United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.V., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Amherst, NY, Employer 

__________________________________________ 

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Docket No. 14-1025 

Issued: November 24, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 31, 2014 appellant timely appealed the March 3, 2014 merit decision of the 

Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of the claim. 

ISSUE 

The issue is whether appellant’s claimed lumbar condition is causally related to his 

June 4, 2012 accepted employment exposure. 

FACTUAL HISTORY 

Appellant, a 54-year-old letter carrier, filed a traumatic injury claim (Form CA-1) for a 

lower back condition that allegedly arose in the performance of duty on June 4, 2012. At 

approximately 12:40 p.m., he lifted a bundle of mail from a tray in the front of his work vehicle 

 1

 5 U.S.C. §§ 8101-8193 (2006). 
2

and reportedly felt a tingling, warm, spreading sensation in his lower back. Appellant also 

reported experiencing a heavy feeling and tingling in both legs. He previously injured his back 

at work on January 6, 1999, which OWCP accepted for lumbar disc displacement without 

myelopathy (xxxxxx677). The employing establishment challenged the current traumatic injury 

claim, arguing it should instead be considered a recurrence of appellant’s January 1999 lumbar 

injury. 

On June 5, 2012 appellant was treated at MedFirst Urgent Care for low back strain. He 

was seen by several healthcare providers, including Dr. Vinod R. Patel, a Board-certified family 

practitioner. The MedFirst treatment notes indicated a prior history of herniated disc. With 

respect to appellant’s current complaints, the MedFirst records indicated that on June 4, 2012 he 

turned in his chair and lifted a pile of mail, at which point appellant felt a warm sensation across 

his lower back. A June 5, 2012 lumbar x-ray revealed equal disc spaces and no acute fractures. 

Based on his latest low back injury, appellant was excused from all work for six days and 

advised to resume normal duties effective June 11, 2012. 

Dr. Corine S. Cicchetti, a Board-certified physiatrist, examined appellant on July 9, 2012 

for complaints of lower back pain radiating to his bilateral thighs. Appellant’s symptoms began 

on June 4, 2012 when he was sitting in a mail truck and turned to get a bundle of mail. As he 

turned to exit the truck, appellant reportedly felt a “‘jelly squirt’” in his back. The pain worsened 

throughout the day. Dr. Cicchetti noted that appellant had a work-related back injury since 1999, 

and was being seen by Dr. Eugene J. Gosy, a Board-certified neurologist. Appellant was also 

seeing a chiropractor. His current pain was the same as the previous pain. Dr. Cicchetti noted 

that appellant was employed as a mail carrier, but had not worked since June 4, 2012 due to 

injury/symptoms. A July 9, 2012 lumbar magnetic resonance imaging (MRI) scan revealed 

small central disc herniations at L3-4 and L4-5. Dr. Cicchetti also reviewed appellant’s 

November 11, 2011 lumbar MRI scan, which showed a broad-based disc herniation at L3-4 and 

a central disc herniation at L4-5 with midline annular tear. Her current diagnoses included 

herniated lumbar disc, bilateral lumbar radiculopathy, pes planus and unequal leg length -- short 

left leg. Dr. Cicchetti explained that appellant currently had a flare-up of his preexisting back 

pain, which was initially a workers’ compensation injury from 1999. She further explained that 

his pain had been under good control with medication and chiropractic treatment up until the 

current flare, which began on June 4, 2012 while at work. Dr. Cicchetti stated that appellant’s 

latest lumbar MRI scan did not show any new findings when compared to his November 2011 

MRI scan. For appellant’s back condition, she recommended pain medication, physical therapy 

and that he not work until his pain was better controlled. In conclusion, Dr. Cicchetti reiterated 

that appellant’s current complaints, which began on June 4, 2012, represented a flare-up of pain 

related to his original 1999 injury. 

In a July 19, 2012 duty status report (Form CA-17), Dr. Cicchetti continued to find 

appellant totally disabled. 

In an August 1, 2012 report, Dr. Eric P. Roger, a spine neurosurgeon, diagnosed lumbar 

intervertebral disc degeneration, lumbago. 

