United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Hornell, NY, Employer

__________________________________________

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Docket No. 19-1356

Issued: January 8, 2020

Appearances: Case Submitted on the Record

Thomas S. Harkins, 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 June 4, 2019 appellant, through counsel, filed a timely appeal from a December 28, 

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.

 

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 has met her burden of proof to establish a back condition 

causally related to the accepted March 28, 2015 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On April 3, 2015 appellant, then a 46-year-old distribution window clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on March 28, 2015 she sustained a middle back strain when 

she attempted to open a stuck all-purpose container (APC) while in the performance of duty. She

did not stop work. 

OWCP subsequently received medical evidence, including reports dated April 17, May 20

and 28, July 10, and August 14, 2015 from Dr. Seth M. Zeidman, an attending Board-certified 

neurosurgeon. Dr. Zeidman diagnosed thoracic spondylosis without myelopathy, thoracic spine 

pain, and unspecified osteoporosis due to a March 28, 2015 employment incident. In addition, he 

addressed appellant’s need for diagnostic testing and cervical surgery.

In an October 5, 2015 letter, OWCP advised appellant that additional factual and medical 

evidence was necessary to establish her claim. It noted that her claim initially appeared to be a 

minor injury that resulted in minimal or no lost time from work and that the claim was 

administratively handled to allow a limited amount of medical payments. However, appellant’s 

claim was being reopened for consideration of the merits because she had filed a wage-loss claim.

OWCP informed her of the type of factual and medical evidence needed to establish her claim and 

afforded her 30 days to submit the necessary evidence.

OWCP subsequently received medical evidence, including additional reports from

Dr. Zeidman. In a March 9, 2015 report, Dr. Zeidman noted that appellant presented for evaluation 

after not being seen since 2009 and denied an injury or event that brought on the onset of her 

symptoms, but reported having worsening pain over the last several months. He related that he 

had performed appellant’s L4-S1 laminectomy in 2008. Dr. Zeidman noted her cervical 

symptoms, discussed examination findings, and reviewed diagnostic test results. He diagnosed 

lumbar intervertebral disc degeneration, post-laminectomy lumbar syndrome, cervical spondylosis 

without myelopathy, cervicalgia, and thoracic spondylosis without myelopathy.

By decision dated December 10, 2015, OWCP accepted that the March 28, 2015 incident 

occurred as alleged, but denied appellant’s traumatic injury claim finding that the medical evidence 

of record did not contain a rationalized medical opinion relating her diagnosed conditions to the 

accepted employment incident.

 

3 Docket No. 17-0987 (issued October 20, 2017).
3

On October 25, 2016 appellant, through counsel, requested reconsideration and submitted 

additional reports dated August 27 and November 19, 2015 and July 22, 2016 from Dr. Zeidman. 

By decision dated January 9, 2017, OWCP denied modification of its December 10, 2015 

decision, finding that the medical evidence submitted was insufficient to establish causal

relationship. 

Appellant, through counsel, appealed to the Board on April 4, 2017. By decision dated 

October 20, 2017, the Board affirmed the January 9, 2017 decision. The Board found that 

appellant had not submitted rationalized, probative medical evidence sufficient to establish a back 

injury causally related to the accepted March 28, 2015 employment incident.4

On October 8, 2018 appellant, through counsel, requested reconsideration. Counsel

submitted an additional report from Dr. Zeidman dated September 6, 2018 and alleged that

Dr. Zeidman’s new report established that all of appellant’s diagnosed conditions were causally 

related to the accepted employment incident. 

In his September 6, 2018 report, Dr. Zeidman noted a history of the accepted March 28, 

2015 employment incident, discussed findings on physical examination, and reviewed diagnostic 

test results including an April 24, 2015 magnetic resonance imaging (MRI) scan. He reiterated his 

prior assessments of cervical spondylosis and thoracic spine pain. Dr. Zeidman recommended 

diagnostic testing. He opined that there was a direct correlation between appellant’s current 

condition and the March 28, 2015 work injury and noted that, although she had a vague history of 

cervical spine discomfort, her condition was directly related to the accepted employment incident. 

