United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, White Plains, NY, 

Employer

__________________________________________

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Docket No. 16-1760

Issued: January 23, 2018

Appearances: Case Submitted on the Record

James D. Muirhead, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 1, 2016 appellant, through counsel, filed a timely appeal from a March 11, 

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 claim.

 

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 establish a low back condition 

causally related to the accepted January 2, 2013 employment incident. 

FACTUAL HISTORY

On January 7, 2013 appellant, then a 40-year-old mail handler/equipment operator, filed a 

traumatic injury claim (Form CA-1) alleging that he injured his lower back on January 2, 2013 at 

4:45 p.m. while connecting a postal container (post-con) to a cart. The post-con was reportedly 

overloaded. Appellant’s regular tour was from 3:30 p.m. to 12:00 a.m. He stopped work on 

January 7, 2013. 

In a January 11, 2013 note, Dr. Young Don Oh, an orthopedic surgeon, diagnosed lumbar 

disc herniations and noted that appellant was totally disabled from work from January 7 to 

February 11, 2013. 

In a January 23, 2013 letter, the employing establishment controverted the claim as

appellant continued to work for the remainder of his work shift, did not report the injury for 

another five days, was off work on Family and Medical Leave Act five days prior to the reported 

date of injury, and the present claim was identical to a September 26, 2010 work injury under 

OWCP File No. xxxxxx366.3

In a letter dated January 29, 2013, OWCP requested that appellant provide additional 

factual and medical evidence in support of his claim. 

In a February 6, 2013 statement, appellant indicated that he told his supervisor on 

January 2, 2013 that he had been injured. He noted that his injury occurred when he pulled on a 

post-con to connect it to a cart and that he was unable to get an appointment to see Dr. Oh prior 

to January 7, 2013. 

In a February 7, 2013 note, a physician assistant placed appellant off work through 

March 11, 2013. 

In a January 7, 2013 report, Dr. Oh noted that appellant returned to his office after being

seen more than two years prior for lower back pain, which he experienced that week. He noted a 

July 9, 2012 magnetic resonance imaging (MRI) scan showed degenerative disc disease, 

including disc bulging/herniations at L4-5 and L5-S1. An assessment was made of herniated 

lumbar disc and lumbar degenerative disc disease. In a January 11, 2013 report, Dr. Oh 

indicated that appellant was scheduled for a repeat MRI scan of his lumbosacral spine. An 

assessment of continuing low back pain with underlying bulging/herniated discs was provided. 

On February 20, 2013 Dr. Oh referred appellant to physical therapy for reevaluation of herniated 

lumbar disc and lumbar radiculopathy. 

 

3 The claim date of injury, September 26, 2010, was accepted for lumbar sprain, aggravation of spondylolisthesis, 

and aggravation of lumbosacral spondylosis without myelopathy. Under File No. xxxxxx366 OWCP terminated 

appellant’s wage-loss compensation and medical benefits, effective November 3, 2011. 
3

In a January 8, 2013 note, Dr. Chang Kang, a Board-certified anesthesiologist and pain 

management specialist, provided an assessment of acute lumbar radiculopathy. 

A January 14, 2013 lumbar spine MRI scan report contained an impression of disc bulge 

at L4-5 and L5-S1 disc herniation. An October 20, 2010 lumbar spine MRI scan contained an 

impression of spondylolisthesis and spondylosis at L5-S1 and disc herniation at L5-S1 with no 

nerve impingement. 

By decision dated March 4, 2013, OWCP denied the claim, finding that the medical 

evidence of record did not establish causal relationship between the accepted January 2, 2013 

work incident and a diagnosed back condition. It found that the medical evidence of record 

failed to provide rationale necessary to establish causal relationship. 

On March 8, 2013 appellant requested an oral hearing before OWCP’s Branch of 

Hearings and Review. The hearing was held on July 15, 2013. Appellant testified that, on 

January 2, 2013, he felt back pain when he pulled a post-con to attach it to a cart and that he had 

also felt back pain while driving the motorized cart prior to making the connection between the 

cart and the post-con. He testified that he had returned to full-duty work on April 15, 2013 per

Dr. Kang’s opinion. 

