United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.D., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

U.S. MERCHANT MARINE ACADEMY, 

Kings Point, NY, Employer

__________________________________________

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Docket No. 18-1461

Issued: July 2, 2019

Appearances: Case Submitted on the Record

James D. Muirhead, 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 July 23, 2018 appellant, through counsel, filed a timely appeal from a July 5, 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 appellant submitted additional evidence on appeal. 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 lumbar conditions 

causally related to the accepted November 16, 2015 employment incident. 

FACTUAL HISTORY

On November 16, 2015 appellant, then a 58-year-old mason, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he sustained an injury to his lower back and right leg when

lifting and removing scaffolding while in the performance of duty. He stopped work that same 

day. On the reverse side of the claim form appellant’s supervisor checked a box marked “yes”

indicating that appellant was injured in performance of duty. 

In a November 11, 2015 report, Dr. Hervey Sicherman, a Board-certified orthopedic 

surgeon, noted that appellant was seen two weeks prior with a history of lower back pain and pain 

radiating in the right sciatic distribution. He indicated that he had advised appellant not to work 

as a mason; however, appellant returned to work on a modified-duty schedule. Dr. Sicherman 

ordered a magnetic resonance imaging (MRI) scan. He diagnosed lumbago with sciatica and other 

intervertebral disc degeneration.

In a November 16, 2015 report, Dr. Sicherman advised that appellant had persistent lower 

back pain with right sciatica. He noted that appellant had lifted something at work that day and 

had a marked increase in lower back pain, especially distal right lower extremity pain with lateral 

distal calf and ankle pain. Dr. Sicherman diagnosed low back pain, lumbago with sciatica, on the 

right side, and other intervertebral disc degeneration, lumbosacral region. He provided a work 

excuse, also dated November 16, 2015, with an estimated return to work date of 

November 24, 2015. 

A November 19, 2015 magnetic resonance imaging (MRI) scan of appellant’slumbar spine

read by Dr. Daniel Levy, a Board-certified diagnostic radiologist, revealed L5-S1 disc protrusion 

on the left and mild facet arthropathy in the lower lumbosacral spine. 

In a November 23, 2015 report, Dr. Sicherman noted that, when appellant returned to work, 

he had a marked increase of pain. He indicated that he advised appellant not to work as a mason. 

Dr. Sicherman examined appellant and diagnosed low back pain, lumbago with sciatica on the 

right side, and other intervertebral disc degeneration.

In the attending physician’s report portion (Part B) of a November 23, 2015 authorization 

for evaluation and/or treatment (Form CA-16), Dr. Sicherman indicated that appellant had injured 

his lower back and right leg, as he had pulled a muscle which caused sciatica. He again noted that 

appellant had increased back pain after lifting something at work. Dr. Sicherman marked the box 

“yes” in response to whether appellant had any history or evidence of a concurrent or preexisting

injury and noted: “sciatic pain in the past.” He also marked the box “yes” in response to whether 

he believed the condition found was caused or aggravated by the employment activity described. 

Dr. Sicherman indicated that appellant was totally disabled from work for the period November 23 

to December 22, 2015. 

Dr. Sicherman provided a December 21, 2015 work excuse note, placing appellant off 

work for two weeks. In a December 21, 2015 report, he reiterated that appellant had been doing 
3

well until a couple of days prior when he developed right lower back and buttock pain with 

radiation to the right anterior thigh. Dr. Sicherman also noted pain in the left lower back and 

posterior thigh. He explained that he was treating appellant for lower back pain with right sciatica. 

Dr. Sicherman noted the findings from appellant’s MRI scan and recommended physical therapy. 

He diagnosed other intervertebral disc displacement, lumbosacral, low back pain, lumbago with 

sciatica on the right side, and other intervertebral disc degeneration, lumbosacral region. 

Dr. Sicherman continued to hold appellant off work.

In a report dated December 28, 2015, Dr. Richard S. Rosenberg, a Board-certified internist 

and neurologist, noted appellant’s history of lower back pain “at least since early October for which 

he sought some treatment.” He explained that on November 16, 2015 appellant was at work 

moving scaffolding. Dr. Rosenberg had a sudden onset of severe pain in the lower back which 

began to radiate down the anterior aspect of the right thigh and down the anteromedial aspect of 

the right calf to the foot. He advised that appellant’s November 18, 2015 lumbar MRI scan 

revealed minimal disc bulging at L4-5 and a small broad disc protrusion extending into the left

neural foramen at L5-S1. 

