United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Hempstead, NY, Employer 

__________________________________________ 

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Docket No. 17-0659 

Issued: September 21, 2017 

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 1, 2017 appellant, through counsel, filed a timely appeal from an August 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 to consider the merits of this case. 

ISSUE 

The issue is whether appellant has established a traumatic injury causally related to the 

accepted December 5, 2015 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

On appeal counsel contends that the medical evidence of record establishes that on 

December 5, 2015 appellant suffered an aggravation of a preexisting injury to his back.3

 He 

further contends that, at the very least, the medical evidence of record was sufficient to require 

further development of the record. 

FACTUAL HISTORY 

On December 5, 2015 appellant, then a 42-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he experienced low back and leg pain while lifting 

a bucket of mail weighing 25 to 30 pounds out of a relay box. He stopped work on 

December 5, 2015. 

The employing establishment controverted appellant’s claim alleging that he had an 

ongoing back condition for the past four years and that he had been out on sick leave from 

September 14 through October 13, 2015 due to back pain. 

By letter dated December 23, 2015, OWCP informed appellant that further factual and 

medical evidence was needed to support his claim. Appellant was afforded 30 days to submit 

this evidence. 

In progress notes detailing appellant’s visit to urgent care on December 5, 2015, 

Dr. Jonathan Weinstein, a Board-certified cardiologist, indicated that appellant complained of 

onset of back pain two hours earlier and had occurred when he was lifting a 30-pound mailbag. 

He also noted that appellant had experienced low back pain for the past five years. 

Dr. Weinstein diagnosed low back pain. 

In a December 16, 2015 report Dr. Ira Owen, a physician specializing in emergency 

medicine, noted that appellant presented with back pain, onset one to two weeks ago. He related 

that this encounter was related to a workers’ compensation claim. Dr. Owen diagnosed 

radiculopathy, lumbago, and muscle spasm of the back. 

In a January 6, 2016 report, Dr. Jason Fritzhand, an osteopath specializing in physical 

medicine and rehabilitation, noted that appellant had back pain for the past five years. He 

reported that on December 5, 2015 appellant was lifting heavy mail at work and developed sharp 

pain on both sides of his lower back which radiated to his bilateral thighs. Dr. Fritzhand 

diagnosed chronic lower back pain with new onset of lumbar radiculitis. He also noted likely 

herniated nucleus pulposus. Dr. Fritzhand recommended diagnostic studies and that appellant 

remain out of work. 

By decision dated January 28, 2016, OWCP denied appellant’s claim finding the 

evidence of record was insufficient to establish that the incident occurred as alleged. It also 

found that appellant had not submitted any medical evidence to establish a diagnosed medical 

condition causally related to the alleged employment incident. 

 3

 Appellant’s prior claim for an employment-related October 5, 2009 injury was accepted for subluxation of the 

lumbar spine and was assigned File No. xxxxxx627. 
3

An x-ray of the lumbar spine taken on January 26, 2016 was interpreted by Dr. Renata La 

Rocca Vieira, a radiologist, as showing no listhesis or instability. She also noted mild multilevel 

discogenic degenerative disease, most pronounced at L4-5. Dr. Vieira noted no evidence of 

acute fracture. 

In a January 26, 2016 report, Dr. Fritzhand, noted that the x-ray of the lumbar spine 

performed that date revealed no sign of spondylolisthesis. He did note mild disc space 

narrowing and degenerative changes at L4-5. Dr. Fritzhand diagnosed chronic low back pain 

with new onset of lumbar radiculitis and likely herniated disc. 

On February 17, 2016 appellant requested an oral hearing before a hearing representative 

with OWCP’s Branch of Hearings and Review. 

A February 4, 2016 magnetic resonance imaging (MRI) scan of the lumbar spine was 

interpreted by Dr. Vidya Malhotra, a Board-certified radiologist, as showing mild levocurvature 

of the lumbar spine, mild disc desiccation at L4-5 and L5-S1, minimal grade 1 retrolisthesis seen 

at the L4-5 level, posterior bulging disc at L5-S1, L4-5, and L3-4, and left paramedian disc 

herniation with small extruded disc fragment at T12-L1. 

In a March 8, 2016 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist, noted 

that on December 5, 2015 appellant reached down and forward to reach for a bucket full of mail 

weighing somewhere between 20 to 40 pounds and that, when he was lifting the bucket out of a 

box, he noted an intense pain in his lower back, more on the left than on the right, with 

immediate radiation into the anterolateral aspect of the left thigh. He noted a prior injury to 

appellant’s back. Dr. Filippone diagnosed exacerbation of prior injury to the low back with 

polyradiculopathy based on the neurologic physical examination. He explained that the 

presentation implicated the T12-L1 nerve roots on the left side verified by a left paramedian disc 

herniation with small extruded disc fragments seen at the T12-L1 level compressing thecal sac 

on the left side. Dr. Filippone noted that further diagnostic studies were needed. He opined that 

appellant remained totally disabled as the result of injuries he sustained while working for the 

employing establishment. 

