United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tustin, CA, Employer 

__________________________________________ 

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Docket No. 15-1922 

Issued: August 23, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On September 22, 2015 appellant filed a timely appeal from a May 7, 2015 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.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 Board notes that, during the pendency of this appeal, OWCP issued a September 30, 2015 decision denying 

modification of the May 7, 2015 decision. The September 30, 2015 decision, however, is null and void as the Board 

and OWCP may not simultaneously have jurisdiction over the same issue. See Terry L. Smith, 51 ECAB 182 

(1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 

ECAB 880 (1990). 
2

ISSUE 

The issue is whether appellant has established a back injury in the performance of duty 

on March 22, 2014. 

FACTUAL HISTORY 

On March 27, 2014 appellant, then a 50-year-old carrier technician, filed a traumatic 

injury claim (Form CA-1) alleging that on March 22, 2014 he sustained a back injury while 

delivering mail on a route. He alleged that he felt back pain radiating to both legs, and he could 

not walk. The reverse of the claim form indicated that appellant stopped work on March 22, 

2014 and returned to work March 27, 2014. Appellant submitted a duty status report (Form CA17) dated March 25, 2014 from Dr. Hosea Brown, III, a Board-certified internist, indicating that 

appellant was disabled for work. The record also contains a note dated March 22, 2014 from a 

physician indicating that appellant should be off work until March 27, 2014.4

The record indicates that on August 27, 2013 appellant had previously filed an 

occupational disease claim (Form CA-2) for compensation alleging a low back injury from job 

duties, including bending, lifting, and carrying mail.5

 On October 29, 2013 OWCP accepted that 

claim for permanent aggravation of lumbosacral degenerative disc disease at multiple levels, and 

L4-5 and L5-S1 disc bulge with right radiculopathy. According to that case file, appellant 

accepted a modified job at two hours per day on November 8, 2013. On January 6, 2014 he 

accepted a full-time modified carrier job offer “under protest,” with two hours casing mail, four 

hours on a walking route, and two hours answering telephones. Appellant filed CA-7 claims for 

intermittent hours of compensation. For the period March 8 to 21, 2014, he indicated that he 

worked four hours per day. The occupational claim remains under continuing development. 

An employing establishment supervisor submitted an April 3, 2014 letter indicating that 

the employing establishment was controverting the traumatic injury claim. The supervisor 

reported that on March 21, 2014 appellant had been given a new job offer, which he had 

accepted under protest.6

 Appellant inquired as to what would happen if he were to have an 

accident, and as such the supervisor felt appellant was already planning to have an accident on 

March 22, 2014. 

By letter dated April 4, 2014, OWCP discussed evidence from the occupational claim and 

advised appellant to submit additional evidence with respect to the traumatic injury claim. 

Appellant submitted an April 24, 2014 statement that he was delivering his route when he felt a 

pop and severe pain in his back and legs. He indicated that he called 911 and was transported to 

the emergency room. 

 4

 The signature of the physician is illegible. 

5

 To date, this claim has not been administratively combined with the current claim. 

6

 The record does not contain a March 21, 2014 job offer. The occupational claim did contain a job offer 

accepted by appellant on January 6, 2014, as discussed above. 
3

Appellant submitted a narrative report from Dr. Brown, dated March 25, 2014, who 

reported that appellant sustained an acute injury on March 22, 2014 at approximately 12:30 p.m. 

while performing business mail delivery. Dr. Brown reported that appellant had a previously 

accepted an occupational disease claim. He indicated that on March 22, 2014 appellant was 

bending down to place mail in a slot when he developed an acute onset of low back pain with 

radiation into both legs. According to Dr. Brown, appellant was treated on that date at a medical 

center and released with pain medication. Dr. Brown provided results on examination and 

reported x-rays showed multilevel lumbar vertebral lipping and joint space loss consistent with 

degenerative joint disease. The diagnoses were permanent aggravation of lumbosacral 

radiculopathy, permanent aggravation of lumbosacral degenerative disc disease, and lumbar 

intervertebral disc syndrome with myelopathy. Dr. Brown opined: 

“[Appellant’s] medical injuries to his low back occurred as a direct result of the 

incident, which occurred on [March 22, 2014]. Clearly, on the aforementioned 

date in question, [he] was engaged in performing business mail delivery when, 

while bending down to place mail into the appropriate slot, he noted the acute 

onset of severe paroxysmal low back pain with radiation of his pain into the 

posterior aspects of both legs and associated with sudden bilateral lower extremity 

weakness. The biomechanical maneuver associated with bending over and 

placing the mail into the slot clearly precipitated an acute lumbosacral 

radiculopathy and permanently aggravated the patient’s lumbosacral spine 

degenerative disc disease as well as the intervertebral lumbar disc herniations that 

had previously been noted at L4-L5 and L5-S1 by prior MRI [magnetic resonance 

imaging] [scan] studies.” 

Dr. Brown reported the fact that appellant experienced acute exacerbation of bilateral lower 

extremity weakness indicated he was experiencing acute neurological compromise due to the 

decompression and irritation of the spinal nerves as an exit from the lumbar spine at these levels. 

He concluded, “Therefore, in view of the aforementioned medical rationale, it is medically 

reasonable to infer a relationship of reasonable medical probability between Mr. Thompson’s 

extensive medical injuries to his low back and the performance of the duties of his occupation as 

city letter carrier on [March 22, 2014].” 

