United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.R., Appellant

and

U.S. POSTAL SERVICE, TRENTON 

PROCESSING & DISTRIBUTION CENTER, 

Trenton, NJ, Employer

__________________________________________

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Docket No. 18-0640

Issued: December 6, 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 5, 2018 appellant, through counsel, filed a timely appeal from an October 19, 

2017 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.

 

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

ISSUE

The issue is whether appellant met his burden of proof to expand the acceptance of his 

claim to include the additional lumbar conditions as causally related to the accepted August 8, 

2016 employment injury.

FACTUAL HISTORY

On August 9, 2016 appellant, then a 62-year-old electronic technician, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained a low back strain on August 8, 2016 when he 

bent over to fix a printer at work.3 He stopped work on October 9, 2016. OWCP accepted the 

claim for aggravation of lumbar strain and paid appellant wage-loss compensation and medical 

benefits on the supplemental rolls. 

In a September 30, 2016 patient visit note, Dr. Thomas K. Bills, an attending orthopedic 

surgeon, noted appellant’s chief complaint of lumbar radiculopathy. He discussed his examination 

findings and diagnosed lumbar radiculopathy. In an October 14, 2016 patient visit note, Dr. Bills 

noted that appellant was being reevaluated for his lumbar radiculopathy. Examination findings 

were provided and the diagnosis of lumbar radiculopathy was again noted. Dr. Bills related that 

appellant was currently performing temporary light-duty work with restrictions at the employing 

establishment due to back pain. He spoke to appellant’s physical therapist and it was noted that 

he had plateaued with physical therapy. Dr. Bills asked appellant whether he could return to work 

and appellant responded no. He recommended obtaining an updated lumbar magnetic resonance 

imaging (MRI) scan, referring appellant for pain management, and considering epidural injections 

as appellant had a herniated disc in active radiculopathy. 

In a prescription note dated October 14, 2016, Dr. Bills diagnosed back pain and referred 

appellant to Dr. Gautam H. Kothari, a Board-certified physiatrist. In an MRI scan order dated 

October 14, 2016, he requested a lumbar spine MRI scan to evaluate appellant’s herniated nucleus 

pulposus and other intervertebral disc disorders, lumbar region. 

In an October 27, 2016 patient visit note, Dr. Kothari related a history of the August 2016 

work-related injury. He reported physical examination findings and reviewed the results of a 2014 

lumbar MRI scan. Dr. Kothari diagnosed lumbar facet syndrome and lumbar disc disease from 

L3-4 through L5-S1. In an undated note he repeated his diagnoses and placed appellant off work 

beginning October 24, 2016.

OWCP, by development letter dated December 8, 2016, advised appellant that the medical 

evidence submitted was insufficient to establish that his newly diagnosed lumbar conditions were 

caused or aggravated by the accepted employment injury. It requested that he submit a medical 

 

3 Appellant has two prior claims with OWCP. In a claim assigned File No. xxxxxxx564, OWCP accepted that 

appellant sustained an open wound of the scalp and postconcussion syndrome on March 21, 2005 after he walked into 

a low-hung air handler during a workplace drill exercise. Appellant later filed a claim for a back injury he sustained 

on May 11, 2008. OWCP assigned that claim File No. xxxxxx388. The record does not indicate OWCP’s disposition 

of this claim. In a claim assigned File No. xxxxxx058, OWCP accepted that appellant sustained a sprain of the back, 

lumbar region on February 10, 2014. Appellant stopped work on February 10, 2014 and was released to return to 

light-duty work on March 24, 2014.
3

report from his attending physician including a history of the injury, examination findings, a 

diagnosis, and a rationalized opinion explaining how the reported work incident caused or 

aggravated his additional medical conditions. OWCP afforded appellant 30 days to submit the 

requested evidence.

In a note dated December 8, 2016, Dr. Kothari reported physical examination findings, 

reviewed the results of a November 29, 2016 lumbar MRI scan, and diagnosed bilateral L5 

radiculopathy and L5-S1 spondylolisthesis. He reiterated his prior assessment of lumbar facet 

syndrome. 

Dr. Bills, in a note dated December 6, 2016, again examined appellant and restated his 

diagnosis of lumbar radiculopathy.

