United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

__________________________________________ 

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Docket No. 14-1240 

Issued: September 22, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On May 5, 2014 appellant, through his attorney, filed a timely appeal from an Office of 

Workers’ Compensation Programs’ (OWCP) decision dated January 15, 2014. 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 sustained an aggravation of a low back condition in the 

performance of duty causing disability as of October 14, 2010. 

FACTUAL HISTORY 

Appellant, a 47-year-old letter carrier, filed an occupational disease claim for benefits on 

July 15, 2011, alleging that he developed aggravation of a lumbar condition causally related to 

employment factors. He stopped work on October 14, 2010. Appellant explained that up until 

 1

 5 U.S.C. § 8101 et seq. 
2

October 14, 2010 his back condition progressively worsened. His job duties required that he 

stoop over his desk to work on certified and registered letters, parcels, delivery confirmations 

and express mail. In addition, appellant worked the general delivery window. 

Appellant submitted several reports from Dr. Arthur G. Nahas, an osteopathic physician 

Board-certified in family practice and sports medicine. On May 13, 2011 Dr. Nahas related that 

appellant had ongoing low back spasms and pain into his legs. He stated that a previous nerve 

conduction study showed L5-S1 radiculopathy on the left of a moderate degree and mild L5 

radiculopathy on the right. Dr. Nahas concluded that appellant could not return to work. On 

May 31, 2011 he related that appellant’s work activities of bending over a desk to write up 

certified letters and bending to pick up trays of mail aggravated his back condition and 

exacerbated his symptoms. 

In a report dated July 8, 2011, Dr. Nahas advised that appellant stopped work on 

October 14, 2010 due to a low back condition which was aggravated by work factors. He noted 

that appellant was involved in activities requiring prolonged bending, sitting and working with a 

registered cart which had heavy and oversized items on the bottom. Appellant also had to carry 

delivery confirmation packages and parcels; further, his morbid obesity placed additional stress 

on his low back. Dr. Nahas opined that appellant was currently totally disabled due to his low 

back condition. 

On September 15, 2011 OWCP advised appellant that it required additional factual and 

medical evidence to determine whether he was eligible for compensation benefits. It asked him 

to submit a comprehensive report from his treating physician describing his symptoms and the 

medical reasons for his condition with an opinion as to whether his low back condition was 

causally related to his federal employment. OWCP requested that appellant submit this evidence 

within 30 days. 

OWCP thereafter received an October 7, 2011 supplemental statement from appellant 

who described the frequency of his various employment duties. 

Dr. Nahas submitted reports dated September 29 and October 20, 2011. He stated 

findings on examination and reiterated his previous findings and conclusions. Dr. Nahas opined 

that appellant’s neck, upper and lower extremity radicular and low back complaints were directly 

and solely the result of working at the employing establishment. 

By decision dated October 17, 2011, OWCP denied appellant’s claim, finding that he 

failed to establish fact of injury. It found the evidence insufficient to establish the work events or 

factors, as alleged. 

By letter dated October 25, 2011, appellant, through his attorney, requested a hearing. 

By decision dated January 9, 2012, an OWCP hearing representative set aside the 

October 17, 2011 decision. The case was remanded for further development of the factual 

evidence regarding appellant’s work duties. 

By decision dated May 9, 2012, OWCP denied appellant’s claim. It accepted that he 

performed duties as a mail clerk that required stooping and bending. OWCP found, however, 
3

that he failed to submit sufficient medical evidence to establish that his low back condition was 

causally related to his work duties. 

By letter dated May 14, 2012, counsel requested a hearing. 

By decision dated August 14, 2012, an OWCP hearing representative set aside the 

May 9, 2012 decision. She directed that the current case, OWCP file number xxxxxx031, be 

combined with a previously accepted claim for a lumbar strain under file number xxxxxx462, 

which appellant sustained on July 29, 2008. The hearing representative remanded the case for 

review by Dr. Lawrence Barr, an osteopath and second opinion examiner, to address whether 

appellant’s claimed low back condition was caused by his work duties, as described by the 

employing establishment.2

 

In a December 28, 2012 report, Dr. Barr stated that appellant did have a low back strain 

on July 29, 2008 but did not sustain a worsening of his underlying degenerative disc disease. He 

advised that appellant had an exacerbation, a temporary increase in his symptomatology. 

Dr. Barr stated that when he examined appellant on June 4, 2012, he complained of tenderness in 

the lumbar paraspinals radiating into the buttocks. He showed full motion and good strength, 

reflexes and sensation. Appellant’s current complaints appeared to be related to his degenerative 

disc disease and that he had underlying medical conditions such as diabetes, atrial fibrillation and 

morbid obesity, which by themselves affected a person’s ability to work. 

