United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Syosset, NY, Employer 

__________________________________________ 

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Docket No. 16-1318 

Issued: February 15, 2017 

Appearances: Case Submitted on the Record

Stephen Larkin, 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 June 12, 2016 appellant filed a timely appeal from a February 9, 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 her burden of proof to establish disability 

commencing December 10, 2007, causally related to her October 24, 2007 work injury. 

 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 

This case has previously been before the Board.3 The facts and circumstances outlined in 

the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth 

below. 

On October 26, 2007 appellant, then a 48-year-old distribution clerk, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained injury to her low back and left leg on 

October 24, 2007 after bending and lifting while dumping and breaking down mail. She felt a 

pulling strain in her lower back and a shooting pain down her left leg. On the form, appellant’s 

supervisor noted that appellant advised him on October 25, 2007 that the claimed injury occurred 

on October 24, 2007. Appellant stopped work on October 24, 2007. 

In an October 25, 2007 note, Dr. Joseph Gigante, an attending Board-certified family 

practitioner, noted that appellant reported experiencing back and leg pain after lifting, squatting, 

and bending over while breaking down mail the prior day. On examination, appellant had 

decreased back motion and diagnosed low back strain/sprain. The findings of a November 5, 

2007 magnetic resonance imaging (MRI) scan of her back showed bulging discs at L3-4 and 

L5-S1 and slight anterior spondylolisthesis of L4 upon L5. In a December 2, 2007 form report, 

Dr. Gigante listed the date of injury as October 27, 2007 and the history of injury as “lifting 

heavy objects.4 He diagnosed low back sprain and checked a box marked “yes” indicating that 

appellant’s condition was caused or aggravated by the reported employment activity. 

Dr. Gigante noted that she had been totally disabled since the time of the injury. 

In an undated report submitted with a January 8, 2008 letter, Dr. Jamie P. Skurka, an 

attending chiropractor, noted that appellant reported that she injured her lumbar spine on 

October 27, 2007 and that her job required repetitive lifting, twisting, and turning. He noted that 

November 5, 2007 MRI scan testing showed bulging discs at L3-4 and L5-S1 and slight anterior 

spondylolisthesis of L4 upon L5 and listed these conditions in the diagnosis portion of his report. 

Dr. Skurka obtained x-ray testing and also diagnosed lumbar facet syndrome, lumbar radiculitis, 

and myofascial pain syndrome. He noted that appellant’s lumbar condition was “resultant from 

the repetitive lifting, twisting, and bending event that occurred on October 27, 2007.” 

In a February 20, 2008 decision, OWCP denied appellant’s claim for a work-related 

traumatic injury because that she did not establish the occurrence of an employment incident. It 

noted that there were inconsistencies in the factual aspects of appellant’s claim. 

Appellant subsequently requested reconsideration and submitted a January 12, 2008 

report from Dr. Skurka, who advised that x-ray testing of her lumbar spine was obtained on 

January 11, 2008 from four views -- anteroposterior, lateral, flexion and extension. Regarding 

the testing results, Dr. Skurka noted, “The lumbar spine is hyperlordotic. There is no evidence of 

fracture. The osseous structures are of normal size, shape, and density.” Appellant submitted 

 3

 Docket No. 08-1879 (issued January 27, 2009); Docket No. 12-1348 (issued February 25, 2013). 

4

 Dr. Gigante’s listing of the date of injury as October 27, 2007 would appear to be inadvertent as he previously 

listed the proper date of October 24, 2007 when he examined appellant on October 25, 2007. 
3

form reports of Dr. Skurka, dated from February to May 2008, that contained the diagnoses of 

lumbosacral spondylolisthesis, lumbar facet syndrome, disc bulging at L3, L4, L5, and S1, and 

lumbar radiculopathy. Dr. Skurka indicated that she currently was totally disabled and that her 

first date of disability was January 8, 2008. 

In a May 29, 2008 decision, OWCP denied appellant’s request for further review of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a). Appellant appealed the February 20 and 

May 29, 2008 decisions to the Board. 