By decision dated January 10, 2017, OWCP denied expansion of the acceptance of

appellant’s claim to include the additional lumbar conditions. It found that the medical evidence 

of record was insufficiently rationalized to establish that his newly diagnosed lumbar conditions 

were causally related to the accepted August 8, 2016 employment injury. 

A January 4, 2017 lumbar electromyogram/nerve conduction velocity (EMG/NCV) study 

performed by Dr. Frank J. Colarusso, a Board-certified physiatrist, indicated that the study was 

most consistent with a peripheral neuropathy, peroneal neuropathy, and Charcot-Marie-Tooth

(CMT) variant. Dr. Colarusso observed that an underlying chronic L5 radiculopathy without 

denervation could not be ruled out. 

In a patient visit note dated January 9, 2017, Steven C. Kwasniewski, a certified physician 

assistant, discussed examination findings and diagnosed bilateral L5 radiculopathy, L5-S1 

spondylolisthesis, and lumbar facet syndrome. 

Dr. Kothari, in notes dated January 27, February 24, and March 24, 2017, reported 

examination findings, reiterated his diagnoses of bilateral L5 radiculopathy and L5-S1 

spondylolisthesis.

In orders dated March 24 and May 2, 2017, Dr. Kothari requested physical therapy two to 

three times a week for four to six weeks to treat appellant’s diagnosed bilateral L5 radiculopathy 

and L5-S1 spondylolisthesis.

In a March 8, 2017 patient visit note, Mr. Kwasniewski noted a history of the August 8, 

2016 employment injury and again examined appellant. He diagnosed low back pain and 

radiculopathy following the August 8, 2016 employment injury. 

Dr. Bills, in notes dated April 24 and May 22, 2017, again examined appellant and 

reiterated his prior diagnoses of lumbar strain, lumbar pain, and lumbar radiculopathy. 

On June 15, 2017 OWCP referred appellant, together with a statement of accepted facts 

(SOAF), the medical record, and a list of questions, to Dr. Stanley Askin, a Board-certified 

orthopedic surgeon, for a second opinion to determine appellant’s current disability status. In a

June 30, 2017 report, Dr. Askin related a history that appellant sustained low back injuries in 1976 

and 2008 at work. He also related a history of the 2014 and August 8, 2016 employment-related 
4

back injuries. Dr. Askin noted appellant’s current symptoms and medical history and reviewed 

the medical record. On physical examination, he reported essentially normal findings with the 

exception of sensitivity/pain in the left lower lumbar area that was not tender to touch and pain on 

range of motion testing and on straight leg raising on the left. Dr. Askin opined that appellant’s 

accepted condition of aggravation of a lumbar strain had resolved. He explained that appellant’s 

subjective complaints of lower back pain were not supported by his objective findings and review 

of diagnostic test results. Dr. Askin indicated that the EMG study suggested that he had a 

peripheral neuropathic problem that had nothing to do with work. He related that CMT disease 

was ordinarily a genetically determined condition. Dr. Askin further related that appellant did not 

have any clinical features of true lumbar radiculopathy at the present time as there was no atrophy,

dermatomal sensory loss, clinical weakness, or even a true positive straight leg raising at the time 

he presented for this examination. He maintained that an alternative explanation for appellant’s

complaints was his underlying lumbar spine degenerative joint disease which caused him to 

experience back pain while bending over the wrong way and lifting in an awkward position or 

lifting something heavy. Dr. Askin further maintained that such pain was consistent with the 

natural history of degenerative disc disease which was for episodic backaches that ordinarily 

responded to baseline independent of any treatment. He advised that appellant had no lingering 

aggravation of his baseline condition. There was no evidence to support that his work-related 

condition was still active or causing any objective imperfection as he had no atrophy, clinical 

weakness, sensory abnormality, or even a true positive straight leg raising. 

Dr. Askin observed that appellant had degenerative disc disease. He further observed that 

appellant had no acceleration of a preexisting condition. Appellant’s accepted aggravation had 

clearly been temporary in nature as he no longer had any manifestations of the condition. 

Regarding appellant’s prognosis, he related that to the extent that he observed proper body 

mechanics in the course and scope of expected employment activities, he should be able to avoid 

further episodes of back pain going forward. Dr. Askin noted that his physical therapy and epidural 

steroid injections had no proven efficacy and advised that such further medical treatment was not 

necessary as appellant had no lumbar radiculopathy or disc herniation. He concluded that he could 

return to his date-of-injury, limited-duty job, eight hours a day. 

