United States Department of Labor 

Employees’ Compensation Appeals Board

__________________________________________ 

D.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Detroit, MI, Employer 

__________________________________________ 

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Docket No. 15-562 

Issued: May 21, 2015 

Appearances: Case Submitted on the Record

Debra Hauser, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 21, 2015 appellant, through counsel, filed a timely appeal from an Office of 

Workers’ Compensation Programs’ (OWCP) decision dated November 17, 2014. 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 sustained a low back injury in the performance of duty on 

September 7, 2010. 

FACTUAL HISTORY 

This is the second appeal before the Board. Appellant, a 55-year-old supervisor, filed a 

claim for traumatic injury on September 15, 2010, alleging that he sustained a ruptured disc at 

 1

 5 U.S.C. § 8101 et seq. 
2 

L4-5 while lifting mail containers on September 7, 2010. The record indicates that he had prior 

claims which were denied by OWCP. In OWCP file number xxxxxx935, appellant claimed a 

back injury caused by occupational disease on or before May 28, 2010. In OWCP file number 

xxxxxx738, he claimed an occupational disease on or before September 8, 2010. 

In a report dated October 7, 2010, Dr. Sameh Yonan, Board-certified in pain medicine, 

stated that appellant had been off work since September 7, 2010 due to back and leg pain. He 

advised that appellant had increased low back pain radiating down his left buttocks and leg, and 

numbness in his right foot. 

On February 25, 2011 Dr. Randy B. Reed, a chiropractor, stated that he began treating 

appellant on June 1, 2010 for complaints of severe low back pain and pain with numbness and 

tingling radiating down his left leg. Appellant had been doing repetitive lifting at work and 

began experiencing increasing, severe pain in his back on May 28, 2010. Dr. Reed stated that 

the pain had progressed to the extent that he could barely walk at the time of his initial visit. 

Appellant attempted to return to work after being off and allegedly injured his lower back again 

at work on September 7, 2010. Dr. Reed determined that appellant had sustained a severe disc 

injury along with lumbar misalignments; i.e., subluxation, with fixations. He stated that 

appellant underwent a magnetic resonance imaging (MRI) scan on June 10, 2010 which 

confirmed that he had a lumbar disc protrusion into the lateral recess of L4-5. Dr. Reed opined 

based on appellant’s history, examination findings and MRI scan results that this injury was 

directly caused by the repetitive lifting at work. 

In a February 25, 2011 report, Dr. Anthony F. Berardino, a chiropractor, stated that 

appellant had complaints of lumbar pain radiating to the left leg, thigh and buttocks. He advised 

that appellant had alleged that he sustained an injury on May 28, 2010 while loading mail for the 

letter carriers. This job required constant stooping and lifting mail sacks and buckets. Appellant 

underwent an MRI scan, which showed bulging discs in his lumbar spine, most prominently at 

L4-5. He was treated with epidural shots and medication and his condition slightly improved. 

Appellant attempted to return to work on September 7, 2010 but again experienced shooting 

pain. The pain returned and increased to the extent that he could not continue his work. 

Dr. Berardino stated that appellant’s job with the employing establishment required constant 

bending and lifting of mail sacks which occasionally weighed more than 50 pounds. He advised 

that this persistent, constant stress to the spine could cause the microfibers in the disc to 

asymptomatically tear until a significant disc bulge produced the signs and symptoms appellant 

was currently experiencing. Based on these facts, Dr. Berardino opined that appellant’s signs 

and symptoms were causally related to the May 28, 2010 work incident. 

By decision dated March 18, 2011, OWCP denied appellant’s claim, finding that he failed 

to submit sufficient medical evidence in support of his claim that he sustained a lower back 

injury in the performance of duty on September 7, 2010. By decision dated August 5, 2011, an 

OWCP hearing representative affirmed the March 18, 2011 decision. Appellant requested 

reconsideration on March 14, 2012. By decision dated November 6, 2012, OWCP denied 

modification of the August 14, 2011 decision. In an April 1, 2013 decision,2

 the Board affirmed 

 2

 Docket No. 13-308 (issued April 1, 2013). 
3 

the November 6, 2012 decision. The complete facts of this case are set forth in the Board’s 

April 1, 2013 decision and are herein incorporated by reference. 

