United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Somerset, NJ, Employer

__________________________________________

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Docket No. 17-1106

Issued: June 5, 2018

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant1

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 April 26, 2017 appellant, through counsel, filed a timely appeal from a February 16, 

2017 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 the claim.3

 

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.

3 The record provided to the Board includes evidence received after OWCP issued its February 16, 2017 decision. 

The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, 

the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

ISSUE

The issue is whether appellant has met his burden of proof to establish back conditions

causally related to the accepted December 10, 2013 employment incident. 

FACTUAL HISTORY

This case has previously been before the Board.4 The facts of the case as presented in the 

Board’s prior decision are incorporated herein by reference. The relevant facts are as follows. 

On December 10, 2013 appellant, then a 56-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on that date, he injured his low back when he fell out of a chair 

while pulling on snow boots at work. He stopped work on December 10, 2013 and did not return.5 

By decision dated January 31, 2014, OWCP denied the claim as appellant had not 

established that the claimed incident occurred at the time, place, and in the manner alleged. On 

February 27, 2014 appellant requested a hearing before an OWCP hearing representative. By 

decision dated September 29, 2014, OWCP’s hearing representative found that appellant had 

established that the incident occurred as alleged, but denied the claim as the evidence of record did 

not establish causal relationship between the accepted employment incident and the claimed back 

condition. Appellant requested reconsideration on January 19, 2015, and by decision dated 

August 21, 2015, OWCP denied modification of its prior decision. 

On October 13, 2015 appellant appealed to the Board. By decision dated March 9, 2016, 

the Board affirmed OWCP’s August 21, 2015 decision. The Board found that appellant had not 

submitted medical evidence sufficient to establish that the alleged conditions were causally related 

to the accepted employment incident.6

On May 3, 2016 appellant again requested reconsideration and submitted additional 

evidence in support of his request.

In an October 28, 2016 report, Dr. David Weiss, an osteopath, related the history of 

appellant’s December 10, 2013 employment incident and his review of his previous reports of 

July 16 and December 29, 2014. He also set forth the results of an April 11, 2003 magnetic 

resonance imaging (MRI) scan, which indicated that there was moderate left and moderate-tosevere right foraminal stenosis at L5-S1 and a bulging disc at L5-S1. It was noted that the neural 

foramen where the S1 nerve exited was compromised and vulnerable. Dr. Weiss opined that the 

fall of December 10, 2013 led to proinflammatory cell release which caused chemical and 

 

4 Docket No. 16-0056 (issued March 9, 2016).

5 Under OWCP File No. xxxxxx931, appellant has an accepted claim for lumbar degenerative disc disease, lumbar 

disc displacement, lumbar sprain, and lumbar stenosis from a December 1, 2001 work injury. He underwent an 

authorized lumbar laminectomy and fusion surgery on February 5, 2005. Appellant returned to work in 2006. 

6 Supra note 4. 
3

mechanical irritation to the S1 nerve root. Duplicate copies of Dr. Weiss’ July 16 and 

December 29, 2014 reports were also received. 

Evidence from OWCP File No. xxxxxx931 was also received. This included a duplicate

copy of a partial report dated June 19, 2014 from Dr. Ian B. Fries, a Board-certified orthopedic 

surgeon and impartial medical specialist under File No. xxxxxx931, which noted bilateral lower 

extremity impairment ratings from the accepted December 1, 2001 employment injury, and a copy 

of the Board’s August 4, 2016 decision in File No. xxxxxx931, which set aside a May 22, 2015 

lower extremity schedule award decision.7 

By decision dated February 16, 2017, OWCP denied modification of its prior decision. It 

found that the new evidence submitted on reconsideration was insufficient to establish causal 

relationship between appellant’s diagnosed back conditions and the December 10, 2013 accepted 

employment incident. 

LEGAL PRECEDENT

An employee seeking benefits under FECA8 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.9 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.10

In order to determine whether an employee sustained a traumatic 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 that must be considered conjunctively. First, the 

employee must submit sufficient evidence to establish that he actually experienced the 

employment incident that is alleged to have occurred.11 An employee has not met his or her burden 

of proof in establishing the occurrence of an injury when there are such inconsistencies in the 

evidence as to cast serious doubt upon the validity of the claim.12 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.13

 

7 Docket No. 15-1736 (issued August 4, 2016).

8 Supra note 2.

9

Joe D. Cameron, 41 ECAB 153 (1989).

10 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

11 Gary J. Watling, 52 ECAB 278 (2001).

12 S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

13 Deborah L. Beatty, 54 ECAB 340 (2003).
4

The medical evidence required to establish causal relationship is generally rationalized 

medical opinion evidence. Rationalized medical opinion evidence is medical evidence which 

includes a physician’s rationalized opinion on the issue of whether there is causal relationship 

between the claimant’s diagnosed condition and the implicated employment factors. 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.14

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish his claim as he 

has not submitted rationalized medical evidence sufficient to support that his diagnosed back 

conditions were due to the accepted December 10, 2013 work incident. 

