United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Clarita, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1488 

Issued: November 19, 2014 

Appearances: Case Submitted on the Record

Chris Gayles, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 19, 2014 appellant, through her representative, filed a timely appeal from a 

May 27, 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 met her burden of proof to establish that she sustained a 

right leg and lumbar injury in the performance of duty. 

FACTUAL HISTORY 

On August 13, 2013 appellant, then a 55-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained a lower back and right leg injury on 

August 9, 2013. She reported that her injuries were a result of lifting and carrying heavy mail 

 1

 5 U.S.C. § 8101 et seq.
2

containers for a period of five days. Appellant stopped work on August 11, 2013 and notified 

her supervisor on August 13, 2013. Her supervisor controverted the claim stating that appellant 

did not work alone in her assignments. She further stated that appellant was not working on 

August 9, 2013, the date of the alleged injury. 

In an August 9, 2013 medical report, Dr. Carlos Garrett, Board-certified in internal 

medicine, reported that appellant was seen for severe low back pain with radiation down her 

right leg to foot. Appellant reported last working the mail line on August 7, 2013 and 

experiencing soreness after work. The pain worsened the following day when she was off work 

causing her to seek medical treatment. Dr. Garrett noted that appellant was a postal employee 

for the last 10 years and worked 40 hours per week. Appellant’s duties included prolonged 

standing and walking, repetitive use of hands with the computer, kneeling, squatting, bending, 

pushing and pulling 25 to 70 pounds of repetitive lifting. Dr. Garrett noted history of a 2012 

back injury consisting of a lumbar sprain with no radicular symptoms. According to appellant, 

her current injury was not caused by a single specific event but was the result of a repetitive 

cumulative injury. Upon physical examination and review of x-rays, Dr. Garrett diagnosed 

lumbar sprain, lumbar radiculopathy and sciatica. Regarding appellant’s work status, he found 

that the findings and diagnosis were consistent with her account of injury or onset of illness. 

Appellant was restricted from working until August 12, 2013. 

By letter dated August 14, 2013, the employing establishment controverted the claim. It 

contended that appellant’s description of injury did not conform to guidelines for a traumatic 

injury and that she was not working on August 9, 2013, the date she alleged being injured. 

By letter dated August 13, 2013, appellant stated that beginning August 2, 2013 she was 

assigned to dump heavy trays of mail which required bending, lifting and loading 1,000 to 2,000 

trays each shift. After lifting approximately 1,000 trays on August 7, 2013, she went home with 

a sore back. The following day was her day off; but she could not get out of bed due to right leg 

and back pain which caused her to seek medical treatment. 

By letter dated August 20, 2013, OWCP informed appellant that the evidence of record 

was insufficient to support her claim. Appellant was advised that it was unclear whether she was 

claiming a traumatic injury or occupational disease claim and asked to clarify the nature of her 

claim. OWCP further requested additional medical and factual evidence and asked that she 

respond within 30 days. 

On August 28, 2013 appellant responded that she was claiming a traumatic injury. She 

reported that lifting and carrying heavy trays caused external force and strain on her back. 

Appellant further reported that on August 9, 2013 she was on the employing establishment 

premises and the employing establishment sent her to U.S. Health Works for a medical 

examination. 

In an August 9, 2013 report, Dr. Peter Herwitt, a Board-certified diagnostic radiologist, 

reported that an x-ray of the lumbar spine revealed minimal spondylolisthesis at L4-5 and mild 

retrolisthesis at L5-S1 with marked disc space narrowing at L5-S1. 
3

In reports dated August 12 to September 13, 2013, Dr. Larry Barnhart, Board-certified in 

family medicine, provided the same medical and occupational history as described by 

Dr. Garrett. He reported that appellant’s condition had not improved significantly. Upon 

physical examination and review of the diagnostic study, Dr. Barnhart diagnosed lumbar sprain, 

lumbar radiculopathy and sciatica. Regarding appellant’s work status, he found that the findings 

and diagnosis were consistent with her account of injury or onset of illness. Appellant was 

restricted from working and referred for chiropractic treatment, physical therapy and an 

orthopedic consult.2

In a September 17, 2013 work status report, Dr. Arthur Garfinkel, a Board-certified 

orthopedic surgeon, diagnosed lumbosacral spondylosis and reported that appellant was 

restricted from working until October 1, 2013. 

By decision dated September 26, 2013, OWCP denied appellant’s claim. It found that 

the evidence did not establish that the incident occurred as alleged. OWCP noted that appellant 

could not have sustained a work-related traumatic injury on August 9, 2013 because she was not 

working on that date. It further noted that her description of injury appeared to meet the 

definition of an occupational disease (Form CA-2) rather than a traumatic injury. 

