United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

South Burlington, VT, Employer 

__________________________________________ 

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Docket No. 15-469 

Issued: May 4, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 29, 2014 appellant, through counsel, timely appealed the October 23, 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 established that his claimed lumbar condition was causally 

related to his November 16, 2013 employment exposure. 

FACTUAL HISTORY 

Appellant, a 46-year-old city letter carrier, filed a traumatic claim alleging that he injured 

his lower back on November 16, 2013 when he lifted a tray of mail from a hamper and placed it 

into his postal vehicle (LLV). He had sustained a prior work-related lumber work-related lumbar 

 1

 5 U.S.C. §§ 8101-8193 (2006). 
2

injury on or about June 15, 2013 claim number xxxxxx713.2

 Appellant was on a light-duty 

assignment at the time of the November 16, 2013 employment incident. His limitations included 

an eight-hour workday, five to six hours walking, and a 35-pound lifting restriction.3 The 

employing establishment claimed that appellant worked outside his restrictions on November 16, 

2013, noting that one of the trays he loaded into his LLV weighed 51 pounds. 

A coworker, Scott R. Empie, provided a statement that he helped appellant by loading 

mail trays into the LLV on the morning of November 16, 2013. He stated that he observed 

appellant in what appeared to be a lot of pain. Appellant told Mr. Empie that his back was going 

into a spasm. 

In a December 15, 2013 supplemental statement, appellant indicated that he did not know 

if he had lifted above his 35-pound restriction. He stated that he had approximately four to five 

mail trays in total and they were not weighed for him, nor did he have a scale to weigh them 

himself. Appellant questioned his supervisor’s allegation that he lifted a tray weighing 51 

pounds, noting that Mr. Empie helped load his mail trays into the LLV on November 16, 2013. 

OWCP received prior treatment records covering the period September 4 through 

October 10, 2013. Dr. Flimlin first examined appellant on September 4, 2013 for complaints of 

low back pain and bilateral hip pain, right greater than left. Her preliminary diagnoses included 

hip osteoarthritis, lumbar degenerative disc disease, and low back pain radiating to both legs. At 

the time, Dr. Flimlin recommended obtaining a lumbar magnetic resonance imaging (MRI) scan. 

When appellant returned for follow up on September 18, 2013, Dr. Flimlin diagnosed 

lumbar degenerative disc disease, L5-S1 disc herniation, and lumbar spinal stenosis -- 

congenitally small canal. She imposed a six-hour workday, a 25-pound lifting restriction, and 

precluded repetitive twisting from the waist. Dr. Flimlin indicated that repetitive twisting with 

lifting mail had certainly worsened and exacerbated appellant’s condition. She advised him to 

continue with chiropractic treatment and to follow up with her in four weeks. 

Dr. Flimlin next saw appellant on October 10, 2013. She noted that he had been working 

with restrictions and continued to experience back pain radiating into the right hip. Appellant 

also continued to receive weekly chiropractic treatment. Dr. Flimlin indicated that his lumbar 

MRI scan was consistent with central disc herniation at L5-S1 and lumbar spondylosis with 

congenitally small canal. The MRI scan also showed moderate central stenosis and severe 

bilateral/lateral recess stenosis. Dr. Flimlin noted that appellant had done well with chiropractic 

adjustments and work restrictions. At that time, she amended his work restrictions to allow for 

an eight-hour workday and a 35-pound lifting restriction. Dr. Flimlin advised appellant to follow 

up with her in eight weeks. 

Appellant returned to see Dr. Flimlin on November 20, 2013. She described him as 

having known degenerative changes in the spine with L5-S1 disc herniation, moderate central 

 2

 The hearing representative’s October 23, 2014 decision noted that appellant’s prior claim was accepted for 

L5-S1 disc herniation and bilateral lumbar radiculopathy. Although appellant’s counsel asked the hearing 

representative to consolidate (double) the two lumbar injury claims, the complete record regarding appellant’s 

June 15, 2013 occupational disease claim number xxxxxx713 is currently unavailable for review by the Board. 

3

 Dr. Mary T. Flimlin, a Board-certified physiatrist, provided the above noted work restrictions. 
3

stenosis, and severe bilateral/lateral recess stenosis. Dr. Flimlin noted that four days earlier 

appellant had lifted a mail hamper onto a truck and experienced severe axial back pain. She also 

noted that he continued to experience some episodic right leg pain radiating along the lateral 

aspect of the thigh, but the reinjury four days ago was 100 percent back. Since then, appellant 

had been seen by a chiropractor who provided electrostimulation and back adjustments, which he 

had found helpful. Dr. Flimlin stated that the work incident four days ago with “bending, lifting, 

and twisting,” caused a “recurrence of back pain.” She prescribed Gabapentin and recommended 

an epidural steroid injection at L5-S1. Dr. Flimlin also recommended lower extremity 

electrodiagnostic studies to rule out L4-5 radiculopathy. As far as work limitations, she 

indicated that appellant could perform in a sedentary capacity with a 10-pound lifting restriction. 

