United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Elmer, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-1409

Issued: April 15, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 July 12, 2018 appellant, through counsel, filed a timely appeal from a January 31, 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 expand the acceptance of her 

claim to include additional thoracic and lumbar conditions as causally related to the accepted 

August 15, 2013 employment injury.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as set forth in the prior Board decision are incorporated herein by reference. The relevant facts are 

as follows.

On August 15, 2013 appellant, then a 56-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on that date, she sustained a back sprain when attempting to lift 

a tub of mail off of a rack while in the performance of duty. 

By decision dated October 8, 2013, OWCP denied appellant’s claim. 

Appellant subsequently submitted medical evidence. In progress notes dated October 15 

and 22, 2013, Dr. Rahul V. Shah, a Board-certified orthopedic surgeon, noted that appellant was 

complaining of lumbar and thoracic pain and indicated an August 15, 2013 injury date. In progress 

notes dated October 15, 2013, he diagnosed thoracic and lumbar strains, left-sided T8-9 disc 

protrusion, and left-sided T8-9 radiculopathy, which he opined were employment related, and 

right-sided L3-4 stenosis of unknown causality. In an October 23, 2013 note, Dr. Shah detailed 

the history of appellant’s August 15, 2013 injury. He attributed appellant’s thoracic and lumbar 

sprains, T8-9 left-sided disc protrusion, and left-sided radiculopathy to the August 15, 2013 

employment injury. Examination findings of the back included negative straight leg raising, 

femoral stretch tests, and spasm at the thoracic lumbar junction. 

On October 28, 2013 appellant requested reconsideration and submitted additional 

evidence. Dr. Shah, in a progress note dated November 12, 2013, repeated appellant’s history of 

injury and physical examination findings found in his prior reports. He diagnosed thoracic pain, 

sciatica, lumbago, employment-related thoracic and lumbar strains/sprains, left-sided T12 

radiculopathy, and L3-4 right-sided stenosis of unknown origin.

By decision dated December 18, 2013, OWCP denied modification. 

OWCP subsequently received a December 24, 2013 progress note from Dr. Shah, which 

reiterated appellant’s history of injury and physical examination findings found in his prior reports. 

Dr. Shah diagnosed thoracic pain, sciatica, lumbago, employment-related thoracic and lumbar 

strains/sprains, left-sided T12 radiculopathy, and L3-4 right-sided stenosis of unknown origin. 

On August 6, 2014 appellant requested reconsideration and submitted additional medical 

evidence. In a March 5, 2014 report, Dr. Shah noted that appellant was first seen on August 20, 

2014 for the August 15, 2013 employment injury. He described how the employment incident 

 

3 Docket No. 15-1524 (issued August 10, 2016).
3

occurred and the diagnoses provided by prior physicians. Based on the mechanism of injury and 

findings detailed in his report, Dr. Shah opined that the cause of appellant’s injury was clearly due 

to bending and twisting while pulling a mail bin.

By decision dated February 17, 2015, OWCP denied modification of its prior decision. 

On July 2, 2015 appellant appealed to the Board. By decision dated August 10, 2016, the 

Board set aside OWCP’s February 17, 2015 decision, which found that appellant failed to establish 

that the August 15, 2013 incident occurred as alleged. The Board found that the weight of the 

factual evidence did in fact establish that the August 15, 2013 incident occurred as alleged. The 

Board remanded the case to OWCP to determine whether the medical opinion evidence established 

that the accepted employment incident caused an injury.4

By decision dated August 26, 2016, OWCP accepted the claim for thoracic and lumbar 

sprains. In a second decision dated August 26, 2016, it denied appellant’s claim for the conditions

of left-sided T8 and T9 disc protrusions, left-sided T8, T9, and T12 radiculopathy, L3-4 rightsided stenosis, and thoracic intervertebral disc displacement as not causally related to the accepted 

August 15, 2013 employment injury. 

On September 9, 2016 OWCP received counsel’s request for an oral hearing before an 

OWCP hearing representative, which was held on January 18, 2017. 