Mr. Kwasniewski, in notes dated July 10 and 21, 2017, again diagnosed lumbar strain and 

restated his prior assessment of lumbar radiculopathy.

On August 17, 2017 appellant, through counsel, requested reconsideration of the 

January 10, 2017 decision and submitted additional evidence. In an August 3, 2017 statement, 

appellant detailed the history of his August 8, 2016 injury and medical treatment. He noted that 

he had filed three prior claims for back injuries sustained at work. 

In letters dated April 24 and August 3 and 16, 2017, Dr. Bills noted a history of his 

treatment of appellant, including his examination findings, and appellant’s medical treatment. He 

again noted his prior diagnoses of lumbar strain and lumbar radiculopathy. Dr. Bills related that 

his diagnosis had not changed to lumbar facet syndrome. He maintained that appellant’s accepted 

2014 work-related lumbar injury was exacerbated by the August 8, 2016 employment injury. 

Dr. Bills opined that the exacerbation on August 8, 2016 resulted in a lumbar strain and lumbar 

radiculopathy, which had been unresponsive to physical therapy and epidural steroid injections. 

He advised that, as appellant remained symptomatic of his lumbar radiculopathy, further medical 
5

treatment was required which included receiving medically necessary epidural injections 

performed by Dr. Kothari. In his August 16, 2017 letter, Dr. Bills related that his opinion on causal 

relationship was based on the fact that appellant had reported increased pain in his back and down 

his legs. He noted that appellant had previous back and leg pain and objective findings included

the presence of paravertebral muscle spasm in the lumbar spine. Dr. Bills related that his

neurological examination on initial evaluation was intact. He observed that appellant’s repeated 

MRI scan performed subsequent to the August 8, 2016 work injury did not reveal a new herniated 

disc at any level or other new changes in comparison to a previously performed MRI scan. 

Dr. Bills also observed that he incorrectly noted that the EMG/NCV referenced in his previous 

report was performed on August 8, 2016 rather than January 4, 2017. He maintained that this 

study was consistent with a right-sided L5 lumbar radiculopathy. Dr. Bills referenced his prior 

report, noting that appellant had not responded well to conservative course of physical therapy and 

medications and that he had continuing worsening symptoms. He maintained that these symptoms 

precluded him from returning to work.

Dr. Bills, in a September 29, 2017 duty status report (Form CA-17) described clinical 

findings of back pain with radiculopathy. He diagnosed a lumbar spine injury due to his August 8, 

2016 employment injury. 

In a November 29, 2016 lumbar MRI scan report, Dr. Jeffrey J. Mathews, a Board-certified 

radiologist, provided an impression of chronic degenerative endplate changes at L5-S1. He found 

no lumbar spinal stenosis.

By decision dated October 19, 2017, OWCP reviewed the merits of appellant’s claim, but 

denied modification of the January 10, 2017 decision. It found that the weight of the medical 

opinion evidence rested with the opinion of Dr. Askin who opined that appellant had not developed

additional conditions causally related to the accepted August 8, 2016 employment injury.

LEGAL PRECEDENT

Where an employee claims that a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.4 To establish causal relationship between the condition 

as well as any attendant disability claimed and the employment injury, an employee must submit 

rationalized medical evidence based on a complete medical and factual background supporting 

causal relationship.5 Causal relationship is a medical issue and the medical evidence required to 

establish causal relationship is rationalized medical evidence.6 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 

 

4

Jaja K. Asaramo, 55 ECAB 200 (2004).

5 M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

6 D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).
6

by the employee.7 Neither the mere fact that a disease or condition manifests itself during a period 

of employment, nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish causal relationship.8

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish additional 

lumbar conditions causally related to the accepted August 8, 2016 employment injury.

OWCP accepted that appellant’s accepted August 8, 2016 employment injury caused an 

aggravation of a prior lumbar strain. It relied on the June 30, 2017 report of the second opinion 

physician, Dr. Askin, to deny appellant’s claim for additional lumbar conditions including bilateral 

L5 lumbar radiculopathy, lumbar facet syndrome, L5-S1 spondylolisthesis, and lumbar disc 

disease at L3-4 through L5-S1.

