United States Department of Labor

Employees’ Compensation Appeals Board

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M.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Lordsburg, NM, Employer

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Docket No. 18-1391

Issued: February 1, 2019

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 9, 2018 appellant filed a timely appeal from a June 14, 2018 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 entitlement to wageloss compensation for the period May 26 through July 22, 2017 causally related to his May 1, 2017

employment injury. 

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On May 16, 2017 appellant, then a 19-year-old border patrol agent trainee, filed a traumatic 

injury claim (Form CA-1) alleging that, on May 1, 2017, he injured his low back and right rib 

during training when he fell while climbing a high rope in the performance of duty. He did not 

stop work. OWCP accepted the claim for cervical sprain, lumbar sprain, headache, and dizziness. 

In a June 9, 2017 report, Dr. Keith R. Johnson, a Board-certified orthopedic surgeon, 

obtained a history of appellant injuring his ribs, cervical spine, and lumbar spine on May 1, 2017 

when he fell from a rope during training at the employing establishment. Appellant complained 

of back pain with weakness, tingling, and reduced motion, right upper extremity weakness, and 

cervical pain radiating into the bilateral shoulders and causing headaches. Dr. Johnson found that 

appellant had sustained a concussion with loss of consciousness, an incomplete lesion at an 

unspecified level of the cervical cord, and a sprain of the ligaments of the lumbar spine. He 

diagnosed cervical and lumbar sprains, headaches, and dizziness. Dr. Johnson referred appellant 

for a lumbar magnetic resonance imaging (MRI) scan and opined that he should limit activities 

that increased his discomfort. 

By development letter dated June 15, 2017, OWCP advised appellant that his claim 

originally appeared to be for an uncontroverted, minor injury that had resulted in minimal or no 

lost time from work and thus it had paid a limited amount of medical expenses. It notified him 

that it was now formally adjudicating his claim as he had requested authorization for a lumbar 

spine MRI scan study. OWCP informed appellant of the type of factual and medical evidence 

necessary to establish his claim and afforded him 30 days to submit the necessary evidence.

OWCP thereafter received a May 1, 2017 memorandum to the employing establishment’s

physical training instructor from the staff of its health unit indicating that appellant could 

“participate fully in all training programs.” In a May 1, 2017 clinic note, a nurse with the 

employing establishment discussed his history of upper back pain after falling from a rope. The 

nurse indicated that appellant was in moderate distress, diagnosed a left upper back injury, and 

found that he had no restrictions.

In a clinic note dated May 5, 2017, a nurse noted that appellant had experienced pain in his 

right rib after hanging from a rope. The nurse diagnosed rib pain on the right side and found that 

he had no restrictions. The health unit staff advised the physical training instructor that appellant 

could participate in all training programs.

The employing establishment, on May 17, 2017, informed appellant that it had withdrawn 

him from training as a result of his excessive absences. It instructed him to report to an operations 

officer on May 17, 2017.

Dr. Johnson, in a duty status report (Form CA-17) dated June 7, 2017, diagnosed a sprain 

of the ligaments of the lumbar spine and checked a box marked “yes” that the history provided by 

appellant corresponded to that on the form of him falling from a high rope on a training course. 

He opined that appellant was totally disabled from work.
3

In a June 8, 2017 attending physician’s report (Form CA-20), Dr. Johnson diagnosed a 

sprain of the ligaments of the lumbar spine and again checked a box marked “yes” that the 

condition was caused or aggravated by the described employment activity of appellant falling from 

a rope during training. He advised that he was totally disabled from June 7 to 28, 2017.

On July 5, 2017 Dr. Johnson noted that appellant’s insurance carrier had denied 

authorization for a lumbar MRI scan study. He discussed his symptoms of low back pain radiating 

into his right knee and improving rib pain. Dr. Johnson again requested authorization for the 

lumbar MRI scan study, noting that information regarding whether the injury was related to work 

“should be within their own system.”

The requested MRI scan study of the lumbar spine, obtained on July 27, 2017, revealed a 

left paracentral/subarticular protrusion of 9 to 10 millimeters with a “markedly narrowed left 

subarticular recess and encroaching on the traversing left L5 nerve root.” It further revealed a 

protrusion at L5-S1 with no canal stenosis or neuroforaminal narrowing and a protrusion at L3-4 

with mild narrowing of the subarticular recesses.

On July 28, 2018 appellant filed a claim for compensation (Form CA-7) requesting wageloss compensation due to disability from May 26 to July 22, 2017.

OWCP, by letter dated August 8, 2017, requested that the employing establishment clarify 

whether it had terminated appellant due to performance issues. 

Dr. Johnson, on August 15, 2017, reviewed the results of the MRI scan study and diagnosed 

low back pain with radiculopathy of the left lower extremity. In a work capacity evaluation 

(OWCP-5c) of even date, he found that appellant was unable to work pending further evaluation.

By letter dated September 13, 2017, OWCP requested that appellant provide additional 

factual information, including whether the employing establishment had terminated his 

employment, or only withdrawn him from training. It also requested that he provide the reason 

for any termination. 

