United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 14-1858 

Issued: February 5, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On August 21, 2014 appellant filed a timely appeal from an April 9, 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 this case. 

ISSUE 

The issue is whether appellant established a lumbar condition in the performance of duty. 

FACTUAL HISTORY 

This is the second appeal before the Board in this case. By order issued December 21, 

2012,2

 the Board remanded the case to OWCP to combine File No. xxxxxx618 with the present 

 1

 5 U.S.C. § 8101 et seq. 

2

 Docket No. 12-1385 (issued December 21, 2012). 
2

claim. The Board noted that OWCP considered evidence from File No. xxxxxx618 relevant to 

the low back in its March 2, 2012 decision under File No. xxxxxx042 denying appellant’s claim 

for a lumbar condition. The law and facts of the case as set forth in the Board’s prior order are 

incorporated by reference. 

On June 8, 2011 appellant, then a 54-year-old clerk, filed an occupational disease (Form 

CA-2) claim alleging that, on or before September 8, 2008, he sustained lumbosacral radiculitis, 

bulging lumbar discs, and sciatic nerve conditions due to repetitive heavy lifting, pushing, and 

pulling at work.3

 He was on full duty at the time he filed the claim, and continued to perform 

lifting, pushing, and pulling as required by his position. In associated statements, appellant 

stated that he first noticed lumbar pain in 1994 when the employing establishment switched to a 

different type of container. He did not seek medical treatment until September 2008. Appellant 

described a 2010 hospitalization for lumbar pain, treated with intravenous morphine. He noted 

that he used sick leave for absences related to his back pain and had not claimed wage-loss 

compensation. 

In a June 15, 2011 letter, OWCP advised appellant of the type of additional evidence 

needed to establish his claim, including a report from his attending physician diagnosing a 

medical condition, and explaining how the identified work factors would have caused that 

condition. It afforded him 30 days to submit such evidence. 

In response, appellant submitted a July 1, 2011 report from Dr. Joshua D. Sussman, an 

attending Board-certified physiatrist, who noted treating appellant from September 22, 2008 

onward for lumbosacral radiculitis. A lumbar magnetic resonance imaging (MRI) scan 

performed on December 2, 2008 revealed bulging discs at L3-4, L4-5, and L5-S1, 

neuroforaminal stenosis from L3 through S1, with bilateral facet hypertrophy throughout the 

lumbar spine. A May 5, 2010 MRI scan showed increased disc bulges and stenosis. Epidural 

injections administered in 2010 improved appellant’s symptoms. Dr. Sussman opined that 

appellant’s degenerative disc disease and lumbar degenerative joint disease were exacerbated by 

an altered activity pattern at work. 

By decision dated September 8, 2011, OWCP denied appellant’s claim for a lumbar 

condition as causal relationship had not been established. It accepted that he performed 

repetitive heavy lifting, pushing, and pulling at work. OWCP found, however, that the medical 

evidence did not explain how and why those work factors would cause the diagnosed lumbar 

conditions. 

In a September 22, 2011 letter, appellant requested an oral hearing, held telephonically on 

January 3, 2012. At the hearing, he asserted that he experienced increased back pain when the 

employing establishment changed container types to a wire bin that weighed 400 pounds when 

empty. Appellant alleged that he did not have sufficient help when working the bundle sorter 

and the supervisors did not assign additional workers to handle the mail volume. At the close of 

the proceeding, the hearing representative gave him a detailed explanation of the type of medical 

evidence needed to establish his claim, with descriptions of any prior injuries, findings on 

 3

 Appellant also submitted a CA-2 form signed by him on October 15, 2009. Appellant’s supervisor signed the 

form on June 8, 2011. 
3

examination, a description of the duties that caused or contributed to the diagnosed condition, 

and detailed rationale explaining how and why those factors would cause the claimed condition. 

Following the hearing, the hearing representative reviewed medical evidence from File 

No. xxxxxx618.4

 In chart notes from October 31, 2008 to September 19, 2011, Dr. Sussman 

noted worsening bilateral lumbar radiculopathy, symptomatically relieved by epidural steroid 

injections. In a January 9, 2012 note, he related appellant’s belief that his lumbar pain was 

related to repetitive bending, grabbing, and lifting heavy mail sacks at work from 1994 through 

2005. Appellant was hospitalized for sciatica from April 1 to 5, 2010.5

 He received lumbar 

acupuncture on five occasions from April 29 to June 7, 2010. 

By decision dated and finalized March 2, 2012, an OWCP hearing representative 

affirmed OWCP’s September 8, 2011 decision denying appellant’s occupational disease claim. 

He found that the medical evidence did not contain sufficient rationale supporting a 

pathophysiologic causal relationship between the accepted work factors of repetitive heavy 

lifting, pushing, and pulling, and the diagnosed lumbar conditions. 

Pursuant to the Board’s December 21, 2012 order setting aside the March 2, 2012 

decision and remanding the case for doubling of appellant’s two claim files, OWCP combined 

File No. xxxxxx042 and File No. xxxxxx618 on January 28, 2013. 

By decision dated June 26, 2013, OWCP denied appellant’s occupational disease claim 

on the grounds that causal relationship was not established. It found that the medical evidence in 

both File Nos. xxxxxx618 and xxxxxx042, did not contain sufficient explanation supporting a 

link between the accepted work factors and the claimed lumbar condition. 

In a July 24, 2013 letter postmarked on July 26, 2013, appellant requested an oral 

hearing, held telephonically on February 24, 2014. At the hearing, he reiterated his belief that 

heavy lifting, pushing, and pulling at work beginning in 1994 caused the lumbar conditions 

diagnosed by Dr. Sussman. Appellant submitted a September 25, 2013 report from Dr. Sussman, 

in which the physician noted reviewing a 1980 job description requiring pushing and pulling 

greater than 400 pounds, and repetitive lifting greater than 30 pounds. Dr. Sussman opined that 

it was “more likely than not [appellant’s] degree of lumbar spine disc disease and arthritis are 

directly related to repetitive stress and strain he endured as an employee of the [employing 

establishment] over these last 33 years.” 