In a January 2, 2014 report, Dr. Robert Reppy, an osteopath, stated the history of injury. 

He advised that appellant began to experience burning pain in his back, left leg, left buttock and 

thigh which was accompanied by severe tingling in the entire left leg, including the foot and toes. 

Dr. Reppy diagnosed bulging discs at L2-3, L3-4, and L4-5, as shown by a June 10, 2010 lumbar 

MRI scan. 

On January 29, 2014 Dr. Ramon Berenguer, an internist, stated that he had undertaken a 

review of all the patient’s medical records, including all office visits by different doctors, all 

diagnoses, all diagnostic tests, and the interpretation of these tests, and all other medical records 

brought by appellant from other medical providers. He advised that appellant had complaints of 

low back pain radiating down to the left leg and left foot. Dr. Berenguer rated the pain as 

typically a 3 or 4 on a scale of 1 to 10; this increased to 9 or 10 on occasion. He advised that an 

examination of the lumbar spine revealed tenderness on palpation from L2 to S1, with some 

muscle spasms bilaterally. Dr. Berenguer stated that appellant’s range of motion was reduced on 

flexion from 90 to 45 degrees. 

In a February 26, 2014 report, Dr. Berenguer stated that examination of the lumbar spine 

showed midline tenderness and paravertebral muscles, bilaterally. Appellant continued to show 

reduced range of motion and was intact neurovascularly at the distally lower extremities. 

Dr. Berenguer stated that the results of lumbar x-rays showed no acute fracture or dislocation. 

He diagnosed lumbar disc disease at L2-3, L3-4, L4-5, and left lower extremity radiculopathy. 

Dr. Berenguer stated that he would continue with the current plan of care. He advised that 

appellant was improving slowly but was still unable to work due to his injuries. Dr. Berenguer 

opined that appellant’s low back injury, taking into consideration his job and role, were a direct 

result of the stress caused on his back in the performance of his job. 

By letter dated March 14, 2014, appellant, through counsel, requested reconsideration. 

By decision dated June 6, 2014, OWCP denied appellant’s request for modification. 

In a July 24, 2014 report, Dr. Reppy stated that, after appellant was injured in May 2008, 

he made one attempt to return to work on September 7, 2010; however, this caused the shooting 

pain down the legs to return with a vengeance, which was sufficiently severe that he became 

unable to work. Dr. Reppy advised that appellant underwent an MRI scan of the lumbar spine on 

January 15, 2014 which showed degenerative changes at multiple disc levels and facet 

arthropathy at L5-S1, with bulging discs at L2-3, L3-4, and L4-5. He diagnosed lumbar disc 

syndrome and facet arthropathy; he did not believe that appellant had a lumbar sprain/strain. 

Dr. Reppy stated: 

“The chain of causation and mechanism of injury by which the work actions 

described (stooping and lifting heavy mail sacks) can cause the diagnoses listed 

above are well known and unfortunately, all too common. The intervertebral 

discs at all levels of the spine consist of a soft and pliable inner core called the 

nucleus pulposus which is contained by a ring of more sturdy material called the 
4 

annulus. Prolonged stress applied to one of these annulus rings can create small 

tears within it, disrupting its integrity. Repetitive episodes of the same stress tend 

to be applied to the same point, resulting in these small tears and cracks enlarging, 

rather like working a soft piece of metal back- and-forth until it breaks. 

Eventually the network of cracks in an annulus can link up to create a path of least 

resistance which lacks the tensile strength of the rest of the ring. At that point the 

stage is set for just one more, relatively small stressor to “break of the dam” so to 

speak, and allow the nucleus pulposus to bulge out, rupture, or even herniate. 

This is precisely what happened in the lumbar spine at the L2-3, L3-4, and L4-5. 

