United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.N., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Oakland, CA, 

Employer

__________________________________________

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Docket No. 19-0621

Issued: September 10, 2019

Appearances: Case Submitted on the Record

Denise Eaton-May, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 17, 2019 appellant, through counsel, filed a timely appeal from an August 30, 

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.

 

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

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish a back 

condition causally related to or as a consequence of his May 5, 2013 employment injury; 

(2) whether OWCP properly denied authorization for back surgery; and (3) whether appellant has 

met his burden of proof to establish an employment-related recurrence of disability beginning 

November 2, 2013.

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 May 8, 2013 appellant, then a 59-year-old maintenance mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that on May 5, 2013 he strained his left ankle in the 

performance of duty when a cart rolled over his foot. OWCP accepted the claim for left ankle 

sprain and a contusion of the left foot. Appellant stopped work on May 9, 2013 and returned to 

work on May 17, 2013. He stopped work again on July 23, 2013.

On May 13, 2013 Dr. Christopher Harold LeMaster, Board-certified in emergency 

medicine, advised that appellant was unable to work until May 13, 2013. In an accompanying 

report, he noted that appellant denied experiencing pain in his neck or back. 

Appellant received treatment from May to August 2013 for a left foot contusion and gout 

of the big toe. In a report dated August 19, 2013, Dr. Roman P. Kownacki, who specializes in 

occupational medicine, related that appellant had “experienced nonindustrial back pain which has 

required [appellant] to bear more weigh[t] on his [left] foot because of his [right] leg pain.” He 

diagnosed a left foot contusion and gout of the big toe, and found that appellant could work with 

restrictions.

On October 7, 2013 Dr. Richard C. Lavigna, a podiatrist, reviewed appellant’s history of a 

May 5, 2013 employment injury. He related:

“[Appellant] states that his back also hurt that night, but the pain in his left foot and 

ankle was so severe and the swelling so severe, he felt that it was just aggravation 

of a sciatic condition that he had been suffering from. He states that, one week 

later, his back symptoms started to intensify to the point where he could not even 

go up steps because of the pain in his back and hips that radiated down into his 

thigh [and] the constant throbbing and swelling of his left foot and ankle.” 

 

3 Docket No. 17-1751 (issued May 3, 2018).
3

Dr. Lavigna opined that appellant’s left foot injury resulted in an aggravation of his sciatica 

or a back strain.4

In an October 30, 2013 report, Dr. Michael Hebrard, a Board-certified physiatrist, found 

that appellant was disabled for work from October 30 to November 4, 2013. Electrodiagnostic 

testing performed October 30, 2013 revealed left L5 radiculopathy or probable bilateral sciatic 

neuropathy. 

On December 3, 2013 appellant telephoned OWCP and requested approval for scheduled 

back surgery. OWCP advised him to submit a comprehensive medical report explaining the need 

for surgery and its relationship to his accepted work injury, and the cause of any claimed disability.

On December 11, 2013 appellant filed a claim for compensation (Form CA-7) requesting 

wage-loss compensation beginning November 2, 2013. 

In a December 12, 2013 progress report, Dr. Lavigna related that appellant had low back 

pain causally related to his employment injury, noting that appellant favored his left foot and ankle 

when he walked. 

By decision dated February 20, 2013, OWCP denied appellant’s claim for wage-loss 

compensation from November 2 to December 13, 2013. It found that the medical evidence was 

insufficient to establish that he was totally disabled due to his May 5, 2013 employment injury.

In January 2014, appellant underwent a decompression laminectomy and a posterior 

lumbar fusion. 

In a February 24, 2014 report, Dr. Hebrard discussed appellant’s May 5, 2013 employment 

injury, noting that appellant experienced pain across the low back radiating into the left foot. He 

diagnosed left L5 radiculopathy, bilateral sciatic neuropathy, and a left foot contusion. 

Dr. Hebrard opined that appellant’s left L5 radiculopathy and bilateral sciatic neuropathy was 

causally related to his May 5, 2013 employment injury. He related:

“As the cart rolled over [appellant’s] foot, [he] retropulsed, that is, hyperextension 

of the lumbar spine followed by a recovery trying to prevent a fall. This initial 

extension caused traction along the sciatic nerve bilaterally leading to inflammatory 

changes. An altered gait resulted from the injury to the left foot and ankle and 

caused a toggling of the pelvis which put stress along the lower lumbosacral spine 

segments leading to posterior bulging of the disc which pressed against the adjacent 

nerve roots, leading to paresthesias, numbness, weakness, and pain, primarily on 

the left side versus the right.”

