United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bronx, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0322

Issued: July 18, 2019

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 26, 2018 appellant, through counsel, filed a timely appeal from an 

October 26, 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.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 October 26, 2018 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 her burden of proof to establish lumbar conditions 

causally related to the accepted November 26, 2016 employment incident.

FACTUAL HISTORY

On December 6, 2016 appellant, then a 43-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 26, 2016 she experienced pain in her lower back, 

hips, and thighs when standing in the lobby helping customers while in the performance of duty. 

She indicated that she helped customers pack their boxes and complete forms needed for shipping 

or mailing. Appellant stopped work on November 27, 2016 and has not returned. 

In a December 1, 2016 report, Dr. John Mitamura, a Board-certified orthopedic surgeon, 

noted that appellant was injured on “November 26, 2006.”

4

 He reported that she was standing and 

walking while performing customer service duties in the lobby of the employing establishment, 

when she developed severe sharp pains in the lower back which radiated down the right hip and to 

the right thigh. The next day, appellant had severe back pain and was unable to place pressure on 

the left leg. Dr. Mitamura noted examination findings and obtained x-rays of the lumbar spine, 

which revealed left-sided spondylosis at the lower L4-5 level, grade 1 spondylolisthesis at L4-5 

with foraminal stenosis at L5-S1, and worsening with a grade 2 spondylolisthesis at the L4-5 level. 

He provided an impression of spondylolisthesis at L4-5 with lumbar radiculopathy and opined that 

appellant was totally disabled from work. Dr. Mitamura recommended magnetic resonance 

imaging (MRI) scan studies of the lumbar spine, a lumbar spine brace and physical therapy. In a 

December 1, 2016 excuse slip, he took appellant off work due to lumbar sprain. 

In a December 9, 2016 letter, the employing establishment controverted appellant’s claim. 

It noted that she was on limited duty with regard to her claim in OWCP File No. xxxxxx5915and 

that her modified duties were: answering telephone -- 1 hour (sitting); lobby director -- up to 5 

hours (standing intermittently, walking intermittently); and writing second notices -- 1.5 hours 

(sitting). The employing establishment further noted that appellant used a chair in the lobby and 

that she did not lift above her restrictions.

In a development letter dated December 12, 2016, OWCP requested additional factual and 

medical evidence in support of appellant’s November 26, 2016 claim, including a physician’s 

medical explanation as to how the reported employment incident caused or aggravated a medical 

condition. It also provided a questionnaire for appellant to complete. OWCP afforded appellant

30 days to submit the requested information. 

In work excuse slips dated December 29, 2016 and January 4, 2017, Dr. Mitamura opined 

that appellant was totally disabled due to her lumbar sprain. In a January 4, 2017 report, he noted 

that appellant had injured her low back at work on November 26, 2016. Dr. Mitamura indicated 

that appellant’s lumbar spine MRI scan studies demonstrated retrolisthesis consistent with spinal 

 

4 This appears to be a typographical error and should read as November 26, 2016. 

5 Under OWCP File No. xxxxxx591, OWCP accepted right knee conditions due to a February 20, 2014 workrelated traumatic injury. Appellant also has a claim under OWCP File No. xxxxxx444, which OWCP accepted left 

knee conditions for a February 8, 2007 work-related traumatic injury. These claims have not been administratively 

combined with the present claim.
3

instability and a disc herniation at the L5-S1 level. He further noted that loss of disc height and 

water content at L4-5 and L5-S1 were also seen. Dr. Mitamura provided an impression of lumbar 

disc herniation at L5-S1 with lumbar spinal instability and opined that appellant was totally 

disabled from work. Physical therapy and lower electromyogram/nerve conduction velocity 

(EMG/NCV) testing were recommended.

By decision dated January 25, 2017, OWCP denied appellant’s traumatic injury claim. It 

found that she had not submitted rationalized medical evidence establishing causal relationship 

between the diagnosed back conditions and the accepted employment incident. OWCP concluded, 

therefore, that appellant had not established an injury or medical condition causally related to the 

accepted employment incident.

On February 22, 2017 appellant requested a review of the written record by an OWCP 

hearing representative. The envelope containing the hearing request was not of record.