In a January 27, 2009 decision,5

 the Board modified OWCP’s February 20, 2008 decision 

to reflect that an employment incident occurred on October 24, 2007 when appellant engaged in 

bending and lifting while dumping and breaking down mail. The Board further found that 

Dr. Gigante’s reports raised an uncontroverted inference between her claimed back condition and 

the October 24, 2007 employment incident. The Board remanded the case to OWCP for further 

development of the medical evidence. 

OWCP referred appellant to Dr. Sanford R. Wert, a Board-certified orthopedic surgeon, 

for a second opinion examination. In a March 26, 2009 report, Dr. Wert reported the findings 

from examination of March 24, 2009. He diagnosed lumbosacral spine sprain, related to the 

employment incident of October 24, 2007. Dr. Wert noted that appellant’s lumbosacral spine 

sprain was related by direct cause and noted that her preexisting degenerative disease was related 

by temporary aggravation. He found that the aggravation should have ceased following the fourmonth course of physical therapy. On examination, appellant complained of pain and exhibited 

diminished range of motion, but her complaints were not corroborated by objective findings and 

that the examination of her left leg was entirely within normal limits. Dr. Wert found no 

objective evidence of any ongoing disability and indicated that she was capable of resuming the 

regular duties of a distribution clerk. 

On May 6, 2009 OWCP accepted that appellant sustained a lumbar sprain and temporary 

aggravation of preexisting degenerative disc disease of the lumbar spine, resolved. 

Appellant filed claims for compensation (Forms CA-7) alleging that she had disability 

due to her October 24, 2007 work injury beginning December 10, 2007 and continuing. 

In a May 13, 2009 form report, Dr. Skurka listed the date of injury as October 24, 2007 

and diagnosed grade 1 spondylolisthesis at L4, lumbar radiculopathy, lumbar facet syndrome, 

disc bulging at L3, L4, L5, and S1, and spinal intersegmental joint dysfunction. He checked a 

box marked “yes” indicating that these conditions were caused or aggravated by an employment 

activity and indicated that appellant was totally disabled from January 8, 2008 to the present. In 

another May 13, 2009 form report, Dr. Skurka indicated that she was temporarily totally disabled 

“due to lumbar spine condition.” 

In a May 18, 2009 report, Dr. Steven J. Litman, an attending Board-certified 

anesthesiologist, noted that appellant had bilateral back pain and bilateral lumbosacral 

radiculopathy secondary to a lumbar spine injury sustained at work. He also indicated that she 

 5

 Docket No. 08-1879 (issued January 27, 2009). 
4

had spondylolisthesis. Dr. Litman indicated that appellant would undergo an L4-5 epidural 

steroid injection for treatment of bilateral lumbosacral radiculopathy “causally related to a 

workers’ compensation injury.” 

In a May 19, 2009 report, Dr. Andrew D. Rogove, an attending Board-certified 

neurologist, noted that appellant was injured at work while distributing mail on October 24, 2007 

and noted that she came in for evaluation of back pain. He indicated that she had a normal 

neurologic examination with a negative straight leg raise highly doubtful for profound herniated 

disc), but noted that she did have radicular pain intermittently in her right leg. Dr. Rogove 

recommended that appellant continue with conservative therapy, including chiropractic, and pain 

management therapy. 

OWCP requested that Dr. Wert provide a supplemental report on the question of whether 

appellant had any disability following her October 24, 2007 work injury. On August 5, 2009 

Dr. Wert advised that the opinion he expressed in his March 24, 2009 report remained 

unchanged and noted, “As I examined [appellant] on March 24, 2009, one year and five months 

post injury, I am unable to comment on whether or not [she] was totally disabled at any time 

following the March 24, 2007 injury.” 

In an October 16, 2009 decision, OWCP denied appellant’s claim, finding that she had 

not submitted medical evidence sufficient to establish that she had disability due to her 

October 24, 2007 work injury on or after December 10, 2007. It indicated that the reports of 

Dr. Skurka did not constitute medical evidence. 

