United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS,

RICHARD L. ROUDEBUSH VA MEDICAL 

CENTER, Indianapolis, IN, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-0404

Issued: July 22, 2020

Appearances: Case Submitted on the Record

Stephanie Leet, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 10, 2019 appellant, through counsel, filed a timely appeal from an

October 28, 2019 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

ISSUE

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

causally related to the accepted December 13, 2016 employment incident.

FACTUAL HISTORY

On December 15, 2016 appellant, then a 43-year-old motor vehicle operator, filed a 

traumatic injury claim (Form CA-1) alleging that on December 13, 2016 he injured his low back 

when he lifted and slid a heavy patient in her extra wide wheelchair into position to get her on a 

wheelchair ramp while in the performance of duty. On the reverse side of the claim form, the 

employing establishment indicated by checking a box marked “No” that he was not injured while 

in the performance of duty and noted that he had a known, preexisting back condition with ongoing 

work restrictions.

3

 Appellant stopped work and received continuation of pay.

In a December 19, 2016 development letter, OWCP informed appellant that the evidence 

submitted was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence necessary to establish his claim and provided a questionnaire for completion. OWCP 

afforded appellant 30 days to provide the necessary factual information and medical evidence. 

Appellant submitted a driver manifest and driver log book for the period December 9 to 13, 

2013 and an e-mail dated December 14, 2016, which indicated that appellant had informed T.R., 

a human resource specialist for the employing establishment, that he had “tweaked” his back on 

December 13, 2016.

In a December 14, 2016 work status note and narrative letter, Dr. Nilda Durany, who 

specializes in family medicine, related appellant’s complaints of low back pain with radicular pain 

into both legs. She noted that appellant worked as a motor vehicle operator and described that on 

December 13, 2016 he felt a “pull in his lower back causing immediate pain” when he lifted and 

slid a patient in a wheelchair onto the wheelchair ramp. Upon examination of appellant’s lumbar 

spine, Dr. Durany observed decreased range of motion with pain and spasm and tenderness upon 

palpation. She further reported positive straight leg raise testing on the right and positive Kemp’s 

test bilaterally. Dr. Durany indicated that a lumbar spine magnetic resonance imaging (MRI) scan 

showed grade 4, L5 on S1 spondylolisthesis. She diagnosed lumbar sprain, spondylolisthesis L5, 

grade 4, sciatica, lumbar, sacral, and pelvic subluxation and opined that the injury appellant 

sustained was a direct result of him lifting his patient on December 13, 2016. Dr. Durany noted 

that appellant had previous low back injuries and that an October 4, 2012 lumbar x-ray examination 

report showed L5-S1 pars defect with minimal anterolistehsis on L5-S1 that appeared stable. She

reported that the December 13, 2016 lifting injury further injured the pars and made it unstable, 

causing a grade 4, L5 on S1 spondylolisthesis. Dr. Durany advised that appellant was “off work”. 

In an e-mail dated December 20, 2016, T.R. noted that appellant had a previous low back 

injury claim that was denied by OWCP. She described the December 13, 2016 incident and related 

 

3 Appellant has two previously filed traumatic injury claims for alleged lumbar injuries sustained on February 22, 

2012 under OWCP File No. xxxxxx422 and on October 4, 2015 under OWCP File No. xxxxxx708. Both claims were 

denied.
3

that appellant had contacted his doctor the following morning. T.R. reported that appellant claimed 

that this current back pain was at a different level than his previous back problems. 

Dr. Durany also completed a duty status form report (Form CA-17) and an attending 

physician’s report (Form CA-20) dated December 20, 2016. She described the December 13, 2016 

lifting incident and indicated that appellant had preexisting grade 1, L5 spondylolisthesis. 

Dr. Durany diagnosed lumbar sprain and grade 4, L5 spondylolisthesis. She checked a box marked 

“Yes” indicating that appellant’s condition was caused or aggravated by the employment activity. 

Dr. Durany explained “pushing, lifting, and sliding a 300-pound patient caused L5 to go from 

[g]rade 1 to [g]rade 4.” She advised that appellant was totally disabled from work.

In a December 28, 2016 letter, T.R. indicated that the employing establishment was 

controverting appellant’s claim on the basis of fact of injury and causal relationship. She alleged 

that the van operated by appellant was equipped with a powered wheelchair lift so it was not 

necessary for appellant to ever lift the patient or exert high levels of pushing or pulling. T.R. also 

noted that appellant continued to work on December 13, 2016 and did not report the incident to 

his supervisor.

