United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.W., Appellant

and

U.S. POSTAL SERVICE, MEDFORD POST 

OFFICE, Medford, NY, Employer

__________________________________________

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Docket No. 19-0231

Issued: July 15, 2019

Appearances: Case Submitted on the Record

Stephen Larkin, 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

JANICE B. ASKIN, Judge

JURISDICTION

On November 12, 2018 appellant, through counsel, filed a timely appeal from a June 26, 

2018 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, following the June 26, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a lumbar condition 

causally related to the accepted October 14, 2016 employment incident.

FACTUAL HISTORY

On October 14, 2016 appellant, then a 54-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on that date she sustained a back injury lifting a parcel of mail while in 

the performance of duty. She stopped work on the date of injury.

Appellant was seen in a hospital emergency room on October 14, 2016 by Dr. Ito Ryosuke, 

a Board-certified emergency room physician, who diagnosed a lumbar and pelvis sprain and lower 

back muscle, fascia, and tendon strain. Dr. Ryosuke noted that appellant had a history of lumbar 

disc herniation and back pain, and that she had developed back pain approximately one hour before 

the examination when she twisted while moving a box at work.

4

In a duty status report (Form CA-17) dated October 14, 2016, Eric Walter, a certified 

physician assistant, noted an injury date of October 14, 2016 and diagnosis of lumbar sprain/strain. 

He indicated that appellant was disabled from work.

On the date of injury, the employing establishment issued an authorization for examination 

and/or treatment (Form CA-16), which indicated that appellant was authorized to seek medical 

treatment for her October 14, 2016 employment incident. In the attending physician’s report 

portion of the Form CA-16, Mr. Walter diagnosed lumbar sprain/strain and noted an injury date of 

October 14, 2016. Under history of injury, he related that appellant’s back injury occurred as the 

result of lifting packages at work earlier that day. Mr. Walter checked a box marked “yes”

indicating that the diagnosed condition had been caused or aggravated by the employment activity. 

He placed appellant off work from October 14 to 17, 2016. 

In a report dated October 20, 2016, Dr. Myassir Zarif, a physician specializing in 

neurology, advised that appellant was under his care and was currently unable to work.

In a development letter dated October 27, 2016, OWCP informed appellant that her claim 

initially appeared to be a minor injury that resulted in minimal or no lost time from work and that 

continuation of pay was not controverted by the employing establishment, and thus limited 

expenses had therefore been authorized. However, a formal decision was now required. OWCP 

requested that she respond to an enclosed questionnaire by providing a more detailed description 

of the incident, witness statements she had obtained regarding the incident, the immediate effects 

of her employment incident, and a history of any other injury. It also requested that she submit a 

medical report from her attending physician including a diagnosis, history of injury, examination 

findings, and a rationalized opinion explaining how the reported employment incident caused or 

 

4 The record reflects that appellant had prior OWCP claims also alleging back injuries, which have not been 

administratively combined with this claim. Appellant’s February 20, 2007 claim under OWCP File No. xxxxxx827 

was accepted for lumbar sprain. Her February 6, 2009 claim was also accepted for lumbar sprain under OWCP File

No. xxxxxx577.
3

aggravated her medical condition. OWCP afforded appellant 30 days to provide the requested 

information. 

Dr. Zarif, in a duty status report (Form CA-17) dated October 28, 2016, diagnosed 

lumbosacral radiculopathy with an injury date of October 14, 2016. He reported that her injury 

resulted from lifting a package and that she was currently off work. Dr. Zarif indicated that the 

history of injury given by appellant corresponded with how the injury occurred.

In a November 22, 2016 report, Dr. Zarif noted that appellant was seen for lumbar 

radiculopathy and low back pain and detailed examination findings. He related that she described 

severe daily low back pain since her October 14, 2016 employment incident. Dr. Zarif, in a 

disability note dated November 22, 2016, requested that appellant be excused from work until 

December 6, 2016.

In duty status reports (Form CA-17) dated November 22 and December 6, 2016, Dr. Zarif 

diagnosed lumbosacral pain and found appellant disabled from work. He noted an injury date of 

October 14, 2016 due to lifting a parcel and indicated that the history given corresponded to the 

description of how the injury occurred. 

Dr. Zarif, in a December 6, 2016 report, noted that appellant was currently being seen for 

an aggravation of her lower back pain which occurred on October 14, 2016 due to lifting a heavy 

box. He observed that her pain radiated from her mid to lower spine down into her right leg and 

foot. Dr. Zarif requested authorization for a magnetic resonance imaging (MRI) scan to rule out

nerve root or spinal cord impingement from severe disc disease.