In a December 5, 2016 statement, appellant discussed her work activities on 

November 26, 2016. She indicated that after she helped a customer pack up items for international

transit, she turned to get a customs form when her back tightened up and she experienced back 

pain. 

In a January 17, 2017 attending physician’s report (Form CA-20), Dr. Mitamura indicated 

that appellant injured her back at work on November 26, 2016. He diagnosed lumbar disc 

herniation with spinal instability and indicated by checking a box marked “yes,” indicating that 

the condition was caused or aggravated by an employment activity. 

In a February 15, 2017 report, Dr. Mitamura provided an impression of lumbar spinal 

instability and radiculopathy with disc herniation secondary to a previous fall and a consequential 

injury with the date of November 26, 2016. He advised that appellant had previously fallen and 

struck her knees on February 20, 2014 and that this knee injury caused an antalgic gait, which 

created stress on her lower back and a consequential back injury to the lumbar spine. Over time 

appellant’s low back problem progressively worsened. In progress notes dated March 16, 

April 18, May 16, June 20 and June 21, 2017, Dr. Mitamura continued to diagnose lumbar spinal 

instability with radiculopathy, noting a date of injury of November 26, 2016.

By decision dated August 11, 2017, an OWCP hearing representative affirmed OWCP’s 

January 25, 2017 decision. She noted that the new evidence did not clearly explain how the 

November 26, 2016 work incident caused a new injury or what effect it had on appellant’s 

preexisting back condition. 

OWCP received progress reports dated July 27, October 3 and 31, and November 26, 2017 

and January 2 and 30, February 28, March 28, April 25, and May 23, 2018 from Dr. Mitamura, 

which continued to note a November 25, 2016 workplace injury to the low back. Dr. Mitamura

also continued to diagnose lumbar spinal instability with radiculopathy and concluded that 

appellant was totally disabled from work due to her work-related incident.

In an August 24, 2017 report, Dr. Mitamura provided an impression of lumbar spinal 

instability with disc herniation with a clear exacerbation from her standing position in the 

workplace lobby where she assisted customers. He indicated that MRI scan studies of the lumbar 

spine demonstrated a disc herniation at the L5-S1 level and EMG/NCV testing demonstrated 

abnormality with bilateral L5-S1 nerve root compression. Dr. Mitamura explained that when 
4

appellant stood in the lobby for eight hours at her workplace, the prolonged standing created 

additional downward pressure of the upper torso on the L5-S1 level which had a disc herniation. 

This exacerbated the disc herniation and created damage to the nerves. Dr. Mitamura opined that 

a clear exacerbation of the nerve root compression from the disc herniation occurred from the 

forces of the standing position which created downward pressure across the L5-S1 disc space and 

an outward migration and disc herniation in the L5-S1 level.

On July 30, 2018 appellant, through counsel, requested reconsideration. Counsel argued 

that Dr. Mitamura’s June 19, 2018 report supported causal relationship between appellant’s 

described injuries and conditions and the November 26, 2016 employment incident. 

In a June 19, 2018 report, Dr. Mitamura summarized appellant’s visits along with his 

findings and opinions on those dates along with the results of the diagnostic studies. He again 

related that appellant sustained an injury to her lower back from a work-related accident on 

November 26, 2016, while she was standing and walking performing customer service duties in 

the lobby of the employing establishment. Dr. Mitamura diagnosed lumbar radiculopathy and 

instability with spondylolisthesis at L4-5 with sprain of the ligaments of the lumbar spine. He

opined that, due to the employment incident, appellant had significant facet arthropathy, spinal 

stenosis and spondylolisthesis with spinal instability. Dr. Mitamura indicated that additional 

studies were needed and, due to the severity of injuries to the lumbar spine, appellant would 

ultimately need lumbar spine surgery. 

Additional progress reports from Dr. Mitamura dated August 2 and September 12, 2018 

continued to diagnose lumbar spinal instability with radiculopathy.

By decision dated October 26, 2018, OWCP denied modification of its August 11, 2017 

decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 filed within the applicable time 

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

disability or specific condition for which compensation is claimed is causally related to the 

employment injury.6 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or an occupational disease.7

In order 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 which must be considered in conjunction with one 

another. The first component to be established is that the employee actually experienced the 

 

6 See M.K., Docket No. 18-1623 (issued April 10, 2019); A.J., Docket No. 18-1116 (issued January 23, 2019); 

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

7 20 C.F.R. § 10.115(e); see T.O., Docket No. 18-1012 (issued October 29, 2018); see Michael E. Smith, 50 ECAB 

313 (1999).
5

employment incident which is alleged to have occurred.8 The second component is whether the 

employment incident caused a personal injury and generally can be established only by medical 

evidence. 

