United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 15-1623 

Issued: April 15, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 27, 2015 appellant, through counsel, filed a timely appeal from a May 21, 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 met her burden of proof to establish that her lower back 

conditions are causally related to a December 21, 2009 employment incident. 

On appeal, counsel contends that OWCP’s decision was contrary to facts and law. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2  

FACTUAL HISTORY 

This case has previously been before the Board.2 On March 29, 2011 appellant, then a 

35-year-old city carrier, filed a traumatic injury claim (Form CA-1) alleging that on 

December 21, 2009 she injured her lower back due to a slip and fall on snow-covered wooden 

stairs while in the performance of duty. In a decision dated March 6, 2014, the Board affirmed a 

December 26, 2012 OWCP decision finding that appellant did not meet her burden of proof to 

establish lower back conditions causally related to a December 21, 2009 employment incident. 

The Board found that the medical evidence of record was insufficient to establish causal 

relationship. The facts and circumstances of the case, as set forth in the prior decision, are 

incorporated herein by reference. 

On August 28, 2014 appellant, through counsel, requested reconsideration and submitted 

an August 10, 2014 report from Dr. Edward Goldberg, a Board-certified orthopedic surgeon, 

who diagnosed left-sided nucleus pulposus at L5-S1. Dr. Goldberg reported that appellant was 

involved in a work-related accident on December 21, 2009 when she slipped and fell on a 

staircase landing directly on her back. On September 23, 2010 he performed a left L5-S1 

hemilaminotomy and discectomy for herniated nucleus pulposus to the left at L5-S1. Appellant 

underwent postoperative rehabilitation, but developed progressive low back pain and some 

intermittent left leg radicular pain. Dr. Goldberg further reported that electromyography (EMG) 

and nerve conduction velocity (NCV) studies performed on June 20, 2011 revealed a left S1 

radiculopathy. He opined that this was due to the original herniation compressing the left S1 

nerve root. A postoperative magnetic resonance imaging (MRI) scan of the lumbar spine on 

June 20, 2011 revealed postoperative changes at the discectomy set on the left at L5-S1 as well 

as progressive disc degeneration at L5-S1 with a broad-based disc protrusion. On September 27, 

2011 Dr. Goldberg performed a posterolateral instrumented fusion surgery at L5-S1 to address 

the degenerative disc, which occurred after the discectomy secondary to the herniation. He 

indicated that in approximately 10 percent of well-performed surgical discectomies, a disc can 

continue to degenerate resulting in degenerative changes, axial back pain, and the need for 

additional fusion surgery. As of June 25, 2012 appellant was released to work with restrictions 

at a sedentary to light-duty level, lifting 10 to 15 pounds, and changing positions from sitting to 

standing to walking every 30 minutes as needed. Dr. Goldberg opined that appellant’s lumbar 

condition and two surgeries were causally related to the December 21, 2009 employment 

incident. 

Appellant also provided a report dated May 9, 2014 from Dr. Mark Sokolowski, an 

orthopedic surgeon and associate of Dr. Goldberg. Dr. Sokolowski noted that a “slip and fall 

down stairs results in a flexion moment to the lumbar spine (increased intradiscal pressure 

anteriorly and stretch of the facet joint capsule posteriorly) followed by an extension moment to 

the lumbar spine (increased tension upon the disc anteriorly and increased loading of the facet 

joints posteriorly).” He reported that a “traumatic increase in intradiscal pressure is a known 

cause of traumatic disc herniation” and explained that disc herniations most commonly resulted 

in radicular symptoms, such as left leg pain, and facet injuries most commonly resulting in back 

pain. Dr. Sokolowski found that both conditions were present in appellant upon evaluation by 

Dr. Goldberg and were noted by Dr. Goldberg to have occurred after slipping and falling at 

                                                             2

 Docket No. 13-0618 (issued March 6, 2014). 
3  

work. He concluded that appellant’s December 21, 2009 employment incident caused her 

lumbar pain and lumbar radiculopathy based on the temporal correlation provided by appellant, 

the onset of symptoms, and consistent examination and test findings. 

By decision dated May 21, 2015, OWCP denied modification of the prior decision 

finding the medical evidence submitted was insufficient to establish a causal relationship 

between appellant’s lumbar conditions and the December 21, 2009 employment incident. 

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 timely filed within the applicable time 

limitation period of FECA, that an injury3 was sustained in the performance of duty, and that any 

disability or medical condition for which compensation is claimed is 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 a “fact of injury” has been established. 