Dr. Flimlin also precluded bending, twisting, and repetitive lifting. She advised appellant to 

follow-up in four to six weeks. 

Dr. Mark Bradley, a chiropractor, examined appellant on November 25, 2013. He noted 

that he had been seeing appellant for his low back since September 11, 2013, but did not provide 

a specific diagnosis. Dr. Bradley reviewed a November 25, 2013 light-duty job offer and 

expressed his opinion that the offered position was inconsistent with Dr. Flimlin’s work 

restrictions. 

In a December 4, 2013 report, Dr. Flimlin advised that appellant could return to light duty 

with an eight-hour workday. She imposed a 35-pound lifting restriction. Dr. Flimlin also 

indicated that appellant was able to drive and could walk five to six hours per day.4

 

Dr. Michael T. Borrello, a Board-certified anesthesiologist with a subspecialty in pain 

medicine, examined appellant on December 9, 2013. Appellant reported having developed some 

low back pain approximately 6 months ago, which had since worsened. He also reported a 

significant aggravation on November 16, 2013 when lifting approximately 30 pounds at work. 

Dr. Borrello noted that appellant worked as a letter carrier and had been under a 30-pound lifting 

restriction. The November 16, 2013 lifting incident reportedly involved a rotational component 

which, according to appellant, exacerbated his low back pain with radiation into his right lower 

extremity down to the calf. Appellant also reported occasional numbness and tingling. 

Dr. Borrello diagnosed lumbar spondylosis and later administered an epidural steroid injection at 

L5-S1. 

On December 11, 2013 Dr. Flimlin advised that appellant was temporarily totally 

disabled pending the results of an upcoming functional capacity evaluation. 

In a January 10, 2014 decision, OWCP denied appellant’s traumatic injury claim. 

Although he established fact of injury, OWCP found the medical evidence insufficient to 

establish a causal relationship between his diagnosed lower back conditions and the 

November 16, 2013 employment incident. 

Appellant requested an oral hearing, which was held on August 6, 2014. 

 4

 These are the same limitations that were in place at the time of the November 16, 2013 employment incident. 
4

OWCP received additional medical evidence, which included January 2, 2014 treatment 

notes from Dr. Borrello, who administered an epidural steroid injection at L5-S1. Dr. Borrello 

continued to diagnose lumbar spondylosis. 

On January 24, 2014 Dr. Flimlin advised that appellant could immediately resume work 

in a part-time (four hours), light-duty capacity. 

In a January 30, 2014 report, Dr. Flimlin stated that she saw appellant on November 20, 

2013, four days after he reinjured his lower back while lifting a “mail hamper onto a truck” at 

work. She explained that he had degenerative changes in the lumbar spine, but that with the 

lifting incident worsened the symptoms that were related to a work-related injury. Dr. Flimlin 

further stated that she believed with medical certainty that the lifting incident caused a recurrence 

of appellant’s low back pain with radicular symptoms into the right leg. She also indicated that 

his chiropractic treatment provided symptomatic relief and was helpful for axial unloading of the 

spine. In closing, Dr. Flimlin noted that the November 16, 2013 recurrence of symptoms was a 

reinjury of appellant’s original injury. 

Bang To, a certified physician assistant, treated appellant on March 6, 2014 for injuries to 

his head, left shoulder/elbow, and lower back. Appellant had recently fallen on ice and hit the 

back of his head. With respect to appellant’s lumbar region, Mr. To noted that he had landed flat 

on his back and it was a bit sore. Mr. To also noted a prior history of two herniated lumbar discs, 

with constant lower back pain. He further noted that appellant was currently on work restriction. 

Mr. To’s diagnoses included head injury, headache, left elbow pain, and lumbar spine pain, all of 

which he attributed to work activities. Additionally, he advised that appellant could return to 

regular work without restrictions.5

 

In July 10, 2014 follow-up treatment notes, Dr. Flimlin indicated that appellant was 

injured on November 16, 2013 and reinjured on January 13, 2014. She noted that since his last 

visit, he had been working eight-hour days, five days a week. Dr. Flimlin further noted that 

appellant periodically experienced some soreness in his low back radiating to the hip. Appellant 

currently denied any numbness or tingling into the legs, and there was no leg pain. Dr. Flimlin 

also reported improved strength and increased range of motion in the hip and lumbosacral spine. 

She noted a history of disc herniation with radiculopathy, which had improved significantly such 

that appellant no longer experienced radicular symptoms. Accordingly, Dr. Flimlin advised that 

he could permanently return to a nine-hour workday, five days per week. She also indicated that 

no follow up was necessary. 

In an October 23, 2014 decision, the Branch of Hearings & Review affirmed OWCP’s 

January 10, 2014 decision. 