In a March 7, 2013 report, Dr. Kang noted that he saw appellant on January 8, 2013 for 

complaints of moderate-to-severe low back pain. Appellant reported that he was injured at work 

on January 2, 2013 while he was working on an electric cart. He felt acute pain when he was 

trying to connect a hook to the cart. Appellant could not straighten himself up because of pulling 

pain on his back. Dr. Kang noted appellant’s physical examination findings when appellant saw 

him on January 8 and March 7, 2013. He indicated that appellant has a history of back pain and 

MRI scan findings on July 9, 2012 reported L5 spondylosis and mild bulging discs at L4-5 and 

L5-S1. The MRI scan of lumbar spine, which was taken after the incident on January 14, 2013,

reported L4-5 bulging annulus with annual tear and L5-S1 posterolateral disc herniation to the 

left side. Dr. Kang indicated that the MRI scan reports needed to be compared for further 

evaluation. He advised that appellant continue with physical therapy, prescription drugs, and 

recommended an epidural injection. 

In an April 11, 2013 report, Dr. Kang diagnosed lumbar radiculopathy and lumbar disc 

displacement. He released appellant to full-duty work. 

An April 1, 2013 note from a physical therapist indicated that appellant had been 

undergoing physical therapy treatment for back pain since January 3, 2013. 

By decision dated August 15, 2013, an OWCP hearing representative affirmed OWCP’s 

March 4, 2013 decision. He found that the medical evidence of record was insufficient to 

establish causal relation. 

On March 7, 2014 appellant, through counsel, requested reconsideration. 

In a February 28, 2014 report, Dr. Kang indicated that he first saw appellant on June 7, 

2012 for complaints of low back pain when operating heavy equipment at work. He indicated 

that appellant went through physical therapy, acupuncture, and an epidural injection. Dr. Kang 
4

reported that on January 2, 2013 appellant complained of pain and went to his local physician, 

who prescribed physical therapy. Appellant saw him on January 8, 2013 and his pain had 

worsened. He reported low back pain worse due to acute injury during work on January 2, 2013 

after he had pulled a heavy object. Dr. Kang diagnosed lumbar radiculopathy and acute 

exacerbation of back pain and scheduled appellant for a lumbar spine MRI scan. He reported the 

January 14, 2013 MRI scan findings. Dr. Kang noted that, on the January 18, 2013 follow-up 

visit, appellant reported that the pain was better, but had spread to the lower extremities. He

diagnosed lumbar radiculopathy and lumbar disc displacement. Dr. Kang reported appellant’s 

examination findings and working diagnoses of lumbar radiculopathy at subsequent office visits 

from March 7, 2013 through January 30, 2014. He opined that appellant had an aggravation of 

his degenerative lumbar spine disorder with radiculopathy, most probably related to the 

January 2, 2013 job injury. Dr. Kang indicated that appellant had no sharp pain associated with 

his usual daily activities such as walking, sitting, or standing prior to January 2, 2013 and that 

appellant’s pain level reached new highs for 10 months after January 2, 2013. Appellant also 

complained of radiating pain and paresthesia to his right hip and right posterior thigh. Dr. Kang 

also reported that the MRI scan of the lumbar spine taken after January 2, 2014 showed a greater 

degree of bulging and herniation at the L4-5 and L5-S1 level. 

By decision dated May 13, 2015, OWCP denied modification of the August 15, 2013 

decision. It found Dr. Kang’s February 28, 2014 report insufficient to establish appellant’s claim 

because the physician provided no objective evidence or medical rationale to support or establish 

a change in his baseline condition, or that any possible changes were in fact connected to the 

claimed work incident of January 2, 2013. 

On June 19, 2015 counsel requested reconsideration. 

