United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.J., Appellant 

and 

U.S. POSTAL SERVICE, CLEARING 

STATION, Chicago IL, Employer 

__________________________________________ 

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Docket No. 16-1733 

Issued: May 16, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 30, 2016 appellant, through counsel, filed a timely appeal from the 

June 8, 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 this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish a back injury causally 

related to the October 29, 2014 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

On appeal counsel contends that OWCP’s decision nick-picks the evidence and creates 

inconsistency when none actually exists. 

FACTUAL HISTORY 

On November 5, 2014 appellant, then a 38-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 29, 2014 he sustained an injury as a result of 

walking down stairs onto an uneven surface while delivering mail at work. He stopped work on 

October 30, 2014. In an employee statement dated November 5, 2014, appellant described his 

injury, indicating that on October 29, 2014 he felt a sharp twinge in his lower back while 

carrying a bag of mail as he descended stairs. He continued to work that day with mild 

discomfort. Later that night, appellant experienced worsening pain with spasms in his lower 

back through his buttocks and into his left hamstring. He was unable to sleep or to work the next 

day. Appellant sought medical treatment on November 5, 2014 and was prescribed medication 

and referred to physical therapy. He still had difficulties standing and walking for periods of 

time and noted that staying off work helped his condition. 

In a November 5, 2014 medical report, Dr. Howard I. Freedberg, an attending Boardcertified orthopedic surgeon, noted a history of injury that on October 29, 2014 appellant felt a 

twinge in his lower back while carrying mail down stairs. He also noted a history of his medical 

treatment, family, and social background, and his current symptoms. Dr. Freedberg reported 

findings on physical examination of the spine and upper and lower extremities and x-ray 

examination of the lumbar spine. He provided a diagnosis of lumbar neuritis/radiculitis and 

referred appellant to physical therapy. In a November 5, 2014 work status report, Dr. Freedberg 

advised that appellant was medically unable to work. 

In a November 19, 2014 e-mail, the employing establishment controverted appellant’s 

claim, contending that he reported his accident 16 days after it had occurred. 

By letter dated November 25, 2014, OWCP advised appellant of the deficiencies of his 

claim and afforded him 30 days to submit additional medical evidence. 

In a November 5, 2014 prescription dispensing office note, Dr. Freedberg listed a 

breakdown of ingredients in a prescribed medication. In a medicine order dated December 3, 

2014, Dr. Freedberg, Dr. Thomas A. McNally, a Board-certified orthopedic surgeon, Dr. Ankur 

Chhadia, a Board-certified orthopedic surgeon, and Dr. Dmitry A. Novoseletsky, a Boardcertified physiatrist, listed appellant’s medication dosages for various conditions, including 

spasms. 

By decision dated December 30, 2014, OWCP accepted that the October 29, 2014 

incident occurred as alleged. However, it denied appellant’s claim as the medical evidence was 

insufficient to establish a medical condition causally related to the accepted employment 

incident. 

In a medicine order dated November 5, 2014, Dr. Freedberg, Dr. McNally, Dr. Chhadia, 

and Dr. Novoseletsky again listed appellant’s medication dosages. In reports dated December 3, 

2014 and January 22, 2015, Dr. Freedberg provided results on examination and reiterated his 
3

diagnosis of lumbar neuritis/radiculitis. He opined that appellant’s traumatic injury, his 

condition of ill-being, and recommended treatment were causally connected to the October 29, 

2014 employment incident.3

In a February 15, 2015 letter and February 23, 2015 report, Dr. Freedberg again provided 

results on examination and reiterated his diagnosis of lumbar neuritis/radiculitis and his opinion 

that appellant’s condition was causally connected to the October 29, 2014 employment incident. 

He noted that appellant had never previously had low back pain, prior problems, or treatment for 

any back conditions. 

In a May 20, 2015 decision, OWCP denied modification of the December 30, 2014 

decision. It found that Dr. Freedberg’s reports did not contain a rationalized medical opinion to 

establish a causal relationship between appellant’s lumbar condition and the accepted 

October 29, 2014 work incident. 

In reports dated May 13 to July 9, 2015, Dr. Freedberg examined appellant and reiterated 

his prior diagnosis of lumbar neuritis/radiculitis and opinion on causal relationship. He related 

that further review of mechanism of the injury revealed that appellant was at work and carried a 

bag weighing 30 pounds as he walked down stairs. On the last step appellant felt a pull in his 

lower back, stopped, “shook off,” and continued with some stiffness. Several hours later he 

began to have low back spasms and pain referral down his left leg. 

In a June 13, 2015 lumbar magnetic resonance imaging (MRI) scan report, Dr. Doris L. 

Yip, a Board-certified radiologist, provided an impression of congenitally short pedicles with a 

baseline narrow canal. She also provided an impression of small left paracentral disc protrusion 

at L2-3, small central disc extrusion at L3-4, small central/left paracentral disc protrusion at L4-

5, and mild central stenosis at T10-11, left lateral recess compromise and moderate left 

neuroforaminal narrowing. 