Dr. Kevin Mullins, an attending Board-certified neurosurgeon, reported the findings of a 

June 22, 2010 electromyogram (EMG) and nerve conduction velocity (NCV) testing on 

appellant’s legs. He indicated that EMG testing revealed unremarkable findings with no support 

for the presence of a lumbar radiculopathy. NCV testing revealed a normal study with 

unremarkable findings. 

In a January 5, 2011 decision, OWCP affirmed its October 16, 2009 decision denying 

appellant’s claim for compensation for disability due to her October 24, 2007 work injury. 

Appellant submitted a June 7, 2010 report, in which Dr. Erlinda D. Austria, an attending 

Board-certified surgeon, diagnosed injury to lower back at work in 2007 and herniated and 

bulging lumbar disc with subluxation. Dr. Austria noted that appellant had mild-to-moderate 

restrictions for squatting, bending, prolonged sitting, standing, and walking and moderate 

restriction, and limited range of motion for activities involving both knees, greater on the left. 

In a January 14, 2011 report, Dr. Skurka diagnosed lumbar spinal subluxation at L4, 

lumbar spondylolisthesis/anterolisthesis at L4, lumbar radiculopathy, lumbar facet syndrome, 

and multilevel lumbar disc bulging from L3-4 to L5-S1 with foraminal canal stenosis. He noted, 

“In my professional opinion, [appellant’s] present clinical status pertaining to her lumbar spine is 

directly correlated to her work-related injury occurring on October 24, 2007.” 

On October 13, 2011 appellant requested reconsideration of her claim and argued that the 

reports of Dr. Skurka should be considered as relevant medical evidence. 
5

In a January 11, 2012 decision, OWCP affirmed its January 5, 2011 decision, finding that 

appellant did not submit probative medical evidence relating the claimed periods of disability to 

the October 24, 2007 work injury. Appellant appealed to the Board. 

By decision dated February 25, 2013,6

 the Board affirmed OWCP’s January 11, 2012 

decision. It found that appellant had not submitted rationalized medical evidence establishing 

disability due to her October 24, 2007 work injury on or after December 10, 2007. 

Appellant requested reconsideration of her disability claim and submitted new medical 

evidence. In reports dated January 30 and March 2, 2012, Dr. Litman discussed his continued 

treatment of her low back condition, including the application of steroid injections. 

In a report dated October 2, 2013, Dr. Deborah Eisen, an attending Board-certified family 

practitioner, indicated that Dr. Skurka believed that appellant’s lumbar spondylolisthesis and 

anterolisthesis at L4 were related to the same repetitive bending and lifting that caused her 

accepted work injuries. She opined that appellant’s work would have caused these conditions as 

well as the bulging disc at L3-4 and posterior disc bulge at L5-S1 and thus these conditions 

prevented appellant from working since October 24, 2007. 

By decision dated February 28, 2014, OWCP denied modification of its prior decisions 

denying appellant’s disability claim. It found that the new medical evidence was not sufficiently 

well rationalized to establish disability due to the October 24, 2007 work injury on or after 

December 10, 2007. 

Appellant again requested reconsideration of her disability claim and submitted new 

medical evidence. In a report dated March 11, 2014, Dr. Eisen indicated that appellant’s bending 

to lift parcels over the period of a day would have caused the lower spine to be compromised, 

causing the anterior portion of the posterior portion of the disc to move posteriorly as 

demonstrated on MRI scan. She opined that the constant bending would put pressure on the 

anterior portion of the vertebral body and disc, causing the associated L4 to move forward from 

this anterior pressure. Dr. Eisen found that, therefore, appellant’s bending caused the multiple 

herniated discs (between L3 and S1) and anterolisthesis (grade 1 spondylolisthesis) of L4 upon 

L5. 

In a September 16, 2014 decision, OWCP denied modification of its February 28, 2014 

decision denying appellant’s disability claim. It found that the new report of Dr. Eisen was not 

sufficiently rationalized to establish disability due to the October 24, 2007 work injury on or 

after December 10, 2007. 