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, 

 5

 Mr. To identified appellant as a postal service employee, but did not otherwise describe his duties. 
5

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.6

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.7 The second component is whether the employment incident caused a 

personal injury.8

 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.9

ANALYSIS 

Appellant attributed his current low back condition to the November 16, 2013 lifting 

incident. He had previously injured his lower back on or about June 15, 2013. According to the 

hearing representative, OWCP accepted appellant’s prior disease claim number xxxxxx713 for 

L5-S1 disc herniation and bilateral lumbar radiculopathy. At the time of the November 16, 2013 

incident, appellant was working in a light-duty capacity as a result of his preexisting lumbar 

condition. His treating physician, Dr. Flimlin, provided various lumbar-related diagnoses, which 

included degenerative disc disease, L5-S1 disc herniation, spondylosis with congenitally small 

canal, moderate central stenosis, and severe bilateral/lateral recess stenosis. Dr. Borrello also 

diagnosed lumbar spondylosis. As the hearing representative correctly noted, the issue is 

whether appellant’s current lumbar conditions are causally related to the November 16, 2013 

employment incident. As noted, causal relationship is a medical question that generally requires 

rationalized medical opinion evidence to resolve the issue.10

Although appellant’s chiropractor noted that he had been treating appellant for his low 

back since September 2013, Dr. Bradley did not provide a specific lumbar-related diagnosis in 

his November 25, 2013 report. 

Dr. Borrello initially examined appellant on December 9, 2013 and diagnosed lumbar 

spondylosis. His report referenced a “significant aggravation” on November 16, 2013 when 

lifting approximately 30 pounds at work. However, Dr. Borrello did not specifically comment 

 6

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

7 Elaine Pendleton, 40 ECAB 1143 (1989). 

8 John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that 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.

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

10 Robert G. Morris, supra note 8. 
6

on whether appellant’s letter carrier duties either caused or contributed to his diagnosed lumbar 

degenerative osteoarthritis. He merely reported appellant’s description of what occurred on 

November 16, 2013. Accordingly, Dr. Borrello’s treatment notes are insufficient to establish a 

causal relationship between appellant’s lumbar spondylosis and the November 16, 2013 

employment incident. 

Mr. To, a physician assistant, treated appellant for an unrelated fall on March 6, 2014. 

He noted a prior history of lumbar herniated disc, but did not comment on or even mention 

appellant’s November 16, 2013 lifting incident. Certain healthcare providers such as physician 

assistants, nurse practitioners, physical therapists and social workers are not considered 

“physician[s]” as defined under FECA.11 As such, their opinions will not suffice for purposes of 

establishing entitlement to FECA benefits.12 A report from a physician assistant or certified 

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

physician.13 

In her November 20, 2013 report, Dr. Flimlin indicated that four days prior appellant 

lifted a mail hamper onto a truck and experienced severe axial back pain. She characterized the 

November 16, 2013 work incident as involving “bending, lifting, and twisting,” which caused a 

“recurrence of back pain.” In her January 30, 2014 report, Dr. Flimlin stated that appellant 

reinjured his lower back while lifting a “mail hamper onto a truck.” She noted that he had 

degenerative changes in the lumbar spine, and explained that the November 16, 2013 lifting 

incident “[reinjured] the symptoms that were related to a work-related injury on [January 13, 

2014].” Dr. Flimlin believed with medical certainty that the lifting incident caused a recurrence 

of appellant’s low back pain with radicular symptoms into the right leg. In closing, she reiterated 

that the November 16, 2013 recurrence of symptoms was a reinjury of appellant’s original injury. 

Dr. Flimlin’s above-noted reports are insufficient to establish causal relationship for 

several reasons. First, her reported history of injury is inaccurate. Appellant did not lift a “mail 

hamper onto a truck.” He lifted a mail tray from a hamper and placed the mail tray into his LLV. 

Second, on at least two occasions Dr. Flimlin referenced a January 13, 2014 work-related injury, 

which is not otherwise supported in the record. A physician’s opinion on causal relationship 

must be based on a complete factual and medical background.14 Lastly, Dr. Flimlin did not 

provide a specific diagnosis related to the November 16, 2013 employment incident. She 

variously characterized the November 16, 2013 incident as causing a recurrence of low back pain 

and/or a reinjury of symptoms. Back pain is a symptom, not a medical diagnosis. Subjective 

complaints of pain are not sufficient, in and of themselves, to support compensation benefits 

under FECA.15 

 11 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 

12 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013). 

14 Victor J. Woodhams, supra note 8. 

15 20 C.F.R. § 10.501(a)(3). 
7

The mere fact that a condition manifests itself during a period of employment is not 

sufficient to establish causal relationship.16 Temporal relationship alone will not suffice.17 

Furthermore, appellant’s personal belief that his employment activities either caused or 

contributed to his condition is insufficient, by itself, to establish causal relationship.18 The Board 

finds that the medical evidence of record fails to establish that his current lumbar condition is 

causally related to his accepted November 16, 2013 employment exposure. Accordingly, OWCP 

properly denied appellant’s traumatic injury claim. 

CONCLUSION 

Appellant failed to establish that his current lumbar condition is causally related to the 

November 16, 2013 employment incident. 

ORDER 

IT IS HEREBY ORDERED THAT the October 23, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed.19

Issued: May 4, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 Id. at § 10.115(e). 

17 See D.I., 59 ECAB 158, 162 (2007). 

18 20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004). 

19 Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within 

one year of this merit decision. 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.