Dr. Hebrard opined that appellant’s antalgic gait caused the piriformis muscle to be in a 

“state of constant contraction” resulting in compression of the sciatic nerve. He attributed 

 

4

In an October 17, 2013 progress report, Dr. Lavigna advised that appellant had strained his low back and hip on 

May 5, 2013 trying to hold back three other carts. He diagnosed a foot contusion, ankle sprain, lumbosacral strain, 

and sciatica and found that appellant could perform sedentary employment. 
4

appellant’s back condition to “the initial aggravation with retropulsion and flexion of the lumbar 

spine leading to entrapment of the L5 nerve root, and a compensatory altered gait from the left 

swollen foot leading to stress and strain along the sciatic nerve complex bilaterally.”

On March 20, 2014 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

5

 

On May 5, 2014 Dr. Hebrard evaluated appellant for back pain with lower extremity 

weakness and bilateral ankle pain, and noted that appellant had undergone thoracic and lumbar 

surgery on January 20, 2014. He diagnosed thoracic myeopathy, lumbar myelopathy, and sciatica. 

Dr. Hebrard advised that “ongoing mechanical instability, particularly involving [appellant’s] left 

foot and ankle, led to a compensatory lumbar aggravation thereby causing his preexisting spinal 

disc disease to undergo torsional and rotation stress and aggravating and accelerating damage to 

the intervertebral discs, as well as impingement of the adjacent nerve roots.” He again described 

how the spinal injury occurred and opined that the thoracic and lumbar myelopathy with sciatic 

were both directly related to and a consequence of the accepted work injury.6 

A hearing was held on June 18, 2014. Appellant described his injury and noted that he had 

undergone back surgery on January 28, 2014.7 

On June 30, 2014 Dr. Hebrard diagnosed a foot contusion, ankle sprains and strains, 

sacroiliac ligament sprains and strains, and sciatica. He advised that appellant’s altered gait had 

aggravated his spinal nerve root and resulted in “contraction of the lumbar paraspinal muscles 

which are significantly weakened and denervated from the previous lumbar surgery.” Dr. Hebrard 

opined that appellant’s employment injury caused a consequential injury to the lumbar spine due 

to his altered gait and requested that OWCP expand acceptance of his claim to include lumbar 

radiculitis and sacral sprain.

By decision dated August 5, 2014, OWCP’s hearing representative vacated the 

February 20, 2014 decision. She found that the reports from Dr. Hebrard, while not completely 

rationalized, were sufficient to require further development of the medical evidence. The hearing 

representative instructed OWCP to obtain reports associated with appellant’s January 28, 2014 

surgery and refer him for a second opinion examination to determine whether he sustained a back 

condition either directly related to, or as a consequence of, his May 5, 2013 employment injury. 

She further determined that the physician should address whether appellant sustained any periods 

of disability due to the work injury and whether OWCP should authorize the January 28, 2014 

surgery.

In a January 26, 2015 progress report, Dr. Hebrard opined that appellant had sustained a 

consequential injury to his low back due to his work injury of lumbar radiculitis, an aggravation 

of lumbar disc degeneration, and sciatica. He described the mechanism by which a change in gait 

 

5 Dr. Lavigna provided progress reports from April through July 2014 describing his treatment of appellant for his 

left ankle symptoms. 

6 Dr. Hebrard provided a similar report on June 2, 2014 and opined that appellant was totally disabled. 

7 Appellant also indicated that he had a psychiatric condition.
5

resulted in the low back condition. Dr. Hebrard also recommended a psychiatric evaluation and 

expansion of his claim to include a “mood adjustment secondary to this chronic pain syndrome....” 

He opined that appellant was totally disabled.

On May 26, 2015 OWCP referred appellant to Dr. Juon-Kin K. Fong, a Board-certified 

orthopedic surgeon, for a second opinion examination. It requested that he advise whether 

appellant had sustained a back condition either directly due to or aggravated by his May 5, 2013 

work injury and, if so, whether it should authorize the January 2014 back surgery. OWCP also 

requested that Dr. Fong address any periods of disability.