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

relationship is rationalized medical evidence.9 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 claimant. 

This medical opinion must include an accurate history of the employee’s employment injury and 

must explain how the condition is related to the injury.

10

ANALYSIS

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

In support of her claim, appellant submitted medical reports dating from December 1, 2016 

from Dr. Mitamura. Dr. Mitamura reported that appellant was standing and walking while 

performing customer service in the lobby of the employing establishment on November 26, 2016 

when she developed severe sharp pains in the lower back which radiated down the right hip and to 

the right thigh. 

Dr. Mitamura provided details pertaining to causal relationship of appellant’s lumbar spinal 

instability and radiculopathy with disc herniation to the standing involved in appellant’s modifiedduty position. He explained, in a February 15, 2017 report, that appellant’s February 20, 2014 

work-related knee injury caused an antalgic gait, which created stress on her lower back and a 

consequential back injury to the lumbar spine, which caused progressive pain and a lumbar disc 

herniation. Dr. Mitamura noted that over time appellant’s low back problem progressively 

worsened and she indicated November 26, 2016 as the date of subsequent injury. In his August 24, 

2017 report, he indicated that appellant’s standing position in the workplace lobby exacerbated her 

lumbar spinal instability with disc herniation. Dr. Mitamura noted objective evidence of a disc

herniation at the L5-S1 level and bilateral L5-S1 nerve root compression. He explained that 

prolonged standing created additional downward pressure of the upper torso on the L5-S1 level 

which had a disc herniation, which exacerbated the disc herniation and damage to the nerves. 

Dr. Mitamura also explained that an exacerbation of the nerve root compression from the disc 

herniation occurred from the forces of the standing position creating downward pressure across 

the L5-S1 disc space and an outward migration of the disc herniation in the L5-S1 level. In his 

June 19, 2018 report, he incorporated all of his previous reports and opined that, due to the 

employment events of November 26, 2016, appellant had significant facet arthropathy, spinal 

stenosis and spondylolisthesis with spinal instability. 

 

8 See P.F., Docket No. 18-0973 (issued January 22, 2019); see also Elaine Pendleton, 40 ECAB 1143 (1989).

9 C.P., Docket No. 18-1645 (issued March 8, 2019).

10 C.B., Docket No. 18-0071 (issued May 13, 2019).
6

The Board finds that, while Dr. Mitamura’s reports are not completely rationalized and are 

insufficient to meet appellant’s burden of proof to establish her claim, they are consistent in 

indicating that she sustained a back injury on November 26, 2018 while assisting a customer in a 

standing position and raise an uncontroverted inference between her diagnosed back conditions 

and the work-related incident and are sufficient to require OWCP to further develop the medical 

evidence and the case record.11

It is well established that proceedings under FECA are not adversarial in nature and while 

the claimant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.12

The Board will therefore remand the case for further development of the medical evidence. 

On remand, OWCP should prepare a statement of accepted facts and obtain a rationalized opinion 

from an appropriate Board-certified physician as to whether appellant’s diagnosed lumbar

conditions are causally related to the accepted November 26, 2016 employment incident, either 

directly or through aggravation, precipitation, or acceleration.13 Following this and any other 

further development deemed necessary, OWCP shall issue a de novo decision on appellant’s 

November 26, 2016 traumatic injury claim. 

CONCLUSION

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

 

11 See X.V., Docket No. 18-1360 (issued April 12, 2019); D.W., Docket No. 17-1884 (issued November 8, 2018); 

see Robert A. Redmond, 40 ECAB 796, 801 (1989).

12 See X.V., id.; S.W., Docket No. 18-0119 (issued October 5, 2018); William J. Cantrell, 34 ECAB 1233 (1993).

13 Id.; P.A., Docket No. 09-0319 (issued November 23, 2009).
7

ORDER

IT IS HEREBY ORDERED THAT the October 26, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision.

Issued: July 18, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board