A December 29, 2016 note by Dr. Durany indicated that appellant was seen in the office 

that day and was unable to return to work. She reported that appellant’s lumbar spine was unstable 

at L5 and that he could not lift at that time. 

In a January 12, 2017 Form CA-17, Dr. Durany noted a December 13, 2016 date of injury 

and clinical findings of lumbar sprain and grade 4, L5 spondylolisthesis. She checked a box 

marked “No” indicating that appellant could not work. 

On January 13, 2017 appellant submitted his completed questionnaire,signed on January 3, 

2017, and an undated statement. He recounted that on December 13, 2016 he picked up a patient 

from her apartment to take her to an appointment and, when he lifted and pulled the wheelchair 

with the patient to line up with the wheelchair ramp, he felt a pull in his lower back which caused 

pain. Appellant explained that he continued working, but as the day went on, the pain worsened. 

OWCP received emergency department records and discharge instruction sheets dated 

February 22 and October 4, 2012, which related that appellant was treated for complaints of low 

back pain following a back strain injury. Appellant was diagnosed with low back pain. He also

submitted March 5, 2015 emergency department records and discharge instructions sheet, which 

indicated that he received medical treatment after being involved in a motor vehicle collision. The 

discharge diagnosis was back strain. 

In a January 20, 2017 letter, T.R. asserted that appellant had not submitted any medical 

narrative or other substantive medical documentation since December 28, 2016. She reported that 

she was enclosing pertinent medical records from appellant’s previously denied claims. OWCP 

received appellant’s timesheets ranging from November 22, 2009 to November 26, 2016, e-mails 

dated from November 27, 2012 to April 22, 2015 regarding appellant’s previous workers’

compensation claims, and a February 3, 2014 denial of accommodation request. It also received 

medical reports dated November 1 and 27, 2012; a November 2, 2012 Form CA-20, an October 4, 

2012 lumbar spine x-ray report, and an October 11, 2012 lumbar spine MRI scan report.
4

By decision dated January 30, 2017, OWCP denied appellant’s claim. It accepted that the 

December 13, 2016 incident occurred as alleged, but it denied his claim finding that appellant had 

failed to establish causal relationship between the accepted employment incident and his diagnosed

lumbar condition. 

On February 22, 2017 appellant requested reconsideration and submitted additional 

medical evidence, including physical therapy treatment reports dated from December 15, 2016 to 

February 23, 2017. 

Appellant also submitted a February 13, 2017 letter by Dr. Durany that was substantially 

similar to her previous December 14, 2016 letter. In the “Discussion and Causation” section,

Dr. Durany explained that, as appellant lifted and pulled the patient’s extra wide wheelchair onto 

the wheelchair ramp, it caused his lumbosacral spine to twist and he felt immediate pain. She

discussed the findings of a December 14, 2016 lumbar spine x-ray and a December 15, 2016

lumbar spine MRI scan. Dr. Durany reported that it was with reasonable medical certainty that 

the “injury that [appellant] sustained when lifting and pulling the [heavy] patient’s extra wide 

wheelchair, twisted [appellant’s] lumbosacral spine causing a lumbosacral sprain injury, 

aggravation and exacerbation of his preexisting L5-S1 spondylolisthesis, L2-L3 shallow central 

disc protrusion and annular tear and vertebral subluxation complex as demonstrated on the 

December 14, 2016 x-ray scans.” She diagnosed lumbosacral sprain, spondylolisthesis at L5 grade 

1, lumbosacral radiculopathy, other intervertebral disc displacement of the lumbar region, and 

lumbar, sacral, and pelvic vertebral subluxation complex. Dr. Durany concluded that appellant’s 

diagnosed conditions were directly related to the December 14, 2016 injury at work. 

By decision dated April 19, 2017, OWCP denied modification of the February 6, 2017 

decision.

On February 26, 2018 appellant, through counsel, requested reconsideration. In an 

attached letter, counsel indicated that she was submitting a new April 25, 2017 report by

Dr. Durany, which established that the December 13, 2016 employment incident caused 

appellant’s injury.

Appellant submitted an April 25, 2017 letter by Dr. Durany who described the 

December 13, 2016 employment incident and reviewed appellant’s medical history, including his 

prior motor vehicle accident and preexisting back conditions. She discussed appellant’s diagnostic 

testing and provided examination findings similar to her previous letters. Dr. Durany diagnosed 

lumbosacral sprain, lumbosacral radiculopathy, intervertebral disc displacement, lumbar vertebral, 

sacral vertebral, and pelvic vertebral subluxation complex and opined that these conditions were 

directly caused by appellant’s December 14, 2016 injury.