In a report dated September 2, 2015, Dr. Fong discussed appellant’s history of injury and 

the medical reports of record. On examination he found bilateral muscle spasms of the paralumbar 

muscles and a reduced left ankle motion. Dr. Fong diagnosed a left foot contusion, left ankle 

sprain, postlaminectomy syndrome, and obesity. He attributed the ankle and foot diagnoses to the 

work injury. Dr. Fong related:

“One cannot say with any degree of reasonable medical certainty whether the 

incident directly caused, aggravated, precipitated, or accelerated the back problem. 

While, again, [appellant] was severely overweight adding to the force of trauma, 

[two] separate levels of spine injury severe enough to require ‘immediate’ surgery 

is very rare except under very unusual circumstances. His injury was not that 

traumatic to have led to that much damage. It is more likely that [appellant] had 

preexistent spinal pathology and the incident either accelerated or precipitated the 

pathology. He states that he had sciatica before, but was not under treatment so 

aggravation does [not] appear to be an issue. [Appellant], though, was not a cogent 

historian so it may turn out that he was under treatment in which case permanent 

aggravation would have to have been the case since it led to myelopathy and 

surgery. [His] history and the current medical records are insufficient to make this 

decision.”

Dr. Fong indicated that he was unable to determine the periods of employment-related 

disability based on the current medical evidence. He opined that appellant was currently totally 

disabled.

In a progress report dated July 8, 2016, Dr. Hebrard found severe swelling of the left ankle 

at the medial and lateral aspect. He diagnosed a left foot contusion and left ankle sprain and opined 

that appellant was disabled due to his left ankle and foot condition. Dr. Hebrard further opined 

that appellant’s altered gait caused increased pressure on his intervertebral disc and lower lumbar 

spine aggravating a preexisting lumbar condition.

On July 14, 2016 OWCP requested a copy of appellant’s medical records for the past 10 

years. On September 12, 2016 it received his medical records from 2007 onward. On June 29, 

2010 a physician noted that appellant had a history of lumbar radiculopathy and stable chronic low 

back pain. Appellant also received treatment for low back pain on various dates, including 

February 15, 2011 and July 10, 2012. 
6

By decision dated September 14, 2016, OWCP denied appellant’s request to expand the 

acceptance of his claim to include an employment-related back condition and his claim for 

disability compensation. It further denied authorization for back surgery. 

On October 14, 2016 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. A hearing was held on January 3, 2017. Counsel argued that 

appellant’s ankle condition had aggravated his sciatica and that his ankle problems also resulted 

in disability.8 

By decision dated February 13, 2017, OWCP’s hearing representative affirmed the 

September 14, 2016 decision. She found that the weight of the medical evidence was insufficient 

to support claim expansion or disability compensation. The hearing representative further 

determined that OWCP had properly denied authorization for surgery.

Appellant appealed to the Board. By decision dated May 3, 2018, the Board set aside 

OWCP’s February 13, 2017 decision. The Board discussed Dr. Fong’s opinion that if appellant 

had a preexisting back condition then the employment injury may have caused a permanent 

aggravation. The Board noted that OWCP had obtained treatment notes indicating that appellant

had received treatment for his back from 2010 to 2012, but did not provide the treatment notes to

Dr. Fong for his review. The Board remanded the case for OWCP to submit the relevant treatment 

notes to Dr. Fong and request clarification regarding whether the May 5, 2013 employment injury 

either caused or aggravated a back condition, and if so, to address any periods of disability and 

whether OWCP should authorize the January 2014 surgery. 

In a supplemental report dated August 15, 2018, Dr. Fong reviewed the medical evidence 

of record, noting that appellant had received treatment for his back beginning in March 2010. He 

advised that appellant’s spine had worsened in a “nonlinear fashion starting back before 2010 with 

temporary infrequent exacerbations that became more sustained in mid-2013.” Dr. Fong noted 

that appellant had not complained of back pain after his May 2013 employment injury until 

August 23, 2013. He found that there was “no evidence to substantiate” a relationship between 

appellant’s back condition and the May 5, 2013 employment injury. Dr. Fong advised that 

appellant could perform sedentary work beginning September 2, 2015 due to his foot injury, but 

was totally disabled as a result of his back condition.

By decision dated August 30, 2018, OWCP found that appellant had not established that 

he sustained a back condition as a consequence of his May 5, 2013 employment injury. It thus 

denied retroactive authorization for back surgery and his claim that he had sustained an 

employment-related recurrence of disability beginning November 2, 2013. 

