United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bedford, NY, Employer 

__________________________________________ 

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Docket No. 16-1348 

Issued: February 21, 2017 

Appearances: Case Submitted on the Record

Paul Kalker, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 14, 2016 appellant, through counsel, filed a timely appeal from a May 24, 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 that she sustained 

lumbar conditions are causally related to an accepted August 27, 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

FACTUAL HISTORY 

On October 10, 2014 appellant, a 59-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that she sustained an injury to her lower back on August 27, 2014 as a 

result of lifting a full tray of mail from the cargo area to a shelf inside a long life vehicle (LLV). 

She stopped work on August 28, 2014 and returned to full duty without restrictions on 

November 14, 2014. 

Appellant submitted a narrative statement reiterating that she injured her lower back due 

to lifting mail in a truck while out on route. She further submitted a witness statement from a 

coworker indicating that on August 27, 2014 she was in good health all day until she returned 

from her route and could barely walk. In an August 28, 2014 work excuse note, Dr. Victor 

Khabie, a Board-certified orthopedic surgeon, removed appellant from work until further notice. 

On October 10, 2014 the employing establishment controverted the claim because 

appellant failed to submit sufficient medical evidence to establish fact of injury. 

In an October 17, 2014 letter, OWCP advised appellant of the deficiencies of her claim 

and afforded her 30 days to submit additional evidence and respond to its inquiries. 

In response, appellant submitted a narrative statement dated October 23, 2014 and a 

September 3, 2014 magnetic resonance imaging (MRI) scan of the lumbar spine which 

demonstrated right lateral recess to right foraminal L3-4 disc protrusion with right L3 and right 

L4 nerve root impingement, right foraminal L4-5 annual tear abutting the right L4 nerve root, 

and moderate L2-3 and severe L3-4 congenital and degenerative spinal canal stenosis. 

On October 23, 2014 Dr. Andrew M. Peretz, a Board-certified orthopedic surgeon, noted 

that appellant was evaluated for low back pain and numbness down her right leg. He reported 

that she had symptoms since she lifted a tray at work on August 27, 2014 and continued to have 

right leg numbness and some pain in her right buttock. Upon examination, Dr. Peretz found that 

appellant experienced more pain with extension than flexion and she was neurologically intact 

with negative straight leg raising. He diagnosed “radicular symptoms resolving” and 

recommended that appellant continue physical therapy. 

In an October 23, 2014 duty status report (Form CA-17) an unidentifiable healthcare 

provider referenced the history of injury and advised that appellant was totally disabled. 

By decision dated November 21, 2014, OWCP denied the claim because the medical 

evidence was insufficient to establish a causal relationship between appellant’s diagnosed 

conditions and the August 27, 2014 employment incident. 

On February 23, 2015 appellant, through counsel, requested reconsideration and 

submitted an August 28, 2014 report from Dr. Khabie. In this note Dr. Khabie diagnosed acute 

low back pain and reported that appellant was seen “a month ago for her knee and had some low 

back pain at that time, but no radicular symptoms.” He explained that appellant had been 

previously treated by a Dr. Foster who opined that her back pain may have been caused by the 

way she was walking due to a knee condition but, on August 27, 2014, she did a lot of lifting and 

felt pain in her low back and right lower lumbar region with radiating symptoms down the right 
3

leg. On September 11, 2014 Dr. Khabie reiterated the findings from the September 3, 2014 MRI 

scan and advised that appellant would require epidural steroid injections if her symptoms 

persisted. 

In a November 20, 2014 report, Dr. Peretz diagnosed “continued radicular symptoms” 

and found that appellant still had pain in the right lower lumbar region towards her right buttock 

area. On January 2, 2015 he opined that lifting a tray at work on August 27, 2014 caused 

appellant’s low back pain and pain down her right leg. 

On January 14, 2015 Dr. Jason Melnick, a Board-certified physiatrist, diagnosed 

glaucoma and also opined that lifting a tray at work on August 27, 2014 caused “right lower 

extremity radicular complaint sta[r]ting one month ago with right knee pain.” He noted that 

appellant was “seen one to two times prior with Dr. Foster regarding the knee before 

August 27, 2014.” 

By decision dated May 18, 2015, OWCP denied modification of its prior decision. 

On December 28, 2015 counsel requested reconsideration and submitted an October 20, 

2015 report from Dr. Peretz who noted that he first examined appellant on October 23, 2014 

regarding low back pain and pain down her right leg with numbness. He noted that appellant 

began having symptoms on August 27, 2014 while lifting trays at work. Dr. Peretz reviewed the 

history of his medical treatment of appellant and reiterated his opinion that appellant’s conditions 

were causally related to the August 27, 2014 work incident. He advised that appellant’s 

conditions could certainly disable her from her work duties given the increasing activities and 

ambulation would certainly not only bring on symptoms, but could make the symptoms worse. 

