United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

SUPPORT SYSTEMS COMMAND,

Point Mugu, CA, Employer

__________________________________________

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Docket No. 22-0637

Issued: November 30, 2022

Appearances: Case Submitted on the Record

Brett E. Blumstein, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On March 25, 2022 appellant, through counsel, filed a timely appeal from a December 13, 

2021 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.

ISSUE

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

causally related to factors of his federal employment.

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

FACTUAL HISTORY

On September 17, 2020 appellant, then a 61-year-old wood worker, filed a traumatic injury 

claim (Form CA-1) alleging that on August 13, 2020 he triggered his sciatica while loading boxes 

onto a shipping truck while in the performance of duty. He explained that the boxes weighed from 

80 to 130 pounds. Appellant reported that the pain was prominent on the right side of his body 

starting from the lumbar area and down the right hamstring. On the reverse side of the claim form 

the employing establishment acknowledged that appellant was injured in the performance of duty 

and noted that he had aggravated a preexisting condition. Appellant stopped work on August 17, 

2020 and returned to work on August 31, 2020.

In a September 30, 2020 development letter, OWCP advised appellant of the deficiencies 

of his claim. It explained the type of additional evidence needed and provided a questionnaire for 

his completion. OWCP afforded him 30 days to submit the necessary evidence. 

In an August 18, 2020 emergency department report, Dr. Richard R. Rutherford, a Boardcertified emergency and family medicine specialist, related that appellant had right-sided low back 

pain radiating to the right hip, progressively worsening over the past three weeks. Appellant 

reported that he was a wood worker and often had to lift objects weighing up to 100 pounds and 

had continued to do his work until that day, when his pain was so severe that he sought emergency 

care. Dr. Rutherford’s examination revealed point tenderness to the right gluteal region with 

palpable spasm and antalgic gait secondary to pain. He opined that appellant’s symptoms had 

likely been exacerbated by continuing to lift heavy objects at work and noted that he suspected a 

musculoskeletal etiology of pain. Dr. Rutherford diagnosed acute low back pain and advised 

appellant to monitor his symptoms and return to the emergency department f or sustained pain or 

worsening symptoms.

In an August 26, 2020 emergency department report, Dr. Martin Ehrlich, a Board-certified 

emergency medicine specialist, related that appellant presented with right-sided buttocks and groin 

pain and had a history of sciatica with similar symptoms. Appellant reported that his pain was 

greatest when laying down and standing and that he had difficulty with ambulation due to leg 

weakness. He also reported that his pain started after repetitive heavy lifting and a twisting injury 

while at work. Dr. Ehrlich’s examination revealed tenderness to palpation in the right sacroiliac 

joint and buttocks, inability to ambulate due to pain and subjective weakness in the right lower 

extremity, and decreased sensation along the right lateral leg in an L5 distribution. He reviewed 

x-rays of chest, lumbar spine, and right hip and pelvis and noted that appellant had mild 

dextrocurvature scoliosis of the lumbar spine with degenerative changes and moderate 

degenerative changes in the hips bilaterally. Dr. Ehrlich noted concern that, given the three weeks 

of progressing symptoms, appellant may have a nerve impingement. He also expressed concern 

regarding appellant’s dyspnea on exertion and lower extremity swelling. Dr. Ehrlich noted that 

appellant’s laboratory work was unremarkable and his chest x-ray was negative. He diagnosed 

low back pain, lumbar radiculopathy, and leg weakness. 

By decision dated October 30, 2020, OWCP denied appellant’s traumatic injury claim, 

finding the medical evidence of record was insufficient to establish a medical diagnosis in 

connection with the accepted August 13, 2020 employment incident. Consequently, it found that 

he had not met the requirements to establish an injury as defined by FECA. 
3

In an August 27, 2020 emergency department report, Dr. Zadok Sacks, Board-certified in 

internal medicine, related that appellant had right low back and hip pain that started suddenly while 

moving a heavy box at work two weeks prior and that the pain progressed until appellant was 

unable to walk. Appellant, however, reported being pain-free with a lidocaine patch on his right 

thigh. Dr. Sacks reviewed a lumbar spine magnetic resonance imaging (MRI) scan taken that day, 

which demonstrated multilevel posterior epidural lipomatosis throughout the lumbar spine 

resulting in multilevel spinal canal stenosis with compression of the thecal sac at contiguous disc 

levels from L2-S1, multilevel mild degenerative disc disease and facet joint arthritis greatest at 

