United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Boston, MA, Employer 

__________________________________________ 

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Docket No. 14-182 

Issued: November 20, 2014 

Appearances: Case Submitted on the Record

Katherine Smith, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 1, 2013 appellant, through his attorney, filed a timely appeal from a 

May 29, 2013 Office of Workers’ Compensation Programs’ (OWCP) decision denying his claim 

for an employment-related injury. 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 this 

case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish that he sustained 

an injury in the performance of duty causally related to a May 4, 2010 employment incident, as 

alleged. 

On appeal, counsel contends that the medical evidence of record, particularly the reports 

from Dr. Anthony Rivera, a Board-certified physiatrist, is sufficient to establish a causal 

 1

 5 U.S.C. § 8101 et seq. 
2

relationship between the May 4, 2010 employment incident and appellant’s neck and back 

conditions. 

FACTUAL HISTORY 

On June 2, 2010 appellant, then a 55-year-old window clerk, filed a traumatic injury 

(Form CA-1) alleging that he sustained neck and back injuries as a result of lifting/carrying and 

stacking approximately 45 to 50 full buckets of flats and then bending down in the performance 

of duty on May 4, 2010. In a May 4, 2010 narrative statement, he indicated that he bent over to 

scan collection boxes when he felt pain in the right side of his lower back. Appellant stated that 

he brought over 40 buckets of flats to carrier cases, double-stacked under their cases at an 

awkward angle and aggravated his preexisting back condition. 

Appellant submitted reports dated May 21 through 29, 2010 from Dr. Edwin Berry, a 

chiropractor, who diagnosed lumbosacral sprain complicated by muscular imbalances. On 

May 26, 2010 Dr. Berry indicated that appellant experienced an exacerbation the past weekend. 

In a June 8, 2010 letter, OWCP informed appellant of the deficiencies in his claim and 

afforded him 30 days to submit additional evidence and respond to its inquiries. 

Subsequently, appellant submitted a June 10, 2010 report from Dr. Berry, who indicated 

that he had chiropractic adjustments to correct vertebral subluxations on intermittent dates during 

the period May 5 through June 2, 2010. Dr. Berry opined that appellant had reached a plateau in 

his recovery and was advised to seek other healthcare. 

On June 17, 2010 Dr. Robert Swotinsky, a Board-certified occupational medicine 

physician, diagnosed chronic low back pain and indicated that appellant had a preexisting 

condition since 1982. 

In a June 18, 2010 report, Dr. William Fazzino, appellant’s chiropractor, diagnosed 

thoracic and lumbosacral subluxations with radiculitis into the left shoulder, legs and feet. He 

opined that appellant’s condition was caused or aggravated by lifting/carrying boxes, bending, 

twisting and pushing in the course of his federal employment. On July 1, 2010 Dr. Fazzino 

indicated that appellant’s spinal subluxations were evident on x-rays dated June 17, 2010 in the 

cervical and lumbar spine, along with multiple degenerative changes and hypertrophic 

spondylosis. He opined that appellant was totally disabled for work and his condition was 

consistent with the history of the injury as described by appellant. 

By decision dated July 9, 2010, OWCP found that the evidence did not contain a medical 

diagnosis in connection with the injury or events and denied the claim on the basis that appellant 

failed to establish the medical component of fact of injury. 

On August 4, 2010 appellant, through his attorney, requested an oral hearing before an 

OWCP hearing representative and submitted physical therapy notes dated August 3 to 16, 2010. 

A June 17, 2010 x-ray of the lumbosacral spine revealed degenerative changes. 
3

In reports dated June 17 through August 3, 2010, Dr. Swotinsky indicated that appellant 

had preexisting back problems and hernia surgeries and reported an exacerbation of his back pain 

after his boss made him lift something he did not want to lift at work. He stated that he was “not 

sure of the cause of his pain.” 