In a June 8, 2015 note, Dr. Kang indicated that appellant was known to have a low back 

problem in the past for which he provided treatment. He indicated that there were significant 

differences in MRI scan findings between the prior July 9, 2012 and January 14, 2013 MRI scans

of the lumbar spine, such as an annulus tear at L4-5, a disc herniation instead of a bulge at L5-

S1, and the fact that appellant sought medical care right after he felt pain at work while pulling a 

post-con to an electric cart. For those reasons, Dr. Kang opined that appellant injured his back at 

work. 

By decision dated August 20, 2015, OWCP denied modification of its May 13, 2015 

decision. It found that Dr. Kang failed to provide any medical rationale in his June 8, 2015 

report which explained how pulling a hook to connect to the post-con caused, aggravated, or 

contributed to the diagnosed conditions. 

On December 16, 2015 counsel again requested reconsideration.

In a December 16, 2015 report, Dr. Kang reiterated the contents of his prior report dated 

February 28, 2014. The only change in that report from the February 28, 2014 report was the 

following paragraph wherein Dr. Kang indicated: 

“On Jan[uary 2,] 2013 [appellant] was pulling a post[-]con to an electric cart 

using his right hand, he felt sudden onset of severe back pain which radiated to his 
5

right leg. Although the post-cons were on wheels, each of them weighed about 

1000 [pounds] and he had to use enough force to hook them up to an electric cart. 

While [appellant] was performing his duty as usual, he heard popping in his body 

and he could not stand up because of pain on his right leg. He experienced severe 

pain in low back and numbness/tingling and weakness noted in the low 

extremities. [Appellant] went to the local [physician] who recommended physical 

therapy and MRI [scan] of lumbar spine.” 

Dr. Kang indicated that appellant had no sharp pain associated with his usual daily 

activities such as walking, sitting, or standing prior to January 2, 2013, and that his pain level 

reached new highs after January 2, 2013 for 10 months. Appellant also complained of radiating 

pain and paresthesia to his right hip and right posterior thigh. He also reported that the lumbar 

spine MRI scan taken after January 2, 2013 showed a greater degree of bulging and herniation at 

the L4-5 and L5-S1 levels. Dr. Kang concluded, as he did in his prior report, that appellant had a 

definite aggravation of his degenerative lumbar spine disorder with radiculopathy, most likely 

related to the January 2, 2013 job injury. 

By decision dated March 11, 2016, OWCP denied modification of its August 20, 2015 

decision. It found that Dr. Kang’s December 16, 2015 report was the same as his February 28, 

2014 report and the only new information provided was the mechanism of injury of the 

January 2, 2013 work incident. OWCP found that he failed to provide a discussion or rationale 

on causality between the preexisting conditions and the January 2, 2013 work incident. 

LEGAL PRECEDENT

A claimant seeking benefits under FECA4has 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.5

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.6 The second component is whether the employment incident caused a 

 

4 See supra note 2.

5 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6 Elaine Pendleton, 40 ECAB 1143 (1989).
6

personal injury.7 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.8

In any case where a preexisting condition involving the same part of the body is present,

and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.9

ANALYSIS

Appellant claimed that he sustained a low back injury as a result of connecting a post-con 

on January 2, 2013. OWCP accepted that the claimed incident occurred as alleged. It found, 

however, that the medical evidence of record is insufficient to establish a diagnosed lumbar 

condition causally related to the accepted January 2, 2013 work incident.

Appellant submitted several reports from Dr. Kang. Progress notes from Dr. Kang 

indicated that appellant’s diagnosed medical condition was sustained at work. The Board has 

found that the mere fact that a condition manifests itself or is worsened during an employment 

period does not raise an inference of causal relationship between the two.10 In a March 7, 2013 

report, Dr. Kang noted the history of injury and indicated that appellant had a history of back 

pain. He noted MRI scan findings of July 9, 2012, taken prior to the January 2, 2013 incident, 

and MRI scan findings of January 14, 2013, taken after, and noted that the MRI scan reports 

showed significant changes. Dr. Kang, however, failed to provide a rationalized medical opinion 

supporting causal relationship. The record reflects that appellant has preexisting lumbar disc 

conditions disclosed by a previous MRI scan. The prior claim was accepted for lumbar sprain, 

aggravation of spondylolisthesis, and aggravation of lumbosacral spondylosis without 

myelopathy, and these accepted conditions were deemed to have resolved as of November 2011. 