By decision dated December 15, 2016, OWCP denied appellant’s claim finding that the 

evidence of record was insufficient to establish causal relationship between the diagnosed 

condition and the accepted October 14, 2016 employment incident. 

Subsequent to the December 15, 2016 decision, OWCP received a December 13, 2016 

MRI scan which revealed advanced L3-4 posterior disc bulge, advanced L4-5 grade 1 

anterolisthesis with posterior disc herniation, and worsening of L5-S1 disc bulge.

Dr. Zarif, in a December 19, 2016 report, detailed examination findings which were 

unchanged from prior reports and diagnosed low back pain and lumbosacral radiculopathy. In a 

December 19, 2016 attending physician’s report (Form CA-20), he diagnosed lumbar myofascial 

pain. Dr. Zarif noted an injury date of October 14, 2016 and checked a box marked “yes”

indicating that the diagnosed condition was caused or aggravated by employment activity, which 

he identified as lifting a heavy box. In December 19, 2016 and January 20, 2017 duty status reports

(Form CA-17), he noted that appellant sustained a back injury while lifting a parcel of mail on 

October 14, 2016. Dr. Zarif diagnosed lumbosacral radiculopathy and opined that appellant was 

currently disabled from work. 

On January 9, 2017 OWCP received appellant’s December 29, 2016 request for a 

telephonic hearing before an OWCP hearing representative, which was held on July 10, 2017.

By decision dated August 23, 2017, OWCP’s hearing representative affirmed the denial of 

appellant’s claim, finding that the evidence of record was insufficient to establish that the 

diagnosed medical condition had been caused or aggravated by the accepted October 14, 2016 

employment incident.
4

In a letter dated and received on September 27, 2017, appellant, through counsel, requested 

reconsideration and submitted additional medical evidence including MRI scans dated January 14, 

2013 and December 13, 2016. 

In a September 14, 2017 report, Dr. Zarif noted that appellant had sustained two prior work 

injuries involving her back. As a result of these prior work injuries and based on current 

examination findings, he determined that she had developed post-traumatic arthritis. Dr. Zarif 

explained that post-traumatic arthritis occurred when a joint has been worn out by a physical injury. 

Next, he observed that appellant developed extreme back pain which radiated into her right leg on 

October 14, 2016 after lifting a heavy package at work. Based on a comparison of 2013 and 2016 

MRI scans, Dr. Zarif determined that her back condition had worsened. Based on his examination 

findings and review of the two MRI scans, he diagnosed L4-5 and L5-S1 disc herniation, lumbar 

radiculopathy, and acceleration of post-traumatic arthritis all of which he attributed to the accepted 

October 14, 2016 employment incident. In support of this conclusion, Dr. Zarif noted that 

appellant had developed post-traumatic arthritis from prior work injuries which caused a lumbar 

weakness. As a result of this lumbar spine weakness, he explained that lifting a heavy package on 

October 14, 2016 had aggravated her preexisting lumbar traumatic arthritis. In addition, Dr. Zarif

explained that disc bulges occur where there is damage to lumbar region, and the bulges cause 

nerve irritation resulting in pain radiating down the leg.

By decision dated December 27, 2017, OWCP denied modification, finding that the 

evidence of record did not establish causal relationship between the diagnosed condition and the 

accepted October 14, 2016 employment incident.

In a letter dated and received on March 30, 2018, appellant, through counsel, requested 

reconsideration and submitted additional evidence. 

In a March 16, 2018 report, Dr. Zarif discussed the results of the 2013 and 2016 MRI scans, 

which he explained showed a definite worsening of appellant’s lumbar condition following the 

accepted October 14, 2016 employment incident. As a result of her employment injuries, he

concluded that appellant developed post-traumatic arthritis. The diagnoses attributable to the 

accepted October 14, 2016 work incident were L4-5 and L5-S1 disc herniation, lumbar 

radiculopathy, and acceleration of her post-traumatic arthritis. Dr. Zarif again explained that the 

lumbar disc bulges occurred from damage to her lumbar region, which caused nerve irritation 

resulting in pain radiating down the leg. He further explained that traumatic arthritis resulted from 

the wearing out of a joint from a physical injury. Dr. Zarif noted that injuries to the lumbar region 

resulted in disc bulges and that when fluid leaked from the disc bulge, it resulted in disc herniation. 

He opined that the lifting of a package on October 14, 2016 was a direct cause of the diagnosed 

condition and unrelated to any other pathology.

By decision June 26, 2018, OWCP denied modification, finding that the evidence 

submitted on reconsideration contained insufficient medical rationale to establish causal 

relationship between the accepted October 14, 2016 employment incident and the diagnosed 

lumbar condition.