A July 28, 2010 electromyography and nerve conduction study was mildly abnormal due 

to mild, chronic denervation of the left flexor digitorum longus muscle and the clinical 

significance of this isolated finding was not clear. Otherwise, there was no other evidence of left 

tibial neuropathy or left lumbar sacral radiculopathy. 

Appellant submitted reports dated August 11 through September 22, 2010 from 

Dr. Rivera who diagnosed lumbar radiculopathy, lumbar disc herniation and myofascial pain 

syndrome. On August 11, 2010 Dr. Rivera indicated that appellant aggravated his neck and back 

conditions at work on May 4, 2010 while lifting crates weighing anywhere from 25 to 45 pounds 

and in a lifting-twisting motion felt a sharp pain in his back area. Appellant complained of pain 

in the posterior aspect of his neck and also his low back and noticed occasional radiation going 

down his left gluteal area and around his hamstring. This was also associated with some 

numbness and tingling in the left toes. 

An August 17, 2010 magnetic resonance imaging (MRI) scan of the lumbar sacral spine 

revealed degenerative disc disease identified by anterior and posterior disc bulge osteophyte 

complexes seen at L2-3 through L5-S1. 

In a September 22, 2010 report, Dr. F. Joseph Celona, a Board-certified internist, 

indicated that appellant was lifting mail at work in May 2010 when he injured his lumbar, 

thoracic and cervical spine. Dr. Celona diagnosed an aggravation of underlying degenerative 

disc disease at the lumbar spine and strain of the cervical spine soft tissues. 

On September 30, 2010 Dr. Michael H. Kelleher, a Board-certified internal and 

emergency medicine physician, diagnosed cervical pain of uncertain etiology and lumbar 

radiculitis. He indicated that appellant had been disabled for the last five months because of low 

back pain which he stated began with a lifting strain. Initially, all of appellant’s symptoms were 

confined to the low back, but more recently he complained of tightness in the neck with limited 

range of motion. 

A telephonic hearing was held before an OWCP hearing representative on 

October 20, 2010. 

Appellant submitted a report from Dr. Berry indicating that he saw him in his office on 

May 5, 2010 after he injured his neck and back from bending and twisting motions at work on 

May 4, 2010. Dr. Berry stated that appellant had muscle spasms and significant subluxations in 

the neck and back consistent with a bending and twisting injury. 

On October 26, 2010 Dr. Fazzino indicated that he saw appellant on June 18, 2010 for a 

neck and back injury consistent with a bending and twisting-type injury as described by 

appellant, which occurred at his place of employment on May 4, 2010. 
4

In a November 4, 2010 report, Dr. Rivera reiterated his diagnoses and opined that 

appellant’s conditions appeared to be secondary to an employment-related injury that he 

sustained on May 4, 2010 due to a bending and twisting motion at work. 

On November 4, 2010 Dr. Wendy Bergman, a Board-certified internist, indicated that 

appellant’s neck pain started after a bending and twisting injury at work on May 4, 2010. 

An October 11, 2010 MRI scan of the cervical spine showed mild narrowings of the 

spinal canal at C4-7 due to mild disc bulges without causing significant spinal stenosis, mild loss 

of normal cervical lordosis and degenerative discitis at C5-7 and plates. 

By decision dated February 9, 2011, an OWCP hearing representative affirmed the 

July 9, 2010 decision. 

On February 6, 2012 appellant, through his attorney, requested reconsideration and 

submitted a November 30, 2011 report from Dr. Rivera who reiterated his diagnoses and medical 

opinions. On December 21, 2011 Dr. Rivera diagnosed cervical radiculitis and opined that 

appellant’s conditions were causally related to a work-related injury on May 4, 2010. He stated 

that “[it] appears that, while lifting and causing a twisting motion of his lower back, it caused 

[appellant] to develop a lumbar radiculopathy issue.” Dr. Rivera further indicated that “even if 

this was a preexisting lumbar disc bulge, the injury could still cause the disc herniation to 

become more severe and cause impingement of the surrounding nerve roots given his present 

symptoms.” Regarding appellant’s neck condition, he opined that most of it appeared to be 

myofascial pain. 

