United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

EAST ORANGE VA MEDICAL CENTER,

East Orange, NJ, Employer

__________________________________________

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Docket No. 23-0768

Issued: December 22, 2023

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 3, 2023 appellant, through counsel, filed a timely appeal from a March 3, 2023 

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 March 3, 2023 decision, appellant submitted additional evidence to OWCP.

However, the Board’s Rules of Procedures 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 his burden of proof to establish a medical condition 

causally related to the accepted December 10, 2020 employment incident.

FACTUAL HISTORY

On December 14, 2020 appellant, then a 52-year-old diagnostic radiology technician, filed 

a traumatic injury claim (Form CA-1) alleging that on December 10, 2020 he sustained an injury 

to his legs when he lifted a portable x-ray machine tube while in the performance of duty. He

stopped work on December 11, 2020.

In a December 10, 2020 report, Dr. Brian A. Bannister, an anesthesiologist specializing in 

pain management, recounted appellant’s history of low back and leg pain commencing in 

June 2017, worsened by standing, walking, bending, and twisting. He noted that appellant had 

undergone a discectomy in 2018. On examination, Dr. Bannister observed bilaterally positive 

straight leg raising, Gaenlen’s, and Patrick’s tests, and tenderness to palpation of the lumbosacral 

spine at L4-5 and L5-S1. He noted that appellant had undergone a magnetic resonance imaging 

(MRI) scan on an unspecified date, which demonstrated bulging/herniated discs at L4-5 and L5-S1.

Dr. Bannister diagnosed lumbago of the lumbar region with sciatica, lumbar radiculopathy, 

lumbosacral radiculopathy, lumbar spondylosis without myelopathy or radiculopathy, and chronic 

pain syndrome.

In a December 30, 2020 attending physician’s report (Form CA-20), Dr. Bannister 

recounted that on December 10, 2020 appellant lifted a tube on a portable x-ray machine. He 

diagnosed lumbago, radiculopathy, and spondylosis. Dr. Bannister checked a box marked “Yes”

indicatingthat the diagnosed conditions had been aggravated by the claimed employment incident. 

He found appellant totally disabled from work for the period December 14, 2020 through 

February 1, 2021. 

In development letters dated February 5 and 12, 2021, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence needed and 

provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond.

On January 15, 2021 Dr. Bannister diagnosed lumbar lumbago with sciatica, lumbar and 

lumbosacral radiculopathy, lumbar spondylosis without myelopathy or radiculopathy, and chronic 

pain syndrome.

OWCP received a January 22, 2021 report by Dr. Bannister diagnosing lumbar and 

lumbosacral radiculopathy, lumbar and lumbosacral intervertebral disc degeneration, and low back 

pain. On January 22, 2021 Dr. Bannister administered intra-articular injections.

In a January 28, 2021 report, Dr. Bannister reiterated previous diagnoses. 

In a January 29, 2021 work slip, Dr. Bannister returned appellant to full-duty work 

effective February 8, 2021.

The record reveals that appellant returned to full-duty work on February 8, 2021. 
3

By decision dated March 16, 2021, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish a causal relationship between his diagnosed 

conditions and the accepted December 10, 2020 employment incident. Therefore, it concluded 

that the requirements had not been met to establish an injury as defined by FECA.

In reports dated March 9 and April 6, 2021, Dr. Bannister reiterated prior findings and 

diagnoses. He noted that appellant was considering surgery. 

In a March 18, 2021 report, Dr. Joshua Seth Rovner, a Board-certified orthopedic surgeon, 

recounted that appellant sustained “an injury at work on December 10, 2020 while lifting 

something. He also had a previous motor vehicle accident in 2017 from which he had a diskectomy 

procedure” at L4-5 and L5-S1. On examination, Dr. Rovner observed difficult toe and heel 

walking, an antalgic gait, limited lumbar range of motion due to pain, a positive left straight leg 

raising test, and decreased sensation in the plantar aspect of both feet. He obtained x-rays, which 

demonstrated grade 2 spondylolisthesis at L4-5, reduced to grade 1 on extension. Dr. Rovner 

diagnosed lumbar stenosis and spondylolisthesis at L4-5 and L5-S1. He recommended an anterior 

lumbar interbody fusion at L4-5 and L5-S1 with instrumentation and likely a left-sided 

foraminotomy. 

In a July 8, 2021 report, Dr. Rovner recounted appellant’s continuing, severe low back pain 

and bilateral posterolateral lower extremity pain. He noted that appellant wished to proceed with 

lumbar fusion. 

On March 15, 2022 appellant, through counsel, requested reconsideration. 

In a March 23, 2022 report, Dr. Bannister recounted appellant’s treatment history. He 

noted that in early October 2021, appellant underwent anterior lumbar interbody fusion at L4-5 

and L5-S1. Dr. Bannister opined that the “functions of his present job” would exacerbate his 

injury. 

By decision dated November 3, 2022, OWCP denied modification of its March 16, 2021 

decision. 

On December 6, 2022 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence. 

In a February 8, 2022 report, Dr. Rovner noted reviewing the medical evidence of record, 

as well as medical reports and imaging studies dated prior to the December 10, 2020 employment 

injury, which were not previously of record. He recounted appellant’s history of back pain 

commencing in 2014, a June 16, 2017 motor vehicle accident (MVA), and May 14, 2018 rightsided L4-5 and left-sided L5-S1 laminotomy/microdiscectomy. On December 10, 2020 appellant 

“sustained an injury to his lower back while at work” after lifting a portable x-ray machine tube. 