Dr. Durany further explained that when appellant lifted and pulled the patient’s wheelchair 

onto the ramp on December 13, 2016, it caused his lumbosacral spine to twist. She indicated that 

twisting or rotating the lumbar spine while lifting causes stress and can tear the ligaments that 

connect each of the vertebra, resulting in a sprain. Dr. Durany further reported that a rotation of 

the lumbar spine causes a displacement of the disc in between, which is forced out of its confined 

space (herniates) between the vertebra, and can then put pressure on the nerves of the spine which 

exit the vertebral canal through the intervertebral foramen (spaces). She related that the acute pain 
5

that appellant feels in his lumbosacral spine was due to the following: “a sprain of the lumbosacral 

ligaments, (the lumbosacral ligaments attach one both to another), the annular disc tear and 

protrusion at L2-3 (which is the spongy material between the vertebrae which is now protruding 

outside of its space, and aggravation of the spondylolisthesis at L5-S1 and the L5 bilateral pars 

fractures (pars fractures are when the bone breaks and is caused by extension or bending in a 

backward position of the lumbar spine or low back).” Dr. Durany also indicated the chronic 

bilateral L5 pars fracture was a consequence of repetitive stress that preexisted the December 13, 

2016 incident, but was aggravated by the lifting and pulling of the heavy patient in a wheelchair. 

She reported that this aggravation resulted in lumbar vertebral subluxation complex, sacral 

vertebral subluxation complex, and pelvic vertebral subluxation complex. 

OWCP also received a February 7, 2018 narrative report by Dr. Durany who opined that 

appellant’s examination results and diagnosis were consistent with lumbar sprain and annular tear. 

Dr. Durany further elaborated that the lifting, pulling, and pushing on December 13, 2016 had a 

direct causal relationship with this diagnosis. She indicated that the bilateral L5 pars fractures and 

grade 1 anterolisthesis of L5-S1 was a chronic condition, which had remained unchanged, but was 

aggravated due to lifting and pulling a wheelchair with a heavy patient. Dr. Durany noted that the 

subluxation complexes were due to appellant lifting and pulling extreme weight subluxating the 

associated vertebrae from proper alignment.

By decision dated October 16, 2018, OWCP denied modification of the April 19, 2017 

decision.

On October 8, 2019 appellant, through counsel, requested reconsideration. Counsel

asserted that new medical evidence established causal relationship between appellant’s diagnoses 

and the claimed December 13, 2016 employment injury. She also contended that, if the medical 

evidence of record was unclear, OWCP should remand appellant’s claim for further development. 

OWCP received a December 14, 2016 lumbar spine x-ray examination report, which 

showed grade 1, L5 on S1 spondylolisthesis with partial uncovering of the posterior disc annulus, 

secondary to chronic bilateral L5 pars fracture, the L5-S1 foramen is mildly narrowed bilaterally, 

and shallow central protrusion and annular tear at L2-3 without impingement.

In an undated report, Dr. Jerry Powell, who specializes in family medicine, related that 

appellant had been a patient in his office since December 14, 2016 and was receiving treatment 

for a work-related injury. He described the December 13, 2016 employment incident and opined 

that the excessive weight and force used to lift, rotate, and pull the extra wide wheelchair caused 

appellant’s injuries. Dr. Powell reported: “[appellant’s] lifting, pulling, twisting, and bending to 

move the wheelchair caused lumbosacral spine (ligaments and discs) to tear and be pushed beyond 

the biomechanical and structural limits, hence the lumbosacral sprain and the disc displacement 

with radiculopathy and lumbar, sacral, and pelvic subluxations. This also aggravated and 

worsened a preexisting grade 1, L5 spondylolisthesis.” Dr. Powell listed appellant’s specific workrelated injuries as lumbosacral strain, central disc protrusion, subluxation complex noted L4-5, 

S1joint on the right, sacrum, and pelvis, and lumbar radiculopathy.

Appellant submitted medical reports dated February 7, 2014 to February 23, 2016 by

Dr. Warren Hoyt, a Board-certified family physician, who related that he was treating appellant 
6

for follow-up of chronic conditions, including obstructive sleep apnea, lumbar back pain, asthma, 

and obesity.

By decision dated October 28, 2019, OWCP denied modification of the October 16, 2018 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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 of FECA,5that 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 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

In order to determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, OWCP must first determine whether fact of injury has been established.8 

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

sufficient evidence to establish that he or she actually experienced the employment incident at the 

time and place, and in the manner alleged.9 Second, the employee must submit evidence, generally 

only in the form of probative medical evidence, to establish that the employment incident caused 

a personal injury.10 

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

opinion evidence.11 The opinion of the physician must be based on a complete factual and medical 

background of the employee, 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 

 

4 Supra note 2.

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

153 (1989). 