In a January 24, 2013 report, Dr. Barr stated that appellant did not suffer a worsening of 

his preexisting back condition. He advised that appellant had a low back sprain, preexisting 

degenerative disc disease and morbid obesity and had experienced chronic pain since a 1991 

motor vehicle accident. Dr. Barr opined that most of appellant’s back pain was due to his 

chronic morbid obesity, diabetes, chronic low back pain and degenerative disc disease. He 

advised that appellant had undergone an electromyelogram (EMG) which noted sensory 

neuropathy consistent with diabetic sensory neuropathy. Dr. Barr concluded that appellant was 

capable of sedentary work. 

By decision dated February 7, 2013, OWCP found that Dr. Barr’s referral opinion 

represented the weight of medical evidence and that based on his opinion appellant’s claimed 

low back condition was not causally related to employment factors. 

By letter dated February 12, 2013, counsel requested an oral hearing. 

By decision dated May 7, 2013, OWCP’s hearing representative set aside the 

February 7, 2013 decision, finding that there was a conflict in medical opinion between Dr. Barr, 

the second opinion examiner, and Dr. Nahas, appellant’s treating physician, as to whether his 

 2

 File number xxxxxx462 pertains to appellant’s traumatic injury claim of July 29, 2008, accepted for a lumbar 

sprain. OWCP referred him to Dr. Barr on May 18, 2012 with a description of his duties as a letter carrier. In a 

June 4, 2012 report, Dr. Barr noted that appellant was 6’3” and weighed 425 pounds. Diagnostic testing on 

January 30, 2009 showed mild degenerative disc disease at L5-S1 without neural compression. He found that 

appellant’s accepted back sprain had reached maximum improvement and no further treatment was necessary. 

Dr. Barr attributed appellant’s low back pain to degenerative disc disease and morbid obesity. He stated that 

appellant was at a sedentary level of work. 
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low back condition was causally related to employment factors. She remanded the case for 

appellant to be referred to a referee medical specialist to resolve the conflict in the medical 

evidence. 

OWCP referred appellant to Dr. Ian B. Fries, Board-certified in orthopedic surgery, for a 

referee medical examination. In a June 29, 2013 report, Dr. Fries listed findings on examination 

and reviewed the medical history and the statement of accepted facts. He found that appellant’s 

ongoing low back condition was not causally related to his employment factors. He advised that 

any aggravation, acceleration or precipitation of appellant’s lumbar condition was based on 

subjective complaints and that there was insufficient evidence to consider his duties from 

August to October 2010 as the cause of his current low back condition. While appellant did have 

subjective pain complaints consistent with left lower extremity radiculopathy, he did not 

currently have objective examination findings to confirm lumbar spine pathology or disabling 

residuals of the 2008 and 2010 work injuries. Dr. Fries further opined that there were no 

objective physical findings, such as sensory loss in a dermatomal pattern or sciatic symptoms 

with provocative testing. He reviewed a December 19, 2008 EMG test and concurred with 

Dr. Barr that it did not evidence radiculopathy; he opined that the diagnostic test was consistent 

with peripheral radiculopathy which was likely diabetic in origin. 

Dr. Fries concluded that appellant was totally disabled from employment but that this was 

due to his morbid obesity, untreated diabetes requiring insulin, untreated cardiac arrhythmia and 

untreated probable congestive heart failure, not the 2008 injury or 2010 activities at work. 

By decision dated July 16, 2013, OWCP denied appellant’s claim, finding that he failed 

to submit sufficient medical evidence to establish that his low back condition was causally 

related to his work duties. It found that Dr. Fries’ impartial opinion represented the weight of the 

medical evidence. 

On July 23, 2013 counsel requested an oral hearing, which was held on 

November 8, 2013. 

By decision dated January 15, 2014, an OWCP hearing representative affirmed the 

July 16, 2013 decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3

 has the burden of establishing that 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 injury was sustained 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.4 These are the essential elements of each and every 

 3

 5 U.S.C. §§ 8101-8193. 

4 Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). 
5

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an 

occupational disease.5

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) a 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.6 

