United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Boston, MA, Employer 

__________________________________________ 

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Docket No. 16-0887 

Issued: November 4, 2016 

Appearances: Case Submitted on the Record

Jacqueline Shanahan, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 25, 2016 appellant, through counsel, filed a timely appeal of a February 10, 

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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish a lower back injury 

causally related to the accepted July 1, 2014 employment incident. 

                                                             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

On appeal counsel alleges that the reports of appellant’s treating physicians establish that 

his lumbar condition is causally related to the accepted employment incident. 

FACTUAL HISTORY 

Appellant, a 55-year-old truck driver, filed a traumatic injury claim (Form CA-1) on 

August 13, 2014, alleging that he experienced severe pain in his lower back while placing a 

chock block under the rear tire of his vehicle on July 1, 2014. He stopped work on July 1, 2014.3

 

In a disability note dated July 29 2014, Dr. William P. Docken, Board-certified in internal 

medicine, advised that appellant was still disabled due to lower back pain. 

By letter to appellant dated August 26, 2014, OWCP advised him that it required 

additional factual and medical evidence to determine whether he was eligible for compensation 

benefits. It asked him to submit a comprehensive medical report from his treating physician 

describing his symptoms and an opinion as to whether his claimed condition was causally related 

to his federal employment. Appellant was afforded 30 days to submit the additional evidence. 

In a September 9, 2014 report, Dr. Bahige Asaker, an osteopath, related that appellant 

originally felt severe pain on July 1, 2014 while putting a chock block under the wheel of his 

truck at work and that he had been out of work since that time. He noted that appellant had a 

history of low back pain dating back to 2012. Dr. Asaker reported that he saw appellant on 

August 6, 2014 for a follow up of a magnetic resonance imaging (MRI) scan that showed a disc 

protrusion at the L5-S1 level and spondylosis at the T-11 and T-12 levels with some neural 

impingement. Appellant related that he still had intermittent pain and sometimes had problems 

moving from a sitting to a standing position. Dr. Asaker diagnosed left-sided radiculopathy and 

noted that his MRI scan also showed an L2-3 mild disc bulging and congenital narrowing of the 

spinal canal, resulting in a mild central stenosis at the L3-4 levels. He reported an asymmetric 

disc bulge with moderate to marked central spinal stenosis and moderate right L3 neural stenosis 

and right L3 neural impingement; a moderate asymmetric disc bulge at L4-5, greater posterior on 

the left, showing bilateral L4 neural impingement; a nerve root sheath arising from the thecal sac 

at L5-S1; bilateral mild L5 neural foraminal stenosis, L11 and L12 spondylosis with a mild disc 

bulge; and stenosis of the back with some disc spurring, joint disease and old trauma. Dr. Asaker 

noted that appellant underwent x-ray testing on July 3, 2014 which showed degenerative joint 

disease and old trauma. He advised that he was unable to work due to the lifting, continuous 

sitting, and standing involved in his work, which aggravated his lower back condition. 

By decision dated September 26, 2014, OWCP denied appellant’s claim, finding that he 

failed to meet his burden of proof to establish a lower back injury causally related to the accepted 

July 1, 2014 employment incident. 

In a form dated and postmarked October 22, 2014, appellant, though counsel, requested 

an oral hearing before an OWCP hearing representative. On February 17, 2015 appellant, 

through counsel, requested review of the written record instead of an oral hearing. 

                                                             3

 OWCP accepted a traumatic injury claim (Form CA-1), which appellant filed on May 30, 2012 under case 

number xxxxxx891. The claim was accepted for lumbar strain. 
3

In a report dated July 10, 2014, received by OWCP on February 17, 2015, Dr. Asaker 

noted that appellant hurt his back at work in May 2012 and had recently sustained another injury 

to his lower back. He reported that appellant worked at the employing establishment and 

frequently lifted boxes. Dr. Asaker advised that his back pain radiated into his left leg. He 

diagnosed back strain, L3-4 disc spurring and degenerative disc disease. Dr. Asaker advised that 

appellant underwent x-ray testing on July 3, 2014 which showed narrowing of the L4-5 disc with 

spurring and spurring at the L3-4 levels. He opined that he had degenerative joint disease and 

old trauma. Dr. Asaker noted that the 2012 back injury intermittently flared up and that 

appellant was afraid that if he returned to work the employing establishment might not have light 

duty available; he was concerned that he might have to return to lifting heavy boxes, which could 

cause permanent injury to his back. 