On September 14, 2017 Dr. Hector O. Pacheco, a Board-certified orthopedic surgeon, 

evaluated appellant for low back pain and noted that he had sustained an injury on May 1, 2017 at 

work. He found that a lumbar MRI scan study showed degenerative disc disease with protrusions 

worse at L3-4 than L2-3 and L4-5. Dr. Pacheco diagnosed lumbago with sciatica.

Appellant, in a September 21, 2017 statement, related that, on May 17, 2017, the 

employing establishment had dropped his enrollment in its training academy as a result of absences 

that he had sustained due to his employment injury. After his injury, the employing establishment 

had transferred him from the academy to another position where he worked limited duty from 

May 17 to 19, 2017. It subsequently had transferred appellant to another location from May 22 to 

26, 2017. On May 26, 2017 appellant received a letter from the employing establishment 

indicating that he had been terminated “due to absences while at the academy.” He asserted that 

the absences occurred due to his injury work. Appellant described absences in April and 

May 2017, noting that in each instance he received treatment in the medical unit. 
4

In a report dated October 20, 2017, Dr. Pacheco discussed appellant’s symptoms of low 

back pain that began on May 1, 2017 after an injury.2 He diagnosed lumbago with sciatica and 

found that he could not work.

Dr. Tifani Gleeson, who specializes in occupational medicine, reviewed the medical 

evidence on November 1, 2017 at the request of the employing establishment. She recommended 

a second opinion examination before returning appellant to a training program or other placement 

in order to determine his current condition and any periods of disability. Dr. Gleeson noted that 

the medical reports did not include “a comprehensive examination of the lumbar spine” or 

objective findings.

By decision dated January 8, 2018, OWCP denied appellant’s claim for wage-loss 

compensation for the period May 26 through July 22, 2017. It determined that the medical 

evidence was insufficient to show that he was disabled from work due to his employment injury 

during the claimed period.

On January 23, 2018 appellant requested reconsideration. In a statement dated January 17, 

2018, he advised that he had stopped contacting the employing establishment after it removed him 

from employment. Appellant indicated that he had continued to receive medical treatment as a 

result of his injury and remained totally disabled from work. 

In a report dated January 29, 2018, Dr. Eduardo G. Vazquez, a Board-certified 

anesthesiologist, discussed appellant’s history of a May 2017 injury when he fell from a rope and 

landed on his back and head, passing out. He went to the medical unit and “was told he was fine.”

Dr. Vazquez found significant tenderness to palpation of the lumbar spine without spasm. He 

diagnosed a lumbar sprain, lumbar radiculopathy, cervical sprain, myalgia, chronic pain syndrome, 

and headache. Dr. Vazquez recommended steroid injections.3 

On March 29, 2018 Dr. Helson Pacheco-Serrant, a neurosurgeon, evaluated appellant for 

low back pain radiating into the left lower extremity. He noted that his symptoms began after he 

fell 20 feet from a rope at work. Dr. Pacheco-Serrant reviewed the results of diagnostic testing 

and diagnosed lumbosacral pain, a lumbar herniated disc, and chronic lumbar radiculopathy.

By decision dated June 14, 2018, OWCP denied modification of its January 8, 2018 

decision. It found that appellant had not established he stopped work due to his accepted 

employment injury rather than the termination of his employment.

LEGAL PRECEDENT

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 evidence.4 For each period of disability 

claimed, the employee has the burden of establishing that he or she was disabled from work as a 

 

2 Dr. Pacheco provided a progress report on November 10, 2017.

3 Dr. Vazquez provided a February 27, 2018 progress report. 

4 T.A., Docket No. 18-0431 (issued November 7, 2018).
5

result of the accepted employment injury.5 Whether a particular injury causes an employee to 

become disabled from work, and the duration of that disability, are medical issues that must be 

proven by a preponderance of probative and reliable medical opinion evidence.6

Under FECA the term disability means incapacity, because of an employment injury, to 

earn the wages that the employee was receiving at the time of injury.7 Disability is, thus, not 

synonymous with physical impairment which may or may not result in an incapacity to earn wages. 

An employee who has a physical impairment causally related to his or her federal employment, 

but who nonetheless has the capacity to earn the wages that he or she was receiving at the time of 

injury, has no disability and is not entitled to compensation for loss of wage-earning capacity.8 

When, however, the medical evidence establishes that the residuals or sequelae of an employment 

injury are such that, from a medical standpoint, they prevent the employee from continuing in his 

or her employment, he or she is entitled to compensation for any loss of wages.9

ANALYSIS

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

wage-loss compensation for the period May 26 through July 22, 2017 causally related to his

accepted May 1, 2017 employment injury. 

On June 7, 2017 Dr. Johnson noted that appellant had injured his ribs, cervical spine, and 

lumbar spine on May 1, 2017 when he fell from a rope on a training course. He diagnosed cervical 

and lumbar sprains, headaches, and dizziness. Dr. Johnson advised that appellant should refrain 

from activities that increased his discomfort. He did not, however, specifically find that he was 

disabled as a result of his work injury. The Board finds that Dr. Johnson did not offer a specific 

medical opinion addressing whether appellant’s disability from work during the claimed period 

was causally related to the accepted work injuries.10 Thus, Dr. Johnson’s reports are insufficient 

to establish the claim. 