Appellant requested reconsideration and submitted a November 11, 2015 report in which 

Dr. Amit Sharma, an attending Board-certified internist, noted that appellant reported becoming 

symptomatic after October 24, 2007. Dr. Sharma diagnosed right L5 radiculopathy, lumbar 

spondylosis, and lumbar spinal stenosis. In a January 29, 2015 report, Dr. Anthony Petrizzo, an 

attending Board-certified orthopedic surgeon and osteopath, indicated that appellant reported 

 6

 Docket No. 12-1348 (issued February 25, 2013). 
6

experiencing constant low back pain since October 24, 2007. He provided a diagnosis of lumbar 

spondylolisthesis at L4-5. 

By decision dated February 9, 2016, OWCP denied modification of its prior decision. It 

found that appellant had not submitted sufficiently rationalized medical evidence establishing 

disability due to her October 24, 2007 work injury on or after December 10, 2007. 

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 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.7 In general, the term disability under FECA means incapacity 

because of injury in employment to earn the wages which the employee was receiving at the time 

of such injury.8

 This meaning, for brevity, is expressed as disability from work.9 

The medical evidence required to establish causal relationship between a claimed period 

of disability and an employment injury is rationalized medical opinion evidence. 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 nature of the relationship between the diagnosed condition and the specific employment 

factors identified by the claimant.10

Under section 8101(2) of FECA, chiropractors are only considered physicians, and their 

reports considered medical evidence, to the extent that they treat spinal subluxations as 

demonstrated by x-ray to exist.11 OWCP’s regulations at 20 C.F.R. § 10.5(bb) have defined 

subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal 

spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained 

in the reading of x-rays.12

ANALYSIS 

OWCP accepted that on October 24, 2007 appellant sustained a lumbar sprain and 

temporary aggravation of preexisting degenerative disc disease of the lumbar spine, resolved. 

Appellant filed claims for compensation (Form CA-7) alleging disability due to her October 24, 

 7 J.F., Docket No. 09-1061 (issued November 17, 2009). 

8 See 20 C.F.R. § 10.5(f). 

9 Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010). 

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

11 5 U.S.C. § 8101(2). See Jack B. Wood, 40 ECAB 95, 109 (1988). 

12 20 C.F.R. § 10.5(bb); see also Bruce Chameroy, 42 ECAB 121, 126 (1990). 
7

2007 work injury commencing December 10, 2007. By decision dated February 25, 2013, the 

Board affirmed OWCP’s January 11, 2012 decision denying her disability claim. The Board 

found that appellant had not submitted rationalized medical evidence establishing disability due 

to her October 24, 2007 work injury on or after December 10, 2007. Appellant continued to 

request a series of reconsiderations to OWCP of the denial of her disability claim. In several 

decisions, including a decision dated February 16, 2016, OWCP denied her disability claim by 

finding that she did not submit sufficient rationalized medical evidence in support thereof. 

The Board finds that appellant did not submit medical evidence to establish that that she 

sustained disability due to her October 24, 2007 work injury on or after December 10, 2007. 

Appellant submitted reports beginning in January 2008 from Dr. Skurka, an attending 

chiropractor, including some reports in which he identified periods of disability. In its 

February 25, 2013 decision, the Board found that, although he provided an opinion of her 

disability, he did not provide a rationalized medical opinion explaining how she sustained 

disability from work due to her October 24, 2007 employment injury for specific periods 

commencing December 10, 2007.13 Appellant also submitted reports of several other attending 

physicians, including reports from 2007 through 2010 of Dr. Gigante, Dr. Litman, and 

Dr. Austria, but the Board found in its February 25, 2013 decision that these reports did not 

contain rationalized medical opinions on the issue of disability. The Board notes that these 

physicians diagnosed a number of conditions that are not accepted as work related, such as 

lumbar radiculopathy.14

In a report dated October 2, 2013, Dr. Eisen, an attending physician, indicated that 

Dr. Skurka believed that appellant’s lumbar spondylolisthesis and anterolisthesis at L4 were 

related to the same repetitive bending and lifting that caused her accepted work injuries. She 

opined that appellant’s work would have caused these conditions as well as the bulging disc at 

L3-4 and posterior disc bulge at L5-S1. Dr. Eisen indicated that these conditions prevented 

appellant from working since October 24, 2007. 

