United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.G., Appellant 

and 

U.S. POSTAL SERVICE, BULK MAIL 

CENTER, Edison, NJ, Employer 

__________________________________________ 

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Docket No. 15-573 

Issued: May 18, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 13, 2015 appellant, through counsel, filed a timely appeal from a 

September 15, 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 sustained a low back injury in the performance of duty on 

July 31, 2012. 

FACTUAL HISTORY 

This is the second appeal before the Board. On August 7, 2012 appellant, then a 43-yearold clerk, filed a claim for traumatic injury alleging that he developed lower back pain and 

numbness in both legs and feet due to twisting and turning while moving boxes and turning on a 

 1

 5 U.S.C. § 8101 et seq. 
2

machine on July 31, 2012. He also had previously accepted claims. OWCP file number 

xxxxxx049, was accepted for injury of August 19, 2003, the nature of this injury is unclear. Its 

file number xxxxxx692 was accepted for a back injury on November 8, 2009. Appellant 

returned to work on May 25, 2012 following lumbar surgery for the November 8, 2009 injury. 

In an August 7, 2012 statement, appellant asserted that on July 31, 2012 while at work he 

experienced lower back pain and numbness down both legs beginning at 12:45 a.m., which 

worsened until he went home three hours later. In an August 15, 2012 work capacity evaluation, 

Dr. Frank M. Moore, a Board-certified neurosurgeon, found appellant disabled due to pain from 

twisting following a lumbar fusion procedure. He stated that appellant might not be able to 

return to his position until further notice. 

Appellant submitted a narrative statement dated September 6, 2012, which noted that he 

was working on a conveyor belt on July 31, 2012 lifting boxes that weighed between 5 and 70 

pounds. He stated that he had to twist and reach to lift the boxes and place them on the belt. 

Appellant stated that he had no pain when he began working on July 31, 2012, but at 3:30 a.m. 

he asked to leave work due to his back pain. He stated that his supervisors required him to file a 

new injury form despite his statements that his pain was the result of the prior November 8, 2009 

injury, under case file number xxxxxx692. 

By decision dated September 27, 2012, OWCP denied appellant’s claim because he failed 

to submit any medical evidence to establish a diagnosed condition causally related to his July 31, 

2012 employment incident. 

On September 22, 2012 Dr. Moore performed a laminectomy/intervertebral fusion 

procedure to ameliorate L3-4 and L4-5 spinal stenosis, discogenic disease, and instability by 

fusing the L3-4 and L4-5 disc levels 

In a February 6, 2013 report, Dr. Moore stated that he had examined appellant on 

August 15, 2012, at which time he complained of increasing low back symptomatology. He 

stated that appellant had symptoms of mechanical low back pain with radiculopathy and that he 

was not fit to work in his current job description. Dr. Moore recommended that appellant be 

taken off work. He opined that the July 31, 2012 lifting and twisting incident caused an 

aggravation of appellant’s preexisting lower back condition. After performing surgery on 

September 22, 2012 Dr. Moore reexamined appellant on September 24, 2012 and advised that he 

had increasing low back symptomatology. Appellant underwent a computerized axial 

tomography (CAT) scan of the lumbosacral spine, which showed that the area of surgery from 

L3 to L5 had healed properly, but that he had degenerative changes and facet arthropathy at 

L5-S1. 

Dr. Moore related that appellant’s symptoms were progressively worsening and he 

recommended a definitive myelogram and postmyelogram CAT scan to accurately diagnose 

appellant’s condition. The myelogram was performed on December 4, 2012. Dr. Moore found 

that the area of surgery from L3 to L5 was fully decompressed and he noted a progression of 

stenosis and nerve root compression at the L5-S1 level. At this point he considered appellant to 

be a candidate for extension of the decompression and fusion to include L5-S1. 
3

On January 31, 2013 appellant underwent an “uneventful” removal of the instrumentation 

with extension of decompression to L5-S1 and reinstrumentation at that level. Dr. Moore opined 

that appellant’s job description entailed repetitive heavy lifting with a twisting motion, which 

was responsible for his recurrent symptomatology of lumbar pain with lower extremity 

radiculopathy, including weakness, and numbness in both legs. He concluded that this caused 

the need for the surgical decompression which was performed on January 31, 2013. 

By decision dated March 20, 2013, an OWCP hearing representative affirmed the 

September 27, 2012 decision. He found that the evidence failed to establish the specific 

employment incident on July 31, 2012 and that by August 15, 2012 his symptoms had improved. 

In a March 19, 2014 decision,2 the Board found that the evidence was sufficient to 

establish the incident on July 31, 2012, but that appellant had failed to provide sufficient medical 

evidence to establish an aggravation of his low back condition as a result of the July 31, 2013 

work incident. The Board, therefore, affirmed the March 20, 2013 decision. The complete facts 

of this case are set forth in the Board’s March 19, 2014 decision and are herein incorporated by 

reference. 

Appellant requested reconsideration on April 28, 2014. In support thereof, he submitted 

a report dated April 14, 2014 from Dr. Moore stated: 

“In order to further complete [appellant’s] documentation, I would like to state 

that my professional opinion is that there is a direct causal relationship between 

[his] condition and his employment activities on July 31, 2012. 

“Prior to that day, [appellant] had mild discomfort in the lumbosacral area. 

Following that day he had acute exacerbation of his underlying symptoms with 

debilitating pain and he is unable to return to his regular job description. 

“As a result of this injury, [appellant] required additional care and surgery. This 

care and surgery was related to this accident dated July 31, 2012.” 

By decision dated May 9, 2014, OWCP denied modification of the prior decision. 