“The facet arthropathy is a wear and tear phenomenon that probably developed 

gradually during the years of appellant worked for the post office. Although the 

specific lifting incident of May 28, 2010 was not likely to have originated the 

arthropathy, the repetitive nature and duration of the work actions required by 

appellant’s occupation were sufficient to have produced the facet arthropathy as a 

preexisting condition, and thereupon the lifting injury of May 28, 2010 

aggravated it. 

“It is my medical opinion, within reasonable medical certainty, that appellant’s 

conditions i.e., the disc disease and the facet arthropathy, were caused by an 

aggravation or direct result of the strain on the patient’s back as he constantly had 

to stoop and lift heavy mail sacks as part of his job functions with the [employing 

establishment] on May 28, 2010.” 

By decision dated November 17, 2014, OWCP denied appellant’s request for 

modification. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3

 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.4

 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.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. 

 3

 5 U.S.C. §§ 8101-8193. 

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

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

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.6

 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.7

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.8

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.9 Causal relationship must be established by 

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

ANALYSIS 

It is uncontested that appellant experienced pain in his lower back while lifting mail 

containers on September 7, 2010. OWCP has accepted that the incident occurred as alleged. The 

question of whether an employment incident caused a personal injury can only be established by 

probative medical evidence.10 Appellant has not submitted rationalized, probative medical 

evidence to establish that the September 7, 2010 employment incident would have been competent 

to cause the claimed injury. 

Following the Board’s last review of this case, appellant submitted reports from 

Drs. Reppy and Berenguer, who diagnosed lumbar disc disease at L2-3, L3-4, L4-5, left lower 

extremity radiculopathy and facet arthropathy which they generally attributed to employment 

factors. These physicians, however, did not provide a probative, rationalized opinion regarding 

whether the September 7, 2010 work incident caused a personal injury. 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.11 Most of the medical evidence appellant submitted pertained to appellant’s alleged 

May 28, 2010 injury. 

Although Drs. Reppy and Berenguer provided diagnosis of lumbar disc disease at L2-3, 

L3-4, L4-5, left lower extremity radiculopathy and facet arthropathy they did not submit a report 

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

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

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

9 Id.

10 Supra note 6. 

11 See Anna C. Leanza, 48 ECAB 115 (1996). 
6 

which related these diagnoses to appellant’s claimed lower back and sufficiently address how the 

diagnosed condition was causally related to the September 7, 2010 work incident. In his 

January 2, 2014 report, Dr. Reppy diagnosed bulging discs at L2-3, L3-4, and L4-5, as shown by 

a June 10, 2010 an MRI scan. In his January 29, 2014 report, Dr. Berenguer stated that appellant 

had complaints of low back pain radiating down to the left leg and left foot. He advised in a 

February 26, 2014 report that the results of lumbar x-rays showed no acute fracture or 

dislocation. Dr. Berenguer diagnosed lumbar disc disease at L2-3, L3-4, L4-5, and left lower 

extremity radiculopathy. He stated that appellant’s low back injury, taking into consideration his 

job and role, were a direct result of the stress caused on his back in the performance of his job. 

In his July 24, 2014 report, Dr. Reppy primarily focused on whether the May 28, 2010 

incident and appellant’s lumbar disc syndrome and facet L5-S1 arthropathy were caused or 

aggravated by work factors, as opposed to whether the September 7, 2010 container lifting 

incident resulted in a herniated disc injury. He advised that appellant underwent an MRI scan of 

the lumbar spine on January 15, 2014 which showed degenerative changes at multiple disc levels 

and facet arthropathy at L5-S1, with bulging discs at L2-3, L3-4, and L4-5. Dr. Reppy 

diagnosed lumbar disc syndrome and facet arthropathy; he did not believe that appellant had 

sustained a lumbar sprain/strain injury. He stated that when appellant attempted to return to 

work on September 7, 2010 he experienced pain down his legs which caused him to be unable to 

work. Dr. Reppy stated that the facet arthropathy was a wear and tear phenomenon that probably 

developed gradually during the years he spent working for the employing establishment. He 

advised that, although the specific lifting incident of May 28, 2010 was not likely to have 

originated the arthropathy, the repetitive nature and duration of the work actions required by 

appellant’s job were sufficient to have produced the facet arthropathy as a preexisting condition, 

and consequently the lifting injury of May 28, 2010 aggravated it. Dr. Reppy opined that disc 

disease and the facet arthropathy were caused by an aggravation or direct result of the strain on 

the patient’s back as he constantly had to stoop and lift heavy mail sacks as part of his job 

functions with the employing establishment on May 28, 2010. 

