United States Department of Labor

Employees’ Compensation Appeals Board

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C.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Media, PA, Employer

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Docket No. 17-0803

Issued: July 9, 2018

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 February 27, 2017 appellant, through counsel, timely appealed from a November 17, 

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 appellant’s claim.

ISSUE

The issue is whether appellant has met her burden of proof to establish a claimed lower 

back condition causally related to the accepted December 11, 2013 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

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the prior decision are incorporated herein by reference. The relevant facts follow.

On December 11, 2013 appellant, then a 31-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she pulled up to a house, got out of her truck, and fell 

while in the performance of duty. She indicated that she injured her lower back and had pain 

shooting down the right leg. Appellant stopped work on that date.

By decision dated February 10, 2014, OWCP denied the claim, finding that appellant had 

established that the December 11, 2013 employment incident occurred in the performance of duty 

as alleged. However, the evidence of record was insufficient to establish that appellant’s diagnosed 

conditions were causally related to the accepted incident.

Appellant subsequently requested a hearing and submitted additional medical evidence. 

A February 19, 2014 magnetic resonance imaging (MRI) scan, read by Dr. Fraser H. 

Brown, a Board-certified diagnostic radiologist and neuroradiologist, revealed severe degenerative 

disc disease at L5-S1, with disc extrusion, herniated disc material contacting the traversing S1 

nerve roots, and moderate right foraminal narrowing with displacement of the exiting L5 nerve 

root.

In a June 25, 2014 report, Dr. Menachem M. Meller, a Board-certified orthopedic surgeon, 

noted that he had seen appellant on February 11 and 25, March 13, and April 1, 2014. He advised 

that during her treatment she presented primarily with axial back pain at the belt line and at the 

posterior superior iliac spine. Dr. Meller read the results of the February 19, 2014 MRI scan and 

advised that it revealed severe degenerative disc disease at L5-S1 with disc extrusion, herniated 

disc material contacting the traversing 51 nerve roots, and moderate right foraminal narrowing 

with displacement of the exiting L5 nerve root. He noted that appellant had physical therapy on 

January 6, 2014 and was being released for full-time work with permanent restrictions. Dr. Meller

summarized that she had a slip and fall on ice landing on her back and was found to have a 

significant amount of preexisting degeneration as well as a herniated disc at L5-S1 that was 

contacting or abutting on the traversing S1 nerve root and displacing the exiting L5 nerve root. He

determined that appellant had not reached maximum medical improvement and referred her to 

neurology as he believed that she might benefit from surgical decompression and possibly a fusion.

Following a June 9, 2014 hearing, OWCP’s hearing representative issued a decision on 

July 28, 2014, affirming OWCP’s hearing representative affirmed the February 10, 2014 decision. 

The hearing representative found that the medical evidence of record was insufficient to establish 

causal relationship.

On February 24, 2015 appellant, through counsel, requested reconsideration of the merits 

of her claim and submitted additional evidence. 

 

3 Docket No. 16-0126 (issued May 18, 2016).
3

In a February 17, 2015 report, Dr. Steven Valentino, an osteopath and Board-certified 

orthopedic surgeon, noted that appellant presented with low back pain localized from L3 through 

S1 with radiation into both legs with numbness. He indicated that her symptoms were apportioned 

to the work injury, which occurred on December 11, 2013. Dr. Valentino noted that appellant 

slipped on ice while at work as a letter carrier. He also indicated that lumbar decompression 

surgery was recommended, but had been denied. Dr. Valentino explained that appellant had a 

prior work-related injury in 2001 which occurred while working as a ramp agent for an airline. He 

noted that she sustained an L5-S1 disc herniation, which was treated with chiropractic care and 

she improved such that she was able to return to full-time full duty. Dr. Valentino noted that his 

review of the February 19, 2014 MRI scan revealed severe degenerative disc at L5-S1 with disc 

extrusion, with herniated disc material contacting the traversing S1 nerve roots. He opined that 

“[c]learly this accident caused an aggravation of her prior L5-S1 disc herniation along with 

aggravation of underlying degenerative disc disease and sciatica.” Dr. Valentino noted that his 

opinion was made within a reasonable degree of medical certainty and based upon positive 

objective findings on physical examination, positive MRI scan, and the fact that she had recovered 

from her prior 2001 work injury and had returned to work full-time full duty and was working 

without any symptomatology or impairment until the claimed December 11, 2013 employment 

incident.

By decision dated May 21, 2015, OWCP denied modification of its prior decision, finding 

that she had not met her burden of proof to establish her claim. 

Appellant subsequently appealed to the Board. By decision dated May 18, 2016, the Board 

affirmed the May 21, 2015 decision. The Board found that the medical evidence of record did not 

sufficiently address how the December 11, 2013 activities at work caused or aggravated a low 

back condition and was, therefore, insufficient to establish her claim. 

