United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Madison, WI, Employer 

__________________________________________ 

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Docket No. 16-0809 

Issued: July 21, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 10, 2016 appellant, through counsel, filed a timely appeal from a February 8, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (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 his burden of proof to establish a lumbar condition 

causally related to factors of his federal employment. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 

20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. 

Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of 

fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On November 23, 2012 appellant, then a 43-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed a displaced thoracic spinal cord, 

degenerative disc bulging, acute low back pain, lumbar pelvic muscle spasms, and subluxation as 

a result of his federal employment duties which entailed constant bending, reaching, and 

stooping. 

This case has previously been before the Board. By decision dated February 7, 2013, 

OWCP denied appellant’s claim finding that the medical evidence had failed to establish that his 

lumbar conditions were causally related to his accepted federal employment duties. Appellant 

requested reconsideration and by decision dated May 7, 2013, OWCP denied his request for 

reconsideration without reviewing the merits of the claim. On appeal, by decision dated 

March 21, 2014, the Board set aside OWCP’s May 7, 2013 nonmerit decision.3 The Board 

determined that OWCP had failed to review newly submitted medical reports and remanded the 

case to OWCP to issue a de novo final decision after properly considering all of the evidence of 

record. 

On remand, OWCP evaluated the medical evidence of record and, by decision dated 

July 17, 2014, affirmed the prior February 7, 2013 decision finding that the medical evidence 

failed to establish that appellant’s conditions were causally related to his federal employment 

duties. On August 19, 2014 appellant filed an appeal of OWCP’s July 17, 2014 decision. By 

decision dated December 12, 2014, the Board affirmed OWCP’s July 17, 2014 decision finding 

that he had not met his burden of proof to establish that his diagnosed lumbar conditions were 

causally related to the accepted factors of his federal employment.4 The findings of fact and 

conclusions of law from the prior decision and order are incorporated herein by reference. 

Following the Board’s December 12, 2014 decision, appellant, through counsel, 

requested reconsideration before OWCP. By letter dated December 9, 2015, counsel requested 

reconsideration and noted submission of reports from William S. Middleton Memorial Veterans 

Hospital not previously considered. 

In a June 18, 2015 hospital report, Dr. Thomas E. Looze, Board-certified in internal 

medicine, reported that approximately one month prior appellant began to experience a sharp 

increase in lower back pain with radiculopathy. Dr. Looze noted that appellant’s primary pain 

related to the anterior left thigh and left knee. He also complained of pain in his back when 

sitting. Dr. Looze reported that appellant’s occupation entailed driving a shuttle bus, as well as 

helping a friend manage a fitness gym. Appellant reported that he had been working out just 

prior to his most recent flare up. His routine, which included cardio work by exercising on a 

bike or treadmill for 15 minutes, started to irritate his back. Appellant also swam and did various 

resistance activities. Dr. Looze reviewed an April 25, 2014 magnetic resonance imaging scan of 

the lumbar spine. He discussed the importance of taking a more measured approach with the 

development of an exercise program, noting that appellant’s impulsiveness with regard to 

 3

 Docket No. 14-145 (issued March 21, 2014). 

4

 Docket No. 14-1819 (issued December 12, 2014). 
3

switching up his program and how he demonstrated moving into end range positions with 

“jerky” motions that could cause spasming/reinjury. Dr. Looze explained that appellant 

presented to the emergency room with acute chronic lower back pain. He noted that appellant 

appeared to have performed a routine maintenance fitness program with options to try new things 

all the time. Dr. Looze indicated that appellant did not benefit from this approach which 

appeared to set him up for frequent reinjury. An accompanying progress note provided 

diagnoses of spinal stenosis, lumbar region without neurogenic claudication, intervertebral disc 

disease, lumbar radiculopathy, and chronic low back pain. 

By decision dated February 8, 2016, OWCP affirmed the December 12, 2014 decision 

finding that the medical evidence failed to establish that appellant’s conditions were causally 

related to his federal employment duties. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish 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.5

 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or occupational disease.6

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.7 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.8

 

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 

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

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

7 Elaine Pendleton, supra note 5. 

8 See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994). 
4

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

a causal relationship.9

 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.10

ANALYSIS 

OWCP accepted that appellant engaged in repetitive activities as part of his employment 

duties as a letter carrier. It denied his claim, however, because the evidence failed to establish a 

causal relationship between those factors of his federal employment and his diagnosed 

conditions. The Board finds that the medical evidence of record is insufficient to establish that 

appellant’s back conditions were causally related to factors of his federal employment as a letter 

carrier. 

The Board notes initially that, with respect to the findings made in its prior decision dated 

December 12, 2014, those matters are res judicata absent any further review by OWCP under 

section 8128 of FECA.11 

The only new evidence received following OWCP’s last merit decision on July 17, 2014 

was a June 18, 2015 William S. Middleton Memorial Veterans Hospital report from Dr. Looze. 

The Board finds that his report fails to establish that appellant developed a lumbar injury as a 

result of his federal employment duties.12

In his June 18, 2015 report, Dr. Looze reported that approximately one month prior 

appellant began to experience a sharp increase in lower back pain with radiculopathy. His 

primary pain related to the anterior left thigh and left knee, but also complained of back pain 

when sitting. The Board notes that appellant has alleged a back injury in this claim with no 

allegations of a left thigh or knee condition. With respect to the lower back, Dr. Looze 

diagnosed acute chronic lower back pain. However, the findings of the physician are of no 

probative value as he is describing a symptom rather than a clear diagnosis of the medical 

condition.13 The Board has consistently held that pain is a symptom, rather than a compensable 

medical diagnosis.14 While the accompanying progress note provided diagnoses of spinal 

stenosis, lumbar region without neurogenic claudication, intervertebral disc disease, lumbar 

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

10 W.F., Docket No. 15-1208 (issued October 23, 2015); James Mack, 43 ECAB 321 (1991). 

11 R.T., Docket No. 16-543 (May 20, 2013). 

12 R.M., Docket No. 11-1921 (issued April 10, 2012). 

13 C.F., Docket No. 08-1102 (issued October 10, 2008). 

14 Id.
5

radiculopathy, and chronic low back pain, the report is of no probative value as it failed to 

provide any opinion regarding causal relationship.15 

Dr. Looze failed to discuss appellant’s employment duties as a letter carrier and provide a 

firm medical diagnosis which could reasonably be attributed to his federal employment duties. 

This is important as appellant informed the physician that he had been working out just prior to 

his most recent flare up and that his routine exercise on the bike and treadmill started to irritate 

his back. Dr. Looze also attributed appellant’s lumbar condition to his exercise routine, noting 

that his impulsive movements and “jerky” motions could cause spasming/reinjury. He noted that 

appellant appeared to have performed a routine maintenance fitness program while also trying 

new exercises, but did not benefit from this approach, which appeared to set him up for frequent 

reinjury. Given that his report provides support for a nonoccupational injury to the lumbar 

region, Dr. Looze’s opinion is of no probative value in establishing a work-related injury.16 

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

relationship between appellant’s federal employment duties as a letter carrier and his back injury. 

Thus, appellant has failed to meet his burden of proof.17

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 his burden of proof to establish that his 

lumbar condition is causally related to the accepted factors of his federal employment as a letter 

carrier. 

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

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

17 Supra note 11.
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ORDER 

IT IS HEREBY ORDERED THAT the February 8, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 21, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board