United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer 

__________________________________________ 

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Docket No. 16-1171 

Issued: November 1, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 May 11, 2016 appellant filed a timely appeal from a February 18, 2016 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 has met his burden of proof to establish employmentrelated disability for the period beginning June 29, 2015. 

FACTUAL HISTORY 

On May 14, 2015 appellant, then a 45-year-old labor custodian, sustained a traumatic 

injury when he lifted a bucket of water at work. He stopped work on the date of injury and did 

 1

 5 U.S.C. § 8101 et seq. 
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not return to work. Appellant received continuation of pay from May 15, 2015 until 

June 28, 2015. OWCP accepted the claim for neck and lumbosacral sprain. 

In a May 19, 2015 disability status report, Dr. Joseph Gregorace, an osteopath Boardcertified in physical medicine and rehabilitation, diagnosed acute cervical spine spasm and acute 

lumbar spine spasm. He indicated that appellant was totally disabled for work. In a May 19, 

2015 narrative report, Dr. Gregorace advised that appellant complained of neck and back pain. 

He noted that appellant related that he was lifting a bucket of water and attempting to pour it into 

a sink on May 14, 2015 when he sustained acute neck and back pain. Dr. Gregorace noted that 

appellant was currently under the care of a Dr. Sessions at the Brooklyn Veterans Affairs facility 

for chronic spinal pain. He indicated that appellant was a disabled veteran from the U.S. Army 

since 1992 with neck and low back injuries and right ulnar neuropathy. Dr. Gregorace assessed 

acute cervical and lumbar spine spasms. He again noted that appellant was totally disabled and 

recommended that he refrain from returning to work. Dr. Gregorace opined that there was causal 

relationship between the diagnosed conditions and the May 14, 2015 work-related accident. 

In a June 8, 2015 report, Dr. Gregorace advised that appellant presented with complaints 

of neck and back pain with stiffness and spasms. He noted that appellant had prior cervical and 

lumbar spine derangements. In an accompanying June 8, 2015 disability status note, 

Dr. Gregorace advised that appellant was 100 percent disabled from work. 

Appellant submitted several claims for compensation (Forms CA-7) beginning 

June 29, 2015. 

In a July 17, 2015 letter, OWCP requested that the Department of Veterans Affairs (VA) 

provide relevant information regarding appellant’s accepted VA conditions. 

By letter dated July 17, 2015, OWCP requested that Dr. Gregorace address whether the 

May 14, 2015 work injury exacerbated a preexisting condition, an explanation as to why 

appellant was totally disabled, and whether appellant’s total disability was work related. 

OWCP received additional evidence from Dr. Gregorace. In a June 22, 2015 report, 

Dr. Gregorace advised that appellant complained of worsening neck and low back pain that 

travelled down both legs. On examination he noted positive straight leg raise at 60 degrees on 

the right, positive at 70 degrees on the left, and negative Spurling’s test bilaterally. Examination 

of the cervical spine revealed tenderness to the mid to low cervical spine, 40 degrees flexion, 30 

degrees extension, 50 degrees right rotation, 55 degrees left rotation, 50 degrees right side 

bending, and 50 degrees left-side bending. Dr. Gregorace assessed cervical and lumbar spine 

spasms. He recommended that appellant refrain from returning to work as his job as a custodian 

would exacerbate his spinal pain and worsen his present spinal impairment. 

In a July 7, 2015 report, Dr. Gregorace, advised that appellant complained of worsening 

back pain and tingling in the left leg. Examination of the cervical spine revealed tenderness 

throughout the mid to lower cervical spine, 42 degrees flexion, 40 degrees extension, 50 degrees 

right rotation, and 55 degrees left rotation. Examination of the lumbar spine revealed spasms 

along the mid to lower lumbar spine, palpation to the gluteus/piriformis muscles, supple 

sacroiliac joints, negative Patrick’s test bilaterally, 50 degrees flexion, 20 degrees extension, 22 
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degrees right side bending, and 25 degrees left-side bending. Dr. Gregorace assessed cervical 

spine sprain/strain, lumbar spine sprain/strain, and left L5 radiculopathy. He recommended that 

appellant not return to work. In an accompanying disability status report, Dr. Gregorace advised 

that appellant was 100 percent disabled and unable to work. 