OWCP received reports dated April 1, 2014 from Dr. Meller. Dr. Meller diagnosed low 

back pain.

By letter dated August 25, 2016, appellant, through counsel, requested reconsideration of 

the merits of his claim and submitted an August 10, 2016 report from Dr. Valentino. Counsel 

argued that the new report from Dr. Valentino supported that appellant aggravated her preexisting 

degenerative low back condition. He also argued that Dr. Valentino’s report provided sufficient 

medical reasoning to establish causal relationship.

In an August 10, 2016 report, Dr. Valentino provided additional details and noted that 

appellant presented with low back pain with radiation into both legs with numbness in her feet and 

calves. He also found that her back symptoms exceeded her leg complaints, and graded her 

symptoms as an 8-9 out of 10 on a visual analog scale. Dr. Valentino related that appellant “very 

clearly apportions her symptoms to a work injury which occurred on [December 11, 2013].” He 

indicated that she slipped and fell on ice while at work as a letter carrier. Dr. Valentino also noted 

that appellant described a direct blow as well as a torsional mechanism of injury sufficient to 

aggravate the degenerative changes as well as a disc herniation. He further explained that appellant 

sustained a prior injury in 2001 wherein she sustained an L5-S1 disc herniation. Dr. Valentino 

indicated that, after three years of conservative care, she noted improvement and was able to return 
4

to work full-time, full duty. He also noted that there were no records of any ongoing, low back or 

radicular symptoms from that point up until the work-related injury of December 11, 2013. 

Dr. Valentino indicated that he had reviewed the report of Dr. Meller and opined that the 

report “clearly apportions the onset of her symptoms to the work-related injury of December 11, 

2013 and indicates that she will have permanent restrictions. Likewise, he also discusses the role 

of lumbar decompression plus or minus fusion in the future in which she could considerably gain 

additional functional benefit.” Dr. Valentino explained that he had reviewed the Board’s decision 

and order and advised that the “mechanism of injury was a torsional force as well as a direct blow 

to the back,” which was sustained on December 11, 2013. He explained that this mechanism of 

injury is sufficient to aggravate preexisting degenerative changes at L5-S1 along with disc 

herniation. As noted above, appellant’s back was in a weakened state prior to the work-related 

injury of December 11, 2013. Dr. Valentino opined that it was “reasonable therefore that the 

torsional and direct blow force, which she sustained on December 11, 2013 did aggravate her 

preexistent degenerative changes along with disc herniation which in the MRI scan are noted to be 

severe.” He reiterated that his statements were made within a reasonable degree of medical 

certainty.

In a letter dated September 19, 2016, counsel advised OWCP that he was following up on 

the request for reconsideration.

By decision dated November 17, 2016, OWCP denied modification.4 It found that

Dr. Valentino’s August 25, 2016 report was very similar to his February 17 2015 report. In 

particular, OWCP found that Dr. Valentino’s report was inconsistent, as he indicated that appellant

was able to return to work full-time, full-duty employment without any ongoing low back or 

radicular symptoms until the work-related injury of December 11, 2013. It explained that

Dr. Valentino then noted that her back was in a weakened state prior to the work-related injury of 

December 11, 2013 and opined that it was reasonable that the torsional and direct blow force which 

she sustained on December 11, 2013 did aggravate her preexisting degenerative changes along 

with disc herniation which in the MRI scan was noted to be severe. OWCP explained that returning 

to full duty and having no records of any ongoing low back or radicular symptoms there years after 

the 2001 injury was “contraindicated” by the statement that appellant was in a weakened state prior

to the work injury of December 11, 2013. It further found that no additional objective findings 

were provided by Dr. Valentino explaining how he arrived at his conclusion and he still did not 

explain how the February 19, 2014 MRI scan findings were supportive of a new injury, the key 

elements in the Board’s prior decision. 

 

4 OWCP’s November 17, 2016 decision denied modification of the Board’s May 18, 2016 decision. OWCP, 

however, is not authorized to review Board decisions. Although the May 18, 2016 Board decision was the last merit 

decision of record, its May 21, 2015 decision is the appropriate subject of possible modification by OWCP. See 20 

C.F.R. § 501.6(d).
5

LEGAL PRECEDENT

A claimant seeking benefits under FECA5 has the burden of proof to establish the essential 

elements of his or her claim by the weight of the reliable, probative, and substantial evidence, 

including that an injury was sustained in the performance of duty as alleged, and that any specific 

condition or disability claimed is causally related to the employment injury.6

To determine if 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 in conjunction with one another. 