In a June 7, 2017 CA-17 form, Dr. Johnson diagnosed lumbar sprain and checked a box 

marked “yes” that the history provided corresponded to that on the form of appellant falling from 

a high rope on a training course. He found that he was totally disabled from employment. In a 

CA-20 form, Dr. Johnson diagnosed a sprain of the ligaments of the lumbar spine and checked a 

box marked “yes” that the condition was caused or aggravated by the described employment 

activity of appellant falling from a rope during training. He determined that appellant was totally 

disabled from June 7 to 28, 2017. The Board has held, however, that an opinion on causal 

 

5 D.R., Docket No. 18-0232 (issued October 2, 2018).

6

Id.

7 See B.K., Docket No. 18-0386 (issued September 14, 2018); 20 C.F.R. § 10.5(f).

8 See B.A., Docket No. 17-1471 (issued July 27, 2018).

9 Supra note 7.

10 G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51 

ECAB 638 (2000).
6

relationship which consists only of a physician checking a box marked “yes” in response to a 

medical form report question regarding whether the claimant’s condition or disability was related 

to the history given is of limited probative value.11 Without any explanation or rationale for the 

conclusion reached, such report is insufficient to establish causal relationship.12 Dr. Johnson did 

not provide any rationale for his opinion, and thus his report is of diminished probative value.13

On July 5, 2017 Dr. Johnson again requested authorization for a lumbar MRI scan study, 

noting that information regarding whether the injury was related to work should be available within 

the employing establishment’s system. As Dr. Johnson did not address the relevant issue of 

whether appellant was disabled from employment during the claimed period due to his accepted 

employment injury, his opinion is of no probative value.14

On an OWCP-5c form dated August 15, 2017, Dr. Johnson reported that appellant was 

unable to work pending further evaluation. He did not, however, provide rationale for his opinion. 

A medical report must include rationale explaining how the physician reached his conclusion 

regarding disability.15 The Board has found that medical opinions unsupported by rationale 

regarding the period of disability claimed are of limited probative value.16

Dr. Pacheco, on September 14, 2017, discussed appellant’s history of low back pain after 

a May 1, 2017 employment injury. He related that a lumbar MRI scan study revealed degenerative 

disc disease with protrusions worse at L3-4 than at L2-3 and L4-5. Dr. Pacheco diagnosed 

lumbago with sciatica. His report is of no probative value as he failed to address whether appellant 

was disabled from work during the claimed period due to his accepted employment injury.17

In a report dated October 20, 3017, Dr. Pacheco discussed appellant’s symptoms of low 

back pain that had begun on May 1, 2017 after an injury. He diagnosed lumbago with sciatica and 

found that he could not work. Dr. Pacheco, however, did not explain how or why appellant’s 

accepted employment injury caused a period of disability, and thus his opinion is insufficient to 

meet appellant’s burden of proof.

18

On January 29, 2018 Dr. Vazquez obtained a history of appellant sustaining an injury at 

work in May 2017 when he fell from a rope. On examination he found tenderness to palpation of 

the lumbar spine without spasm. Dr. Vazquez diagnosed a lumbar sprain, lumbar radiculopathy, 

 

11 M.R., Docket No. 17-1388 (issued November 2, 2017).

12 J.R., Docket No. 18-0801 (issued November 26, 2018).

13 M.C., Docket No. 18-0361 (issued August 15, 2018).

14 See L.B., Docket No. 18-0533 (issued August 27, 2018); C.H., Docket No. 17-1239 (issued November 20, 2017).

15 T.J., Docket No. 18-0619 (issued October 22, 2018).

16 C.R., Docket No. 17-0648 (issued August 15, 2018).

17 Supra note 16.

18 P.M., Docket No. 17-1131 (issued January 29, 2018).
7

cervical sprain, myalgia, chronic pain syndrome, and headache. As he did not address appellant’s 

disability status during the claimed period, his report is of no probative value.19

Dr. Pacheco-Serrant, in a report dated March 29, 2018, evaluated appellant for low back 

pain with left radiculopathy that began after he fell from a rope at work. He diagnosed lumbosacral 

pain, a lumbar herniated disc, and chronic lumbar radiculopathy. Dr. Pacheco-Serrant, however, 

did not discuss appellant’s work status or whether he was disabled from his employment, and thus 

his opinion is of no probative value and insufficient to meet appellant’s burden of proof.20

The issue of whether a claimant’s disability from work is related to an accepted condition 

must be established by a physician who, on the basis of a complete and accurate factual and 

medical history, concludes that the disability is causally related to the employment injury and 

supports that conclusion with sound medical reasoning.21 Appellant failed to submit such evidence 

and thus has not met his burden of proof.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 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 entitlement to 

wage-loss compensation for the period May 26 through July 22, 2017 causally related to his 

May 1, 2017 employment injury. 

 

19 Supra note 16.

20 T.C., Docket No. 18-0435 (issued July 10, 2018).

21 Supra note 16. 

22 See K.A., Docket No. 17-1718 (issued February 12, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the June 14, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 1, 2019

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