United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

San Mateo, CA, Employer

__________________________________________

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Docket No. 17-0705

Issued: November 9, 2017

Appearances: Case Submitted on the Record

Jeffery S. Fultz, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 7, 2017 appellant, through her representative, filed a timely appeal from a

January 25, 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.

ISSUE

The issue is whether appellant met her burden of proof to establish a lumbar injury as 

alleged.

 

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

On September 24, 2014 appellant, then a 53-year-old city carrier, filed a claim for a 

recurrence of disability (Form CA-2a) alleging that while casing her route on September 22, 

2014 she bent forward to lift a bucket of magazines, provoking a sharp pain in her lumbar spine 

radiating into both lower extremities. She noted a history of a prior occupational lumbar injury 

on August 25, 2007 under File No. xxxxxx937, with a recurrence on May 27, 2008 under 

File No. xxxxxx850, for which she was on restrictions at the time of the September 22, 2014 

injury. On the reverse side of the claim form, the employing establishment contended that as 

appellant appeared to have claimed a new injury, OWCP should develop the claim as one for 

traumatic injury and not a recurrence of disability. It developed her claim for recurrence of 

disability as one for traumatic injury. Appellant stopped work at the time of the injury. 

Following a period of intermittent absences, she returned to work in a full-time modified position 

as a sales associate. Appellant claimed compensation for intermittent absences from 

November 19, 2014 to January 20, 2015 for medical appointments and when no light-duty work 

was available within her restrictions.3

Appellant provided medical reports from Dr. Christina Yu Ting Wang, an attending 

physician Board-certified in occupational medicine, who diagnosed a lumbar strain on 

September 22, 2014. Dr. Wang held appellant off work through September 23, 2014 due to 

lumbar pain. She noted work restrictions from September 24 to October 9, 2014.4 Dr. Wang 

renewed work restrictions in periodic reports through January 20, 2015, proscribing repetitive 

bending and limiting lifting to 25 pounds. 

Dr. John Lane Hall, an attending internist, diagnosed a lumbar strain with lumbar 

radiculopathy on October 21, 2014. He restricted appellant from bending, twisting, and 

stooping, and limited lifting to five pounds. Dr. Hall continued work limitations through 

December 16, 2014. 

In a November 25, 2014 letter, OWCP notified appellant of the additional evidence 

needed to establish her claim, including her attending physician’s explanation of how and why 

the September 22, 2014 bending and lifting incident would cause a back injury. It afforded her

30 days to submit such evidence. 

In response, appellant provided September 22, 2014 emergency room records signed by

Dr. Monique D. Schaulis, Board-certified in emergency medicine. Dr. Schaulis diagnosed a

back sprain or strain sustained that day “at work when reaching.”

By decision dated February 2, 2015, OWCP accepted that the September 22, 2014 lifting 

incident occurred at the time, place, and in the manner alleged, but denied the claim because the 

 

3 On November 7, 2014 appellant claimed wage-loss compensation (Form CA-7) for the period November 7 

to 10, 2014, as there was no work available within her restrictions. The employing establishment confirmed the 

unavailability of modified work for the claimed period. 

4

In an October 14, 2014 letter, the employing establishment noted that as it was unable to accommodate 

appellant’s medical restrictions under File No. xxxxxx937, date of injury August 25, 2007, there “was no work 

available full day, which entitle[d] [appellant] to Continuation of Pay for 45 days.”
3

medical evidence of record failed to establish causal relationship. It found that appellant’s 

physicians did not explain why the accepted incident would cause a back injury. 

On February 13, 2015 appellant requested reconsideration. She submitted additional 

evidence.

Dr. Wang provided periodic treatment notes dated from October 7, 2014 through 

March 23, 2015, diagnosing a continued lumbar strain with right-sided lumbar radiculopathy. 

Appellant participated in physical therapy from November 19, 2014 through May 18, 2015. 

Dr. Wang obtained a December 13, 2014 lumbar magnetic resonance imaging (MRI) scan 

demonstrating mild multilevel spondylitic changes without nerve root compression or significant 

stenosis. She prescribed medication and ordered permanent work restrictions against active 

bending and lifting more than 25 pounds. 