In an August 17, 2012 report, Dr. Cicchetti noted a diagnosis of lumbar disc herniations 

at L3-4 and L4-5. She stated that appellant originally injured his back in 1999, and developed 
3

increased pain while at work on June 4, 2012. A recent lumbar MRI scan showed disc 

herniations at L3-4 and L4-5, which was the cause of appellant’s pain. Dr. Cicchetti 

characterized appellant’s current condition/injury as an exacerbation of his original 1999 injury. 

She noted a good prognosis, with a goal to returning appellant to full duty within the next six 

months. Dr. Cicchetti recommended physical therapy, Celebrex and tramadol for pain, and no 

work until appellant’s pain was more manageable. She planned to see him every two to three 

weeks to monitor his response to treatment. 

In a February 1, 2013 report, Dr. Cicchetti reiterated much of what she previously stated 

in her August 17, 2012 report, including her diagnosis of lumbar disc herniations at L3-4 and 

L4-5. Again, she noted that appellant was originally injured in 1999, and developed increased 

pain while at work on June 4, 2012. Appellant reported having turned to get mail from his truck 

when he suddenly felt pain in his low back. This exacerbated his original 1999 injury, and the 

pain appellant experienced was caused by his lumbar disc herniations. With medications and 

physical therapy, appellant’s condition improved and he was able to resume his regular work 

duties. Dr. Cicchetti noted that appellant continued under the care of Dr. Gosy, and that his 

prognosis was good. 

In her latest report dated September 3, 2013, Dr. Cicchetti stated that appellant was under 

her care for a June 4, 2012 workers’ compensation case. She indicated that he had a preexisting 

back injury with a diagnosis of L3-4 and L4-5 disc herniations. Dr. Cicchetti further indicated 

that appellant had been doing well and working full duty until the date of injury when he twisted 

and lifted while retrieving mail from his truck and felt significant back pain. She stated that this 

action at work caused an exacerbation of his discogenic pain (back pain) and his radicular 

symptoms (leg pain). 

OWCP also received physical therapy records, as well as treatment records from 

Kathleen Butler, a nurse practitioner, who saw appellant during the period of June 20 through 

August 1, 2012. Appellant was also treated by Wendy A. Callen, a physician’s assistant. 

Ms. Callen’s treatment records cover the period of August 15, 2012 through January 23, 2013. 

In a July 26, 2012 decision, OWCP denied appellant’s claim on the basis that he did not 

establish fact of injury. It found there was no medical diagnosis in connection with the claimed 

event and/or work factors, but this initial decision was later modified to reflect an alternative 

basis for denial. 

By decision dated June 5, 2013, OWCP explained that, based on the June 4, 2012 

employment incident, the case was properly considered a new traumatic injury rather than a 

recurrence of appellant’s January 6, 1999 lumbar injury. Additionally, it found the medical 

evidence sufficient to establish a diagnosis of exacerbation of herniated discs. However, 

appellant’s claim remained in denial status because the medical evidence did not establish that 

the diagnosed condition was causally related to the June 4, 2012 employment incident. OWCP 

explained that Dr. Cicchetti merely stated that appellant developed increased pain at work on 

June 4, 2012. Her opinion was considered deficient because Dr. Cicchetti did not provide 

medical rationale in support of her conclusion that appellant’s preexisting disc injury was 

exacerbated. Consequently, OWCP denied the claim because appellant failed to establish causal 

relationship. 
4

In an October 1, 2013 nonmerit decision, OWCP denied appellant’s September 16, 2013 

request for reconsideration and, in a March 3, 2014 decision, it denied modification on the basis 

that Dr. Cicchetti’s September 3, 2013 report did not include a rationalized explanation of how 

the June 4, 2012 employment incident exacerbated appellant’s (lumbar) medical condition. 

LEGAL PRECEDENT 

A claimant seeking benefits under FECA has the burden of establishing the essential 

elements of his or her claim by the weight of the reliable, probative and substantial evidence, 

including that an injury was sustained in the performance of duty as alleged and that any specific 

condition or disability claimed is causally related to the employment injury.2

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact 

of injury consists of two components that must be considered in conjunction with one another. 

The first component is whether the employee actually experienced the employment incident that 

allegedly occurred.3 The second component is whether the employment incident caused a 

personal injury.4

 An employee may establish that an injury occurred in the performance of duty 

as alleged, but fail to establish that the disability or specific condition for which compensation is 

being claimed is causally related to the injury.5

ANALYSIS 

OWCP accepted that the June 4, 2012 employment incident occurred as alleged, and also 

found the medical evidence sufficient to establish a diagnosis of exacerbation of herniated discs. 