In a report dated November 4, 2014, Dr. Docken advised that appellant was experiencing 

ongoing low back pain, which was increased by bending, stooping, and lifting. He advised that, 

due to the persistence of his back pain, appellant was no longer able to perform the duties of his 

job. Dr. Docken reported that his current symptoms could have an element of local, myofascial 

pain, with underlying degenerative disease of the lumbar spine. He further asserted that 

appellant had lumbar spinal stenosis, which was of degenerative origin and probably not related 

to the 2012 injury. 

In a November 17, 2014 report, received by OWCP on February 17, 2015, 

Dr. Christopher M. Bono, Board-certified in orthopedic surgery, advised that appellant had left 

lower back pain which began in 2012 while at work. He then returned to work and reinjured his 

back in 2014, when he experienced an acute onset of severe lower back pain. Dr. Bono advised 

that appellant’s pain increased when he transitioned from sitting to standing, bending, and sitting 

for long or standing for too long. 

In an April 28, 2015 decision, OWCP’s hearing representative affirmed the 

September 26, 2014 decision as modified. She found that the reports from Drs. Docken, Asaker, 

and Bono, did diagnose medical conditions, but that they were insufficient to establish causal 

relationship. 

On July 7, 2015 OWCP received a July 2, 2014 report, in which Dr. Docken noted that 

appellant incurred acute low back pain while working on July 1, 2014. He noted that he was 

experiencing persistent low back pain due to a post-traumatic low back strain syndrome and 

underlying degenerative disease of the lumbar spine. Dr. Docken advised that appellant had 

moderate-to-marked central canal stenosis at the L3-5 levels and right paracentral disc protrusion 

at L5-S1, with contact of exiting right S1 nerve root. 

In a July 2, 2015 report, Dr. Joseph S. Barr, a specialist in orthopedic surgery, advised 

that he examined appellant on May 14, 2015. He related that appellant injured his back on 

July 1, 2014 while working as a truck driver; appellant placed a block wedge under the wheel of 

his truck when he experienced sudden, acute lower back pain. Appellant noted his history of 

having a back injury in 2012 and being out of work for two and one half months, and that he had 

not been able to work since July 1, 2014. Dr. Barr reported that appellant underwent an MRI 

scan on August 1, 2014 that showed degenerative changes throughout the lumbar spine, with 

moderate to marked spinal stenosis at L3-4 and L4-5. He advised that the radiologist who 
4

performed the MRI scan considered the stenosis to be congenital. Dr. Barr opined that 

appellant’s status was post-lumbar sprain, work connected. He noted preexisting lumbar spine 

problems, with one episode of lumbar problems in 2012 causing him to be out of work. Dr. Barr 

opined that the July 2014 work incident caused a permanent aggravation in the underlying 

process, as evidenced by the MRI scan findings of lumbar stenosis. 

By decision dated August 12, 2015, OWCP denied appellant’s claim, finding that he 

failed to meet his burden of proof to establish a lower back injury causally related to the July 1, 

2014 work incident. It found that none of the medical reports provided a sufficiently rationalized 

explanation as to how the diagnosed medical conditions were related to the claimed July 1, 2014 

work incident. 

By letter dated and reconsidered on October 21, 2015 appellant, through counsel, 

requested reconsideration of the August 12, 2015 decision. 

In a September 9, 2014 report, Dr. Barr essentially reiterated his previous findings and 

conclusions. He asserted that he was not implying in his July 2, 2015 report that appellant’s 

spinal stenosis was traumatically induced. Dr. Barr advised that his conditions of lumbar 

degenerative changes and spinal stenosis were preexisting and were permanently aggravated by 

the July 1, 2014 work incident. He reported that the July 1, 2014 work incident of bending and 

twisting “could cause” slight increased swelling of the disc as well as swelling in the lumbar 

facet joints. Dr. Barr reiterated that there was a permanent aggravation of a preexisting 

condition, which rendered appellant incapable of doing his former work pushing heavy 

containers of mail. 