Additional medical evidence was received. In a February 16, 2017 report, Dr. Shah 

detailed how the August 15, 2013 injury occurred, noted results from magnetic resonance imaging

(MRI) scans, and detailed examination findings. He attributed the diagnoses of T8-9 disc 

protrusion, T8-9 radiculopathy, and right L3-4 disc protrusion to the accepted August 15, 2013 

employment injury. In support of this conclusion, Dr. Shah observed that the mechanism of injury 

and appellant’s history were consistent with the diagnoses and MRI scan findings.

By decision dated March 31, 2017, OWCP’s hearing representative set aside OWCP’s 

August 26, 2016 decision denying expansion of the acceptance of her claim. She found that 

medical evidence submitted subsequent to the August 26, 2016 decision was sufficient to warrant 

further development. 

On May 24, 2017 OWCP referred appellant for a second opinion evaluation with

Dr. Stanley Askin, a Board-certified orthopedic surgeon, to determine whether acceptance of the

claim should be expanded to include additional claimed conditions.

In a report dated June 16, 2017, Dr. Askin, based upon a review of the medical evidence, 

statement of accepted facts (SOAF), and physical examination, noted thoracic and lumbar spine 

sprains as accepted conditions and diagnosed thoracic and lumbar spine degenerative disc disease. 

He noted that following the accepted August 15, 2013 employment injury appellant experienced

several subsequent injuries. The injuries included a January 2014 slip and fall at home where she

landed on her back, a February 2014 trip and fall where she injured her right shoulder and face, 

and a March 4, 2015 employment incident where she alleged a right knee injury after slipping on 

 

4

Id.
4

ice. Dr. Askin related that a review of thoracic x-ray interpretations and MRI scan revealed T8-9 

disc abnormality and a lumbar MRI scan revealed age-appropriate degenerative disc changes. 

Physical examination findings included left posterior rib cage pain, no tenderness to touch, full 

range of motion, negative Finkelstein test, and negative Phalen’s and Tinel’s signs. Dr. Askin

opined that appellant had developed age-related degenerative back changes, which had not been 

caused by the accepted August 15, 2013 employment injury. He noted that her MRI scan findings 

did not indicate an acute trauma and opined that her preexisting thoracic and lumbar spine 

degenerative disc disease had not been aggravated by the August 15, 2013 employment injury. 

Rather, Dr. Askin found a temporary exacerbation of an underlying condition and that appellant’s 

baseline was consistent with her age. He opined that she had reached maximum medical

improvement and was capable of performing her regular employment duties.

By decision dated July 14, 2017, OWCP denied modification as it found the evidence 

insufficient to establish that the acceptance of appellant’s claim should be expanded to include the 

additional claimed spinal conditions. It found the weight of the medical opinion evidence rested 

with Dr. Askin, OWCP’s referral physician. 

On July 19, 2017 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. A video hearing was held on November 16, 2017. 

By decision dated January 31, 2018, OWCP’s hearing representative affirmed the denial 

of appellant’s request to expand the acceptance of her claim to include additional spinal conditions. 

She found Dr. Askin’s opinion constituted the weight of the medical opinion evidence. 

LEGAL PRECEDENT

Where an employee claims that a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.5 To establish causal relationship between the condition 

as well as any attendant disability claimed and the employment injury, an employee must submit 

rationalized medical evidence supporting causal relationship.6 The opinion of the physician must 

be based on a complete factual and medical background of the employee, 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.7 Neither the mere fact that a disease or condition manifests itself during a period 

of employment, nor the claimant’s own belief that the disease or condition was caused or 

aggravated by employment factors or incidents is sufficient to establish causal relationship.8

 

5 See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

6 See S.A., Docket No. 18-0399 (issued October 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000).

7

Id.

8 C.P., Docket No. 18-1645 (issued March 8, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).
5

ANALYSIS

The Board finds that appellant has not met her burden of proof to expand the acceptance 

of her claim to include additional thoracic and lumbar conditions causally related to the accepted 

August 15, 2013 employment injury.