By decision dated April 17, 2012, OWCP denied modification of the February 9, 2011 

decision. 

On August 10, 2012 appellant, through his attorney, requested reconsideration and 

submitted an April 30, 2012 report from Dr. Rivera who reiterated his statements that appellant 

sustained a work-related injury on May 4, 2010. Dr. Rivera explained that, upon further 

examination of the history, appellant was lifting, bending and twisting at work on May 3, 2010 

and developed some focal low back pain with no radiating symptoms. On the morning of May 4, 

2010, appellant injured himself again while lifting, bending and twisting at work. Dr. Rivera 

stated that “the act of doing a repetitive motion of bending and twisting is enough to cause an 

irritation and/or impingement of an existing nerve root of the lumbar spine. This occurred in 

[appellant’s] case. This would be the cause of his back pain radiating into his leg.” 

By decision dated May 29, 2013, OWCP denied modification of its April 17, 2012 

decision on the basis that the medical evidence relied on an incorrect history of injury and, 

therefore, was insufficient to establish that appellant sustained an injury in the performance of 

duty. 
5

LEGAL PRECEDENT 

An employee seeking benefits under FECA2 has the burden of establishing 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 period of FECA, that an injury3

 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.4

 

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

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

A fact of injury determination is based on two elements. First, the employee must submit 

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

the time, place and in the manner alleged. Second, the employee must submit sufficient 

evidence, generally only in the form of medical evidence, to establish that the employment 

incident caused a personal injury. An employee may establish that the employment incident 

occurred as alleged but fail to show that his or her condition relates to the employment incident.5 

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. 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 the specific employment factors 

identified by the employee.6

 

ANALYSIS 

In order to determine whether an employee sustained an injury in the performance of 

duty. The analysis begins whether fact of injury has been established. Generally, fact of injury 

consists of two components which must be considered in conjunction with one another. The first 

component to be established is that the employee actually experienced the employment incident, 

which is alleged to have occurred.7

 An injury does not have to be confirmed by eyewitnesses in 

order to establish that an employee sustained an injury in the performance of duty, but the 

 2 Id. 

3

 OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident or 

series of events or incidents, within a single workday or shift. Such condition must be caused by external force, 

including stress or strain, which is identifiable as to time and place of occurrence and member or function of the 

body affected. 20 C.F.R. § 10.5(ee). 

4 See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 

1143 (1989). 

5 Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989). 

6 Id. See Gary J. Watling, 52 ECAB 278 (2001). 

7 See Elaine Pendelton, supra note 4. 
6

employee’s statements must be consistent with the surrounding facts and circumstances and his 

or her subsequent course of action.8 An employee has not met his or her burden of proof of 

establishing the occurrence of an injury when there are such inconsistencies in the evidence as to 

cast serious doubt upon the validity of the claim.9

 Such circumstances as late notification of 

injury, lack of confirmation of injury, continuing to work without apparent difficulty following 

the alleged injury and failure to obtain medical treatment may, if otherwise unexplained, cast 

doubt on an employee’s statements in determining whether a prima facie case has been 

established.10 However, an employee’s statement alleging that an injury occurred at a given time 

and in a given manner is of great probative value and will stand unless refuted by strong or 

persuasive evidence.11 

Appellant reported that he was injured as a result of lifting, carrying, stacking and 

bending in the performance of duty on May 4, 2010. He further sought medical treatment on the 

day after the alleged incident and the medical reports of record contain a history of injury 

consistent with appellant’s account of events. Dr. Berry reported that he saw appellant in his 

office on May 5, 2010 after he injured his neck and back from bending and twisting motions at 

work on May 4, 2010. In his reports, Dr. Rivera indicated that appellant sustained an injury 

while lifting, twisting and bending at work on May 4, 2010 subsequent to developing some low 

back pain on May 3, 2010 while doing the same repetitive motions. On September 22, 2010 

Dr. Celona indicated that appellant was lifting mail at work in May 2010 when he injured his 

lumbar, thoracic and cervical spine. On October 26, 2010 Dr. Fazzino indicated that he saw 

appellant for a neck and back injury consistent with a bending and twisting type injury, which 

occurred at his place of employment on May 4, 2010. On November 4, 2010 Dr. Bergman 

indicated that appellant’s neck pain started after a bending and twisting injury at work on 

May 4, 2010. 

