United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.T., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS BENEFITS ADMINISTRATION 

REGIONAL OFFICE, Oakland, CA, Employer

__________________________________________

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Docket No. 19-0508

Issued: September 5, 2019

Appearances: Case Submitted on the Record

Daniel M. Goodkin, 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

JANICE B. ASKIN, Judge

JURISDICTION

On January 9, 2019 appellant, through counsel, filed a timely appeal from a July 24, 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 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 24, 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). 
2

ISSUE

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

causally related to the accepted factors of his federal employment. 

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

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

are as follows. 

On January 26, 2015 appellant, then a 44-year-old veterans rating service representative, 

filed an occupational disease claim (Form CA-2) alleging that he developed degenerative joint 

disease (DJD) of the lumbar spine due to factors of his federal employment. He noted that he first 

became aware of his condition and of its relationship to his employment on October 1, 2009. In 

an accompanying narrative statement, appellant reported that he began working for the employing 

establishment in August 2009 at which time he was provided a standard-sized chair and desk. He 

explained that, because he was 6 foot 5 inches and 215 pounds, he requested a chair that would

properly accommodate his body frame as he experienced lumbar pain and discomfort in the chair 

he was provided. However, appellant’s request for a properly fitting chair went unanswered. He

noted that his job entailed sitting for eight hours per day and, prior to working for the employing 

establishment, he had never worked in a sedentary position.

5

 Appellant reported that, despite 

trying other chairs that were in his office, he could not find one that suited his size. He noted that 

the chair he was provided was adjustable up to 21 inches from the floor whereas an ergonomic

evaluation found that his chair base should be 24 to 25 inches off the ground. 

Appellant sought treatment with his attending physician Dr. Juan-Kin K. Fong, a Boardcertified orthopedic surgeon. In reports dated September 12, 2014 through October 9, 2015,

Dr. Fong described appellant’s employment duties, noting that his work required that he sit in a 

chair for prolonged periods of time. He explained that appellant was 6 foot 5 inches tall while his 

workstation chair was only 23 inches high, causing him to sit in an awkward position with his back 

and neck significantly flexed. Dr. Fong reviewed diagnostic testing, explaining that an August 12, 

2014 x-ray of the lumbar spine revealed mild facet changes due to narrowing of the 

neuroforaminae at L4-5/S1. He explained that the presence of these hypertrophic changes in the 

facets suggested early degenerative disc disease of the facets due to activities such as prolonged 

sitting, especially in an ergonomically poor position. Dr. Fong explained that increasing the load 

on these structures would precipitate inflammation of the facet joints, leading to localized muscle 

spasm and pain with decreased motion and activity tolerance. 

Dr. Fong noted that appellant’s work required prolonged sitting at ergonomically 

inadequate workstations (due to his height), thus increasing the pressure in the lower spine. As 

 

4 Docket No. 16-1222 (issued March 9, 2017).

5 The record reflects that appellant began his employment as a veterans rating service representative on 

August 16, 2009. His work was primarily sedentary and he was provided with a computer, mouse, and appropriate 

computer systems technology. Appellant received an ergonomic chair on or about January 19, 2012, and on 

February 14, 2012 his workstation was relocated to accommodate for voice recognition software and a desk top 

podium. 
3

such, the combination of the prolonged sitting and poor ergonomics precipitated appellant’s 

lumbar spine condition which was the cause of the continued back dysfunction. Dr. Fong

explained that ergonomic adjustments were not made for some time, leaving appellant exposed to 

substandard conditions. 

By decisions dated July 10, 2015 and January 4, 2016, OWCP denied appellant’s claim 

finding that the medical evidence of record failed to establish that his diagnosed lumbar conditions

were causally related to the accepted factors of his federal employment. 

On May 17, 2016 appellant appealed to the Board. By decision dated March 9, 2017, the 

Board remanded the case to OWCP for further development of the medical evidence.

6

 The Board 

found that Dr. Fong’s medical reports provided a detailed medical history, physical examination 

findings, and review of diagnostic testing, and that, while none of his reports were completely 

rationalized, they were consistent in indicating that appellant sustained an employment-related 

injury.

On remand OWCP referred appellant, together with a statement of accepted facts (SOAF) 

and the medical record, to Dr. John Hearst Welborn Jr., a Board-certified orthopedic surgeon, for 

a second opinion evaluation. 

In a May 24, 2017 report, Dr. Welborn diagnosed “degenerative joint disease” of the 

lumbar spine and mild facet arthropathy. He opined that these conditions were more than likely 

not medically connected to the reported work injury of sitting in a chair for eight hours at a time 

from 2009 to 2013. Dr. Welborn noted that appellant reported complaints of pain two to three 

months after he started working for the employing establishment in 2009 and this did not cause 

the early degeneration of his facet joints. He explained that appellant had preexisting early lumbar 

facet arthropathy which would be temporarily aggravated by sitting and would not be caused by

sitting. Dr. Welborn reported that appellant had temporary aggravation with sitting in a regular 

chair and was provided an ergonomic chair to avoid this aggravation, which ceased in 2013. He

opined that appellant’s prognosis was poor as his preexisting degeneration would likely worsen 

with time and age. Dr. Welborn concluded that he could continue to work full duty with an 

ergonomic workstation. 