Dr. Zeidman further opined that she remained temporarily totally disabled from work.

By decision dated December 28, 2018, OWCP denied modification of its prior decision 

denying appellant’s traumatic injury claim. It found that Dr. Zeidman’s September 6, 2018 report

was insufficient to establish causal relationship between the diagnosed conditions, aggravation of 

her preexisting neck and thoracic conditions, and the accepted March 28, 2015 employment 

incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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

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

time limitation period of FECA,6and that 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

 

4 The Board further denied appellant’s petition for reconsideration. Order Denying Petition for Reconsideration,

Docket No. 17-0987 (issued August 21, 2018).

5 Supra note 2.

6 S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 

ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4

related to the employment injury.7 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.8

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.9 There are 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.10 

The second component is whether the employment incident caused a personal injury.11

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.12 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment incident must be based on a 

complete factual and medical background.13 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 incident.14

In a 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.15

ANALYSIS

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

causally related to the accepted March 28, 2015 employment incident.

 

7 T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 

59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).

8 T.E., Docket No. 18-1595 (issued March 13, 2019); 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).

9 S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

10 E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11 E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

12 S.S., supra note 9; Robert G. Morris, 48 ECAB 238 (1996).

13 C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14 Id.

15 R.C., Docket No. 18-1146 (issued August 12, 2019); J.F., Docket No. 19-0456 (issued July 12, 2019); Federal 

(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).
5

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence

appellant submitted prior to the issuance of OWCP’s January 9, 2017 decision because the Board

considered that evidence in its October 20, 2017 decision and found that it was insufficient to

establish her claim. Findings made in prior Board decisions are res judicata absent any further 

review by OWCP under section 8128 of FECA.16

On reconsideration appellant submitted a September 6, 2018 report from her treating 

physician, Dr. Zeidman. Dr. Zeidman provided cervical and thoracic spine diagnoses and opined 

that appellant’s conditions were directly caused by the accepted March 28, 2015 employment 

incident and that she remained temporarily totally disabled from work. He indicated that although 

she had a “vague” history of cervical spine discomfort, there was a causal relationship between 

her diagnosed conditions and the accepted work incident. While Dr. Zeidman identified the

specific employment incident alleged by appellant, he did not provide a pathophysiological

explanation as to how attempting to open a stuck APC either caused or contributed to appellant’s 

diagnosed conditions and resultant disability or aggravated a preexisting cervical condition.17 The 

Board has consistently held that complete medical rationalization is particularly necessary when 

there are preexisting conditions involving the same body part,18 and has required medical rationale 

differentiating between the effects of the work-related injury and the preexisting condition in such 

cases.19 Thus, the Board finds that Dr. Zeidman’s report is insufficient to meet appellant’s burden 

of proof.

As appellant has not submitted rationalized medical evidence sufficient to establish an 

injury causally related to the accepted employment incident, the Board finds that she has not met 

her burden of proof.

On appeal counsel contends that the factual and medical evidence of record unequivocally 

establishes that appellant sustained cervical and thoracic spine injuries causally related to the 

March 28, 2015 employment incident. However, as discussed above, Dr. Zeidman’s report is 

insufficient to meet appellant’s burden of proof.

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 and 20 C.F.R.

§§ 10.605 through 10.607.

 

16 See B.R., Docket No. 17-0294 (issued May 11, 2018).

17 See A.S., Docket No. 19-0915 (issued November 22, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);

D.K., Docket No. 17-1549 (issued July 6, 2018).

18 A.S., id.; K.R., Docket No. 18-1388 (issued January 9, 2019).

19 See, e.g., A.S., id.; A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued 

December 31, 2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 

2017); P.O., Docket No. 14-1675 (issued December 3, 2015).
6

CONCLUSION

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

causally related to the accepted March 28, 2015 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the December 28, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 8, 2020

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