On July 18, 2014 appellant again requested reconsideration. He submitted a July 14, 

2014 report from Dr. Moore. In the July 14, 2014 report, Dr. Moore stated: 

“The purpose of this letter is to further discuss the causal relationship between 

[appellant’s] symptomatology and employment activities on July 31, 2012. On 

that date, as noted on [appellant’s] statement, he noted increasing low back pain 

as he was performing activities that included twisting, bending, and lifting. This 

was an acute exacerbation of his underlying symptoms and he had to stop 

working on that day and return home. 

 2

 Docket No. 13-1372 (issued March 19, 2014). 
4

“[Appellant] is status post a prior L3-4, L4-5 decompression, fusion, and 

instrumentation. I do believe that following the accident that occurred on July 31, 

2012 he sustained disc herniation at stenosis at the L5-S1 level, an adjacent level 

to prior fusion. 

“Within a reasonable degree of medical certainty, I do believe that [appellant’s] 

subsequent symptoms were related to this accident dated July 31, 2012. 

Post-traumatic imaging did demonstrate disc disease with stenosis at the LS-S1 

level. This eventually required further surgery at that level. 

“Adjacent level disease is not uncommon following prior surgery and activities 

performed on July 31, 2012 aggravated [appellant’s] low back condition requiring 

additional treatment and surgery.” 

By decision dated September 15, 2014, OWCP denied modification of the prior decision, 

after merit review. 

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 

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

performance of duty it must first be determined whether “fact of injury” has been established. 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. The employee must also 

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

employment incident caused a personal injury.5

 

The medical evidence required to establish causal relationship is usually rationalized 

medical 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 medical certainty, and must be supported by medical rationale explaining the 

 3 Supra note 1. 

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

5 See S.P., 59 ECAB 184 (2007). 
5

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.6

The Board has held that the mere fact that a condition manifests itself during a period of 

employment does not raise an inference that there is a causal relationship between the two.7

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

ANALYSIS 

In the prior appeal, the Board accepted that the alleged employment factors occurred on 

July 31, 2012, but that appellant had not submitted sufficient evidence to establish an 

aggravation of his back condition due to these factors. The Board finds that he has failed to 

establish a back injury causally related to the accepted events of July 31, 2012. 

Counsel argues on appeal that Dr. Moore’s April 14 and July 14, 2014 reports provided 

sufficient medical evidence to establish a causal relationship between appellant’s July 31, 2012 

work incident and the aggravation of his lower back condition. He contends that Dr. Moore’s 

April 14, 2014 report specifically stated that the activities in which appellant engaged during the 

July 31, 2012 work incident aggravated his low back condition. Counsel asserted that, in his 

July 14, 2014 report, Dr. Moore clarified that appellant’s work activities on July 31, 2012, 

including twisting, bending, and lifting, aggravated his low back condition. 

Appellant claimed injury on August 7, 2012, alleging that he developed lower back pain 

as well as numbness in both legs and feet due to twisting and turning while moving boxes and 

turning on a machine on July 31, 2012. Evidence provided by him, which had not already been 

reviewed by the Board was included in April 14 and July 14, 2014 reports from Dr. Moore. 

In his April 14, 2014 report, Dr. Moore opined that there was a direct causal relationship 

between appellant’s condition and his employment activities on July 31, 2012. He advised that, 

prior to that day, appellant had mild discomfort in the lumbosacral area; following that day he 

had acute exacerbation of his underlying symptoms, with debilitating pain, and was unable to 

return to his regular job. As a result of this injury, appellant required additional care and surgery, 

which was related to the July 31, 2012 work incident. Dr. Moore in essence was stating that 

causal relationship existed between appellant’s July 31, 2012 work duties and his current 

condition because appellant only had mild discomfort in his lumbosacral area before that day but 

was symptomatic afterwards. A medical opinion regarding causal relationship based on the lack 

of symptoms before the injury is insufficient, however, without supporting medical rationale, to 

establish causal relationship.8

 Dr. Moore did not explain, with medical rationale, how the 

accepted events of July 31, 2012 actually caused or aggravated appellant’s diagnosed back 

condition. 

 6 Id.

7 See Joe T. Williams, 44 ECAB 518, 521 (1993). 

8 See M.D., Docket No. 14-1700 (issued December 1, 2014). 
6

Dr. Moore reiterated in his July 14, 2014 report that there was a causal relationship 

between appellant’s symptomatology and his employment activities on July 31, 2012. Appellant 

indicated in his August 7 and September 6, 2012 statements that he had increasing low back pain 

as he was performing activities which included twisting, bending, and lifting. Dr. Moore advised 

that this was an acute exacerbation of appellant’s underlying symptoms and as a result he had to 

stop working that day. He concluded that, following the July 31, 2012 work incident, appellant 

sustained disc herniation and stenosis at the L5-S1 level, an adjacent level to prior fusion. 

Dr. Moore opined that, within a reasonable degree of medical certainty, he believed that 

appellant’s subsequent symptoms were related to the July 31, 2012 work incident and advised 

that post-traumatic imaging did demonstrate disc disease with stenosis at the LS-S1 level, which 

eventually required further surgery at that level. He stated that adjacent level disease was not 

uncommon following prior surgery and that the activities performed on July 31, 2012 aggravated 

appellant’s low back condition, requiring additional treatment and surgery. Again, Dr. Moore’s 

reports do not explain how appellant’s work activities on July 31, 2012 would have 

physiologically caused appellant’s diagnosed disc herniation and stenosis at the L5-S1 level. 

Medical rationale is particularly important in establishing this claim, as it is clear from the record 

that appellant had preexisting back conditions. 

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.9

 The Board finds that he has not 

established that his current back conditions were caused by the accepted work incident on 

July 31, 2012. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof. 

 9 Id.
7

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: May 18, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board