By decision dated and finalized April 9, 2014, an OWCP hearing representative affirmed 

OWCP’s June 26, 2013 decision, finding that Dr. Sussman did not provide sufficient rationale 

supporting causal relationship to meet appellant’s burden of proof. 

 4

 Following the Board’s December 21, 2012 order, OWCP imaged the reports considered by the hearing 

representative into the case record. To preserve the chronologic sequence of documents in the case record, OWCP 

used January 27, 2012 as the imaging date. 

5

 The record contains fragments of chart notes from appellant’s hospitalization. These documents do not appear 

to address causal relationship. 
4

LEGAL PRECEDENT 

An employee seeking benefits under FECA 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 filed within the applicable time 

limitation; that an injury was sustained while in the performance of duty as alleged; and that any 

disability and/or specific condition for which compensation is claimed are 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 on a traumatic injury or an occupational disease.7

 

An occupational disease is defined as a condition produced by the work environment 

over a period longer than a single workday or shift.8

 To establish that an injury was sustained in 

the performance of duty in an occupational disease claim, a claimant must submit the following: 

(1) medical evidence establishing the presence or existence of the disease or condition for which 

compensation is claimed; (2) factual statement identifying employment factors alleged to have 

caused or contributed to the presence or occurrence of the disease or condition; and (3) medical 

evidence establishing that the employment factors identified by the claimant were the proximate 

cause of the condition for which compensation is claimed or, stated differently, medical evidence 

establishing that the diagnosed condition is causally related to the employment factors identified 

by the claimant. The medical evidence required to establish causal relationship is generally 

rationalized medical opinion evidence. Rationalized medical opinion evidence is medical 

evidence which includes a physician’s rationalized opinion on the issue of whether there is a 

causal relationship between the claimant’s diagnosed condition and the implicated employment 

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

background of the claimant, must be one of reasonable medial 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 

Appellant claimed that he sustained lumbosacral radiculitis, bulging lumbar discs, and 

sciatic nerve conditions due to heavy lifting, pushing, and pulling at work from 1994 through 

2005. He continued to perform these duties through the time he filed his claim on June 8, 2011. 

OWCP denied the claim on the grounds that the medical evidence of record did not contain 

sufficient rationale supporting a causal relationship between the accepted work factors of heavy 

lifting, pulling, and pushing and the claimed lumbar conditions. 

In support of his claim, appellant submitted reports from Dr. Sussman, an attending 

Board-certified physiatrist, who treated appellant for lumbosacral radiculitis from 

September 2008 through September 2013. Dr. Sussman addressed causal relationship in several 

 6 Joe D. Cameron, 41 ECAB 153 (1989). 

7 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999). 

8

 20 C.F.R. § 10.5(q). 

9 Solomon Polen, 51 ECAB 341 (2000). 
5

reports. On July 1, 2011 he diagnosed worsening lumbar disc bulges and degenerative disc 

disease throughout the lumbar spine, exacerbated by an altered activity pattern at work. 

However, Dr. Sussman did not specify the date of such alteration, describe the job duties 

involved, or explain the medical reasons that these duties would cause or aggravate a lumbar 

condition. In a January 9, 2012 note, he repeated appellant’s belief that lifting at work caused his 

back conditions, but Dr. Sussman provided no independent opinion. Dr. Sussman did not 

provide a reasoned explanation of the pathophysiologic mechanisms whereby the accepted work 

factors would cause the claimed lumbar conditions. Therefore, his opinion is insufficient to meet 

appellant’s burden of proof.10

On September 25, 2013 Dr. Sussman reviewed a 1980 job description and opined that 

“more likely than not [appellant’s] degree of lumbar spine disc disease and arthritis are directly 

related to repetitive stress and strain he endured as an employee of the [employing establishment] 

over these last 33 years.” The equivocal nature of this opinion diminishes its probative value.11 

Dr. Sussman has failed to provide a reasoned medical opinion of how appellant’s stipulated 

duties caused or aggravated the appellant’s lumbar spine condition. 

OWCP advised appellant in a June 15, 2011 letter and at the January 3, 2012 hearing of 

the necessity of submitting a report from his attending physician explaining with sufficient 

rationale to establish causal relationship between the accepted work factors and the claimed 

lumbar spine conditions. However, appellant did not submit such evidence. Therefore, OWCP’s 

April 9, 2014 decision was proper under the law and circumstances of this case. 

On appeal, appellant contended that he performed his job honorably and efficiently 

despite several injuries, including right carpal tunnel syndrome, cervical disc surgery, and 

multiple hernia repairs. He explained that he continued to work in pain as there was no light 

duty available. Appellant mentioned an upcoming spinal surgery to replace three discs and insert 

stabilizing rods. The Board notes that OWCP’s decisions denying his occupational disease claim 

do not indicate any misconduct or dereliction of duty. The Board does not have jurisdiction on 

the present appeal over medical conditions other than lumbar disc disease, radiculitis, and 

sciatica as claimed under File No. xxxxxx042. As stated above, the medical evidence of record 

is insufficient to establish that lifting, pulling, and pushing at work caused the claimed lumbar 

conditions. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant did not establish that he sustained a lumbar spine 

condition in the performance of duty as alleged. 

 10 Deborah L. Beatty, 54 ECAB 340 (2003). 

11 Ricky S. Storms, 52 ECAB 349 (2001). 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated April 9, 2014 is affirmed.

Issued: February 5, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board