In a report dated April 22, 2014, Dr. Brown provided a history that noted appellant’s job 

duties in detail, and provided a history of the March 22, 2014 employment incident. He reported 

results on examination and provided the diagnoses noted in his March 25, 2014 report. 

Dr. Brown reiterated his opinion that appellant sustained back injuries on March 22, 2014. 

By decision dated July 2, 2014, OWCP denied appellant’s claim for compensation. It 

found that given the severity of the preexisting conditions, and the “personnel issues” that arose 

under the prior claim, the evidence was insufficient to establish a new injury on March 22, 2014. 

OWCP found appellant had not established causal relationship between a diagnosed condition 

and the employment incident. 

Appellant, through counsel, requested a hearing before an OWCP hearing representative 

on July 8, 2014. A telephonic hearing was held on February 27, 2015. During the hearing, 

appellant stated that the day before his injury he was given a job offer with no work limitations, 
4

and he agreed to attempt to perform the job duties. He reported that his pain had been increasing 

while at work on March 22, 2014, and he had bent over to put mail in slots and latch the box, 

when the pain became severe and he was unable to continue working. 

The record indicates that on November 10, 2014 appellant underwent back surgery. In a 

report of that date Dr. Terence Mayers, a Board-certified surgeon, described the surgery as 

“anterior spinal exposure.” 

In a decision dated May 7, 2015, the hearing representative affirmed the July 2, 2014 

OWCP decision. The hearing representative found Dr. Brown’s opinion was not sufficiently 

rationalized. 

LEGAL PRECEDENT 

FECA provides for the payment of compensation for “the disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.”7

 The 

phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the 

commonly found requisite in workers’ compensation law of “arising out of an in the course of 

employment.”8 An employee seeking benefits under FECA has the burden of establishing that 

he or she sustained an injury while in the performance of duty.9 In order to determine whether 

an employee actually sustained an 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 which must be considered in conjunction with one another. The first 

component to be established is that the employee actually experienced the employment incident 

which is alleged to have occurred. The second component is whether the employment incident 

caused a personal injury, and generally this can be established only by medical evidence.10 

OWCP’s procedures recognize that a claim may be accepted without a medical report 

when the condition is a minor one which can be identified on visual inspection.11 In clear-cut 

traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative 

statement is sufficient and no rationalized opinion on causal relationship is needed. In all other 

traumatic injury claims, a rationalized medical opinion supporting causal relationship is 

required.12 

Rationalized medical opinion evidence is medical evidence that is based on a complete 

factual and medical background, of reasonable medical certainty, and supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

 

 7 5 U.S.C. § 8102(a). 

 8 Valerie C. Boward, 50 ECAB 126 (1998). 

9 Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115. 

10 See John J. Carlone, 41 ECAB 354, 357 (1989). 

 11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013). 

 12 Id at Chapter 2.805.3(d) (January 2013). 
5

specific employment factors identified by the claimant. The weight of medical evidence is 

determined by its reliability, its probative value, its convincing quality, the care of the analysis 

manifested, and the medical rationale expressed in support of the physician’s opinion.13

OWCP’s definition of a recurrence of disability means an inability to work after an 

employee has returned to work, cause by a spontaneous change in a medical condition, which 

had resulted from a previous injury or illness without an intervening injury or new exposure. 

The term also means the inability to work that takes place when a light-duty assignment made 

specifically to accommodate an employee’s physical limitations due to his or her work-related 

injury or illness is withdrawn or when the physical requirements of such an assignment are 

altered so that they exceed his or her established physical limitations.14

OWCP’s procedures require that in cases where recurrent disability for work is claimed 

within 90 days or less from the first return to duty, the attending physician should describe the 

duties which the employee cannot perform and the demonstrated objective medical findings that 

form the basis for the renewed disability.15

ANALYSIS 

In the present case, appellant filed a traumatic injury claim for a back injury on 

March 22, 2014, his first route under a new job offer he had accepted under protest. The Board 

notes that appellant had an existing occupational claim for a back injury that had been accepted 

by OWCP. That claim was assigned OWCP File No. xxxxxx582. OWCP accepted his 

occupational disease claim for permanent aggravation of a lumbosacral degenerative disc disease 

at multiple levels and L4-5 and L5-S1 disc bulge with right radiculopathy. Both claims involve 

the back, the treating physician has referenced the prior occupational disease claim, and both 

claims involve diagnoses that include permanent aggravation of lumbar degenerative disc 

disease. Combining the claims will aid in review and adjudication of the medical issues.16

The Board finds that before a proper adjudication can be made as to the March 22, 2014 

claim of injury, the occupational and traumatic injury case files must be combined.17 After such 

further development as OWCP finds necessary, it should issue a de novo merit decision. 

CONCLUSION 

The Board finds that the case is not in posture for decision and is remanded to OWCP for 

consideration of the case records and any further development as OWCP deems appropriate. 

 

 13 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

14 See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986). 

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6(a) (September 2003). 

16 Id. at File Maintenance and Management, Chapter 2.400.8(c)(1) (February 2000); see also J.M., Docket No. 

13-1111 (issued July 15, 2013). 

17 A review of the occupational claim indicates that OWCP has undertaken ongoing development of the medical 

evidence. 
6

ORDER 

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

Compensation Programs dated May 7, 2015 is set aside and the case remanded for further 

proceedings consistent with this decision of the Board. 

Issued: August 23, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board