At the hearing held on May 26, 2016, appellant testified that he had worked for the 

employing establishment since June 1996 as a letter carrier. He noted that he had sustained a 

prior injury on October 5, 2009 while loading his bag, but that this injury was the first time he 

ever had a back issue. Appellant noted that he was able to return to work after that injury. He 

indicated that he did have flare-ups of back pain for which he had to take leave. Appellant noted 

that on December 5, 2015 he felt a sharp pain when he lifted a bucket full of mail. He described 

his medical treatment and indicated that the delay in treatment and x-rays was because he had not 

been approved for workers compensation. Appellant noted that he has not returned to work since 

the alleged December 5, 2015 injury. Counsel argued that appellant’s credible testimony as to 

how the incident occurred should be accepted. He also asserted that it was unfair to find that 

appellant had delayed seeking treatment, noting he was examined by Dr. Weinstein on 

December 5, 2015 and Dr. Owen on December 16, 2015. Counsel also argued that Dr. Fritzhand 

did identify a firm diagnosis. He requested that the record be held open for 30 days to submit 

further information on causal relationship. No further evidence was received by OWCP. 
4

By decision dated August 9, 2016, the hearing representative modified OWCP’s prior 

decision. He found that appellant had established that the employment incident of December 5, 

2015 occurred as alleged, but that the medical evidence of record failed to establish that the 

accepted incident caused a personal injury. 

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 injury was caused 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 fact of injury has been established. 

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 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 incident identified by the employee.8 The weight of the 

medical evidence is determined by its reliability, its probative value, its convincing quality, the 

care of analysis manifested, and the medical rationale expressed in support of the physician’s 

opinion.9

ANALYSIS 

In the decision dated August 9, 2016, OWCP’s hearing representative determined that the 

employment incident of December 5, 2015 occurred as alleged. However, he denied appellant’s 

claim, finding that appellant failed to meet his burden of proof to establish a personal injury 

causally related to the accepted employment incident. 

 4 Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). 

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

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

7 Id. 

8 I.J., 59 ECAB 408 (2008); supra note 5. 

9 James Mack, 43 ECAB 321 (1991). 
5

Dr. Weinstein examined appellant on December 5, 2015, the date of the employment 

accepted incident. However, Dr. Weinstein did not diagnose a medical condition related to the 

incident. Rather, he merely diagnosed lower back pain. However, pain is not a medical 

diagnosis and subjective complaints of pain are insufficient, in and of themselves, to support a 

claim for benefits under FECA.10 

Dr. Owen briefly noted that appellant returned for a workers’ compensation follow-up on 

December 16, 2015. He did not, however, provide a medical opinion linking appellant’s medical 

condition to the December 5, 2015 employment incident. The Board has held that 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.11

Dr. Fritzhand briefly noted appellant’s December 5, 2015 employment incident, but 

failed to provide a rationalized opinion on causal relationship. The opinion of the physician must 

be based on a complete factual and medical background of the employee, and must be supported 

by medical rationale explaining the nature of the relationship between the diagnosed condition 

and the specific employment incident.12 The report of Dr. Fritzhand is therefore of limited 

probative value on the issue of causal relationship. 

Drs. Malhotra and Vieira interpreted diagnostic studies but reached no conclusion on 

causal relationship. Thus, their opinions are therefore of limited probative value.13 

Dr. Filippone’s opinion also does not constitute rationalized medical evidence supporting 

causal relationship. He diagnosed exacerbation of the prior injury in the low back with 

polyradiculopathy. Dr. Filippone also discussed appellant’s employment incident of 

December 5, 2015. He concluded that appellant’s injuries were sustained while working for the 

employing establishment, and that he was totally disabled. Dr. Filippone did not, however, 

clearly explain how the December 5, 2015 incident caused or aggravated appellant’s medical 

condition. He did not explain how the mechanism of incident would have physiologically 

caused the diagnosed condition.14 The Board has long held that a mere conclusion, without the 

necessary rationale explaining how and why the physician believes that appellant’s accepted 

employment incident resulted in a diagnosed condition, is insufficient to meet appellant’s burden 

of proof.15

An award of compensation may not be based on surmise, conjecture, speculation, or 

appellant’s belief of causal relationship.16 The Board finds that appellant has failed to submit 

 10 C.W., Docket No. 15-0667 (issued July 22, 2015). 

11 E.R., Docket No. 16-1634 (issued May 25, 2017). 

12 J.S., Docket No. 16-1769 (issued May 24, 2017). 

13 G.M., Docket No. 14-2057 (issued May 12, 2015). 

14 See R.R., Docket No. 16-1901 (issued April 17, 2017). 

15 Supra note 13. 

16 John D. Jackson, 55 ECAB 465 (2004); William Nimitz ̧30 ECAB 57 (1979). 
6

rationalized medical evidence to meet his burden of proof on causal relationship to establish his 

claim for disability. 

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 established a traumatic injury causally related to 

the accepted December 5, 2015 employment incident. 

ORDER 

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

Compensation Programs dated August 9, 2016 is affirmed. 

Issued: September 21, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board