However, the medical evidence of record was insufficient to establish that the diagnosed 

condition was causally related to the June 4, 2012 employment incident. 

The Board finds that Dr. Cicchetti’s various reports are insufficient to discharge 

appellant’s burden of proving that appellant’s June 4, 2012 employment exposure exacerbated 

his lumbar condition. In her initial July 9, 2012 report, Dr. Cicchetti stated that appellant’s 

current complaints, which began on June 4, 2012, represented a flare-up of pain related to his 

original 1999 injury. She further noted that prior to the June 4, 2012 flare-up at work, appellant’s 

pain had been under good control with medication and chiropractic treatment. Dr. Cicchetti 

 2

 20 C.F.R. § 10.115(e), (f) (2014); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). 

3 Elaine Pendleton, 40 ECAB 1143 (1989). 

4 John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question which generally requires 

rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A 

physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated 

employment factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 

345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of 

medical certainty and must be supported by medical rationale, explaining the nature of the relationship between the 

diagnosed condition and appellant’s specific employment factor(s). Id.

5 Shirley A. Temple, 48 ECAB 404, 407 (1997). 
5

failed to explain how appellant’s then-current lumbar symptoms were either caused or 

aggravated by his June 4, 2012 employment activities. 

In subsequent reports dated August 17, 2012 and February 1, 2013, Dr. Cicchetti 

diagnosed lumbar disc herniations at L3-4 and L4-5, which predated the June 4, 2012 

employment incident. Dr. Cicchetti noted that appellant originally injured his back in 1999, and 

developed increased pain while at work on June 4, 2012. The disc herniations were noted to be 

the cause of appellant’s pain. Dr. Cicchetti characterized his current condition/injury as an 

exacerbation of his original 1999 injury. Although she described what appellant was doing when 

he experienced increased pain in his lower back, Dr. Cicchetti again failed to explain how 

appellant’s June 4, 2012 employment activities exacerbated his lumbar disc herniations. 

In her latest report dated September 3, 2013, Dr. Cicchetti indicated appellant had been 

doing well and working full duty until June 4, 2012, when he twisted and lifted while retrieving 

mail from his truck and felt significant back pain. She stated that this action caused an 

exacerbation of appellant’s discogenic pain and his radicular symptoms. Once again, 

Dr. Cicchetti failed to provide an explanation of how appellant’s June 4, 2012 employment 

activities exacerbated his lumbar disc herniations. 

Dr. Cicchetti opined that appellant’s employment activities exacerbated his lumbar 

condition, but what is not evident from her various reports is how the reported employment 

activity -- twisting and lifting -- caused or contributed to appellant’s current lumbar condition. A 

physician’s opinion must be based on a complete factual and medical background and supported 

by medical rationale explaining the nature of the relationship between the diagnosed condition 

and appellant’s specific employment factor(s).6

 Dr. Cicchetti has not adequately explained the 

mechanism of injury and how it was responsible for appellant’s claimed condition. 

The Board further notes that appellant’s physical therapy records and the treatment 

records from Ms. Butler, a nurse practitioner, and Ms. Callen, a physician assistant, will not 

suffice for purposes of establishing entitlement to FECA benefits.7 Physician assistants, nurse 

practitioners and physical therapists are not considered “physician[s]” as defined under FECA.8 

As such, the above-noted treatment records are of limited probative value. 

Because the medical evidence of record fails to establish a causal relationship between 

appellant’s accepted employment exposure and the diagnosed lumbar condition, OWCP properly 

denied appellant’s traumatic injury claim. 

 6 Victor J. Woodhams, supra note 4. 

7 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician 

assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified 

physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) 

(January 2013). Although Ms. Callen was associated with Dr. Cicchetti’s medical practice, Ms. Callen’s treatment 

records were not countersigned by Dr. Cicchetti. 

8

 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 
6

CONCLUSION 

Appellant failed to establish that his claimed lumbar condition is causally related to his 

June 4, 2012 accepted employment exposure. 

ORDER 

IT IS HEREBY ORDERED THAT the March 3, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 24, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board