United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.N., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bronx, NY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0627 

Issued: May 11, 2016 

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 7, 2016 appellant, through his representative, filed a timely appeal from a 

November 30, 2015 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 has established an injury on December 2, 2014 causally 

related to an accepted employment incident. 

FACTUAL HISTORY 

On December 10, 2014 appellant, then a 27-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 2, 2014 he was injured when he was pulling out 

 1

 5 U.S.C. § 8101 et seq. 
2

of a parking space when his vehicle caught the bumper of another vehicle, and to prevent further 

damage he abruptly stopped and his body jerked. 

With respect to medical evidence, the record includes a September 30, 2013 report from 

Dr. Nadya Swedan, a Board-certified physiatrist, who diagnosed right herniated nucleus 

pulposus (HNP) L3-4 with radiculopathy, L4-S1 HNP, status post lumbar laminectomy, and 

“new dis[c] herniation.” She indicated that appellant should be off work through 

October 31, 2013. By report dated March 31, 2014, Dr. Swedan reported that appellant was 

unable to work due to postsurgery, flare-ups, and possible future surgery. She diagnosed 

multiple level disc herniations. 

In a brief form report dated December 3, 2014, Dr. Annie Collier, an emergency 

medicine specialist, indicated that appellant was treated at the emergency room and could return 

to work in one or two days. Dr. Swedan provided a brief December 4, 2014 note that appellant 

was unable to work due to multiple level disc herniations. 

By letter dated December 16, 2014, OWCP requested that appellant submit additional 

evidence to support his claim for compensation. It indicated that the factual portion of the claim 

had not been established as the circumstances surrounding the December 2, 2014 incident were 

unclear. OWCP also advised appellant that the medical evidence must include an opinion with 

supporting explanation as to how the incident caused or aggravated a diagnosed condition. It 

allotted him 30 days to submit the requested evidence, but he did not respond within the allotted 

time. 

In a decision dated January 22, 2015, OWCP denied appellant’s claim for compensation. 

It found he had not established the factual or medical components of fact of injury. 

Appellant requested a hearing before an OWCP hearing representative. With it he 

submitted a January 20, 2015 report, Dr. John Mitamura, a Board-certified orthopedic surgeon, 

who provided a history of a December 2, 2014 incident where appellant’s vehicle engaged with 

the bumper of another vehicle and appellant lurched. He indicated that appellant previously had 

back surgery in 2008. Dr. Mitamura provided results on examination and reported that lumbar 

spine images showed significant foraminal stenosis at L4-5 and L5-S1, with significant 

retrolisthesis at L4-5 consistent with lumbar spine instability. He recommended magnetic 

resonance imaging (MRI) scan studies. 

On September 16, 2015 appellant submitted a statement describing the December 2, 2014 

incident. He indicated that the lighting was poor and it was raining at the time of the incident, 

and the rear bumper of his vehicle locked with the front bumper of another employing 

establishment vehicle. According to appellant, he stopped his vehicle and then as he tried to 

detach the bumpers, the other vehicle’s bumper snapped and appellant was jerked forward and 

then back. He indicated that he was on his regularly assigned duties in the employing 

establishment parking lot at the time of the incident. 

Additionally, appellant submitted a January 23, 2015 MRI scan report from Dr. Stephen 

Greenberg, a radiologist. Dr. Greenberg described the findings as disc space narrowing at L3-4, 

L4-5, and L5-S1 with mild loss of signal on long pulse sequence consistent with degenerative 
3

change. He diagnosed status post left-sided hemilaminotomy of L5 at the L5-S1 level, broadbased central and left-sided disc extrusion at this level with compression of the thecal sac and left 

S1 nerve root in the lateral recess, annular bulge with central disc extrusion at the L4-5 level with 

mild-to-moderate compression of the thecal sac, and annular bulge with central disc protrusion 

and right foraminal disc extrusion at the L3-4 level. 