The Board finds that the evidence of record does not contain inconsistencies sufficient to 

cast serious doubt on appellant’s version of the employment incident. As such, the Board finds 

that the evidence of record is sufficient to establish an incident occurred at the time, place and in 

the manner alleged by appellant on May 4, 2010.12 

The remaining issue is whether the medical evidence establishes that appellant sustained 

an injury causally related to the May 4, 2010 employment incident.13 

The Board finds that this case is not in posture for decision on the issue of causal 

relationship. 

 8 See Charles B. Ward, 38 ECAB 667 (1989). 

9 See Tia L. Love, 40 ECAB 586 (1989). 

10 See Merton J. Sills, 39 ECAB 572 (1988). 

11 See Constance G. Patterson, 41 ECAB 206 (1989); Thelma S. Buffington, 34 ECAB 104 (1982). 

12 See Leonard T. Munson, Docket No. 98-1478 (issued December 23, 1999). 

13 Id. 
7

In his reports, Dr. Rivera diagnosed lumbar radiculopathy, lumbar disc herniation, 

myofascial pain syndrome and cervical radiculitis. He opined that appellant’s conditions were 

causally related to lifting crates weighing approximately 25 to 45 pounds and repetitive bending 

and twisting motions at work on May 4, 2010. On December 21, 2011 Dr. Rivera stated that 

“[it] appears that while lifting and causing a twisting motion of his lower back, it caused 

[appellant] to develop a lumbar radiculopathy issue.” He further indicated that “even if this was 

a preexisting lumbar disc bulge, the injury could still cause the disc herniation to become more 

severe and cause impingement of the surrounding nerve roots given his present symptoms.” On 

April 30, 2012 Dr. Rivera stated that “the act of doing a repetitive motion of bending and 

twisting is enough to cause an irritation and/or impingement of an existing nerve root of the 

lumbar spine. This occurred in [appellant’s] case. This would be the cause of his back pain 

radiating into his leg.” 

The Board notes that, while Dr. Rivera’s reports are not completely rationalized, they are 

consistent in finding that appellant’s duties included lifting, bending and twisting and the 

repetitive nature of his duties could not only cause the development of lumbar radiculopathy or 

an impingement of the lumbar spine, but also aggravate preexisting disease from a normal 

activity or an employment-related injury, such as one that occurred on May 4, 2010. These 

reports are not contradicted by any substantial medical or factual evidence of record.14 While the 

reports are not sufficient to meet appellant’s burden of proof to establish a claim, they raise an 

inference of causal relationship between the claimed conditions and factors of his federal 

employment.15 

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

the claimant has the burden of establishing entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.16 

On remand, OWCP should refer appellant, together with the case record and a statement 

of accepted facts, for examination by an appropriate specialist and a rationalized medical opinion 

as to whether his federal employment duties caused or aggravated new and/or preexisting neck 

and back conditions. After such further development as it deems necessary, OWCP shall issue a 

de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision on the issue of causal 

relationship. 

 14 See E.J., Docket No. 09-1481 (issued February 19, 2010). 

15 Id.; see also John J. Carlone, 41 ECAB 354 (1989). 

16 See Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430 

(2002); William J. Cantrell, 34 ECAB 1233 (1993); Dorothy L. Sidwell, 36 ECAB 699 (1985). 
8

ORDER 

IT IS HEREBY ORDERED THAT the May 29, 2013 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: November 20, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board