A fact of injury determination is based on two elements. First, the employee must submit 

sufficient evidence to establish that she actually experienced the employment incident at the 

time, place, and in the manner alleged. Second, the employee must submit sufficient evidence, 

generally only in the form of medical evidence, to establish that the employment incident caused 

a personal injury. An employee may establish that the employment incident occurred as alleged 

but fail to show that his or her condition relates to the employment incident.5

 

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. The opinion of the 

physician must be based on a complete factual and medical background of the employee, 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.6

 

ANALYSIS 

OWCP has accepted that the employment incident of December 21, 2009 occurred at the 

time, place, and in the manner alleged. On appeal, counsel contends that OWCP’s decision was 

contrary to fact and law. 

                                                             3

 OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or 

series of events or incidents, within a single workday or shift. Such condition must be caused by external force, 

including stress or strain, which is identifiable as to time and place of occurrence and member or function of the 

body affected. 20 C.F.R. § 10.5(ee). 

4 See T.H., 59 ECAB 388 (2008). 

5 Id. 

6 Id. 
4  

The Board finds the case not in posture for decision on the issue of causal relationship. 

In support of her August 28, 2014 reconsideration request, appellant submitted an 

August 10, 2014 report from Dr. Goldberg who diagnosed left-sided nucleus pulposus at L5-S1 

and asserted that appellant was involved in a work-related accident on December 21, 2009 when 

she slipped and fell on a staircase landing directly on her back. On September 23, 2010 

Dr. Goldberg performed at left L5-S1 hemilaminotomy and discectomy for herniated nucleus 

pulposus to the left an L5-S1. He noted that EMG and NCV studies performed on June 20, 2011 

revealed a left S1 radiculopathy. Dr. Goldberg opined that this was due to the original herniation 

compressing the left S1 nerve root. On September 27, 2011 he performed a posterolateral 

instrumented fusion surgery at L5-S1 to address the degenerative disc, which occurred after the 

discectomy secondary to the herniation. Dr. Goldberg explained that in approximately 10 

percent of well-performed surgical discectomies, a disc can continue to degenerate resulting in 

degenerative changes, axial back pain, and the need for additional fusion surgery. As of June 25, 

2012 appellant was released to work with restrictions at a sedentary to light-duty level, lifting 10 

to 15 pounds, and changing positions from sitting to standing to walking every 30 minutes as 

needed. Dr. Goldberg opined that her lumbar condition and two surgeries were causally related 

to the December 21, 2009 employment incident. 

Appellant also provided a report dated May 9, 2014 from Dr. Goldberg’s medical 

associate Dr. Sokolowski who explained that a “slip and fall down stairs results in a flexion 

moment to the lumbar spine (increased intradiscal pressure anteriorly and stretch of the facet 

joint capsule posteriorly) followed by an extension moment to the lumbar spine (increased 

tension upon the disc anteriorly and increased loading of the facet joints posteriorly).” 

Dr. Sokolowski asserted that a “traumatic increase in intradiscal pressure is a known cause of 

traumatic disc herniation” and explained that disc herniations most commonly resulted in 

radicular symptoms, such as left leg pain, and facet injuries most commonly resulting in back 

pain. He found that both conditions were present in appellant upon evaluation by Dr. Goldberg 

and were noted by Dr. Goldberg to have occurred after slipping and falling at work. 

Dr. Sokolowski concluded that appellant’s December 21, 2009 employment incident caused her 

lumbar pain and lumbar radiculopathy based on the temporal correlation provided by appellant, 

the onset of symptoms, and consistent examination and test findings. 

The Board finds that, while the reports from Drs. Goldberg and Sokolowski are not 

completely rationalized, they are consistent in finding that appellant slipped and fell down a 

staircase in the performance of duty on December 21, 2009 and the evidence now explains the 

process by which such a fall can cause a spinal injury. These reports are not contradicted by any 

substantial medical or factual evidence of record.7

 While the reports are insufficient to meet 

appellant’s burden of proof to establish a claim, they raise an inference of causal relationship 

between the claimed condition and the December 21, 2009 incident, sufficient to require further 

medical development by OWCP.8 

                                                             7 See E.J., Docket No. 09-1481 (issued February 19, 2010). 

8 Id.; see also John J. Carlone, 41 ECAB 354 (1989). 
5  

It is well established that proceedings under FECA are not adversarial in nature and while 

the claimant has the burden of establishing entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.9

On remand, OWCP should refer appellant, together with the case record and a statement 

of accepted facts, to an appropriate specialist for an examination to determine whether the 

December 21, 2009 employment incident caused or aggravated new and/or preexisting lower 

back conditions and whether it contributed to the need for surgery.10 After such further 

development as it deems necessary, OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision on the issue of causal 

relationship. 

ORDER 

IT IS HEREBY ORDERED THAT the May 21, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision of the Board. 

Issued: April 15, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             9 See Phillip L. Barnes, 55 ECAB 426 (2004); Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002). 

10 See G.B., Docket No. 09-1768 (issued May 17, 2010).