While Dr. Kang noted significant changes between the two MRI scans, he did not opine how 

new conditions were due to the accepted incident as opposed to the effects of the preexisting

conditions. The Board has held that a physician’s opinion regarding causal relationship that is 

primarily based on appellant’s own representations rather than on objective medical findings is 

 

7

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires 

rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). 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. Victor J. Woodhams, 41 ECAB 345, 

352 (1989). 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). Id.

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

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

10 Daniel O. Vasquez, 57 ECAB 559 (2006).
7

of limited probative value.11 Additionally, a well-rationalized opinion is particularly warranted 

when there is a history of preexisting condition.12

In his February 28, 2014 report, Dr. Kang opined that appellant had an aggravation of his 

degenerative lumbar spine disorder with radiculopathy, most probably related to the January 2, 

2013 job injury. He rationalized that appellant had no sharp pain associated with his usual daily 

activities such as walking, sitting, or standing prior to January 2, 2013 and that his pain level 

reached new highs after January 2, 2013 for 10 months. Appellant also complained of radiating 

pain and paresthesia to his right hip and right posterior thigh and the MRI scan of lumbar spine 

taken after January 14, 2013 showed greater degree of bulging and herniation at the L4-5 and 

L5-S1 level. In his December 16, 2015 report, Dr. Kang reiterated that the contents of his prior 

report dated February 28, 2014 and added a paragraph on the mechanism of injury. He

continued to opine, as he did in his prior report, that appellant had an aggravation of his 

degenerative lumbar spine disorder with radiculopathy, “most likely” related to the January 2, 

2013 job injury. 

In his reports of February 28, 2014 and December 16, 2015, Dr. Kang presented an 

equivocal and speculative opinion that appellant’s medical conditions were “most probably”

related to the January 2, 2013 employment incident. While the opinion of a physician supporting 

causal relationship need not be one of absolute medical certainty, the opinion must not be 

speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of 

medical certainty.13 Additionally, Dr. Kang offered no objective evidence and rationale to 

support that appellant’s condition was causally related to the work injury and not activities of 

daily living. He noted that appellant had an increase in his usual activities such as walking, 

sitting, and standing in addition to the pain he felt when performing the work duty. However, 

activities such as walking, sitting, or standing are elements of daily living and not activities 

solely related to appellant’s federal employment. Other than noting that appellant had an 

increase in the severity of his pain, Dr. Kang did not explain how appellant’s work incident 

exacerbated his underlying lumbar condition. While he noted a greater degree of bulging and 

herniation at the affected levels on MRI scan before and after the January 2, 2013 employment 

incident, it is unclear how he was able to distinguish appellant’s preexisting lumbar condition 

from the aggravating effects of the January 2, 2013 employment incident. Dr. Kang provided no 

objective evidence to support that there has been a change in appellant’s baseline condition or 

medical rationale to establish that any changes were connected to the January 2, 2013 work 

incident. His opinion on causal relationship 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).14 

While Dr. Kang noted that the January 2, 2013 employment incident “most likely” aggravated 

appellant’s preexisting conditions, for the above reasons, he has not adequately explained the 

 

11 C.M., Docket No. 14-0088 (issued April 18, 2014).

12 T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

13 Ricky S. Storms, 52 ECAB 349 (2001).

14 Victor J. Woodhams, supra note 7. 
8

basis for his opinion on causal relationship. Thus, his opinion is insufficient to establish causal 

relationship.

