United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Albany, NY, Employer

__________________________________________

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Docket No. 19-0863

Issued: November 4, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 15, 2019 appellant, through counsel, filed a timely appeal from a February 21, 

2019 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 February 21, 2019 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 his burden of proof to establish conditions causally

related to the accepted November 6, 2015 employment incident.

FACTUAL HISTORY

On November 16, 2015 appellant, then a 57-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that, on November 6, 2015, he sustained pain in his low back and right 

buttocks when repairing damaged mail while in the performance of duty. He stopped work on 

November 6, 2015. 

OWCP received a November 19, 2015 note from Dr. Khyber Khan, a Board-certified 

family practitioner, who indicated that appellant was “[o]ut of work until further notice.”

In a development letter dated December 9, 2015, OWCP informed appellant that he had 

not submitted sufficient factual or medical evidence to establish his claim. It advised him of the 

type of factual and medical evidence needed and provided a questionnaire for his completion. 

OWCP afforded appellant 30 days to respond.

OWCP received a January 7, 2016 return to work notice (Form CA-3) advising that 

appellant returned to full-time work without restrictions on December 22, 2015. 

By decision dated January 11, 2016, OWCP denied the claim, finding that appellant had 

not provided sufficient evidence to support the factual aspects of his claim. It noted that he did 

not respond to the development questionnaire or provide a detailed description regarding the 

alleged employment incident. OWCP concluded, therefore, that the requirements had not been 

met to establish an injury as defined by FECA.

A November 7, 2015 hospital discharge summary from Dr. Prajesh Ghimire, a Boardcertified family practitioner, diagnosed back pain. 

In a December 18, 2015 duty status report (Form CA-17), Dr. Khan diagnosed sciatica and 

a bulging lumbar disc. He indicated that appellant could return to work on December 21, 2015.

In a December 31, 2015 report, Dr. Richard Jackson, a neurologist, noted that he saw 

appellant for right leg pain. He diagnosed double crush syndrome of S1 radiculopathy and

piriformis syndrome. 

On January 12, 2016 OWCP received appellant’s response to the development 

questionnaire. Appellant noted that he reported his injury on November 10, 2015, four days after 

the incident, because he had been in the hospital on medication. He explained that, while he was 

working the damaged mail on November 6, 2015, he picked up a full tray of damaged flats and 

turned to put them in a hamper. At that time, something “felt weird” in his lower back and his 

back hurt. Appellant explained that it was close to quitting time, there was no supervisor present, 

and he went home. He also noted that two individuals witnessed that he was in pain on 

November 6, 2015, and asked him about his injury. Additionally, appellant indicated that one of 

the individuals, D.U., helped him leave the building and walk to his car. He explained the 
3

immediate effects of his injury included a sharp and severe pain in his lower back and right 

buttocks.

On June 8, 2016 appellant, through counsel, requested reconsideration. In support thereof, 

OWCP received diagnostic tests and hospital records from November 7 to 15, 2015, some of which 

were illegible. In a November 7, 2015 note, Dr. Christopher Barsotti, an emergency medicine 

specialist, noted that appellant presented with mild-to-moderate lower back pain which began the 

prior day. He explained that appellant worked at the employing establishment, engaged in 

moderate lifting of boxes, and his back pain worsened with movement. Dr. Barsotti found 

intractable pain secondary to sciatica and diagnosed acute sciatica. 

In a November 7, 2015 note, Dr. Khan advised that appellant presented to the emergency 

room after having severe, right side lower back pain, which started the prior night. He indicated 

that appellant related that he was at work when he felt a sharp pinch in his right lower back area

which radiated down his right leg. Dr. Khan diagnosed severe sciatica. 

In a November 12, 2015 report, Dr. Jackson noted that appellant presented to the 

emergency room with severe right side lower back pain, which began the prior night. He indicated 

that appellant related that he was at work when he felt a sharp pain in his right buttock, which 

radiated down his right leg. Dr. Jackson assessed classic pain syndrome associate with S1 nerve 

root of gluteus maximus spasm and medial gastroc spasm. In a November 13, 2015 note, he

indicated that appellant was hospitalized for low back pain. 

A November 8, 2015 computerized tomography (CT) scan of appellant’s lumbar spine, 

read by Dr. Leonides T. Fernando, a Board-certified radiologist, revealed a L2-3 right paracentral 

disc herniation, a suspected L4-5 central disc protrusion, L5-S1 degenerative disc disease, facet 

arthrosis, and slightly narrowed left neural foramen. 

OWCP also received physical therapy notes dated November 15, 2015, and nurses’ notes 

dated November 7 and 15, 2015. It also received statements from appellant’s coworkers who 

observed that he was in pain after the incident.