On October 7, 2013 appellant requested an oral hearing before the Branch of Hearings 

and Review. She reported that her supervisor gave her the incorrect form to file and she was 

unclear of the difference between a traumatic injury and occupational disease. Appellant stated 

that she believed she suffered an occupational injury as a result of twisting and lifting heavy 

trays of mail from August 2 through 8, 2013. 

In a September 16, 2013 report, Dr. Barry Berkowitz, a Board-certified diagnostic 

radiologist, provided findings pertaining to a magnetic resonance imaging (MRI) scan of the 

lumbar spine. 

In a September 17, 2013 medical report, Dr. Garfinkel reported that appellant was 

referred for an initial orthopedic surgical consultation with respect to an alleged work-related 

injury sustained while working for the postal service on August 9, 2013. He noted that appellant 

had a several-month history of low back pain as a result of cumulative, repetitive and strenuous 

activities required at work. Appellant worked for the postal service for the last 28 years and 

denied other work-related or back injuries. Dr. Garfinkel reviewed her medical reports, provided 

findings on physical examination and summarized the September 16, 2013 MRI scan of the 

lumbar spine. He diagnosed sprain and strain of the lumbosacral spine, spondylolisthesis of the 

lumbosacral spine, lumbar spondylosis and ligamentum flavum hypertrophy of the lumbosacral 

spine. In reviewing appellant’s history, medical records and examination, she sustained an injury 

to the lumbosacral spine arising out of and caused by the industrial exposure on August 9, 2013. 

A hearing was held on April 8, 2014. Appellant contended that her injuries were a result 

of her work-related duties. 

 2

 Treatment notes dated August 26 and September 5, 2013 were submitted from Dr. Rodney Kaufman, a treating 

chiropractor. 
4

By decision dated May 27, 2014, a hearing representative affirmed the September 26, 

2013 decision. He found that appellant failed to provide sufficient evidence to support a 

diagnosed medical condition causally related to factors of her federal employment. The hearing 

representative accepted as factual appellant’s occupational employment duties as described from 

August 2 through 7, 2013.3

 

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 or specific condition for which compensation is claimed is causally related to the 

employment injury.4 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or an occupational disease.5

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.6

 The second 

component is whether the employment incident caused a personal injury and generally can be 

established only by medical evidence. 

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee must submit: (1) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; (2) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the employee.7 

To establish a causal relationship between the condition, as well as any attendant 

disability claimed and the employment event or incident, the employee must submit rationalized 

medical opinion evidence based on a complete factual and medical background, supporting such 

 3

 The Board notes that appellant submitted additional evidence after OWCP rendered its May 27, 2014 decision. 

The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 

Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy, 

47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to 

OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§ 10.606(b)(2). 

4 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989). 

5 Michael E. Smith, 50 ECAB 313 (1999). 

6 Elaine Pendleton, supra note 4. 

7 See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994). 
5

a causal relationship.8

 The opinion of the physician 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 claimant. This 

medical opinion must include an accurate history of the employee’s employment injury and must 

explain how the condition is related to the injury. The weight of medical evidence is determined 

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

the medical rationale expressed in support of the physician’s opinion.9

ANALYSIS 

Appellant filed a traumatic injury claim alleging that she sustained a right leg and lower 

back injury on August 9, 2013 as a result of lifting and carrying heavy mail trays for a period of 

five days. By letter dated October 7, 2013, she stated that she sustained an occupational injury as 

a result of twisting and lifting heavy trays of mail starting on August 2 through 8, 2013. While 

OWCP initially denied the claim as one for traumatic injury, in the May 27, 2014 decision, the 

hearing representative found that appellant’s claim was for occupational disease.10 The Board 

will treat this claim as an occupational disease as appellant alleged an injury resulting from her 

work environment over a period longer than a single workday or shift.11

The Board finds that appellant failed to establish that she developed a back condition or 

right leg injury related to factors of her federal employment as a mail handler.12

In an August 9, 2013 report, Dr. Garrett treated appellant for right leg and back pain after 

experiencing soreness from working the mail line on August 7, 2013. Upon physical 

examination and review of x-rays, he diagnosed lumbar sprain, lumbar radiculopathy and 

sciatica. While Dr. Garrett provided a medical diagnosis, the Board finds that his opinion on 

causal relationship is not well rationalized. He merely recounted appellant’s statement that she 

believed her condition was the result of a repetitive cumulative injury. Dr. Garrett noted 

prolonged standing and walking, repetitive use of hands with the computer, kneeling, squatting, 

bending, pushing and pulling 25 to 70 pounds of repetitive lifting. He did not specify how often 

she was required to perform such tasks or the frequency of these physical movements. 