In his June 8, 2015 report, Dr. Kang opined that appellant injured his back at work. He 

reported that there were significant differences in MRI scan findings of lumbar spine between the 

prior July 9, 2012 MRI scan of lumbar spine and the January 14, 2013 MRI scan of lumbar spine 

and the fact that appellant sought medical care right after he felt pain at work while pulling a 

post-con to an electric cart. However, Dr. Kang’s general statement on causation does not 

constitute rationalized medical opinion evidence linking a medical diagnosis to the accepted 

employment incident. He did not provide a specific medical diagnosis indicating that the 

condition was either caused or aggravated by the January 2, 2013 incident, nor did he provide an 

explanation as to how this aggravation occurred. A mere conclusion without the necessary 

rationale explaining how and why the physician believes that a claimed employment incident 

resulted in a diagnosed condition is insufficient to meet a claimant’s burden of proof.15

In his December 16, 2015 report, Dr. Kang reiterated the contents of his prior report 

dated February 28, 2014 and added a paragraph relative to the mechanism of injury. He

continued to opine, as he did in his prior report, that appellant had a definite aggravation of his 

degenerative lumbar spine disorder with radiculopathy, “most likely” related to the January 2, 

2013 employment incident. As explained above, opinions that are speculative have no probative 

value.16 

Dr. Oh provided an assessment of herniated lumbar disc and lumbar degenerative disc 

disease in his January and February 2013 reports. While he indicated in his January 7, 2013

report that appellant was seen for increased lower back pain he experienced the past week,

Dr. Oh failed to mention the history of appellant’s January 2, 2013 work injury or provide a 

rationalized medical opinion relating the employment incident to the medical diagnosis.17 

Additionally, Dr. Oh appears to base his medical diagnosis on the results of a July 9, 2012 MRI

scan, which predates appellant’s work incident. The need for medical reasoning or rationale is 

particularly important given the fact that medical evidence of record indicates that appellant had 

a preexisting back condition.18 Thus, Dr. Oh’s reports are insufficient to establish his claim. 

The other reports of record are of no probative value on the issue of causal relationship. 

Dr. Oh’s January 11, 2013 disability status report is also insufficient to discharge appellant’s 

burden of proof as it does not address causal relationship.19 The diagnostic testing of record, 

including the lumbar MRI scan reports, are not probative to the issue of causal relationship as 

 

15 G.M., Docket No. 14-2057 (issued May 12, 2015).

16 Victor J. Woodhams, supra note 7. 

17 Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors 

identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No. 

11-0237 (issued September 9, 2011).

18 T.M., supra note 12.

19 See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the 

cause of an employee’s condition is of limited probative value on the issue of causal relationship).
9

they do not offer any opinion regarding the cause of an employee’s condition.20 The reports by 

the physician assistant and physical therapist are also not probative to the issue of causal 

relationship. The Board has held that notes signed by nurses, physical therapists, or physician

assistants are not considered medical evidence as these providers are not considered physicians 

under FECA.21

Consequently, appellant has failed to submit medical evidence to establish his traumatic 

injury claim. As noted, causal relationship is a medical question that must be established by 

probative medical opinion from a physician.22 The physician must accurately describe 

appellant’s work duties and explain the pathophysiological process by which these duties would 

have caused or aggravated his condition.23 The need for medical reasoning or rationale is 

particularly important given the fact that appellant had a preexisting back condition.24

On appeal counsel asserts that Dr. Kang’s reports dated February 28, 2014, June 8 and 

December 16, 2015 are sufficient to establish that appellant’s claimed low back condition is 

causally related to the January 2, 2013 employment incident. For the above-noted reasons, the 

Board finds that the medical evidence of record, including Dr. Kang’s reports, is insufficient to 

establish that the diagnosed low back condition is causally related to the accepted employment 

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 not met his burden of proof to establish that his 

claimed low back condition is causally related to the accepted January 2, 2013 employment 

incident.

 

20 Willie M. Miller, 53 ECAB 697 (2002).

21 See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses, and 

physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by State law).

22 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 7 at 345 (1989).

23 Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors 

identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No. 

11-0237 (issued September 9, 2011).

24 T.M., supra note 12.
10

ORDER

IT IS HEREBY ORDERED THAT the March 11, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 23, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board