On August 25, 2015 appellant requested reconsideration of the May 20, 2015 decision. 

By letter dated July 15, 2015, Dr. Freedberg clarified his prior opinion on causal 

relationship and again related that appellant had never previously had low back problems or any 

treatment for his back condition prior to his work injury and described the October 29, 2014 

employment incident. Based on his history, he believed that appellant’s condition was causally 

related. Dr. Freedberg opined that the accepted work incident indeed had certainly exacerbated 

any preexisting conditions shown on the MRI scan as well as caused appellant’s significant 

problems. 

In a decision dated November 6, 2015, OWCP denied modification of the May 20, 2015 

decision. It again found that Dr. Freedberg failed to provide a rationalized medical opinion on 

causal relationship. 

In a December 23, 2015 work care treatment note, Dr. Luis R. Muñoz, who specializes in 

occupational medicine, noted a history of injury that on October 29, 2014 appellant was climbing 

 3

 OWCP also received toxicology reports from Essential Testing. 
4

down stairs when the leather strap on his mailbag inadvertently hooked onto the stair railing as 

he quickly pulled away from the stairs. The strap around appellant’s shoulders rapidly twisted 

his lower back and upper body as he quickly moved away in a downward direction. Dr. Muñoz 

also noted a history of appellant’s medical treatment. He reported findings on physical 

examination and provided an impression of lumbar L3-4 disc extrusion/herniation, lumbar 

radiculopathy, and lumbar deconditioning. Dr. Muñoz maintained that appellant’s lumbar spine 

pain and radiculopathy were a result of rapid twisting and pulling forces of a leather strap placed 

on his upper and lower spine structures. The rotational forces abruptly encountered by the 

lumbar discs provided the torsional and sheer forces that led to the mechanism of injury, which 

caused appellant’s L3-4 extrusion herniation of the lumbar spine. Therefore, Dr. Muñoz opined 

that the work injury event and mechanism of injury were consistent with the outcome of an L3-4 

disc extrusion injury detected on his physical examination and a July 2015 MRI lumbar spine 

scan. He addressed his treatment plan and concluded that appellant was unfit for duty and placed 

him off work. In prescriptions dated December 23, 2015 and February 4, 2016, Dr. Muñoz 

ordered medications to treat appellant’s condition. 

On March 10, 2016 appellant requested reconsideration of the November 6, 2015 

decision. 

In a March 2, 2016 attending physician’s report (Form CA-20), Dr. Muñoz reiterated the 

history that on October 29, 2014 appellant’s mailbag strap caught on the stair railing, injuring his 

back. He also reiterated his diagnosis of lumbar L3-4 disc herniation extrusion. Dr. Muñoz 

indicated by checking a box marked “yes” that this condition was caused or aggravated by an 

employment activity. He explained that the twisting of appellant’s lumbar spine and torsional 

sheer forces caused his herniation. In prescriptions dated March 10, 2016, Dr. Muñoz again 

ordered medications to treat appellant’s condition. 

In a June 8, 2016 decision, OWCP denied modification of the November 6, 2015 

decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish the 

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

evidence4

 including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.5

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established.6 

There are two components involved in establishing the fact of injury. First, the employee must 

 4 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 

5 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

6 S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005). 
5

submit sufficient evidence to establish that she actually experienced the employment incident at 

the time, place, and in the manner alleged.7 

The second component is whether the employment incident caused a personal injury and 

generally can be established only by medical evidence.8

 The evidence required to establish 

causal relationship is rationalized medical opinion evidence, based upon complete factual and 

medical background, showing a causal relationship between the claimed condition and the 

identified factors.9

 The belief of the claimant that a condition was caused or aggravated by the 

employment is insufficient to establish a causal relationship.10

ANALYSIS 

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

condition caused or aggravated by the accepted October 29, 2014 employment incident. 

Appellant initially submitted several reports from Dr. Freedberg. In reports dated 

December 3, 2014 to July 15, 2015, Dr. Freedberg provided a history of the October 29, 2014 

work incident and diagnosed lumbar neuritis/radiculitis. He opined that appellant’s condition 

and recommended medical treatment were causally related to the October 29, 2014 work 

incident. Dr. Freedberg further opined that the accepted employment incident exacerbated 

appellant’s preexisting conditions as verified by the MRI scan. He reasoned that appellant never 

had any back symptoms or received any treatment for a back condition prior to the accepted 

incident. The Board has found insufficient medical opinion finding causal relationship for an 

employment injury because the employee was asymptomatic before the injury but was 

symptomatic after the injury, without further supporting rationale.11 Dr. Freedberg did not 

explain, with reference to the specific mechanism of injury, how walking down stairs onto an 

uneven surface on October 29, 2014 caused the diagnosed back condition or aggravated 

preexisting conditions, and thus his reports are of diminished probative value. While his 