The submission of this report would not establish appellant’s disability claim because 

Dr. Eisen did not provide adequate medical rationale in support of her opinion on appellant’s 

disability. The Board has held that a medical opinion is of limited probative value if that opinion 

is unsupported by medical rationale.15 Dr. Eisen did not describe appellant’s accepted conditions 

in any detail or explain how they would have been caused disability from work commencing 

December 10, 2007. The Board notes that OWCP has not accepted that on October 24, 2007 

appellant sustained any condition other than a lumbar sprain and temporary aggravation of 

 13 The Board previously found that these reports constitute medical evidence because Dr. Skurka diagnosed a 

spinal subluxation as demonstrated by x-ray testing. See supra notes 10 and 11. The Board also noted in its 

February 25, 2013 decision that Dr. Sanford R. Wert, a Board-certified orthopedic surgeon and OWCP referral 

physician, indicated in his March 26 and August 5, 2009 reports that appellant was not disabled at that time. 

14 The findings of June 22, 2010 EMG testing of appellant’s legs revealed unremarkable findings with no support 

for the presence of a lumbar radiculopathy and NCV testing revealed a normal study with unremarkable findings. 

15 C.M., Docket No. 14-0088 (issued April 18, 2014). 
8

preexisting degenerative disc disease of the lumbar spine, resolved.16 Thus, the Board finds that 

Dr. Eisen’s October 2, 2013 report is not sufficiently rationalized to establish that any additional 

work-related medical condition. 

In a report dated March 11, 2014, Dr. Eisen indicated that appellant’s bending to lift 

parcels over the period of a day would have caused the lower spine to be compromised, causing 

the anterior portion of the posterior portion of the disc to move posteriorly as demonstrated on 

MRI scan. She opined that the constant bending would put pressure on the anterior portion of 

the vertebral body and disc, causing the associated L4 to move forward from this anterior 

pressure. Dr. Eisen indicated that appellant’s bending caused the multiple herniated discs 

(between L3 and S1) and anterolisthesis (grade 1 spondylolisthesis) of L4 upon L5. In this 

report, she again failed to provide a rationalized medical opinion explaining how appellant 

sustained disability due to her October 24, 2007 work injury for specific periods on or after 

December 10, 2007. Dr. Eisen diagnoses conditions that have not been accepted as work related 

and her general description of appellant’s work duties would not be sufficient to establish a new 

work-related condition. Her report is of limited probative value regarding the relevant issue of 

this case, i.e., whether appellant sustained disability from work commencing December 10, 2007 

due to her accepted October 24, 2007 work injury on or after December 10, 2007.17

Appellant also submitted a January 29, 2015 report of Dr. Petrizzo and a November 11, 

2015 report of Dr. Sharma. These attending physicians diagnosed various back conditions, but 

they did not provide an opinion on appellant’s disability on or after December 10, 2007. 

On appeal, appellant’s representative argues that OWCP improperly failed to consider the 

opinion of Dr. Eisen on disability to be well rationalized, but the Board has explained above why 

her opinion on disability lacks adequate medical rationale. Appellant’s representative argues that 

there is a conflict in the medical opinion evidence between Dr. Wert, an OWCP referral 

physician, and appellant’s attending physicians on the issue of disability. However, none of the 

reports of appellant’s attending physicians are sufficiently well rationalized to create such a 

conflict.18

For these reasons, appellant did not meet her burden of proof to establish disability due to 

her October 24, 2007 work injury on or after December 10, 2007. 

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. 

 16 See K.A., Docket No. 16-0592 (issued October 26, 2016). 

17 Id.

18 Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the physician making 

the examination for the United States and the physician of the employee, the Secretary shall appoint a third 

physician who shall make an examination.” 5 U.S.C. § 8123(a). 
9

CONCLUSION 

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

to her October 24, 2007 work injury on or after December 10, 2007. 

ORDER 

IT IS HEREBY ORDERED THAT the February 9, 2016 merit decision of the Office 

of Workers’ Compensation Programs is affirmed. 

Issued: February 15, 2017 

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