Dr. Garrett opined that the findings and diagnosis were consistent with appellant’s account of 

injury, yet failed to explain how these repetitive movements caused or aggravated her diagnosed 

conditions. He noted a prior back injury but failed to provide sufficient detail or clarity on 

whether appellant’s current conditions were caused or aggravated by a preexisting condition or 

 8 See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983). 

9 James Mack, 43 ECAB 321 (1991). 

10 The Board has previously held that should a claimant submit an incorrect form, such as a notice of traumatic 

injury rather than a notice of occupational disease, such a submission is a technical error. OWCP should inform the 

claimant and employing establishment of whether the claim has been converted to a different type of injury than 

what was originally claimed and explain the reasons for the method of adjudication. S.N., Docket No. 12-1814 

(issued March 11, 2013). 

11 J.F., Docket No. 13-1082 (issued September 18, 2013). 

12 See Robert Broome, 55 ECAB 339 (2004). 
6

her repetitive employment duties as a mail handler.13 Without a sufficient explanation as to the 

mechanism of injury, Dr. Garrett’s statement that appellant suffered a work-related injury is 

equivocal in nature and of limited probative value.14 

The Board notes that the reports dated August 12 to September 13, 2013 from 

Dr. Barnhart are nearly identical to the August 9, 2013 report of Dr. Garrett. Additional 

diagnostic testing was submitted and the physician noted physical examination findings upon 

continued treatment. Dr. Barnhart opined that appellant’s lumbar sprain, lumbar radiculopathy 

and sciatica were consistent with her account of injury or onset of illness. As noted, 

Dr. Barnhart’s reports are also insufficient to establish causal relation. Medical reports without 

adequate rationale on causal relationship are of diminished probative value and do not meet an 

employee’s burden of proof.15 The opinion of a physician supporting causal relationship must 

rest on a complete factual and medical background supported by affirmative evidence, address 

the specific factual and medical evidence of record and provide medical rationale explaining the 

relationship between the diagnosed condition and the established incident or factor of 

employment.16 Dr. Barnhart’s reports do not meet that standard and are insufficient to meet 

appellant’s burden of proof. 

In a September 17, 2013 medical report, Dr. Garfinkel noted that appellant had a severalmonth history of low back pain as a result of cumulative, repetitive and strenuous activities from 

her employment at the postal service. He diagnosed sprain and strain of the lumbosacral spine, 

spondylolisthesis of the lumbosacral spine, lumbar spondylosis and ligamentum flavum 

hypertrophy of the lumbosacral spine. Dr. Garfinkel’s generalized statement that appellant 

sustained an injury to the lumbosacral spine arising out of and caused by the August 9, 2013 

industrial exposure is insufficient to establish a work-related injury. He did not provide an 

adequately detailed medical history or adequate explanation detailing the August 9, 2013 

industrial exposure. Dr. Garfinkel failed to describe appellant’s work duties, did not specify how 

many hours she worked as a mail handler and the frequency of physical movements and tasks 

which would cause her injury. Moreover, he failed to provide any explanation regarding which 

employment duties caused appellant injury and the mechanism of injury. Without medical 

reasoning explaining how appellant’s federal employment duties as a mail handler caused or 

contributed to her lumbosacral spine injury, Dr. Garfinkel’s report is insufficient to meet 

appellant’s burden of proof.17 

The reports of Dr. Herwitt and Dr. Berkowitz provided diagnostic findings pertaining to 

the lumbar spine and fail to state any opinion on causal relationship.18 There is no indication that 

 13 B.S., Docket No. 13-920 (issued July 9, 2013). 

14 S.W., Docket 08-2538 (issued May 21, 2009). 

15 Id.

16 See Lee R. Haywood, 48 ECAB 145 (1996). 

17 C.B., Docket No. 08-1583 (issued December 9, 2008). 

18 S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010). 
7

Dr. Kaufman, appellant’s chiropractor, diagnosed subluxation based on the results of an x-ray.19 

As Dr. Kaufman does not meet the statutory definition of a physician, his reports lack probative 

value.20 Therefore, the remaining medical evidence is also insufficient to establish appellant’s 

claim. 

In the instant case, the record lacks rationalized medical evidence establishing a causal 

relationship between appellant’s diagnosed conditions and factors of her federal employment as a 

mail handler. Thus, appellant has failed to meet her burden of proof. 

The Board notes that appellant submitted additional evidence following the May 27, 2014 

merit decision. The Board may not consider new evidence for the first time on appeal which was 

not before OWCP at the time it issued its final decision.21 

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish that her right 

leg and lumbar conditions are causally related to the accepted factors of her federal employment 

as a mail handler. 

 19 5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined 

by State law. The term physician includes chiropractors only to the extent that their reimbursable services are 

limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by 

x-ray to exist and subject to regulation by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988). 

20 T.G., Docket No. 13-76 (issued March 22, 2013). 

21 Supra note 2. 
8

ORDER 

IT IS HEREBY ORDERED THAT the May 27, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 19, 2014 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board