L5-S1 where there is grade 1 degenerative anterolisthesis, and L5-S1 moderate central canal 

stenosis and severe right and moderate left intervertebral foraminal stenosis due to uncovering of 

a bulging disc by grade 1 antherolisthesis and moderate-to-severe bilateral facet joint arthritis as 

well as posterior epidural lipomatosis. He indicated that appellant’s condition could be due to an

L2-L3 radiculopathy pattern or a pelvic nerve entrapment syndrome. Dr. Sack’s examination 

revealed pain at the right hip on passive flexion. He diagnosed right low back and hip pain, as 

well as likely muscle strain and underlying degenerative disease of hip joint, central canal stenosis, 

moderate-to-severe facet joint arthritis, and compression of thecal sac from multilevel posterior 

epidural lipomatosis.

On October 20, 2021 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence. 

In an October 13, 2021 report, Dr. John W. Ellis, a Board-certified family medicine 

specialist, evaluated appellant and reviewed his August 2020 medical records and diagnostic 

reports. He explained that on August 13, 2020 appellant picked up a box weighing upwards of 10 

pounds off the floor at work and twisted to the right before placing it down on the processing table. 

When appellant twisted, he experienced “an abrupt electricity-like, sharp sensation that radiated 

from his lower back down to his right buttocks and leg followed by the onset of acute lower back 

pain.” Dr. Ellis described appellant’s progressing symptoms and noted that they had worsened as 

he continued working. Appellant reported no previous injuries to his back or legs other than the 

occasional back strains of working as a carpenter and wood worker. Dr. Ellis diagnosed spinal 

stenosis of the lumbar region, intervertebral disc disorder with radiculopathy of the lumbar region, 

and traumatic arthropathy of the right hip. He recommended that appellant undergo physical 

therapy and advised activity restrictions, including no lifting, pushing, or pulling more than 10 

pounds, pending further evaluation. Dr. Ellis explained that appellant’s acute trauma in his back 

on August 13, 2020 precipitated his underlying moderate-to-severe multilevel degenerative disc 

disease with disc desiccations throughout the lumbar spine and significant central canal stenosis, 

resulting in radiculopathy symptoms. He noted that, after appellant initially took time off work 

following the acute injury, his continuing employment activities, such as minor lifting, bending, 

climbing ladders, and twisting, restrained appellant’s back and “led to further aggravation of

previous underlying injuries.” Dr. Ellis further explained that appellant’s federal employment 

required prolonged repetitive motions and heavy lifting, which causes undue pressure and trauma 

to occur within the muscles, tendons, and ligaments of the back causing further debilitating pain[,]

which causes further aggravation of his intervertebral disc injuries resulting in the compression of 

the nerves due to the disc bulging and disc desiccation, as well as further contributes to his central 

canal stenosis. He described that appellant’s degenerative disc disease of the lumbar spine is a 

condition in which the discs between each vertebra in the lumbar spinal column, which provide 

shock absorbency and vertical lift, deteriorate over time. This deterioration causes lower back 

pain and narrowing of the spinal column. Dr. Ellis concluded that appellant’s bending and twisting 
4

movement on August 13, 2020 led to a bulging of a lumbar disc, which precipitated radiating nerve 

pain into the right lower extremity. He opined with reasonable medical certainty that, based on 

his examination of appellant, his review of appellant’s medical records, and his medical 

experience, appellant’s conditions “arose out of and are the direct result of [appellant’s] continued 

work[-]related activities following the initial acute trauma resulting in subsequent consequential 

injuries.”

In a November 19, 2021 statement, the employing establishment controverted the claim, 

asserting that appellant’s symptoms could have been caused by preexisting conditions and that his 

symptoms seemed to have resolved as he had not sought medical care after August 27, 2020.