 

8 On February 1, 2017 counsel contended that the reports from Dr. Hebrard were of sufficient probative value to 

show that appellant’s back condition resulted from his work injury. She further argued that a conflict existed between 

appellant’s physicians, Dr. Hebrard and Dr. Lavigna, and Dr. Fong, OWCP’s referral physician. 
7

LEGAL PRECEDENT -- ISSUE 1

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

relationship is rationalized medical evidence.9 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 causal 

relationship.10

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, the question is whether compensability should be extended to a 

subsequent injury or aggravation related in some way to the primary injury. The rules that come 

into play are essentially based upon the concepts of direct and natural results and of the claimant’s 

own conduct as an independent intervening cause. 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.11

Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between 

the physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.”

12

 This is called a referee 

examination and OWCP will select a physician who is qualified in the appropriate specialty and 

who has no prior connection with the case.13 Where a case is referred to an impartial medical 

specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently 

well rationalized and based on a proper factual background, must be given special weight.14

ANALYSIS

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

The record reflects an unresolved conflict of the medical opinion evidence between

Dr. Hebrard, appellant’s attending physician, and Dr. Fong, OWCP’s second opinion examiner, 

regarding whether appellant sustained a back condition causally related to or as a consequence of 

his accepted May 5, 2013 employment injury.15

 

9 G.R., Docket No. 18-0735 (issued November 15, 2018).

10 Id.

11 K.S., Docket No. 17-1583 (issued May 10, 2018); Arthur Larson & Lex K. Larson, The Law of Workers’

Compensation § 3.05 (2014).

12 5 U.S.C. § 8123(a).

13 C.W., Docket No. 18-1536 (issued June 24, 2019).

14 V.K., Docket No. 18-1005 (issued February 1, 2019).

15 C.R., Docket No. 18-1285 (issued February 12, 2019).
8

In a report dated February 24, 2014, Dr. Hebrard reviewed appellant’s history of an 

employment injury on May 5, 2013. He found that he had sustained radiculopathy at L5 and 

bilateral sciatic neuropathy casually related to the accepted employment injury. Dr. Hebrard 

advised that appellant had hyperextended his lumbar spine in an effort to prevent falling such that 

he inflamed his sciatic nerve. Due to his left foot and ankle injury, appellant walked with an altered 

gait causing stress in the lower spine and pressure on the nerve roots. Dr. Hebrard provided similar

findings in reports dated June 30, 2014, January 26, 2015, and July 8, 2016.

In a report dated September 2, 2015, Dr. Fong diagnosed a left foot contusion, left ankle 

sprain, postlaminectomy syndrome, and obesity. He advised that it was not possible to determine 

with certainty whether the incident aggravated appellant’s back condition. Dr. Fong indicated that 

if appellant had previously received treatment for spinal pathology and sciatica then he may have 

experienced a permanent aggravation of his condition. In a supplemental report dated August 15, 

2018, he noted that appellant had received treatment for a back condition since March 2010, with 

exacerbations that increased in the middle of 2013. Dr. Fong advised that appellant had not related 

symptoms of back pain after his employment injury until August 23, 2013. He found no 

relationship between appellant’s back condition and his accepted May 5, 2013 employment injury. 

Dr. Fong found that appellant could perform sedentary employment beginning September 2, 2015 

as a result of his foot injury, but remained totally disabled due to his back condition.

Both Dr. Hebrard and Dr. Fong provided a description of appellant’s employment injury 

and both provided rationale for their respective findings based on their review of the medical 

evidence and findings on examination. The Board, therefore, finds a conflict in medical opinion 

regarding whether appellant sustained a back condition causally related to or as a consequence of 

his May 5, 2013 employment injury.16 Under section 8123(a) of FECA, OWCP must resolve this 

conflict by referring him, together with the case record and a statement of accepted facts, to an 

impartial medical specialist.17 If the impartial medical specialist finds that appellant sustained a 

back condition causally related to or as a consequence of his accepted employment injury, the 

specialist should address whether his employment injury necessitated his lumbar surgery and/or 

caused any periods of disability. After such further development as deemed necessary, it shall 

issue a de novo decision.18

CONCLUSION

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

 

16 See A.T., Docket No. 19-0294 (issued May 29, 2019).

17 5 U.S.C. 8123(a); C.W., Docket No. 18-1536 (issued June 24, 2019).

18 In light of the Board’s disposition of the issue of whether appellant sustained a back condition causally related to 

or as a consequence of his employment injury, it is premature to address the issues of disability and surgical 

authorization.
9

ORDER

IT IS HEREBY ORDERED THAT the August 30, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: September 10, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board