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 
5

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA,5that an injury 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.6 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.7

To determine if an employee has sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established. 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.8 The second component is whether the employment incident caused a personal injury.9 

Causal relationship is a medical issue, and the medical evidence required to establish causal 

relationship is rationalized medical evidence.10 The opinion of the physician must be based on a 

complete factual and medical background of the claimant, 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.11 

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.12

ANALYSIS

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

In support of her claim, appellant submitted medical evidence, including reports dated 

September 14, 2017 and March 15, 2018 from Dr. Zarif, wherein he explained that her clinical 

findings and imaging studies supported a traumatic injury to her lumbar spine that conformed to 

appellant’s account of the accepted October 14, 2016 employment incident. Dr. Zarif provided a 

detailed medical history, noting appellant’s prior accepted lumbar injuries, physical examination 

findings, and review of diagnostic testing. In addition, he explained that a comparison of the 2013 

MRI scan taken before the work incident and one taken after the incident, on December 13, 2016,

clearly demonstrated a worsening of her back condition. Dr. Zarif provided an affirmative opinion 

 

5 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

7 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

8 Elaine Pendleton, 40 ECAB 1143 (1989).

9 M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989). 

10 L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

11 L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 

12 T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997). 
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on causal relationship, explaining that appellant’s preexisting post-traumatic arthritis had 

weakened her lumbar spine and that when she lifted a heavy package on October 14, 2016, stress 

was placed in the lumbar region which caused fluid to flow from the disc which resulted in disc 

herniation. As such, Dr. Zarif accurately identified the specific employment factor which 

appellant claimed caused her condition, identified findings on examination, and the mechanism of 

injury.

The Board notes that, while none of Dr. Zarif’s reports are completely rationalized, they 

are consistent in indicating that appellant sustained an employment-related injury due to the 

accepted October 14, 2016 employment incident and are not contradicted by any substantial 

medical or factual evidence of record.

13

 While the reports are insufficient to meet her burden of 

proof to establish her claim, they raise an uncontroverted inference between her lumbar condition 

and the identified employment factor and are sufficient to require OWCP to further develop the 

medical evidence and the case record.14

The Board thus finds that the medical evidence of record is sufficient to require further 

development of the case record.15 It is well established that proceedings under FECA are not 

adversarial in nature, nor is OWCP a disinterested arbiter. While the claimant has the burden of 

proof to establish entitlement to compensation, OWCP shares responsibility in the development of 

the evidence.16 OWCP has an obligation to see that justice is done.17 

The Board will remand the case for further development of the medical evidence.18 On 

remand it shall refer appellant, a statement of accepted facts, and the medical evidence of record 

to an appropriate specialist for an examination, and a rationalized opinion regarding causal 

relationship between her diagnosed lumbar spine conditions and the accepted October 14, 2016 

 

13 S.T., Docket No. 18-1119 (issued March 6, 2019); S.M., Docket No. 13-0534 (issued June 21, 2013); Frank B. 

Gilbreth, Docket No. 02-1310 (issued May 14, 2003).

14 D.H., Docket No. 18-1410 (issued March 21, 2019); D.W., Docket No. 17-1884 (issued November 8, 2018);

S.S., Docket No. 17-0322 (issued June 26, 2018); A.F., Docket No. 15-1687 (issued June 9, 2016). See also John J. 

Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

15 S.T., supra note 13; C.T., Docket No. 16-1222 (issued March 9, 2017).

16 D.H., supra note 14; D.W., supra note 14; see, e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Dorothy 

Sidwell, 36 ECAB 699, 707 (1985); Michael Gallo, 29 ECAB 159, 161 (1978).

17 D.H., supra note 14; D.W., supra note 14; William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. 

Evans, 26 ECAB 195 (1974).

18 C.T., supra note 15.
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employment injury. After this and other such further development deemed necessary,

19 OWCP 

shall issue a de novo decision.20

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the June 26, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this opinion of the Board.

Issued: July 15, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

19 OWCP’s procedures provide that cases should be combined when correct adjudication of the issues depends on 

frequent cross-referencing between files. For example, if a new injury case is reported for an employee who previously 

filed an injury claim for a similar condition or the same part of the body, doubling is required. See Federal (FECA) 

Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000). On 

remand OWCP shall administratively combine all necessary file numbers for a full and fair adjudication of appellant’s 

pending claim.

20 The Board notes that a properly completed CA-16 form authorization may constitute a contract for payment of 

medical expenses to a medical facility or physician, when properly executed. The form creates a contractual 

obligation, which does not involve the employee directly, to pay for the cost of the examination or treatment regardless 

of the action taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days 

from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 

(issued November 2, 2018); N.M., Docket No. 17-1655 (issued January 24, 2018), Tracy P. Spillane, 54 ECAB 

608 (2003).