By decision dated July 13, 2017, OWCP denied appellant’s claim finding that the medical 

evidence of record was insufficient to establish that his diagnosed lumbar conditions were causally 

related to the accepted factors of his federal employment. 

On April 27, 2018 appellant, through counsel, requested reconsideration of the July 13, 

2017 OWCP decision. Counsel provided arguments in support of appellant’s occupational disease 

claim and submitted a February 21, 2018 medical report from Dr. Michael Hebrard, Boardcertified in physical medicine and rehabilitation. 

In a February 21, 2018 report, Dr. Hebrard discussed appellant’s history of injury, provided 

findings on physical examination, and summarized diagnostic testing. He diagnosed sprain of 

ligaments of the lumbar spine and other intervertebral disc degeneration of the lumbar region. 

Dr. Hebrard opined, to a reasonable degree of medical certainty, that appellant’s condition was 

causally related to his employment over the past eight years which involved sitting for extended 

 

6 Supra note 4.
4

periods of time. He explained that in his initial two to three years, appellant was sitting in a very 

ergonomically challenged situation during which he was in a squatted position for extended 

periods of time with his back and hips flexed, ultimately causing functional rotation of the pelvis, 

particularly posteriorly at the sacral region, leading to flattening of the normal lordosis, leading to 

an increased amount of stacking of the intervertebral disc.

Dr. Hebrard further explained that, for the last five years, appellant was provided with a 

standup desk and ergonomic keyboard and mouse. However, he opined that the initial events 

caused him to be in a flexed position and given his exceptional height aggravated his underlying 

lumbar spine condition leading to a posterior rotation of the sacral, leading to stress on the 

intervertebral disc, and subsequently to the SI joints and the ligaments. Dr. Hebrard noted that 

appellant’s recovery period was partial and not complete because he had residual functional muscle 

spasms which reduced his functional capacity for sitting for extended periods of time. 

On May 3, 2018 OWCP found that a conflict of medical opinion existed between

Dr. Welborn, the second opinion physician, and Drs. Fong and Hebrard, appellant’s treating

physicians. OWCP prepared a SOAF dated May 3, 2018. 

OWCP referred appellant, the case file, and an updated SOAF to Dr. Roger D. Dainer, a 

Board-certified orthopedic surgeon, for an impartial medical examination. It requested the referee 

physician provide all current diagnoses found with respect to the claim for employment-related 

low back injury. OWCP further requested that he explain the etiology, physiology, and physiomechanism of the diagnoses in relation to appellant’s employment factors. 

In a June 25, 2018 medical report, Dr. Dainer evaluated appellant for the purposes of a 

referee examination and diagnosed chronic lumbar strain and lumbar facet arthrosis of the lower 

segments. He opined that absent appellant’s employment with the employing establishment, he 

would still have the symptoms and clinical findings described in his report. Dr. Dainer further 

opined that any further evaluation and treatment in regards to appellant’s low back condition 

should be procured outside of the claimed employment injury of October 1, 2009. 

By decision dated July 24, 2018, OWCP denied modification of the July 13, 2017 decision. 

It found that the special weight of the medical evidence rested with Dr. Dainer, serving as the 

referee physician, who opined that appellant’s chronic back conditions were not related to the 

accepted factors of his federal employment. 

LEGAL PRECEDENT

An employee seeking benefits under FECA 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,7that an injury was sustained in the performance of duty as alleged, 

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

 

7 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).
5

to the employment injury.8 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.9

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee must submit: (1) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; (2) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the employee.10

Causal relationship is a medical issue, and the medical evidence required to establish causal 

relationship is rationalized medical evidence.

11

 The opinion of the physician must be based on a 

complete factual and medical background of the claimant, must be one of reasonable medical 

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 employee.12

FECA provides that, if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.13 

For a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

14

 Where OWCP has referred the case to an impartial medical examiner (IME) to 

resolve a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well 

reasoned and based upon a proper factual background, must be given special weight.15

When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the 

medical evidence and the IME’s opinion requires clarification or elaboration, OWCP must secure 

a supplemental report from the specialist to correct the defect in his original report. If the referee

physician fails to respond or does not provide an adequate response, OWCP should refer appellant 

for a new IME examination.16

 

8

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

9 A.M., Docket No. 18-1748 (issued April 24, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

10 E.M., Docket No. 18-0275 (issued June 8, 2018); Ruby I. Fish, 46 ECAB 276, 279 (1994). 

11 A.M., Docket No. 18-0685 (issued October 26, 2018).

12 B.J., Docket No. 19-0417 (issued July 11, 2019). 

13 5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

14 C.H., Docket No. 18-1065 (issued November 29, 2018).

15 W.M., Docket No. 18-0957 (issued October 15, 2018).

16 See also W.H., Docket No. 16-0806 (issued December 15, 2016); Federal (FECA) Procedure Manual, Part 2 --

Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11(e) (September 2010).
6

ANALYSIS

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

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s January 4, 2016 decision because the Board 

has already considered that evidence in its March 9, 2017 decision.17 Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.18

Following development of the case on remand from the Board, OWCP found a conflict in

medical opinion between Dr. Welborn, the second opinion physician, and Drs. Fong and Hebrard, 

appellant’s treating physicians. On June 25, 2018 it referred appellant to Dr. Dainer, for an 

impartial medical evaluation (referee examination) to resolve the conflict. 