A February 9, 2015 rating decision from the VA regarding appellant’s claim for increased 

severity in his service-connected condition was submitted. It advised that in relation to his 

service with the U.S. Army, appellant had radiculopathy of the right upper extremity that was 40 

percent disabling, chronic myofascial pain syndrome of the thoracic and lumbar spine that was 

20 percent disabling, glaucoma of the left eye which was 10 percent disabling, and an adjustment 

disorder that was 10 percent disabling. It found that medical records failed to provide any 

evidence that would warrant any change in its previous ratings. 

By decision dated August 17, 2015, OWCP denied appellant’s request for wage-loss 

compensation because the medical evidence of record did not provide a rationalized opinion 

explaining why appellant was disabled due to his work-related condition. It noted that it was 

unclear if appellant’s total disability was attributable to his preexisting condition or the May 14, 

2015 work injury. 

In an August 12, 2015 letter, the VA noted that appellant had 70 percent serviceconnected disability from September 18, 2012 until the present. 

On August 28, 2015 appellant requested review of the written record by an OWCP 

hearing representative and provided additional medical evidence. In a July 28, 2015 report, 

Dr. Gregorace advised that appellant had prior neck and low back injuries and right ulnar 

neuropathy. He also indicated that appellant was a disabled veteran from the U.S. Army. 

Dr. Gregorace noted that he was unable to determine if appellant’s diagnosed condition was a 

different injury, and exacerbation of prior injuries, or a worsening of his present spinal 

impairments. He noted that he would be able to make a determination if he was provided with 

medical records from the Brooklyn VA Medical Center where appellant was treated. 

In an August 4, 2015 report, Dr. Gregorace advised that appellant presented with 

complaints of low back pain with spasms and stiffness with pain traveling down to the left leg. 

He noted that a lumbar spine magnetic resonance imaging (MRI) scan dated July 24, 2015 

revealed disc herniation at the L3-4 and L4-5 levels with bulging discs at the L1-2, L2-3, and L5-

S1 levels. Dr. Gregorace also noted that a lower electromyogram and nerve conduction velocity 

studies test revealed left L5 radiculopathy. In an accompanying disability status report, he 

advised that appellant was unable to work. Dr. Gregorace opined that his injuries were caused 

by the May 14, 2015 work incident. In an August 4, 2015 disability status report, he advised that 

appellant was unable to work and that appellant’s injuries were caused by the May 14, 2015 

employment injury. 

In an August 19, 2015 report, Dr. Nizarali Visram, a Board-certified physiatrist and 

associate of Dr. Gregorace, advised that appellant presented with persistent low back pain since a 

May 14, 2015 work-related incident when he lifted a bucket of water. He noted assessed posttraumatic lumbar disc bulge at L1-2, L2-3, L4-5, L5-S1, disc herniation at L3-4 with radicular 
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symptoms and myofascial pains, and post-traumatic lumbosacral radiculopathy. Dr. Visram 

recommended that appellant continue with physical therapy and an epidural steroid injection. 

In an August 25, 2015 report, Dr. Gregorace advised that appellant related that he had 

prior neck and low back injuries. However, based on his review of a series of diagnostic MRI 

scan films and various medical records, appellant did not have intervertebral disc herniation of 

the spine prior to the May 14, 2015 work injury.2 Dr. Gregorace noted that the May 14, 2015 

work accident caused an acute lumbar spine injury and that appellant was under his care for a left 

L5 radiculopathy with lumbar spasms due to disc herniation at the L3-4 and L4-5 levels. He 

opined that appellant remained totally disabled secondary to the May 14, 2015 work-related 

accident. Dr. Gregorace further opined that he did not believe that the work incident aggravated 

or exacerbated a preexisting condition as there was no evidence of preexisting intervertebral disc 

herniation based on the multiple MRI scan performed in the past. 

By decision dated February 18, 2016, an OWCP hearing representative affirmed its prior 

decision. It noted that Dr. Gregorace’s reports lacked probative value as they were not based on 

an accurate history of appellant’s medical conditions as evidence from the VA showed that 

appellant had symptoms prior to the claimed work injury. 