The reports from Drs. Berenguer and Reppy did not sufficiently explain how, medically, 

appellant would have sustained a low back injury while lifting containers on September 7, 2010. 

They did not adequately describe appellant’s September 7, 2010 incident and how it would have 

been competent to cause the claimed conditions. The opinions of Drs. Berenguer and Reppy 

regarding causal relationship are of limited probative value for the further reason that they did 

not provide adequate medical rationale in support of their conclusions.12 It is unclear if 

Dr. Reppy had an accurate history as he attributed appellant’s low back symptoms to years of 

stooping and lifting heavy mail sacks in his job with the employing establishment and his 

previous May 28, 2008 injury, not the alleged September 7, 2010 work incident.13 He stated that 

appellant did not sustain a sprain or strain injury but opined that he developed disc disease and 

facet arthropathy caused by an aggravation or direct result of the strain on the patient’s back; this 

was the accumulation of constant stooping and lifting heavy mail sacks as part of his job 

functions with the employing establishment, which resulted in the May 28, 2010 injury. 

 12 William C. Thomas, 45 ECAB 591 (1994). 

13 See Geraldine H. Johnson, 44 ECAB 745 (1993). 
7 

Dr. Reppy’s reports do not constitute sufficient medical evidence demonstrating a causal 

connection between appellant’s September 7, 2010 work incident and his claimed lower back 

injury. 

On appeal, appellant’s counsel contends that appellant has provided sufficient factual and 

medical evidence to support a causal relationship between appellant’s injuries and his work 

duties. He argues that, regardless of whether appellant filed the injury claim as a result of the 

May event or the September aggravation, he sustained an injury as a direct result of his 

workplace functions with the employing establishment and his claim should not be denied due to 

a “technical error.” Counsel notes that appellant began to feel pain while performing the same 

duties in late May as he did on September 7, 2010, but did not immediately consider the cause of 

the injury. He contends that, where the relative circumstances, such as repetitive 

stooping/bending and heavy lifting, strongly suggest a causal relationship and where the medical 

evidence also supports a causal relationship, appellant has met his burden of proof. Counsel 

states that because Dr. Reppy referenced a return of appellant’s symptoms in September 2010 

which originated from work duties in May 2010, it was possible that appellant could or should 

have filed an occupational disease claim, since Dr. Reppy opined that his injuries had worsened 

over time due to his long-term work duties. He argues that, while submission of an incorrect 

form is a “technical error,” it is improper to deny a case on this basis. Counsel contends that 

appellant has presented sufficient evidence to demonstrate that he was injured at the workplace 

due to repetitive lifting, which took place in September as well as May and that the evidence he 

submitted at least raises an uncontroverted inference of causal relationship. The Board, however, 

does not accept his contentions. As noted above, appellant filed a traumatic injury claim for an 

alleged September 7, 2010 work injury, and it is his burden to submit rationalized medical 

opinion evidence sufficient to establish that the alleged September 7, 2010 employment incident 

would have been competent to cause the claimed work injury. His prior claims for May 2010 and 

September 2010 occupational disease are separate claims. For the reasons set forth above, 

appellant has failed to meet this burden. The Board will affirm OWCP’s November 17, 2014 

decision. 

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

appellant 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 September 7, 2010 work accident would have 

caused the claimed injury. Accordingly, he did not establish that he sustained his lower back 

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

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 establish that he sustained a lower back injury 

in the performance of duty on September 7, 2010. 
8 

ORDER 

IT IS HEREBY ORDERED THAT the November 17, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 21, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board