November 5, 2014 reports noted a history of the October 29, 2014 employment incident, 

Dr. Freedberg reiterated a diagnosis of lumbar neuritis/radiculitis, and found that appellant was 

medically unable to work. He did not opine whether appellant’s conditions and resultant 

disability were caused by the accepted employment incident.12 Similarly, appellant’s 

November 5, 2014 prescription and his November 5 and December 3, 2014 medicine orders 

cosigned by Drs. Freedberg, McNally, Chhadia, and Novoseletsky did not offer a specific 

opinion as to whether the accepted employment incident caused or aggravated the diagnosed 

 7 Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968). 

8 John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q) 

(traumatic injury and occupational disease defined, respectively). 

9 Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979). 

10 Kathryn Haggerty, 45 ECAB 383, 389 (1994). 

11 T.M., Docket No. 08-0975 (issued February 6, 2009); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996). 

12 A.D., 58 ECAB 159 (2006) (medical evidence which does not offer any opinion regarding the cause of an 

employee’s condition is of limited probative value on the issue of causal relationship). 
6

conditions.13 Thus, the Board finds that the reports from Drs. Freedberg, McNally, Chhadia, and 

Novoseletsky are insufficient to meet appellant’s burden of proof. 

The remaining medical evidence is also insufficient to establish causal relationship 

between appellant’s injury and the October 29, 2014 employment incident. Dr. Muñoz’ 

December 23, 2015 treatment note and March 2, 2016 Form CA-20 report discussed appellant’s 

history of an October 29, 2014 back injury. In the December 23, 2015 treatment note, he noted 

that appellant was descending stairs while delivering mail when the leather strap on his mailbag 

inadvertently hooked onto the stair railing as he quickly pulled away from the stairs. Dr. Muñoz 

further noted that the strap around appellant’s shoulders rapidly twisted his lower back and upper 

body as he quickly moved away in a downward direction. In the March 2, 2016 Form CA-20 

report, he noted a history that appellant injured his back when the strap on his mailbag caught on 

the stairs. In both reports, Dr. Muñoz attributed his lumbar L3-4 disc extrusion/herniation, 

lumbar radiculopathy, and lumbar deconditioning to the October 29, 2014 incident. He, 

however, relied upon an inaccurate history of injury, that appellant’s mailbag strap inadvertently 

hooked around the stair railing causing his back to twist rapidly, rather than appellant injuring his 

back when he walked down stairs onto an uneven surface while delivering mail. The most 

contemporaneous evidence regarding the October 29, 2014 employment incident, appellant’s 

Form CA-1 and his November 5, 2014 statement, made no mention of the mailbag strap being 

caught on a railing.14 It is well established that medical reports must be based on a complete and 

accurate factual and medical background and that medical opinions based on an incomplete or 

inaccurate medical history are of diminished probative value.15 Dr. Muñoz’ remaining 

prescriptions dated December 23, 2015 and February 4 and March 10, 2016 ordered medications, 

but did not provide a firm diagnosis of a particular medical condition16 or a specific opinion as to 

whether the accepted work incident caused or aggravated appellant’s condition.17 Therefore, his 

reports are of limited probative value. 

Similarly, Dr. Yip’s June 13, 2015 diagnostic test results are of limited probative value. 

She failed to offer an opinion on whether appellant’s diagnosed lumbar conditions were caused 

or aggravated by the accepted October 29, 2014 employment incident.18 

 13 Id.

14 The Board has held that contemporaneous evidence is entitled to greater probative value than later evidence. 

S.S., 59 ECAB 315 (2008). 

15 See W.S., Docket No. 15-0602 (issued August 11, 2016); Joseph M. Popp, 48 ECAB 624 (1997). 

16 See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that, in the absence of a medical report 

providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident, 

appellant did not meet her burden of proof). 

17 Supra note 12. 

18 Id. 
7

The toxicology reports dated November 14, 2014 and March 12 and July 21, 2015 are of 

limited probative value as they do not contain a physician’s medical opinion that any diagnosed 

condition was causally related to the accepted work incident.19 

The Board finds that appellant has failed to submit any rationalized, probative medical 

evidence sufficient to establish a back injury causally related to the October 29, 2014 

employment incident. Appellant, therefore, did not meet his burden of proof. 

On appeal counsel contends that OWCP’s decision nick-picks the evidence and creates 

inconsistency when none actually exists. For the reasons stated above, however, the Board finds 

that the weight of the medical evidence does not establish a back condition causally related to the 

accepted October 29, 2014 work incident. 

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 failed to meet his burden of proof to establish a back 

injury causally related to the October 29, 2014 employment incident. 

 19 Id.
8

ORDER 

IT IS HEREBY ORDERED THAT the June 8, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: May 16, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board