Appellant filed claims for compensation (Form CA-7) for work absences related to 

medical and physical therapy appointments. On March 19, 2015 she claimed a schedule award 

(Form CA-7). 

By decision dated June 5, 2015, OWCP denied modification of its February 2, 2015 

decision. 

OWCP included in the case record a May 8, 2015 second opinion report from File 

No. xxxxxx937 by Dr. Aubrey Swartz, a Board-certified orthopedic surgeon, regarding the 

August 25, 2007 lumbar injury.5 Dr. Swartz noted accepted conditions of “a strain of neck, 

thoracic, and lumbar spines, with displacement of the lumbar intervertebral disc and without 

myelopathy [and] lumbar spine right sided.” He opined that the accepted injuries had ceased 

without residuals, and that appellant had reached maximum medical improvement. Dr. Swartz 

found that she had no permanent impairment of any scheduled member as she had no objective 

sign of any of the accepted injuries. He added that appellant did not require any work or activity 

restrictions. 

In a June 15, 2015 letter, appellant requested reconsideration. She submitted a 

January 20, 2015 narrative report from Dr. Wang, finding that appellant had reached maximum 

medical improvement. Dr. Wang opined that appellant would require permanent restrictions 

against repetitive bending and stooping, with no lifting over 25 pounds. 

By decision dated September 9, 2015, OWCP denied the claim, finding that the medical 

evidence was insufficiently rationalized to establish a causal relationship between the accepted 

September 22, 2014 incident and the claimed lumbar injury. It explained that Dr. Wang did not 

provide medical rationale supporting that the accepted incident caused an injury. 

On September 21, 2015 appellant requested reconsideration. She did not submit 

additional evidence. 

 

5 The full contents of File No. xxxxxx937 are not before the Board on the present appeal.
4

By decision dated October 7, 2015, OWCP denied reconsideration, finding that 

appellant’s appeal request form did not raise substantive legal questions or provide new relevant 

evidence. 

Appellant again requested reconsideration. She submitted a September 24, 2015 report 

from Dr. Wang who noted appellant’s history of a lumbar strain with continued radiculopathy 

“after reaching down to pick up a bucket of magazines.” Dr. Wang explained that the “physical 

mechanical strain of bending down in an awkward position, bending the back, adding the weight 

strain of picking up a weighted load of magazines in an awkward back-bent position, can cause 

and contribute to the onset of the injury symptoms described.”

Dr. Erin McLaughlin, an attending physician specializing in preventive medicine,

provided an October 8, 2015 report reviewing appellant’s history of low back pain beginning 

with the August 2007 occupational injury, with a recrudescence of pain when she bent to pick up 

some letters in May 2008. Appellant’s lumbar symptoms were quiescent from fall 2008 to the 

summer of 2014. On September 22, 2014 appellant “was sorting mail and [appellant] picked up 

a bucket about half full of mail (weighing about 10 pounds) and she got a sudden sharp pain in 

her low back” in the same location and of the same quality as in 2007 and 2008. Conservative 

measures did not provide relief. On examination, Dr. McLaughlin found a positive straight leg 

raising test on the right and that appellant was unable to squat. She diagnosed a lumbar strain

and prescribed medication and a stretching program. 

By decision dated January 13, 2016, OWCP denied the claim, finding that the additional 

evidence submitted was insufficient to establish causal relationship between the claimed lumbar 

injury and the accepted September 22, 2014 lifting incident. It found that Dr. Swartz’ second 

opinion report in File No. xxxxxx937 also represented the weight of the medical evidence in the 

present claim. OWCP also referred to a November 30, 2007 report by a Dr. Feretti under File 

No. xxxxxx937 diagnosing a temporary aggravation of underlying disc disease. Dr. Feretti’s 

report is not of record under the present claim. 

On February 8, 2016 appellant requested reconsideration. She submitted a February 8, 

2016 report from Dr. Wang diagnosing a lumbar muscle strain with subsequent lumbar 

radiculopathy. Dr. Wang opined that appellant remained at maximum medical improvement and 

would continue to require permanent work restrictions against repetitive bending or lifting over 

10 pounds. 

