United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JOHN D. DINGELL VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Detroit, MI, Employer

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Docket No. 17-2014

Issued: February 14, 2019

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 September 28, 2017 appellant, through counsel, filed a timely appeal from a July 31, 

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 over the merits of 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 July 31, 2017 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 additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a medical condition 

causally related to the accepted December 24, 2015 employment incident.

FACTUAL HISTORY

On January 4, 2016 appellant, then a 53-year-old medical support assistant, filed a 

traumatic injury claim (Form CA-1) alleging that she sustained a “back sprain/spasms and possible 

sciatica” at work on December 24, 2015 as a result of lifting a box of computer paper in the lower 

level warehouse. She stopped work on December 28, 2015.

In two reports dated December 27, 2015, Dr. Elie Harmouche, an emergency medicine 

physician, diagnosed sciatica, left, and advised that appellant was capable of returning to work on 

January 1, 2016.

A December 27, 2015 lumbar computerized tomography (CT) scan demonstrated multilevel degenerative changes most significant at L4-5 and L5-S1. A left paracentral and foraminal 

disc protrusion at L5-S1 was identified as the mostly likely structural abnormality to cause left 

sciatica.

On January 4, 2016 appellant was seen in the employing establishment’s occupational 

health unit. Dr. Sudhir G. Rao, a Board-certified internist, noted that appellant had left thigh pain 

since December 24, 2015 at 2:00 p.m. after lifting a box weighing approximately 25 pounds at 

work. Appellant felt a pop in her left thigh, felt pain, and then limped to her workstation. Dr. Rao 

indicated that appellant went to see her own physician for her left thigh muscle injury.

In a January 6, 2016 attending physician’s report (Form CA-20), Dr. Anupama Nair, a 

Board-certified internist, diagnosed low back pain with left-sided sciatica and noted that appellant 

was seen in June 2015 with a six-to-seven-month history of low back pain. She checked a box 

marked “Yes” indicating that the condition was caused or aggravated by appellant’s federal 

employment because she stated that her pain worsened after lifting an object at work.

On January 7, 2016 Dr. Lester Kobylak, a Board-certified internist, advised that appellant 

was totally disabled from work until January 21, 2016 causally related to her diagnosis of sciatica 

due to a disc protrusion.

In two reports dated January 21, 2016, Dr. Max Kole, a Board-certified neurosurgeon, 

diagnosed lumbosacral spondylosis without myelopathy and advised that appellant was totally 

disabled from January 21 to February 8, 2016 for a workup of lumbar radiculopathy and further 

evaluation and testing.

A February 8, 2016 lumbar magnetic resonance imaging (MRI) scan revealed spondylotic 

and degenerative changes, greatest at L4-5 and L5-S1.
3

In reports dated February 11, 17, 18, and 24, 2016, Dr. Zarina Alam, a Board-certified 

internist, diagnosed spondylosis of the lumbar spine.4 She advised that appellant was totally 

disabled from work and required a special chair to provide spine support.

In a March 7, 2016 development letter, OWCP advised appellant of the need for additional 

medical evidence in support of her claim for FECA benefits. It afforded her 30 days to submit the 

requested medical evidence.

Subsequently, OWCP received a February 25, 2016 report from Dr. Kole who noted that a 

recent MRI scan of appellant’s lumbar spine showed L5-S1 left lateral and foraminal large disc 

bulge. He indicated that appellant continued to have sharp left hip, buttock, and posterior leg pain.

Appellant submitted two reports dated March 7 and 23, 2016 from Dr. Alam who 

continued to advise that appellant was totally disabled from work.

In an attending physician’s report (Form CA-20) dated March 11, 2016, Dr. Alam 

diagnosed lumbosacral spondylosis and checked a box marked “Yes” indicating that appellant’s 

condition was caused or aggravated by her federal employment. 

A March 21, 2016 lumbar CT scan revealed no acute osseous abnormality and multilevel 

degenerative changes from L1-2 through L5-S1.

On March 28, 2016 Dr. Alam noted that on December 24, 2016 appellant was at work 

when she bent over to pull an object, which collapsed and felt a sudden onset of lower back pain. 

Since that time, appellant had been experiencing constant, severe pain in her lower back, which 

radiated to her left hip. Dr. Alam indicated that appellant sought treatment of her pain and a lumbar 

spine MRI scan, dated February 8, 2016, showed degenerative changes and compression of the L5 

and S1 nerve roots on the left.

By decision dated April 12, 2016, OWCP accepted that the December 24, 2015 

employment incident occurred as alleged, but denied the claim because the medical evidence of 

record failed to establish causal relationship between appellant’s diagnosed conditions and the 

December 24, 2015 work incident.

On April 19, 2016 appellant requested an oral hearing by a representative of OWCP’s

Branch of Hearings and Review and submitted a narrative statement reiterating the factual history 

of her claim.

In reports dated May 3 and June 22, 2016, Dr. Alam advised that appellant remained totally 

disabled from work.

On October 19, 2016 appellant, through counsel, also requested reconsideration and 

submitted an August 31, 2016 report from Dr. Alam who noted that appellant continued to suffer 

low back pain and had not improved with physical therapy.5 Dr. Alam advised that appellant was 

 

4 On January 4, 2016 the employing establishment issued an authorization for examination and/or treatment (Form 

CA-16) by Dr. Alam for appellant’s sciatica.

5 On October 20, 2016 OWCP advised counsel that appellant had already requested an oral hearing, and that only 

one form of appeal could be pursed at a time.
4

incapable of sitting for prolonged periods of time, walking or standing for more than five minutes, 

or bending or lifting objects greater than 10 pounds. She noted that appellant had developed 

worsening hypertension, likely related to the pain and had developed depression due to the chronic 

pain.