LEGAL PRECEDENT 

A claimant has the burden of proving by a preponderance of the evidence that he or she is 

disabled for work as a result of an accepted employment injury and submit medical evidence for 

each period of disability claimed.3 Whether a particular injury causes an employee to be 

disabled for employment and the duration of that disability are medical issues.4 The issue of 

whether a particular injury causes disability for work must be resolved by competent medical 

evidence.5 To meet this burden, a claimant must submit rationalized medical opinion evidence, 

based on a complete factual and medical background, supporting a causal relationship between 

the alleged disabling condition and the accepted injury.6

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so, would essentially allow an employee to self-certify his or her disability and 

entitlement to compensation. For each period of disability claimed, the employee has the burden 

of establishing that he was disabled for work as a result of the accepted employment injury.7

 

 2

 Several spinal diagnostic reports from 1998 through 2013 were referenced in Dr. Gregorace’s reports; however, 

these reports are not found in the record. 

3 See Fereidoon Kharabi, 52 ECAB 291 (2001). 

4 Id. 

5 See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

6 C.S., Docket No. 08-2218 (issued August 7, 2009). 

7 Sandra D. Pruitt, 57 ECAB 126 (2005). 
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ANALYSIS 

Appellant’s claim was accepted for neck and lumbosacral sprain. He stopped work on 

the date of injury and filed claims for wage-loss compensation beginning June 29, 2015. 

Appellant contends that his disability for this period was due to his accepted employment injury. 

On February 18, 2016 a hearing representative affirmed the denial of compensation finding that 

Dr. Gregorace’s reports lacked probative value as they were not based on an accurate history. 

The Board finds that the case is not in posture for decision. 

On July 17, 2015 OWCP requested that Dr. Gregorace address whether the May 14, 2015 

work injury exacerbated a preexisting condition, why appellant was totally disabled, and if 

appellant’s total disability was work related. 

In his August 25, 2015 report, Dr. Gregorace reviewed various diagnostic records from 

1998 through 2013 and concluded that appellant did not have prior intervertebral disc herniation 

of the spine. He opined that appellant did not have any MRI scan evidence of preexisting 

intervertebral disc herniation based on multiple spinal MRI scan performed in the past. 

Dr. Gregorace noted that the May 14, 2015 work accident caused an acute lumbar spine injury 

and that appellant was under his care for left L5 radiculopathy with lumbar spasms due to disc 

herniation at the L3-4 and L4-5 levels. He opined that appellant remained totally disabled 

secondary to the May 14, 2015 work-related accident. Dr. Gregorace further opined that he did 

not believe that the work incident aggravated or exacerbated a preexisting condition as there was 

no preexisting intervertebral disc herniation based on the multiple MRI scan. 

Dr. Gregorace has unequivocally stated that appellant’s lumbar conditions were caused 

by the work injury and that he continued to suffer from residuals of these injuries. He responded 

to OWCP’s inquiry regarding appellant’s preexisting conditions and made findings on 

examination. It is well established that proceedings under FECA are not adversarial in nature, 

nor is OWCP a disinterested arbiter. While Dr. Gregorace’s reports do not contain sufficient 

medical reasoning discharge appellant’s burden of proof, these reports raise an uncontroverted 

inference of causal relationship sufficient to require further development of the case record by 

OWCP.8

 On remand, OWCP shall request relevant medical records from the VA and from 

appellant regarding appellant’s preexisting spinal conditions. It shall then prepare a statement of 

accepted facts and refer appellant to an appropriate Board-certified specialist for a second 

opinion examination. The specialist shall then provide a rationalized medical opinion regarding 

whether the May 14, 2015 work injury caused or contributed to appellant’s disability for work 

beginning June 29, 2015. Following this and any other further development deemed necessary, 

it shall issue a de novo decision on appellant’s claim. 

CONCLUSION 

The Board finds that additional development of the medical evidence is needed to 

establish whether appellant was disabled for the period beginning June 29, 2015 as a result of his 

accepted employment injury. 

 8 See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978). 
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ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated February 18, 2016 is set aside and the case remanded for further 

proceedings consistent with the above opinion. 

Issued: November 1, 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