United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Linden, NJ, Employer

__________________________________________

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Docket No. 18-1037

Issued: March 26, 2019

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 23, 2018 appellant, through counsel, filed a timely appeal from a March 27, 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 his burden of proof to establish that his lumbar 

conditions were causally related to the accepted January 6, 2014 employment incident. 

FACTUAL HISTORY

On March 27, 2014 appellant, then a 48-year-old letter carrier, filed a recurrence claim 

(Form CA-2a) alleging that he sustained a recurrence of disability on January 8, 2014 while at 

work due to a previously accepted January 24, 2013 employment injury under OWCP File 

No. xxxxxx570. He explained that he felt pain in his legs and worsening back pain while pushing 

a hamper of mail on a snow covered parking lot, while in the performance of duty. Appellant 

stopped work on February 4, 2014. Due to the circumstances of his claim, OWCP determined that 

the recurrence claim should be adjudicated as a new traumatic injury claim (Form CA-1) and 

assigned OWCP File No. xxxxxx600. 

Along with the claim, appellant filed a claim for wage-loss compensation (Form CA-7) for 

the period February 4 through May 30, 2014. 

In reports dated February 4, 11, and 14, March 4, and June 4, 2014, Dr. Morton Farber, a 

Board-certified orthopedic surgeon, provided impressions of herniated nucleus pulposus and

lumbar and left-sided sciatica and noted that appellant could not return to work. 

In a February 14, 2014 attending physician’s report (Form CA-20), Dr. Farber noted that 

appellant had sustained an employment injury on January 24, 2013. He opined that appellant was

totally disabled from February 4 through March 4, 2014 due to a displaced lumbar disc and 

sciatica. 

In a June 2, 2014 report, Dr. Nathaniel Sutain, a Board-certified physiatrist, noted that 

appellant reported that his lower extremity radicular symptoms occurred after pushing a hamper 

at work on January 7, 2014. He indicated that x-rays showed some loss of disc height in the lumbar 

spine at L4-5. Dr. Sutain provided an impression of herniated nucleus pulposus, lumbar left. He 

ordered a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine. In a June 4, 2014

work restriction evaluation (OWCP-5c) form, Dr. Sutain held appellant off work for 

approximately two months. In a June 4, 2014 Form CA-20, he indicated that on January 7, 2014

appellant was pushing a hamper with mail in a parking lot covered with snow, which made it hard 

to push, when his back and leg began to hurt. Dr. Sutain diagnosed herniated lumbar disc and 

opined that the diagnosed condition was caused or aggravated by appellant’s employment activity 

as appellant had reported exacerbation of symptoms after the alleged January 2014 employment 

incident. 

In a June 4, 2014 letter, the employing establishment challenged the claim. It reported that 

appellant’s time and attendance record indicated that he was on annual leave when the alleged 

incident occurred. 

By development letter dated June 9, 2014, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. It advised him as to the medical and factual evidence 
3

required. OWCP also instructed appellant to complete a questionnaire regarding the factual 

aspects of his claim. It afforded him 30 days to provide the necessary evidence. 

In response, OWCP received appellant’s June 25, 2014 signed questionnaire which was 

otherwise incomplete.3It also received a traumatic injury claim (Form CA-1), which noted a date 

of injury of January 7, 2014, and a June 17, 2014 note from Rosario Davidson, a certified physician

assistant. 

The employing establishment continued to challenge appellant’s claim, however, in a 

June 23, 2014 letter, T.L., a supervisor, indicated that January 7, 2014 was the correct date of 

injury. 

By decision dated July 11, 2014, OWCP denied the claim as the factual component of fact 

of injury had not been established. It noted that appellant was on annual leave on January 7, 2014. 

On May 18, 2015 appellant, through counsel, requested reconsideration. Counsel argued 

that the supervisor’s statement of August 11, 2014 established the factual aspect of the claim and 

that the medical evidence of record was sufficient to establish the claim.

In an August 11, 2014 statement, T.L., indicated that appellant had reported to him on 

January 6, 2014 that appellant’s back was bothering him from pushing his hamper through the 

snow in the parking lot to load his vehicle. He noted that the dates of injury “were incorrectly

entered” on the Form CA-2 “and later corrected. After reviewing the dates, I realized the error 

and correction.” T.L. acknowledged that he should have been more diligent before submitting 

information. Witness statements were received along with medical evidence predating the current 

claim which referred to the January 24, 2013 work injury. 

In a January 8, 2015 report, Dr. Sutain indicated that he first saw appellant on June 3, 2014 

for lower extremity radicular symptoms. Appellant reported that his injury occurred on January 6, 

2014 when he was pushing a mail hamper and exacerbated a previous employment injury. 

Dr. Sutain noted appellant’s medical course and diagnosed herniated nucleus pulposus, sciatica,

and facet arthropathy. He opined that appellant’s diagnoses were related to the January 6, 2014 

employment incident. Dr. Sutain noted that it was unlikely that appellant would have been able to 

work prior to the reexacerbation. He also noted the fact that appellant’s symptoms were radicular 

in nature and that he was pushing a large mail hamper supported a finding that his radicular 

symptoms were causally related to the January 6, 2014 employment incident. 