Appellant also submitted an emergency room report, dated November 28, 2016, from

Dr. Stephanie Stokes-Buzzelli, a Board-certified emergency medicine specialist, who diagnosed a 

seizure.

A telephonic hearing was held before an OWCP hearing representative on 

January 18, 2017. Appellant provided testimony and the hearing representative held the case 

record open for 30 days for the submission of additional evidence. OWCP did not receive 

additional evidence.

By decision dated March 9, 2017, OWCP’s hearing representative affirmed the April 12, 

2016 decision.

On May 2, 2017 counsel requested reconsideration and submitted an April 12, 2017 report 

from Dr. Neil Allen, a Board-certified internist and neurologist, who opined that appellant’s claim 

should be accepted for strain/sprain of the lumbar spine, contusion of the lumbar spine, and 

aggravation of intervertebral disc disorders with radiculopathy, lumbar region. Dr. Allen reviewed 

appellant’s medical records and noted that on December 24, 2015 she fell to the ground while 

attempting to lift a 50-pound box of paper and landed on her back. He explained that for her 

strain/sprain of the lumbar spine the mechanism of injury was a blunt force trauma that resulted in 

the overstretching of the ligaments and musculature of the lumbar spine beyond their normal range, 

in order to stabilize the spine against said force, resulting in injury. Dr. Allen further explained 

that the surrounding soft tissues would also become inflamed and tender, which are common 

indicators of a contusion. He noted that appellant’s medical records indicated complaints of back 

and left leg pain along with muscle spasms in the low back and left hip and a CT scan of the lumbar 

spine also found disc protrusion at the L5-S1 with compression of the L5 nerve root. Dr. Allen 

concluded that when one fell onto the back, as described by appellant, the lumbar spine was 

positioned in flexion and this flexed position combined with the blunt force trauma sustained when 

she struck the floor led to excessive anterior compression of the disc and stretching of the posterior 

fibers, thereby resulting in symptomatic disc pathology (protrusion, bulging, and extrusion).

By decision dated July 31, 2017, OWCP denied modification of its prior decision.

LEGAL PRECEDENT

A claimant seeking benefits under FECA6 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.7

 

6 Supra note 2.

7 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).
5

To determine whether 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.8 The second component is whether the employment incident caused a personal 

injury.9 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 claimed is 

causally related to the injury.10

Causal relationship is a medical question that generally requires rationalized medical 

opinion evidence to resolve the issue.11 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.12 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).13 

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.14

ANALYSIS

The Board finds that this case is not in posture for decision.

In support of her May 2, 2017 reconsideration request, appellant submitted an April 12, 

2017 report from Dr. Allen who opined that appellant’s claim should be accepted for strain/sprain 

of the lumbar spine, contusion of the lumbar spine, and aggravation of intervertebral disc disorders 

with radiculopathy, lumbar region. Dr. Allen reviewed appellant’s medical records and noted that 

on December 24, 2015 she fell to the ground while attempting to lift a 50-pound box of paper and 

landed on her back. He explained that for her strain/sprain of the lumbar spine the mechanism of 

injury was a blunt force trauma that resulted in the overstretching of the ligaments and musculature 

of the lumbar spine beyond their normal range, in order to stabilize the spine again said force, 

resulting injury. Dr. Allen further explained that the surrounding soft tissues would also become 

inflamed and tender, which are common indicators of a contusion. He noted that appellant’s 

medical records indicated complaints of back and left leg pain along with muscle spasms in the 

 

8 Elaine Pendleton, 40 ECAB 1143 (1989).

9

John J. Carlone, 41 ECAB 354 (1989).

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

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

12 Victor J. Woodhams, 41 ECAB 345, 352 (1989).

13 Id.

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).
6

low back and left hip and a CT scan of the lumbar spine also found disc protrusion at the L5-S1 

with compression of the L5 nerve root. Dr. Allen concluded that when one fell onto the back, as 

described by appellant, the lumbar spine was positioned in flexion and this flexed position 

combined with the blunt force trauma sustained when she struck the floor led to excessive anterior 

compression of the disc and stretching of the posterior fibers, thereby resulting in symptomatic 

disc pathology (protrusion, bulging, and extrusion).

The Board finds that, while the report from Dr. Allen is not completely rationalized, it is 

consistent in finding that appellant lifted a box of computer paper and fell at work on December 24, 

2015 and the evidence now provides an explanation of the process by which such a fall can cause 

a spinal injury. This report is not contradicted by any substantial medical or factual evidence of 

record.15 While Dr. Allen’s report is insufficient to meet appellant’s burden of proof to establish 

a claim, it raises an inference of causal relationship between the claimed condition and factors of 

her federal employment.16

It is well established that proceedings under FECA are not adversarial in nature and, while 

the claimant has the burden of establishing entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.17

On remand OWCP should develop the evidence by obtaining medical records and 

diagnostic studies of appellant’s spinal conditions. It should refer appellant, together with the case 

record and a statement of accepted facts, to an appropriate specialist for a second opinion 

examination to determine whether the accepted December 24, 2015 employment incident caused 

or aggravated appellant’s lower back conditions.18 After such further development as it deems 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

 

15 See E.J., Docket No. 09-1481 (issued February 19, 2010).

16 Id.; see also John J. Carlone, supra note 9.

17 See Phillip L. Barnes, 55 ECAB 426 (2004); Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002).

18 See G.B., Docket No. 09-1768 (issued May 17, 2010).
7

ORDER

IT IS HEREBY ORDERED THAT the July 31, 2017 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: February 14, 2019

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