A hearing was held on September 17, 2015. On October 3, 2015 appellant submitted a 

September 30, 2015 report from Dr. Swedan, who indicated that appellant was treated on 

December 4, 2014. Dr. Swedan described the December 2, 2014 incident. She indicated that 

appellant had L5-S1 lumbar discectomy and hemilaminotomy surgery in 2008, but appellant was 

managing his postoperative back with exercise and physical therapy. Dr. Swedan reported that 

the January 23, 2015 MRI scan showed disc extrusions at multiple levels. She diagnosed L3-S1 

disc extrusion, left SI and right L3 lumbar radiculopathy, and worsening of degenerative disease 

of facet joints L4-5. Dr. Swedan concluded that it was her opinion that appellant’s conditions of 

multilevel disc extrusions at L3-4, L4-5, and L5-S1, and lumbar radiculopathy were causally 

related to the accident of December 2, 2014 as described. She stated, “The reason for this 

opinion is herniated discs occur from the type of accident described: an 

acceleration/deceleration injury resulting in traction injury to the spine with disc displacement.” 

By decision dated November 30, 2015, the hearing representative affirmed OWCP’s 

January 22, 2015 decision as modified finding that the evidence was sufficient to establish a 

December 2, 2014 employment incident as alleged. However, he further found that the medical 

evidence was not sufficiently rationalized to establish an injury casually related to the 

employment incident. 

LEGAL PRECEDENT 

FECA provides for the payment of compensation for “the disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.”2 The 

phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the 

commonly found requisite in workers’ compensation law of “arising out of and in the course of 

employment.”3

 An employee seeking benefits under FECA has the burden of proof establishing 

that he or she sustained an injury while in the performance of duty.4 In order to determine 

whether an employee actually sustained an 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 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. The second component is whether the employment incident 

caused a personal injury, and generally this can be established only by medical evidence.5 

 2

 5 U.S.C. § 8102(a). 

3 Valerie C. Boward, 50 ECAB 126 (1998). 

4 Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115. 

5 See John J. Carlone, 41 ECAB 354, 357 (1989). 
4

Rationalized medical opinion evidence is medical evidence that is based on a complete 

factual and medical background, of reasonable medical certainty, and supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant. The weight of medical evidence is 

determined by its reliability, its probative value, its convincing quality, the care of the analysis 

manifested, and the medical rationale expressed in support of the physician’s opinion.6

ANALYSIS 

In the present case, appellant alleged that he sustained an injury on December 2, 2014. 

When his vehicle bumper became locked with another vehicle while in the performance of duty 

and after disengaging the bumpers he was jerked forward. OWCP has accepted that an incident 

occurred as alleged. 

The issue is whether the medical evidence is sufficient to establish a diagnosed condition 

as causally related to the employment incident. Dr. Mitamura provided a history of the 

December 2, 2014 employment incident but did not provide an opinion on causal relationship 

between a diagnosed condition and the employment incident. 

Dr. Swedan provided a description of the December 2, 2014 employment incident in her 

September 30, 2015 report. However, her report is insufficient to establish a diagnosed 

condition causally related to the employment incident. The Board notes that the medical history 

Dr. Swedan provided was incomplete. Dr. Swedan noted a 2008 back surgery, and then 

indicated that appellant had been managing his back condition. She did not refer to her own 

September 30, 2013 report, in which she opined appellant was disabled for work and diagnosed 

lumbar disc herniations and noted a new disc herniation, or her March 31, 2014 report that 

diagnosed multiple disc herniations and noted the possibility of future surgery. In addition, 

Dr. Swedan did not discuss her examination findings on December 4, 2014. The December 4, 

2014 report of record simply diagnoses disc herniations, the same diagnoses as in the preinjury 

report of March 31, 2014. 

An opinion of a physician must be based on a complete factual and medical background 

of appellant, 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.7

 Appellant has submitted insufficient 

evidence in this case. 

On appeal, appellant’s representative argues that Dr. Swedan’s September 30, 2015 

report is sufficient to establish an employment-related condition. For the reasons discussed, the 

Board finds the medical evidence is insufficient to meet appellant’s burden of proof. 

 6 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

7 Jacqueline M. Nixon-Stewart, 52 ECAB 140 (2000). 
5

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 an injury causally related to the accepted 

December 2, 2014 employment incident. 

ORDER 

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

Compensation Programs dated November 30, 2015 is affirmed. 

Issued: May 11, 2016 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board