On February 11, 2015 appellant underwent a discectomy at L4-5. On October 27, 2015 he 

underwent L3-4 and L4-5 fusion surgery. 

On February 11, 2016 counsel requested the status of appellant’s request for 

reconsideration. 

 

3 Appellant also submitted Form CA-7 claims for compensation for the period beginning February 4, 2014. OWCP 

advised him, in a June 17, 2014 letter, that until his claim was adjudicated, no action would be taken on his CA-7 form 

claims. 
4

By decision dated March 28, 2016, OWCP modified its prior decision to reflect the date of 

injury as January 6, 2014, but affirmed the denial of the claim as causal relationship had not been 

established between the diagnosed conditions and the accepted employment incident.

On October 12, 2016 counsel requested reconsideration. 

In a June 16, 2016 report, Dr. Sutain noted the history of the January 24, 2013 and 

January 6, 2014 employment incidents. He noted that appellant was on partial duty from the initial 

injury. Once appellant had the second incident, he was unable to continue working partial duty 

because of the severity of his pain. Dr. Sutain noted that appellant failed conservative treatment 

and had to undergo spinal fusion surgery. He opined that appellant had a worsening of his 

symptoms which correlated to MRI scan findings after the January 6, 2014 injury. Dr. Sutain 

noted that appellant had significant herniated discs at L3-4, L4-5, and L5-S1 after the initial 

January 24, 2013 injury, and that those conditions continued after the second injury, caused his 

symptoms to become refractory to treatment and necessitated a spinal fusion. 

By decision dated January 10, 2017, OWCP denied modification of its March 28, 2016 

decision. It found that the treating physicians failed to provide a well-reasoned medical 

explanation, with supporting objective findings, as to how the accepted January 6, 2014 

employment incident caused or aggravated the diagnosed conditions. 

On January 8, 2018 OWCP received appellant’s January 3, 2018 request for 

reconsideration. 

In reports dated June 14 and September 7, 2017, Dr. David Weiss, an osteopath and Boardcertified family practitioner, noted the history of appellant’s January 6, 2014 employment incident. 

He related that appellant’s medical history and treatment, provided examination findings, and 

reviewed medical records. Dr. Weiss diagnosed: aggravation and acceleration of preexisting 

lumbar spine pathology (workers’ compensation injury January 2, 2013 with documented disc 

herniations L3-4, L4-5, and L5-S1); status post interventional pain management with lumbar nerve 

root block; aggravation of preexisting lumbar spinal stenosis; status post open posterolateral 

discectomy L4-5, February 11, 2015; recurrent disc herniation L4-5, MRI scan positive May 26, 

2015; aggravation of lumbar spinal stenosis; status post L3-4 and L4-5 anterior lumbar interbody 

fusion with insertion of PEEK cage spacers, October 27, 2015; and status post L3 to L5 

posterolateral fusion with pedicle screw instrumentation and posterolateral bony fusion, 

October 27, 2015. He opined that appellant’s aggravation and acceleration his lumbar spine 

condition following the January 6, 2014 incident necessitated lumbar spine surgery. Dr. Weiss 

further opined that the mechanism of injury, pushing the mail hamper (stuck in snow) would be 

conductive to the aggravation and acceleration that appellant sustained. In his September 7, 2017 

report, he indicated that “it is my opinion, giv[ing] [appellant’s] previous compromised lumbar 

spine, that the trauma of January 6, 2014 caused additional inflammation thereby impinging the 

nerve root causing lower extremity pain and increasing his lumbar spine pain.” 

By decision dated March 27, 2018, OWCP denied modification of its previous decision. 
5

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 period of FECA, that an injury was sustained 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.5 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.6

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. There 

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

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

place, and in the manner alleged.7 Second, the employee must submit evidence, in the form of 

medical evidence, to establish that the employment incident caused a personal injury.8

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. The opinion of the 

physician must be based on a complete factual and medical background of the clamant, must be 

one of reasonable certainty, and must be supported by medical rationale explaining the nature of 

the relationship between the diagnosed condition and the specific employment incident identified 

by the claimant.9

ANALYSIS

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

conditions were causally related to the accepted January 6, 2014 employment incident. 

Appellant was initially treated by Dr. Farber. While Dr. Farber noted in his February 4, 

2014 report that appellant had new back pain and left-sided sciatica and in his February 14, 2014

Form CA-20 report diagnosed displaced lumbar disc and sciatica, he did not provide a history of 

 

4 See supra note 2.

5 M.M., Docket No. 18-1366 (issued February 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

6

J.M., Docket No. 18-1578 (issued February 27, 2019); S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 

345 (1989). A traumatic injury refers to injury caused by a specific event or incident or series of events or incidents 

occurring within a single workday or work shift whereas an occupational disease refers to an injury produced by 

employment factors which occur or are present over a period longer than a single workday or work shift. 20 C.F.R. 