By decision dated May 24, 2016, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA 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 timely filed within the 

applicable time limitation period of FECA, that an injury3 was sustained in the performance of 

duty, as alleged, and that any disability or medical condition for which compensation is claimed 

is causally related to the employment injury.4

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. 

A fact of injury determination is based on two elements. First, the employee must submit 

sufficient evidence to establish that she actually experienced the employment incident at the 

 3

 OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or 

series of events or incidents, within a single workday or shift. Such condition must be caused by external force, 

including stress or strain, which is identifiable as to time and place of occurrence and member or function of the 

body affected. 20 C.F.R. § 10.5(ee). 

4 See T.H., 59 ECAB 388 (2008). 
4

time, place, and in the manner alleged. 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. An employee may establish that the employment incident occurred as alleged 

but fail to show that his or her condition relates to the employment incident.5

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. The opinion of the 

physician must be based on a complete factual and medical background of the employee, 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 employee.6

ANALYSIS 

OWCP has accepted that the employment incident of August 27, 2014 occurred at the 

time, place, and in the manner alleged. Therefore, the issue currently under consideration is 

whether appellant’s lumbar conditions are causally related to the August 27, 2014 employment 

incident. The Board finds that appellant did not meet her burden of proof to establish a causal 

relationship between the conditions for which compensation is claimed and the employment 

incident. 

In his reports, Dr. Peretz diagnosed “radicular symptoms resolving” and “continued 

radicular symptoms” and opined that lifting a tray at work on August 27, 2014 caused appellant’s 

low back pain and pain down her right leg. The Board finds that Dr. Peretz’s diagnosis of low 

back pain, right leg pain, and radicular symptoms are descriptions of a symptom rather than a 

clear diagnosis of the medical condition.7 Moreover, the Board has held that the mere fact that 

appellant’s symptoms arise during a period of employment or produce symptoms revelatory of 

an underlying condition does not establish a causal relationship between appellant’s condition 

and her employment factors.8 Therefore, the Board finds that Dr. Peretz’s reports are insufficient 

to establish that appellant sustained an employment-related injury. 

On August 28, 2014 Dr. Khabie diagnosed acute low back pain and reported that 

appellant was previously treated by a Dr. Foster a month ago for her knee and low back pain that 

may have been caused by the way she was walking due to her knee condition. On January 14, 

2015 Dr. Melnick opined that lifting a tray at work on August 27, 2014 caused “right lower 

extremity radicular complaint sta[r]ting one month ago with right knee pain” and noted that 

appellant was “seen one to two times prior with Dr. Foster regarding the knee before 

August 27, 2014.” The Board finds that Drs. Khabie and Melnick failed to provide sufficient 

medical rationale explaining how appellant’s new or preexisting lumbar conditions were caused 

 5 Id.

6 Id.

7

 The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S., 

Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008). 

8 See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979). 
5

or aggravated by lifting a tray of mail at work on August 27, 2014. The need for rationale is 

particularly important as the evidence indicates that appellant had a preexisting knee condition 

for which she had been under medical treatment. Therefore, the Board finds that the reports 

from Drs. Khabie and Melnick are insufficient to establish causal relationship. 

Appellant submitted an October 23, 2014 duty status report (Form CA-17) in support of 

her claim. However, this report is from a healthcare provider whose identity cannot be discerned 

from the record. Because it cannot be determined whether this record is from a physician as 

defined in 5 U.S.C. § 8101(2), it does not constitute competent medical evidence.9

The MRI scan is of limited probative medical value as it does not specifically address 

whether appellant’s lumbar conditions are attributable to her accepted work injury.10

On appeal, counsel contends that the evidence of record proves beyond all doubt that 

appellant’s conditions are causally related to the August 27, 2014 work incident. However, 

based on the findings and reasons stated above, the Board finds that appellant failed to submit 

rationalized medical evidence sufficient to support her allegation that she sustained an injury 

causally related to the August 27, 2014 employment incident. 

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 her burden of proof to establish that her 

lumbar conditions are causally related to an accepted August 27, 2014 employment incident. 

 9 R.M., 59 ECAB 690, 693 (2008). See C.B., Docket No. 09-2027 (issued May 12, 2010) (a medical report may 

not be considered as probative medical evidence if there is no indication that the person completing the report 

qualifies as a physician as defined in 5 U.S.C. § 8101(2) and reports lacking proper identification do not constitute 

probative medical evidence). 

10 K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical 

evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative 

value on the issue of causal relationship). 
6

ORDER 

IT IS HEREBY ORDERED THAT the May 24, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 21, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board