By decision dated December 13, 2021, OWCP modified the October 30, 2020 decision to 

find that the medical evidence of record established a medical diagnosis; however, the claim 

remained denied as the medical evidence of record was insufficient to establish how appellant’s

diagnosed condition was causally related to the accepted August 13, 2020 employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including that the individual is an employee of the United 

States within the meaning of FECA, that the claim was filed within the applicable time limitation 

period of FECA,4that an injury was sustained while in the performance of duty as alleged, and 

that any disability or specific condition for which compensation is claimed is causally related to 

the employment injury.5 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.6

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. There 

are two components involved in establishing fact of injury. The first component is that 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. The second component is 

whether the employment incident caused a personal injury and can be established only by medical 

evidence.7

3

Supra note 2.

4

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

153 (1989).

5

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

ECAB 312 (1988).

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

DeloresC. Ellyett, 41 ECAB 992 (1990).

7 P.B., Docket No. 20-1643 (issued March 30, 2022); T.H., Docket No. 19-0599 (issued January 28, 2020); K.L.,

Docket No. 18-1029 (issued January 9, 2019); John J. Carlone, 41 ECAB 354 (1989).
5

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

relationship is rationalized medical opinion evidence.8 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 claimant.9

ANALYSIS

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

In a report dated October 13, 2021, Dr. Ellis reviewed the medical evidence and indicated 

that appellant had initially sustained an acute injury on August 13, 2020 lifting a box at work and 

twisting, and he felt immediate pain in his low back radiating down to his right buttock and leg. 

After some time off work, appellant continued performing his employment duties and his 

symptoms worsened. Dr. Ellis diagnosed spinal stenosis of the lumbar region, intervertebral disc 

disorder with radiculopathy of the lumbar region, and traumatic arthropathy of the right hip . He 

explained that appellant’s federal employment required prolonged repetitive motions and heavy 

lifting which causes undue pressure and trauma to occur within the muscles, tendons, and 

ligaments of the back causing further debilitating pain[,] which causes further aggravation of his 

intervertebral disc injuries resulting in the compression of the nerves due to the disc bulging and 

disc desiccation, as well as further contributes to his central canal stenosis. Dr. Ellis opined that 

the initial August 13, 2020 injury from bending and twistingresulted in a bulging of a lumbar disc, 

which precipitated radiating nerve pain into the right lower extremity. He further found that 

appellant’s continuing employment activities, such as minor lifting, bending, climbing ladders, 

and twisting, restrained appellant’s back and “led to further aggravation of previous underlying 

injuries.”

The Board finds that Dr. Ellis’ report, while not fully rationalized, is sufficient to require 

further development of the medical evidence as it provides a pathophysiological explanation as to 

how the accepted August 13, 2020 employment incident caused or contributed to his diagnosed 

condition. 

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

appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.10 OWCP has an obligation to see that justice is 

done.11

8 A.M., Docket No. 18-1748 (issued April24, 2019); T.H., 59 ECAB 388 (2008).

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

10 Id.;see also A.P., Docket No. 17-0813 (issued January 3, 2018); JimmyA. Hammons, 51 ECAB 219, 223 (1999).

11 See B.C., Docket No. 15-1853 (issued January 19, 2016);E.J., Docket No. 09-1481 (issued February 19, 2010); 

John J. Carlone, 41 ECAB 354 (1989).
6

Accordingly, the Board finds that Dr. Ellis’ medical opinion is sufficient to require further 

development of appellant’s claim.12 On remand OWCP shall refer appellant, along with the case 

record and the statement of accepted facts, to a specialist in the appropriate field of medicine, for 

a reasoned opinion regarding whether he sustained a low back condition causally related to the 

accepted employment factors. If the referral physician disagrees with the opinion of Dr. Ellis, he 

or she must provide a fully-rationalized explanation of why the accepted employment factors were 

insufficient to have caused or contributed to appellant’s medical condition. After this and other 

such 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.

ORDER

IT IS HEREBY ORDERED THAT the December 13, 2021 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: November 30, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

12 See J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); 

WilliamJ. Cantrell, 34 ECAB 1223 (1983).