Findings made in prior Board decisions are res judicata absent any further review by 

OWCP under section 8128 of FECA.15 The Board will, therefore, not review the evidence 

addressed in the prior appeal.

OWCP continued to receive evidence on reconsideration. In his October 28, 2016 report,

Dr. Weiss noted the history of the claimed December 10, 2013 work injury and indicated that he 

reviewed his prior reports of July 16 and December 29, 2014. Copies of the July 16 and 

December 29, 2014 report, which were previously of record and resubmitted, revealed that he was 

also aware of appellant’s prior accepted work injury of 2001. Dr. Weiss noted the results of the 

April 11, 2003 MRI scan. He opined that the fall on December 10, 2013 led to proinflammatory 

cell release which caused chemical and mechanical irritation to the S1 nerve root. However,

Dr. Weiss did not explain how the December 10, 2013 work incident caused, aggravated, or 

contributed to the findings to S1 nerve root found on the April 11, 2003 MRI scan. A medical 

opinion that states a conclusion, but does not offer any rationalized medical explanation regarding 

the cause of an employee’s condition is of limited probative value on the issue of causal 

relationship.16 Furthermore, Dr. Weiss did not provide any discussion about the effect if any, that 

the prior accepted work injury of 2001 may have had on the findings to the S1 nerve root found 

on the April 11, 2003 MRI scan.

17

 Thus, besides providing a general conclusion without the 

necessary rationale, Dr. Weiss did not base his opinion on a complete and accurate history of 

appellant’s medical conditions establishing a diagnosed back condition causally related to the 

December 10, 2013 work incident.

18

 As Dr. Weiss failed to adequately explain how appellant’s 

 

14 Solomon Polen, 51 ECAB 341 (2000).

15 See H.G., Docket No. 16-1191 (issued November 25, 2016).

16 H.V., Docket No. 17-0492 (issued June 19, 2017); C.B., Docket No. 09-2027 (issued May 12, 2010).

17 See supra note 5. As noted, under OWCP File No. xxxxxx931, appellant has an accepted claim for lumbar 

degenerative disc disease, lumbar disc displacement, lumbar sprain and lumbar stenosis from a December 1, 2001 

work injury, for which he underwent an authorized lumbar laminectomy and fusion surgery on February 5, 2005.

18 M.G., Docket No. 16-0451 (issued March 17, 2017); see also Frank Luis Rembisz, 52 ECAB 147 (2000) (medical 

opinions based on an incomplete history have little probative value).
5

current back conditions were causally related to the December 10, 2013 employment incident and 

not an aggravation of a preexisting back condition, the Board finds that Dr. Weiss’ report is 

insufficient to establish appellant’s claim.19

As the reports of Dr. Weiss dated July 16 and December 29, 2014 and the June 19, 2014 

partial report of Dr. Fries are duplicative of evidence already of record and previously considered, 

they have no new evidentiary value.20

The Board’s August 4, 2016 decision under OWCP File No. xxxxxx670 pertains to a 

schedule award resulting from appellant’s December 20, 2001 work injuries. That decision has no 

relevance on establishing causal relationship between appellant’s December 10, 2013 accepted 

employment incident and the diagnosed back conditions.21 There is no reasoned medical evidence 

explaining how appellant’s December 10, 2013 accepted employment incident either caused or 

aggravated his diagnosed back conditions. Therefore, appellant has not met his burden of proof to 

establish back conditions causally related to the accepted December 10, 2013 employment 

incident. 

On appeal counsel requests that OWCP combine OWCP File No. xxxxxx931 with the 

current claim as the claimed injuries relate to the same part of the body. The Board finds that a 

combination of the files at this point is premature as correct adjudication of the present claim does 

not require cross-referencing with the previous claim file.22 

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 not met his burden of proof to establish back conditions

causally related to the accepted December 10, 2013 employment incident.

 

19 In cases where a preexisting condition involving the same part of the body is present and the issue of causal 

relationship therefore involves aggravation, acceleration or precipitation, the physician must provide rationalized 

medical opinion which differentiates between the effects of the work-related injury or disease and the preexisting 

condition. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) 

(January 2013).

20 See Daniel Deparini, 44 ECAB 657, 659 (1993).

21 See M.D., Docket No. 16-0745 (issued February 8, 2017); Edward Matthew Diekemper, 31 ECAB 224, 

225 (1979). The submission of evidence or argument which does not address the particular issue involved does not 

constitute a basis for reopening a case.

22 Federal (FECA) Procedure Manual, supra note 19 at Chapter 2.400.8(c) (February 2000).
6

ORDER

IT IS HEREBY ORDERED THAT the February 16, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 5, 2018

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