The Board notes that OWCP requested Dr. Dainer provide all current diagnoses. OWCP

further requested that he explain which, if any, were medically connected to appellant’s 

employment and to explain the etiology, physiology, and physio-mechanism of the diagnoses in 

relation to the factors of appellant’s employment. In his June 25, 2018 report, Dr. Dainer 

diagnosed chronic lumbar strain and lumbar facet arthrosis. He responded to OWCP’s request and 

opined that absent appellant’s employment with the employing establishment, he would still have 

had the symptoms and clinical findings described in his report. Dr. Dainer further opined that any 

further evaluation and treatment in regards to appellant’s low back condition should be procured 

outside of the claimed employment injury of October 1, 2009. 

The Board finds that the opinion of Dr. Dainer is not well rationalized regarding whether 

appellant’s claimed lumbar conditions were causally related to the accepted factors of his federal 

employment, directly or through aggravation, precipitation, or acceleration. The Board has 

consistently held that a medical opinion not fortified by rationale is of limited probative value.19 

OWCP specifically requested that Dr. Dainer provide current diagnoses and an opinion as 

to whether these diagnoses were causally related to appellant’s employment. While OWCP 

provided a timeline in the SOAF as to when appellant was provided an ergonomic chair, Dr. Dainer

was not asked to address appellant’s diagnoses between October 2009, when he first became aware 

of his lumbar condition, and 2012, when he was provided an ergonomic chair. Dr. Dainer therefore 

did not address appellant’s lumbar condition as of the date the claim was filed nor did he provide 

sound medical rationale for his opinion that appellant’s lumbar condition was not related, either 

wholly or in part, to the accepted factors of employment. The record reflects that appellant’s 

treating physicians provided extensive discussion as to how his lumbar condition developed due 

to sitting in a small chair. 

The Board finds that Dr. Dainer did not describe the development of appellant’s lumbar 

condition, he did not discuss appellant’s diagnoses as of the date the claim was filed, nor did he 

explain why sitting in an inappropriately-sized chair could not have been competent to cause or 

 

17 R.H., Docket No. 19-0311 (issued July 2, 2019). 

18 T.H., Docket No.18-1585 (issued March 22, 2019).

19 J.N., Docket No. 17-0237 (issued July 13, 2017); A.D., 58 ECAB 149 (2006).
7

aggravate his condition, as discussed by Dr. Fong and Dr. Hebrard. Furthermore, his blanket 

statement that appellant would still have his current low back symptoms and clinical findings

irrespective of his employment was unrationalized.20 The Board has held that to be entitled to 

special weight, a referee physician’s opinion must contain clear, persuasive rationale on the critical 

issue in the claim.21 However, Dr. Dainer’s report does not contain such rationale and the 

physician failed to resolve the conflict in medical opinion as to whether appellant developed a 

lumbar condition due to sitting in the undersized chair between August 2009 and January 2012. 

Thus, the Board finds that Dr. Dainer’s opinion is of insufficient probative value to carry the 

special weight of the evidence and the case must be remanded for further development.22

Once OWCP undertakes development of the medical evidence, it has the responsibility to 

do so in a manner that will resolve the relevant issues in the case.23 When it obtains an opinion 

from a referee physician for the purpose of resolving a conflict in the medical evidence and the 

opinion requires clarification or elaboration, it must secure a supplemental report from the 

specialist to correct the defect in his original report.24

On remand OWCP should obtain a supplemental report from Dr. Dainer to resolve the 

conflict pertaining to whether appellant’s lumbar condition at the time the claim was filed, and 

thereafter, was causally related to the accepted factors of his federal employment, either directly 

or through aggravation, precipitation, or acceleration. If Dr. Dainer is unable to clarify or elaborate 

on his original report, or if his supplemental report is also vague, speculative, or lacking in 

rationale, OWCP must submit the case record and a detailed SOAF to a new impartial specialist 

for the purpose of obtaining a rationalized medical opinion on the issue.25 Following this and any 

other further development as deemed necessary, OWCP shall issue an appropriate merit decision 

on appellant’s occupational disease claim.

CONCLUSION

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

 

20 J.M., Docket No. 09-1399 (issued February 22, 2010).

21 A.R., Docket No. 17-1358 (issued February 1, 2018).

22 Id.

23 See K.S., Docket No. 18-0845 (issued October 26, 2018).

24 C.B., Docket No. 16-1713 (issued April 21, 2017).

25 R.H., Docket No. 17-1903 (issued July 5, 2018); J.W., Docket No. 15-0020 (issued August 17, 2016).
8

ORDER

IT IS HEREBY ORDERED THAT the July 24, 2018 decision of the Office of Workers’

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

with this decision of the Board.

Issued: September 5, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board