§ 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).

7 See M.E., Docket No. 18-0330 (September 14, 2018); D.B., 58 ECAB 464 (2007); Julie B. Hawkins, 38 ECAB 

393 (1987).

8 See M.E., id.; C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); John J. Carlone, 

41 ECAB 354 (1989).

9 See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).
6

injury or offer an opinion as to the cause of appellant’s 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.10 These reports, therefore, are insufficient to 

establish appellant’s claim. 

Appellant also submitted multiple reports from Dr. Sutain. In his June 2, 2014 report,

Dr. Sutain noted that appellant reported that his radicular symptoms occurred after pushing a 

hamper at work on January 7, 2014. While he diagnosed a left lumbar herniated nucleus pulposus

and held appellant off work, he did not offer a medical opinion regarding causal relationship 

between the diagnosed conditions and the January 6, 2014 employment incident.11 In his June 4, 

2014 Form CA-20, Dr. Sutain opined that the diagnosed herniated lumbar disc was caused or 

aggravated by appellant’s employment activity as appellant had reported exacerbation of 

symptoms after the January 2014 incident. Similarly, in his January 8, 2015 report, he indicated 

that it was unlikely that appellant would have been able to work prior to the reexacerbation, the 

Board has held that an opinion that a condition is causally related because the employee was 

asymptomatic before the injury, without adequate rationale, is insufficient to establish causal 

relationship.12 In his June 16, 2016 report, Dr. Sutain opined that appellant had a worsening of his 

symptoms which correlated to MRI scan findings after the January 6, 2014 injury. He indicated 

that after the first work injury of January 24, 2013 appellant had significant herniated discs at L3-4, 

L4-5, and L5-S-1, after the second injury of January 6, 2014 appellant’s symptoms to become 

refractory to treatment and necessitated a spinal fusion. The Board has explained, however, that a 

physician must provide a narrative description of the identified employment incident and a 

reasoned opinion explaining how physiologically the employment incident described caused or 

contributed to appellant’s diagnosed conditions.13 This opinion did not explain the mechanism of 

injury, but rather, offered a conclusory opinion regarding the cause of an employee’s condition,

which is of limited probative value on the issue of causal relationship.14 The Board thus finds that

Dr. Sutain’s reports are of limited probative value.

Appellant was also treated by Dr. Weiss. Dr. Weiss opined in medical reports dated 

June 14 and September 7, 2017 that the January 6, 2014 injury aggravated and accelerated 

appellant’s preexisting lumbar spine condition. In his June 14, 2017 report, he concluded that the 

mechanism of injury of pushing the mail (stuck in snow) would be conductive to the aggravation 

and acceleration appellant sustained. The Board has previously held that generalized and 

speculative statements are insufficient to establish causal relationship because they merely repeat

appellant’s allegations and are unsupported by adequate medical rationale explaining how the 

specific physical activity actually caused the diagnosed conditions.15 As Dr. Weiss did not explain 

 

10 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11 Id.

12 M.R., Docket No. 14-0011 (issued August 27, 2014).

13 D.M., Docket No. 18-1434 (issued February 22, 2019); John W. Montoya, 54 ECAB 306 (2003).

14 A.D., 58 ECAB 149 (2006).

15 K.W., Docket No. 10-0098 (issued September 10, 2010).
7

how pushing the hamper in snow would have physiologically caused aggravation or acceleration 

of appellant’s lumbar disc conditions, his opinion is of limited probative value.16 In his 

September 7, 2017 report, he further attempted to explain that given the claimant’s previous 

compromised lumbar spine, the trauma of January 6, 2014 caused additional inflammation thereby 

impinging the nerve root which causing lower extremity pain and increased appellant’s lumbar 

spine pain. However, the Board has consistently held that pain is a symptom, rather than a 

compensable medical diagnosis.17 As Dr. Weiss did not explain, with medical rationale, how the 

accepted employment incident caused the diagnosed conditions, his opinions are of limited 

probative value.18

OWCP also received reports from a physician assistant. However, physician assistants are 

not considered physicians under FECA and their reports, therefore, do not constitute probative 

medical evidence.19

On appeal appellant contends that the medical evidence of record is sufficient to establish 

his claim. Contrary to his contention, the medical evidence is insufficiently rationalized and fails 

to explain how the diagnosed lumbar conditions were caused or aggravated by the accepted 

January 6, 2014 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 lumbar 

conditions were causally related to the accepted January 6, 2014 employment incident. 

 

16 Supra note 13. 

17 M.V., Docket No. 18-0884 (issued December 28, 2018).

18 Supra note 9. 

19 5 U.S.C. 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.404; E.T., Docket No. 17-0265 (issued May 25, 2018) (physician 

assistants are not considered physicians under FECA); C.P., Docket No. 17-0042 (issued December 27, 2016); 

David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006); Roy L. Humphrey, 57 ECAB 238 (2005).
8

ORDER

IT IS HEREBY ORDERED THAT the March 27, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 26, 2019

Washington, DC

Christopher J. Godfrey, 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