By decision dated February 18, 2016, OWCP denied reconsideration, finding that

Dr. Wang’s February 8, 2016 report was repetitive of evidence previously of record and 

therefore insufficient to warrant further merit review. 

On January 13, 2017 appellant again requested reconsideration through her authorized 

representative. The representative asserted that OWCP erred by according Dr. Swartz the weight 

of the medical evidence in the present claim as he was selected only to provide an opinion in File 

No. xxxxxx937. Also, OWCP relied on a report from Dr. Feretti under File No. xxxxxx937, 

which was not of record in the present claim. The representative contended that OWCP must 

double File No. xxxxxx937 with the present claim under File No. xxxxxx749 to ensure a full and 

fair adjudication of the evidence. He submitted additional evidence.
5

In a January 6, 2017 report, Dr. Fulton S. Chen, an attending Board-certified physiatrist,

provided a history of injury and treatment, including the 2007 and 2008 occupational injuries and 

the September 22, 2014 lifting incident in the present claim. On examination, he found “diffuse 

weakness over the right foot ankle dorsiflexors and great toe extensors versus the left,” a positive 

right straight leg raising test, and “a pressure sensation over the right leg upon a passive right 

ankle plantar flexion.” Dr. Chen diagnosed L4-5 disc degeneration6 with annular tear

demonstrated by x-rays,

7

L5-S1 degenerative disc disease with severe disc space narrowing and 

Mordic changes, and right-sided lumbar radiculopathy. He explained that severe disc space 

narrowing with an annular tear, as in appellant’s case, was competent to cause her lumbar pain 

and radiculopathy. Dr. Chen provided medical literature on disc degeneration which he opined 

applied to her clinical presentation. Regarding causal relationship, he opined that appellant’s 

history of lumbar disc degeneration made her more prone to injury due to disc dehydration and 

subsequent annular fiber weakness at the edges of the spinal discs. Dr. Chen explained that 

when she bent down to pick up the bucket of magazines on September 22, 2014 and began to lift 

it upward, forward flexion of the lumbar spine caused compressive biomechanical forces,

flattening lumbar discs weakened from preexisting injuries, and degenerative disc disease, 

causing or aggravating the L4-5 annular tear and aggravating L5-S1 disc degeneration. He noted 

that appellant’s development of increased low back pain after September 22, 2014 correlated to 

the described pathophysiologic mechanism of injury. The inflammation caused by the L4-5 

annular tear then caused the right-sided radiculopathy. Dr. Chen noted that appellant required 

permanent work restrictions, and had not yet reached maximum medical improvement. 

By decision dated January 25, 2017, OWCP again denied the claim, finding the 

additional evidence submitted was insufficient to establish causal relationship between the 

September 22, 2014 lifting incident and the claimed lumbar injury. It found that Dr. Chen’s 

opinion that appellant had both a preexisting lumbar condition and a late aggravation of it was

“conflicting,” diminishing the probative value of his report.

LEGAL PRECEDENT

An employee seeking benefits under FECA8has 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 filed within the applicable 

time limitation, that an injury was sustained while in the performance of duty as alleged, and that 

any disability and/or specific condition for which compensation is claimed are causally related to 

 

6

February 5, 2013 lumbar x-rays demonstrated increased degenerative changes at L5-S1. September 18, 2016 

lumbar x-rays showed moderate L5-S1 degenerative disc disease. 

7 A December 13, 2014 lumbar MRI scan showed L5-S1 degenerative changes and a posterior annular tear at 

L4-5. 

