof.

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 a lumbar 

condition causally related to the accepted September 10, 2013 employment incident. 

ORDER

IT IS HEREBY ORDERED THAT the August 23, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 8, 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

 

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