In a June 30, 2017 report, Dr. Askin reviewed the SOAF and the medical record. He noted 

appellant’s history, which included back injuries sustained at work in 1976 and 2008 and the 

accepted February 10, 2014 and August 8, 2016 employment-related back injuries. Dr. Askin also 

noted his current symptoms and provided essentially normal physical examination findings with 

the exception of sensitivity/pain in the left lower lumbar area that was not tender to touch and pain 

on range of motion testing and on straight leg raising on the left. He attributed appellant’s lumbar 

degenerative disc disease to his age. Dr. Askin explained that an EMG/NCV study suggested that 

he had a nonwork-related peripheral neuropathic problem and CMT, which was ordinarily a 

genetically determined condition. He further explained that appellant did not have clinical features 

of true lumbar radiculopathy as there was no atrophy, dermatomal sensory loss, clinical weakness, 

or even a true positive straight leg raising at the time of his examination. Dr. Askin found that the

accepted aggravation of lumbar strain had resolved, and based on his examination findings and 

review of the EMG/NCV study, there was no evidence of lumbar radiculopathy. He concluded 

that appellant did not require further medical treatment. Dr. Askin opined that appellant could 

return to his date-of-injury limited-duty job on a full-time basis. 

The Board finds that Dr. Askin’s opinion represents the weight of the medical evidence in 

this case. Dr. Askin provided a detailed medical report reviewing appellant’s medical treatment 

and the evidence of record. He unequivocally opined that appellant had not sustained lumbar 

radiculopathy as a result of the August 8, 2016 employment injury and provided a well-reasoned 

medical explanation supporting his findings. Dr. Askin’s opinion was also based on an accurate 

background.9

In reports dated April 24 and August 3 and 16, 2017, he opined that appellant’s 2014 workrelated back injury was exacerbated by the August 8, 2016 work-related injury, which resulted in 

a consequential lumbar strain and lumbar radiculopathy and his disability for work. Dr. Bills 

 

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (2005).

8 V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

9 A.C., Docket No. 16-1670 (issued April 6, 2018); N.P., Docket No. 15-1580 (issued September 1, 2016); see also 

Melvina Jackson, 38 ECAB 443 (1987).
7

maintained that his opinion on causal relationship was based on appellant’s complaint of increased 

pain in his back and down his legs and objective findings that supported the presence of 

paravertebral muscle spasm in the lumbar spine. He noted that a repeat MRI scan that was

performed subsequent to the August 8, 2016 work injury did not reveal a new herniated disc at any 

level or other new changes in comparison to a previously performed MRI scan. Dr. Bills also 

noted that the January 4, 2017 EMG/NCV was consistent with right-sided L5 lumbar 

radiculopathy. He maintained that appellant’s continuing worsening of symptoms, which had not 

responded well to a conservative course of physical therapy and medications, precluded him from 

returning to work. The Board finds that, while Dr. Bills has provided an opinion that the August 8, 

2016 employment injury contributed to appellant’s lumbar strain and lumbar radiculopathy, he has 

not provided sufficient medical rationale in support of his opinion. The Board has held that a 

medical report is of no probative value on the issue of causal relationship if it contains a conclusion 

regarding causal relationship which is unsupported by medical rationale.

10

 Dr. Bills failed to 

provide sufficient medical explanation of how appellant’s diagnosed lumbar conditions and 

disability were a natural consequence of the August 8, 2016 employment injury.

11

 His remaining 

reports addressed the above-noted diagnoses and appellant’s disability from work, but again 

offered no opinion as to the cause of the diagnosed conditions and resultant disability. Medical 

evidence that does not offer an opinion regarding the cause of an employee’s condition is of no 

probative value on the issue of causal relationship.12 Therefore, the Board finds that Dr. Bills’

reports are insufficient to establish appellant’s claim.

Similarly, Dr. Kothari’s reports dated October 27, 2016 to March 24, 2017 and undated 

report are insufficient to establish appellant’s burden of proof. He diagnosed lumbar facet 

syndrome, lumbar disc disease from L3-4 through L5-S1, bilateral L5 radiculopathy, and L5-S1 

spondylolisthesis. Dr. Kothari also advised that appellant could not work on intermittent dates.