The first component is whether the employee actually experienced the employment incident that 

allegedly occurred.7 The second component is whether the employment incident caused a personal 

injury.8 An employee may establish that an injury occurred in the performance of duty as alleged, 

but fail to establish that the disability or specific condition for which compensation is being 

claimed is causally related to the injury.9

Causal relationship is a medical question that generally requires rationalized medical 

opinion evidence to resolve the issue.10 A physician’s opinion on whether there is a causal 

relationship between the diagnosed condition and the implicated employment factor(s) must be 

based on a complete factual and medical background.11 Additionally, the physician’s opinion must 

be expressed in terms of a reasonable degree of medical certainty, and must be supported by 

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

appellant’s specific employment factor(s).12 

ANALYSIS

The Board finds that this case is not in posture for decision.

Appellant alleged that on December l1, 2013 she sustained an injury to her lower back with 

pain shooting down her right leg after she fell while exiting her delivery truck in the performance 

of duty. OWCP accepted that the event occurred as alleged.

 

5 Supra note 1. 

6 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

7 Elaine Pendleton, 40 ECAB 1143 (1989).

8

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

9 Shirley A. Temple, 48 ECAB 404, 407 (1997).

10 Robert G. Morris, 48 ECAB 238 (1996). 

11 Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12 Id.
6

OWCP denied appellant’s claim for compensation as the medical evidence of record was 

insufficient to establish that her low back condition was causally related to her accepted

employment incident of December 11, 2013. 

On reconsideration appellant submitted a new report from Dr. Valentino, dated 

August 10, 2016. Dr. Valentino provided additional details and noted that he was attempting to 

provide an explanation and response to the Board regarding the cause of appellant’s condition. 

For example, he indicated that he had reviewed the Board’s decision and order and described 

appellant’s activities at work, which included that she described a direct blow as well as a torsional 

mechanism of injury which was sufficient to aggravate the degenerative changes as well as a disc 

herniation. Dr. Valentino noted her prior injury in 2001 wherein she sustained an L5-S1 disc 

herniation and explained that after three years of conservative care, she improved and was able to 

return to work full-time, full duty until she sustained reinjury on December 11, 2013. He also 

explained that there were no records of any ongoing, low back or radicular symptoms from that 

point up until the work-related injury of December 11, 2013. Dr. Valentino reviewed the report 

from Dr. Meller and explained that his report “clearly apportions the onset of her symptoms to the 

work-related injury of December 11, 2013 and indicates that she will have permanent restrictions.”

He explain that the “mechanism of injury was a torsional force as well as a direct blow to the 

back,” which was sustained on December 11, 2013. Dr. Valentino explained that the mechanism 

of injury was sufficient to aggravate appellant’s preexisting degenerative changes at L5-S1 along 

with disc herniation. He also explained that appellant’s back was in a weakened state prior to the 

work-related injury of December 11, 2013. Dr. Valentino opined that it was “reasonable,

therefore, that the torsional and direct blow force, which she sustained on December 11, 2013 did 

aggravate her preexistent degenerative changes along with disc herniation which in the MRI scan 

are noted to be severe.” 

The Board observes that Dr. Valentino reviewed the Board’s prior decision and provided 

rationale as to how he arrived at his opinion by way of a medical explanation to show how the 

accepted December 11, 2013 employment incident aggravated appellant’s preexisting conditions. 

The Board notes that he provided an opinion that appellant recovered from her prior injury and 

was able to work full-time full duty, and this opinion is not contraindicated by his statement that 

appellant’s back was in a weakened state prior to the December 11, 2013 incident. The Board 

finds that his opinion shows that she recovered enough to return to full duty until she sustained a 

new injury on December 11, 2013. Dr. Valentino explained in his report that her back was 

weakened, which suggests that it was not as strong as it originally was. The Board finds that,

although his report is not sufficiently rationalized to meet appellant’s burden of proof in 

establishing her claim, it stands uncontroverted in the record and is sufficient to require further 

development of the case.13

Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested arbiter. 

While the appellant has the burden to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence. It has the obligation to see that justice is done.14

 

13 John J. Carlone, supra note 8; Horace Langhorne, 29 ECAB 820 (1978).

14 John W. Butler, 39 ECAB 852 (1988). 
7

The Board will remand the case to OWCP for referral to an appropriate medical specialist 

to further develop the medical evidence regarding whether appellant sustained an injury causally 

related to the accepted December 11, 2013 employment incident. Following this and any other 

further development as deemed necessary, OWCP shall issue a de novo decision on appellant’s 

claim. 

CONCLUSION

The Board finds that this case is not in posture for decision. 

ORDER

IT IS HEREBY ORDERED THAT the November 17, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

in accordance with this decision of the Board.

Issued: July 9, 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