Dr. Rovner diagnosed a disc herniation with spondylolisthesis at L4-5 and a disc herniation at 

L5-S1. He opined that the December 10, 2020 injury, superimposed on a preexisting lumbar spine 

condition, caused an immediate worsening of symptoms requiring conservative care, pain 

management, and an October 6, 2021 anterior and posterior lumbar interbody fusion at L4-5 and 

L5-S1 with interbody cage placement. Dr. Rovner added that the December 10, 2020 employment 

incident caused immediate, objective, permanent lumbar spine injuries verified by physical 

examination and medical testing. He opined “to a reasonable degree of medical probability that 
4

the exacerbation of his lumbar condition was directly causally related to the injury on 

December 10, 2020. [Appellant] had a severe exacerbation of pain and sought out medical 

treatment immediately following the injury.” Dr. Rovner attributed 10 percent of appellant’s 

lumbar condition to preexisting problems, 50 percent to the June 16, 2017 MVA, and 40 percent 

to the December 10, 2020 employment incident.

By decision dated March 3, 2023, OWCP denied modification of its November 3, 2022 

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 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

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. 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. Second, the employee must submit sufficient evidence 

to establish that the employment incident caused an injury.8

The medical evidence required to establish causal relationship between a claimed specific 

condition and an employment incident is rationalized medical opinion evidence. 9 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 

4

Supra note 2.

5 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P.,Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989).

6 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H.,Docket No. 18-1637 (issued January 29, 2020);

James E. Chadden, Sr., 40 ECAB 312 (1988).

7 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M.,Docket No. 15-1660 (issued September 16, 2016);

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

8 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).

9

S.S.,Docket No. 19-0688 (issued January 24, 2020);A.M.,Docket No. 18-1748 (issued April24, 2019); RobertG. 

Morris, 48 ECAB 238 (1996).
5

nature of the relationship between the diagnosed condition and the employment incident identified 

by the employee.10

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.11

ANALYSIS

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

In a March 18, 2021 report, Dr. Rovner recounted a history of a 2017 motor vehicle 

accident with L4-5 and L5-S1 discectomy, and the December 10, 2020 employment incident. He 

diagnosed a spondylolisthesis at L4-5 and L5-S1, and lumbar stenosis. Dr. Rovner recommended 

lumbar fusion at L4-5 and L5-S1. In a July 8, 2021 report, he noted that appellant wished to 

proceed with the recommended lumbar fusion due to continued, severe low back pain and bilateral 

lower extremity pain. In a February 8, 2022 report, Dr. Rovner recounted appellant’s history of 

back pain commencing in 2014, the June 16, 2017 motor vehicle accident, and May 14, 2018 rightsided L4-5 and left-sided L5-S1 laminotomy/microdiscectomy. He provided a detailed description 

of the accepted December 10, 2020 employment incident. Dr. Rovner opined that appellant 

sustained a new, permanent lumbar injury on December 10, 2020, superimposed on his preexisting 

lumbar conditions, requiring anterior and posterior interbody fusion at L4 -5 and L5-S1 on 

October 6, 2021. He opined that “to a reasonable degree of medical probability that the 

exacerbation of his lumbar condition was directly causally related to the injury on 

December 10, 2020. [Appellant] had a severe exacerbation of pain and sought out medical 

treatment immediately following the injury.”

Dr. Rovner identified the December 10, 2020 employment incident, which appellant 

claimed caused his lumbar condition and explained how the identified employment incident 

worsened his preexisting lumbar conditions. He provided an explanation as to how the accepted 

employment incident was sufficient to aggravate appellant’s preexisting spondylolisthesis at L4-5 

and L5-S1. The Board finds that Dr. Rovner’s opinion, while insufficiently rationalized to meet 

appellant’s burden of proof, is sufficient to require further development of the record. 12

10 S.C., Docket No. 21-0929 (issued April 28, 2023); T.L.,Docket No. 18-0778 (issued January 22, 2020);

Y.S., Docket No. 18-0366 (issued January 22, 2020); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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

J.T., Docket No. 22-1308 (issued May 25, 2023); R.D., Docket No. 18-1551 (issued March 1, 2019). 

12 J.T., id.; R.A., Docket No. 19-0650 (issued January 15, 2020); B.M., Docket No. 18-0448 (issued January 2, 

2020); E.G., Docket No. 19-1296 (issued December 18, 2019); John J. Carlone, supra note 8.
6

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 

While it is appellant’s burden of proof to establish the claim, OWCP shares responsibility in the 

development of the evidence.13 It has the obligation to see that justice is done.14

The Board shall therefore remand the case to OWCP for further development of the medical 

evidence. On remand, OWCP shall refer appellant, along with a statement of accepted facts 

(SOAF) and the medical record, to a physician in the appropriate field of medicine for a 

rationalized opinion regarding whether appellant’s diagnosed lumbar conditions are causally 

related to the December 10, 2020 employment incident. If the physician opines that the diagnosed 

conditions are not causally related to the December 10, 2020 employment incident, he or she must 

explain with rationale how or why their opinion differs from that of Dr. Rovner. Following 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 March 3, 2023 decision of the Office of Workers’

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

with this decision of the Board.

Issued: December 22, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

13 Id.

14 Id.