8

Supra note 2. 
6

the employment injury.9 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.10

To determine whether 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 conjunctively. First, the 

employee must submit sufficient evidence to establish that she actually experienced the 

employment incident that is alleged to have occurred.11 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.12 

The medical evidence required to establish causal relationship is generally rationalized 

medical opinion evidence. Rationalized medical opinion evidence is medical evidence which 

includes a physician’s rationalized opinion on the issue of whether there is causal relationship 

between the claimant’s diagnosed condition and the implicated employment factors. The 

opinion of the physician must be based on a complete factual and medical background of the 

claimant, must be one of reasonable medial 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 claimant.13

ANALYSIS

Appellant claimed that she sustained a traumatic lumbar injury when she bent over and 

lifted a bucket of magazines on September 22, 2014. OWCP accepted that this incident occurred

as alleged, but it denied the claim as the medical evidence failed to establish a causal relationship 

between that event and the claimed lumbar injury.

In support of her claim, appellant submitted reports from Dr. Wang, an attending 

physician Board-certified in occupational medicine, dated from September 22, 2014 onward, 

diagnosing a lumbar strain and lumbar radiculopathy. She opined on September 24, 2015 that 

the “mechanical strain of bending down in an awkward position” then lifting a heavy load was 

competent to cause the onset of a symptomatic lumbar injury. Although Dr. Wang generally 

supported causal relationship between the accepted September 22, 2014 incident and a lumbar 

injury, she did not provide detailed rationale explaining her medical reasoning behind this 

conclusion. Therefore, her opinion is insufficient to meet appellant’s burden of proof.14 

 

9

Joe D. Cameron, 41 ECAB 153 (1989).

10 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

11 Gary J. Watling, 52 ECAB 278 (2001).

12 Deborah L. Beatty, 54 ECAB 340 (2003).

13 Solomon Polen, 51 ECAB 341 (2000).

14 Supra note 12.
7

Similarly, Dr. Hall, an attending internist, and Dr. McLaughlin, a preventive medicine specialist, 

both diagnosed a lumbar strain, but did not address causal relationship.15

Appellant also provided a January 6, 2017 narrative report from Dr. Chen, an attending 

Board-certified physiatrist. Dr. Chen provided a detailed review of the medical evidence of 

record, her history of 2007 and 2008 occupational back injuries, and the history of the present 

claim. He performed a thorough clinical examination and described his clinical findings. 

Dr. Chen explained how when appellant bent down and lifted the bucket of magazines on 

September 22, 2014 loaded forward flexion caused compressive biomechanical forces, flattening 

weakened lumbar discs and impacting the L4-5 annular tear. This aggravated appellant’s 

preexisting lumbar degenerative disc disease, resulting in a new lumbar injury and lumbar 

radiculopathy.

The Board finds that although Dr. Chen’s opinion is insufficiently rationalized to meet 

appellant’s burden of proof to establish causal relationship,16 it is of sufficient probative quality 

to warrant additional development.17 Dr. Chen provided an extremely detailed explanation of 

how the physical forces of the accepted September 22, 2014 lifting incident resulted in the 

claimed lumbar injury. However, OWCP did not undertake further development of the medical 

record, such as referring the record to an OWCP medical adviser, or referring appellant for a 

second opinion examination.

Proceedings under FECA are not adversarial in nature and OWCP is not 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. It has the obligation to see that 

justice is done.18 The case must be remanded to OWCP for preparation of a statement of 

accepted facts concerning the accepted September 22, 2014 lifting incident and appellant’s 

medical history, and referral of the matter to an appropriate medical specialist, consistent with 

OWCP’s procedures, to determine whether she sustained a back injury as alleged. Prior to her

referral, OWCP shall combine the present claim file with File No. xxxxxx937.19 Following this 

and any other development deemed necessary, it shall issue a de novo decision. 

CONCLUSION

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

 

15 Id. 

16 See Jimmie H. Duckett, 52 ECAB 332 (2001); Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not 

containing rationale on causal relationship are entitled to little probative value).

17 John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 280 (1978).

18 Jimmy A. Hammons, 51 ECAB 219 (1999); Marco A. Padilla, 51 ECAB 202 (1999); John W. Butler, 39 ECAB 

852 (1988).

19 See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 

2.400.8(c) (February 2000) (cases should be doubled when correct adjudication of the issues depends on frequent 

cross-reference between files).
8

ORDER

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

Compensation Programs dated January 25, 2017 is set aside, and the case remanded to OWCP 

for additional development consistent with this opinion.

Issued: November 9, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board