In a November 19, 2015 report, Dr. Khan noted that appellant was admitted to the hospital 

on November 7, 2015, and discharged eight days later. He explained that appellant presented to 

the emergency room following significant lower back discomfort “after bending over at work to 

remove an item.” Dr. Khan saw appellant on December 3, 2015, and diagnosed sciatica. He saw 

appellant again on December 18, 2015, and January 15, 2016 and diagnosed lumbago with sciatica 

and related that appellant “acquired this injury at work while lifting a mail tray.”

By decision dated February 21, 2019, OWCP affirmed the January 11, 2016 OWCP 

decision, as modified. It found that appellant had established that the November 6, 2015 

employment incident occurred in the performance of duty as alleged, and that a medical condition 

was diagnosed in connection with the employment injury. However, OWCP denied the claim,

finding that the medical evidence of record was insufficient to establish causal relationship. .
4

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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 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

In order to determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, OWCP must first determine whether fact of injury has been established.8 

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

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

time, place, and in the manner alleged.9 Second, the employee must submit evidence, generally 

only in the form of probative medical evidence, to establish that the employment incident caused 

a personal injury.10

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

relationship is rationalized medical evidence.11 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.12 

ANALYSIS

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

causally related to the accepted November 6, 2015 employment incident.

 

4 See supra note 2.

5 See D.C., Docket No. 19-0363 (issued July 18, 2019); 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 D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

9 D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

10 B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 

354 (1989).

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

12 M.K., Docket No 19-0428 (issued July 15, 2019;see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,

45 ECAB 365 (1994).
5

Dr. Khan provided December 18, 2015 and January 15, 2016 reports in which he noted that 

appellant “acquired this injury at work while lifting a mail tray.” He diagnosed lumbago with 

sciatica. While Dr. Khan generally attributed the diagnosed conditions to the employment 

incident, the Board has held that a physician must provide a reasoned opinion as to whether the 

employment incident caused or contributed to appellant’s diagnosed medical conditions.13 He did 

not explain how the mechanism of the accepted incident would have physiologically caused the 

diagnosed condition.14 Dr. Khan’s December 18, 2015 and January 15, 2016 reports are therefore 

insufficient to establish the claim.

None of Dr. Khan’s remaining medical reports of record offered an opinion regarding the 

cause of appellant’s low back condition. The Board has held that medical evidence that does not 

offer an opinion regarding the cause of an employee’s condition is of no probative value on the 

issue of causal relationship.15 As such these reports are insufficient to establish causal relationship.

In reports dated November 12 and 13, 2015, Dr. Jackson related that appellant was at work 

when he felt a sharp pain in his right buttock. He assessed classic pain syndrome with spasm and 

low back pain. The Board has held that “pain” and “spasm” are symptoms and not diagnoses.16 

As these reports do not diagnose an actual medical condition causing appellant’s symptoms, they 

lack probative value and are insufficient to establish appellant’s claim. 

The November 7, 2015 reports from Drs. Ghimire and Barsotti, and the December 31, 2015 

report from Dr. Jackson provided diagnoses, but did not offer a rationalized medical opinion 

regarding the cause of the diagnosed conditions and are therefore insufficient to establish 

appellant’s claim.

17

The Board notes that OWCP also received reports from nurses and physical therapists in 

support of appellant’s claim. These reports, however, are of no probative value as nurses and 

physical therapists are not considered physicians as defined under FECA.18

Finally, appellant submitted diagnostic testing reports in support of his claim. The Board 

has held that diagnostic reports lack probative value as they do not provide an opinion on causal 

relationship between appellant’s employment duties and a diagnosed condition.19 As such, these 

reports are also insufficient to establish appellant’s claim.

 

13 See D.C., Docket No. 19-0363 (issued July 18, 2019); John W. Montoya, 54 ECAB 306 (2003).

14 C.C., Docket No. 19-0059 (issued May 29, 2019). 

15 R.Z., Docket No. 19-0408 (issued June 26 2019); P.S., Docket No. 18-1222 (issued January 8, 2019).

16 V.B., Docket No. 19-0643 (issued September 6, 2019). 

17 See supra note 12.

18 See S.S., Docket No. 18-1356 (issued May 21, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.6 (2006) (lay 

individuals such as nurses, physician assistants, and physical therapists are not competent to render a medical opinion 

under FECA). See also M.M., Docket No. 16-1617 (issued January 24, 2017).

19 See S.G., Docket No. 17-1054 (issued September 14, 2017).
6

Therefore, as the medical evidence of record is insufficient to establish that appellant’s

conditions were causally related to the accepted November 6, 2015 employment incident, the 

Board finds that appellant has not met his 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(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 conditions 

causally related to the accepted November 6, 2015 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the February 21, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 4, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board