In a decision dated February 10, 2016, OWCP denied modification of the August 12, 

2014 decision. It found that none of the medical reports provided a sufficiently rationalized 

explanation as to how the diagnosed medical conditions were related to the claimed August 29, 

2015 work incident. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4 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.5

 These are the essential elements of each and every 

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an 

occupational disease.6

                                                             4

 5 U.S.C. §§ 8101-8193. 

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

6 Victor J. Woodhams, 41 ECAB 345 (1989). 
5

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. 

First, 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.7

 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.8

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.9

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

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.10 Causal relationship must be established by 

rationalized medical opinion evidence and appellant failed to submit such evidence. 

ANALYSIS 

It is uncontroverted that appellant placed a chock block under the rear tire of his vehicle 

on July 1, 2014 while in the performance of duty. The question of whether an employment 

incident caused a personal injury can only be established by probative medical evidence.11 The 

Board finds that appellant has not submitted rationalized, probative medical evidence to establish 

that the July 1, 2014 employment incident caused a personal injury. 

Counsel argues that OWCP erred by making subjective conclusions regarding Dr. Barr’s 

opinion and by failing to find that his opinion constituted medical evidence sufficient to establish 

that appellant’s accepted, preexisting lower back condition was aggravated by his July 1, 2014 

work incident. She contends that Dr. Barr asserted that, prior to the July 1, 2014 work incident, 

appellant was well enough to perform his work duties despite his prior discomfort; however, he 

sustained an injury to his lower back on July 1, 2014 which rendered him unable to perform his 

duty, which established that he had an aggravation of his underlying condition on that date. The 

Board does not accept counsel’s contention. 

The Board notes that OWCP accepted a traumatic injury claim, which appellant filed on 

May 30, 2012, under case number xxxxxx891. The claim was accepted for lumbar strain. The 

instant claim, however, is for a separate injury which allegedly occurred on July 1, 2014. 

                                                             7 John J. Carlone, 41 ECAB 354 (1989). 

8 Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(ee). 

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

10 Id.

11 Supra note 7. 
6

Dr. Barr submitted reports dated July 2 and September 9, 2015. In his July 2, 2015 

report, he advised that appellant injured his lower back in 2012 and was out of work for two and 

one-half months; he opined that appellant reinjured his lower back on July 1, 2014. Dr. Barr 

noted that the results of the MRI scan he underwent on August 1, 2014 showed degenerative 

changes throughout the lumbar spine, with moderate to marked spinal stenosis at L3-4 and L4-5. 

He, however, advised that the radiologist who performed the MRI scan considered the stenosis to 

be congenital. Dr. Barr opined that appellant’s lumbar degenerative changes and spinal stenosis 

were preexisting conditions which were permanently aggravated by the July 1, 2014 work 

incident. He advised that the July 1, 2014 work incident of bending and twisting could cause 

slight increased swelling of the disc as well as swelling in the lumbar facet joints. Although 

Dr. Barr indicated that bending and twisting “could cause” the disc and lumbar swelling 

described, his opinion was not expressed in terms of a reasonable degree of medical certainty. 

The Board has held that while the opinion of a physician supporting causal relationship need not 

be one of absolute medical certainty, the opinion must not be speculative or equivocal. The 

opinion should be expressed in terms of a reasonable degree of medical certainty.12 Dr. Barr 

noted that there was a permanent aggravation of a preexisting condition which rendered 

appellant incapable of doing his former work pushing heavy containers of mail. His opinion 

regarding causal relationship is of limited probative value because he did not explain how slight 

increased swelling of the disc and lumbar facet joints would cause a permanent aggravation of 

the preexisting condition. The Board has found that medical evidence is of limited probative 

value if it contains a conclusion regarding causal relationship, but does not offer any rationalized 

medical explanation.13 

Appellant also submitted reports from Drs. Docken, Asaker, and Bono. In his July 2, 

2014 report, Dr. Docken noted that appellant was experiencing persistent low back pain due to a 

post-traumatic low back strain syndrome and underlying degenerative disease of the lumbar 

spine. He advised that appellant had moderate to marked central canal stenosis at the L3-5 levels 

and right paracentral disc protrusion at L5-S1, with contact of exiting right S1 nerve root. 