6

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

ECAB 312 (1988).

7 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

8 D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

9 D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

10 B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 

354 (1989).

11 See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).
7

the specific employment factor(s) identified by the employee.12 The weight of the medical 

evidence is determined by its reliability, its probative value, its convincing quality, the care of 

analysis manifested, and the medical rationale expressed in support of the physician’s opinion.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 his claim, appellant submitted an undated report by Dr. Powell who described 

the December 13, 2016 employment incident and opined that the excessive weight and force used 

to lift, rotate, and pull the extra wide wheelchair caused appellant’s injuries. Dr. Powell reported: 

“[appellant’s] lifting, pulling, twisting, and bending to move the wheelchair caused lumbosacral 

spine (ligaments and discs) to tear and be pushed beyond the biomechanical and structural limits, 

hence the lumbosacral sprain and the disc displacement with radiculopathy and lumbar, sacral, and 

pelvic subluxations. This also aggravated and worsened a preexisting grade 1, L5 

spondylolisthesis.” Dr. Powell listed appellant’s specific work-related injuries as lumbosacral 

strain, central disc protrusion, subluxation complex noted L4-5, S1 joint on the right, sacrum, and 

pelvis, and lumbar radiculopathy. 

Appellant also submitted medical reports and letters from Dr. Durany dated December 14, 

2016 to February 7, 2018. In her initial report, she accurately described that on December 13, 

2016 appellant felt a “pull in his lower back” after he lifted and slid a patient in a wheelchair onto 

the wheelchair ramp while at work. Dr. Durany provided examination findings and noted that a 

lumbar spine MRI scan report revealed grade 4, L5 on S1 spondylolisthesis. She diagnosed lumbar 

sprain, spondylolisthesis L5, grade 4, sciatica, lumbar, sacral, and pelvic subluxation and opined 

that the injuries appellant sustained were a direct result of the December 13, 2016 employment 

injury. In an April 25, 2017 letter, Dr. Durany further explained that appellant twisted his 

lumbosacral spine when he lifted and pulled the patient’s wheelchair onto the ramp. She indicated 

that twisting or rotating the lumbar spine while lifting causes stress and can tear the ligaments that 

connect each of the vertebra, resulting in a sprain. Dr. Durany also related that rotating the lumbar 

spine causes a displacement of the disc in between, which forces it out of its space (herniate) 

between the vertebra and can put pressure on the nerves of the spine. She further indicated the 

chronic bilateral L5 pars fracture was a consequence of repetitive stress that preexisted the 

December 13, 2016 incident, but was aggravated by the lifting and pulling of the heavy patient in 

 

12 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 

ECAB 345 (1989).

13 James Mack, 43 ECAB 321 (1991).

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).
8

a wheelchair and caused the lumbar vertebral subluxation complex, sacral vertebral subluxation 

complex, and pelvic vertebral subluxation complex. 

Both Dr. Powell and Dr. Durany described the December 13, 2016 employment incident 

and provided an explanation of how this type of traumatic injury would cause or contribute to 

appellant’s diagnosed condition. Their opinions demonstrate sufficient knowledge of appellant’s 

preexisting lumbar conditions and provide the mechanism of injury explaining how rotating and 

twisting his back on December 13, 2016 put stress and tore the ligaments that connect the vertebra, 

caused a displacement of the discs, and forced the discs out of its confined space. They also noted 

physical findings upon examination and provided an opinion based on an accurate background. 

Thus, the Board finds that, while these physicians’ opinions are not sufficiently rationalized to 

meet appellant’s burden of proof to establish his claim, they are sufficient to require further 

development of the record by OWCP.15

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

appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in 

the development of the evidence.16 OWCP has an obligation to see that justice is done.17

Therefore, the Board finds that the case shall be remanded to OWCP. On remand OWCP 

shall prepare a statement of accepted facts and refer the matter to an appropriate medical specialist. 

Upon referral, the physician shall conduct a physical evaluation and provide a rationalized medical 

opinion as to whether appellant’s lumbar conditions were caused or aggravated by the 

December 13, 2016 employment incident. Following this, and any other further development as 

deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

 

15 See D.P., Docket No. 19-1596 (issued April 23, 2020); J.P., Docket No. 19-1206 (issued February 11, 2020).

16 See e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); 

Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB 

699, 707 (1985).

17 See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983); 

Gertrude E. Evans, 26 ECAB 195 (1974).
9

ORDER

IT IS HEREBY ORDERED THAT the October 28, 2019 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: July 22, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board