In a June 16, 2017 report, Dr. Askin, a second opinion physician, reviewed the SOAF and 

the medical record. He noted her history, which included the August 15, 2013 employment injury, 

and subsequent injuries including a January 2014 slip and fall at home where she landed on her 

back, a February 2014 trip and fall where she injured her face and right shoulder, and a March 5, 

2015 work incident where she alleged a right knee injury. Dr. Askin also noted appellant’s current 

symptoms and provided essentially normal physical examination findings with the exception of 

left posterior rib cage pain. He attributed her degenerative changes to her age. Dr. Askin explained 

that appellant had preexisting thoracic and lumbar degenerative disc disease which symptoms had 

been temporarily exacerbated by the August 15, 2013 employment injury, but that her current

baseline was consistent with her age. He concluded that she had reached maximum medical 

improvement and could return to her regular employment duties.

The Board finds that Dr. Askin’s opinion represents the weight of the medical evidence 

with regard to appellant’s request to expand acceptance of her claim to include the additional 

conditions of left-sided T8 and T9 disc protrusions, left-sided T8, T9, and T12 radiculopathy, L3-4 

right-sided stenosis, and thoracic intervertebral disc displacement Dr. Askin provided a detailed 

medical report reviewing appellant’s history of injury and the medical evidence of record. He 

unequivocally opined that she did not have any additional thoracic or lumbar conditions caused or 

aggravated by the August 15, 2013 employment injury, and provided a well-reasoned medical 

explanation supporting his findings, but rather she had age-related degenerative back changes. 

Dr. Askin’s opinion was based on an accurate medical history.9 The Board thus finds that his 

report constitutes the weight of the medical evidence.

The record also contains various progress reports and March 5, 2014 and February 16, 

2017 from Dr. Shah in which he attributed appellant’s T8-9 left-sided disc protrusion and leftsided T8-9 radiculopathy to the accepted August 15, 2013 employment injury. In a February 16, 

2017 report, Dr. Shah explained that the diagnoses and MRI scan findings were consistent with 

appellant’s history and mechanism of injury. The Board finds that, while he concluded that the 

August 15, 2013 employment injury caused the diagnosed thoracic and lumbar conditions, 

Dr. Shah has not provided sufficient medical rationale in support of his opinion. He has not 

explained how lifting a tub of mail off a track caused the condition, nor has he discussed the impact 

of injuries appellant sustained in 2014 and 2015. The opinion of a physician supporting causal 

relationship must rest on a complete factual and medical background supported by affirmative 

evidence, address the specific factual and medical evidence of record, and provide medical 

rationale explaining the relationship between the diagnosed condition and the established 

incident10 As Dr. Shah did not address all of the factual and medical evidence of record and did 

 

9 A.C., Docket No. 16-1670 (issued April 6, 2018); N.P., Docket No. 15-1580 (issued September 1, 2016); see also 

Melvina Jackson, 38 ECAB 443 (1987).

10 See S.H., Docket No. 17-1660 (issued March 27, 2018); see Lee R. Haywood, 48 ECAB 145 (1996).
6

not provide sufficient medical explanation as to how appellant’s diagnosed lumbar and thoracic 

conditions were causally related to the August 15, 2013 employment injury, his opinions are of 

limited probative value.

11

The Board thus finds that appellant has not met her burden of proof to establish that the 

acceptance of the claim should be expanded to include additional conditions.

On appeal, counsel contends that Dr. Shah, in his February 16, 2017 report, sufficiently 

explained how the thoracic and lumbar condition had been caused by the accepted August 15, 2013 

employment injury, while Dr. Askin failed to provide supporting rationale for his conclusion. He

argues that Dr. Shah’s February 16, 2017 report therefore represents the weight of the evidence,

or alternatively, creates a conflict in the medical opinion evidence regarding whether appellant 

sustained additional lumbar and thoracic conditions as a result of her August 15, 2013 employment

injury. As found above, however, Dr. Askin’s opinion that appellant did not sustain further 

thoracic lumbar conditions as a result of her accepted employment injury was sufficiently 

rationalized and represented the weight of the medical opinion evidence. 

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 her burden of proof to expand the acceptance 

of her claim to include additional thoracic and lumbar conditions causally related to the August 15, 

2013 employment injury.

 

11 S.A., Docket No. 09-2339 (issued July 22, 2010).
7

ORDER

IT IS HEREBY ORDERED THAT the January 31, 2018 decision of Office of Workers’

Compensation Programs is affirmed.

Issued: April 15, 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