Dr. Docken opined that appellant’s current symptoms could have an element of local, myofascial 

pain, with underlying degenerative disease of the lumbar spine. He further asserted that 

appellant had lumbar spinal stenosis, which was of degenerative origin and probably not related 

to the 2012 injury. Causal relationship is a medical question that must be established by 

probative medical opinion from a physician.14 Dr. Docken offered no medical explanation as to 

how the accepted July 1, 2014 work incident would have caused appellant’s diagnosed 

conditions. His reports therefore do not constitute rationalized medical evidence, to establish 

based upon an accurate history of appellant’s preexisting medical conditions, how the incident in 

question caused or exacerbated his medical condition.15 As such his opinion is of limited 

probative value.16

                                                             12 See Ricky S. Storms, 52 ECAB 349 (2001). 

13 See J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006). 

14 W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005). 

15 See T.C., Docket No. 16-0586 (issued August 9, 2016). 

16 See Patricia J. Bolleter, 40 ECAB 373 (1988). 
7

Dr. Asaker advised in his July 10, 2014 report that appellant hurt his back at work in 

May 2012 and recently sustained another injury to his lower back. He reported that appellant 

worked at the employing establishment and frequently lifted boxes. Dr. Asaker advised that his 

back pain radiated into his left leg. He diagnosed back strain, L3-4 disc spurring and 

degenerative disc disease. Dr. Asaker advised that appellant underwent x-ray testing on July 3, 

2014 which showed narrowing of the L4-5 disc with spurring and spurring at the L3-4 levels. He 

opined that he had degenerative joint disease and old trauma. Dr. Asaker reiterated in his 

September 9, 2014 report that appellant had a history of low back pain dating back to 2012. He 

advised that the results of an MRI scan revealed a disc protrusion at the L5-S1 level and 

spondylosis at the T11 and T12 levels with some neural impingement. Dr. Asaker diagnosed 

left-sided radiculopathy and noted that his MRI scan also showed an L2-3 mild disc bulging and 

congenital narrowing of the spinal canal, resulting in a mild central stenosis at the L3-4 levels. 

He noted that the 2012 back injury intermittently flared up and that appellant was afraid that if he 

returned to work the employing establishment might not have light duty available; he was 

concerned that he might have to return to lifting heavy boxes, which could cause permanent 

injury to his back. While Dr. Asaker provided diagnoses of appellant’s lumbar condition, he 

offered no medical explanation as to how the diagnosed conditions were caused by the accepted 

employment incident. The need for detailed rationale is particularly important since appellant 

had a preexisting history of lumbar injury and degenerative disc disease.17 

Dr. Bono also advised in his November 17, 2014 report that appellant experienced lower 

back pain in 2012 while at work and reinjured his back in 2014. The weight of medical opinion 

is determined by the opportunity for and thoroughness of examination, the accuracy and 

completeness of physician’s knowledge of the facts of the case, the medical history provided, the 

care of analysis manifested and the medical rationale expressed in support of stated 

conclusions.18 While Dr. Bono noted complaints of lower back pain, which he generally 

attributed to the July 1, 2014 work incident, and diagnosed lumbar radiculopathy, bulging lumbar 

discs by MRI scan, degenerative joint disease, and spinal stenosis, his report did not contain a 

probative, rationalized opinion regarding whether the July 1, 2014 work incident caused a 

personal injury. He did not sufficiently explain how pathophysiologically appellant would have 

sustained a lower back injury while placing a chock block under the rear tire of his vehicle on 

July 1, 2014.19 

OWCP advised appellant of the evidence required to establish his claim; however, he 

failed to submit such evidence. Causal relationship must be established by rationalized medical 

opinion evidence. Appellant did not provide a medical opinion which describes or explains the 

medical process through which the July 1, 2014 work accident would have caused the diagnosed 

conditions. Accordingly, he did not establish that he sustained a lower back injury in the 

performance of duty. OWCP properly denied appellant’s claim for compensation. 

                                                             17 See L.M., Docket No. 16-0143 (issued February 19, 2016). 

18 See Anna C. Leanza, 48 ECAB 115 (1996). 

19 Id. 
8

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 has failed to meet his burden of proof to establish a lower 

back injury causally related to the July 1, 2014 employment incident. 

ORDER 

IT IS HEREBY ORDERED THAT the February 10, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 4, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board