The Board notes, however, that these reports are of no probative value with regard to establishing 

causal relationship because Dr. Kothari did not provide an opinion relative to causal relationship 

between the diagnosed conditions and the accepted August 8, 2016 employment injury.13

Further, the November 29, 2016 and January 4, 2017 diagnostic test results from

Dr. Mathews and Dr. Colarusso, respectively, are also insufficient to establish the claim as none

of these reports contained an opinion on causal relationship between the diagnosed lumbar 

conditions and the August 8, 2016 accepted aggravation of lumbar sprain. The Board has held that 

diagnostic studies lack probative value as they do not address whether the employment incident 

caused any of the diagnosed conditions.14 Thus, the Board finds that this evidence is insufficient 

to establish appellant’s burden of proof.

 

10 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11 S.A., Docket No. 09-2339 (issued July 22, 2010).

12 See supra note 10.

13 Id.

14 E.A., Docket No. 18-0796 (issued November 7, 2018); see also J.S., Docket No. 17-1039 (issued 

October 6, 2017).
8

Appellant also submitted reports from a certified physician assistant and physical 

therapists. The Board has held that neither physician assistants nor physical therapists are

considered physicians as defined under FECA.15 As such, this evidence has no probative value 

and is insufficient to meet appellant’s burden of proof.

Appellant has the burden of proof to establish that his additional diagnosed conditions were 

causally related to the accepted injury through the submission of rationalized medical opinion 

evidence.16 He has not submitted evidence from a physician who, based on an accurate factual 

history, found that he had additional lumbar conditions causally related to his August 8, 2016 work 

injury and supports his or her opinion with medical reasoning. Consequently, appellant has not 

met his burden of proof. An award of compensation may not be based on surmise, conjecture, 

speculation, or on the employee’s own belief of causal relation.17

On appeal counsel contends that Dr. Askin’s opinion is not entitled to the weight of the 

medical evidence as OWCP provided him with an incomplete and incorrect SOAF and leading 

questions. He asserts that the SOAF did not include a description of all of the work duties 

performed by appellant on August 8, 2016. Counsel also asserts that the questions noted the 

employing establishment’s challenge to appellant’s claim which suggested that appellant was 

careless and contributed to his own injury. The Board finds, however, that the SOAF accurately 

identified the work duties to which appellant attributed his accepted August 8, 2016 employmentrelated lumbar condition as set forth in his traumatic injury claim form. The Board further finds 

that the questions posed to Dr. Askin were appropriate. Dr. Askin was asked to provide his opinion 

on whether appellant had any current or additional conditions causally related to the accepted work 

injury based on examination, whether the accepted condition had resolved, and whether appellant 

could return to his limited-duty electronic technician position. The Board finds that Dr. Askin’s 

report indicates that he relied appropriately on a review of appellant’s history and findings on 

examination in forming his opinion.

Counsel further contends on appeal that, Dr. Bills’ reports represent the weight of the 

evidence or alternatively that a conflict exists between Dr. Bills and Dr. Askin regarding whether 

appellant sustained additional lumbar conditions as a result of his August 8, 2016 work injury. He

maintains that OWCP should have referred the case to a referee physician to resolve the conflict 

pursuant to 5 U.S.C. § 8123(a). As found above, however, Dr. Bills’ opinion that appellant’s 

additional lumbar conditions were causally related to the accepted August 8, 2016 employmentrelated injury was not sufficiently rationalized while Dr. Askin’s opinion that appellant did not 

sustain further lumbar conditions as a result of his accepted work injury was sufficiently 

 

15 5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. 

See Sean O Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp, 48 ECAB 209 (1996). See also

Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as 

causal relationship can only be resolved through the submission of probative medical evidence from a physician).

16 Supra note 4. 

17 C.B., Docket No. 17-1499 (issued July 25, 2018); D.D., 57 ECAB 734 (2006).
9

rationalized and represented the weight of the medical opinion evidence. Thus, the Board finds 

that there is no conflict in medical opinion between the two physicians.

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 his burden of proof to expand the acceptance of 

his claim to include the additional lumbar conditions as causally related to the accepted August 8, 

2016 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the October 19, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 6, 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