To establish causal relationship, a claimant must submit a physician’s report in which the 

physician reviewed the employment factors identified as causing the claimed condition and, 

taking these factors into consideration as well as findings upon examination, states whether the 

employment injury caused or aggravated the diagnosed condition and presents medical rationale 

in support of his opinion.7

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee the Secretary shall appoint a 

third physician who shall make an examination.8

 It is well-established that, when a case is 

referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of 

such specialist, if sufficiently well rationalized and based on a proper factual and medical 

background, must be given special weight.9

ANALYSIS 

On appeal, counsel argues that Dr. Fries’ impartial medical report was not sufficiently 

rationalized and presented inaccurate conclusions regarding the work relatedness of appellant’s 

claimed low back condition. He argues that Dr. Nahas provided diagnostic test results which 

showed that appellant had bilateral neuropathies and that Dr. Fries was provided with misleading 

questions concerning appellant’s work injury. Counsel contends that OWCP erred in asking 

Dr. Fries if there was any aggravation of the prior lumbar condition as a result of the 

October 14, 2010 work injury and that Dr. Fries wrongly refers to a 2010 work accident, when 

the claim is based on an occupational condition, not traumatic injury. He further contends that 

Dr. Fries’ opinion is not well reasoned because he did not significantly discuss the diagnostic 

tests in the record or the work duties appellant performed from August to October 2010; he 

specifically questions why Dr. Fries did not explain why EMG testing would show a diabetic 

 5 Victor J. Woodhams, 41 ECAB 345 (1989). 

6 J.S., Docket No. 13-2022 (issued July 28, 2014). 

7 J.M., 58 ECAB 303 (2007).

8 Regina T. Pellecchia, 53 ECAB 155 (2001). 

9 Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001). 
6

neuropathy versus an entrapment neuropathy, which was revealed by the EMG testing. Counsel 

further contends that Dr. Fries used speculative language and was confusing and contradictory in 

stating that appellant had chronic low back pain, subjective left sciatica symptoms and a current 

disability but no low back condition causally related to his claimed low back condition. He 

therefore contends that Dr. Fries’ report is not well reasoned and did not merit the special weight 

of a referee medical examiner. 

In his June 29, 2013 report, Dr. Fries stated that, while appellant did have subjective pain 

complaints consistent with left lower extremity radiculopathy, he did not have objective 

examination findings to confirm lumbar spine pathology or disabling residuals of his work 

incidents. He asserted that any aggravation, acceleration or precipitation of his lumbar condition 

was based on subjective complaints. There was insufficient evidence to supporting a finding that 

appellant’s work duties from August to October 2010 were the cause of his current low back 

condition. Dr. Fries opined that there were no subjective physical findings such as sensory loss 

in a dermatomal pattern or sciatic symptoms with provocative testing. He reviewed a 

December 19, 2008 EMG test and concurred with Dr. Barr that they did not indicate 

radiculopathy. Dr. Fries opined that these tests were consistent with peripheral radiculopathy, 

which was likely diabetic in origin. He concluded that appellant was totally disabled from 

employment but that this was attributable to morbid obesity, untreated diabetes, untreated cardiac 

arrhythmia and untreated probable congestive heart failure, not his claimed low back condition. 

OWCP relied on Dr. Fries’ opinion in its July 16, 2013 decision, finding that appellant’s claimed 

low back condition was not causally related to his employment. 

The Board finds that Dr. Fries’ impartial opinion negates a causal relationship between 

appellant’s claimed condition and his employment. Counsel makes several assertions that 

Dr. Fries’ findings are not accurate or well reasoned. The question of whether appellant 

sustained a low back condition in the performance of duty is a medical one. Upon review, 

Dr. Fries’ opinion is sufficiently probative, rationalized and based upon a proper factual 

background. Therefore, OWCP properly accorded his opinion the special weight of an impartial 

medical examiner.10 The Board therefore finds that Dr. Fries’ opinion constituted the weight of 

medical opinion and supports the July 16, 2013 OWCP decision finding that appellant did not 

sustain a low back condition in the performance of duty. 

Appellant subsequently requested an oral hearing but did not submit any additional 

medical evidence. Thus the Board will affirm OWCP’s hearing representative’s January 16, 

2014 decision. 

An award of compensation may not be based on surmise, conjecture or speculation. 

Neither the fact that appellant’s condition became apparent during a period of employment nor 

the belief that his condition was caused, precipitated or aggravated by his employment is 

sufficient to establish causal relationship.11 Causal relationship must be established by 

rationalized medical opinion evidence and appellant failed to submit such evidence. 

 10 Gary R. Seiber, 46 ECAB 215 (1994). 

11 See id.
7

Appellant has not met his burden of proof in establishing that his claimed lumbar back 

condition was causally related to his employment. For this reason, he has not discharged his 

burden of proof to establish his claim that this condition was sustained in the performance of 

duty. 

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 has failed to meet his burden of proof to establish that his 

claimed low back condition was sustained in the performance of duty. 
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ORDER 

IT IS HEREBY ORDERED THAT the January 15, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 22, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board