Dr. Rosenberg also noted that a few weeks prior, appellant had an episode of twitching of 

the muscles of the right thigh and then generalized pain in both legs lasting for one to two days 

without any specific provocation. He noted that appellant indicated the pain in the left leg subsided 

after a day or two and was only occasional since then, and not severe. Dr. Rosenberg indicated 

that most of the pain remained in the lower back, buttock, anterior right thigh and anterior right 

shin. He explained that appellant had right sciatica and lower back pain for which there was no 

corresponding disc herniation shown on the recent MRI scan of the lumbar spine. Dr. Rosenberg

also noted that appellant had occasional spasms in the left leg, but no definite sciatica to correspond 

with the small left-sided L5-S1 disc herniation.

In a January 5, 2016 report, Dr. Sicherman repeated his diagnoses. He also provided a 

January 5, 2016 work excuse note advising that appellant could perform light-duty work for one 

week. Dr. Sicherman saw appellant on February 4, 2016 and noted that appellant was doing well 

without any symptoms. He also noted that appellant had been working for the past month without 

any discomfort. Regarding his lumbago and sciatica on the right side, Dr. Sicherman explained 

that there was a lack of correlation between the MRI scan findings and appellant’s symptoms and 

a neurological evaluation was warranted. He also noted that appellant may have future problems 

with intervertebral disc degeneration.

In a development letter dated August 5, 2016, OWCP advised appellant that when his claim 

was first opened it appeared to be a minor injury that resulted in minimal or no lost time from work 

and the employing establishment did not controvert the claim. However, the claim was reopened 

because the medical bills exceeded $1,500.00. OWCP informed appellant of the type of factual 

and medical evidence needed to support his claim and afforded him 30 days to submit the necessary 

evidence. 

In an August 29, 2016 report, Dr. Sicherman noted that appellant was last seen in 

February 2016. He related that appellant continued to work with good days and bad days. 

Dr. Sicherman advised that heavy work caused appellant to have lower back pain, but he continued 

to work.
4

In an August 29, 2016 response to the development questionnaire, appellant explained that 

he previously thought he had pulled a muscle prior to the claimed employment incident. He noted 

that he sought treatment and felt well enough to return to work. Appellant explained that he noted 

pain and a pull in his back on November 16, 2015. In a September 2, 2016 statement, he alleged 

that his physician believed that the November 16, 2015 employment incident permanently 

aggravated his lumbar condition.

In a report dated September 27, 2016, Dr. Sicherman advised that he initially believed that 

appellant’s pain was secondary to his degenerative lumbar disc disease. He noted that the incident 

at work caused appellant’s symptoms to “markedly increase” and explained that an MRI scan of 

appellant’s lumbar spine was consistent with a disc herniation and degenerative changes. 

Dr. Sicherman explained that appellant’s symptoms subsided and he had returned to work. Since 

that time, appellant had persistent symptoms in the lower back and right lower extremity, which 

were secondary to a bulging hesitated disc. He opined that the “disc condition is causally related 

to the incident at work and aggravated previously asymptomatic degenerative lumbar disc 

disease.” Dr. Sicherman explained the need for epidural lumbar injections due to the herniated 

disc and bulging disc which were “directly related to the incident at work.”

By decision dated October 18, 2016, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish that the medical conditions of other 

intervertebral disc displacement of the lumbosacral region, other intervertebral disc degeneration 

of the lumbosacral region, sciatica of the right side, and disc herniation were caused or aggravated 

by the accepted November 16, 2015 employment incident. 

By letter postmarked on October 26, 2016, appellant, through counsel, requested a hearing 

before a representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

May 10, 2017.

OWCP subsequently received a May 25, 2017 report, wherein Dr. Sicherman noted that 

appellant initially presented to him with lower back pain and pain down the right lower extremity. 

He explained that there was a subsequent aggravation at work and his symptoms persisted. 

Dr. Sicherman indicated that appellant initially responded to treatment and returned to work with 

occasional pain, but later in 2016 he had marked increase in symptoms that did not respond to 

appropriate epidural injections. He opined that “this was an injury and/or condition that was 

aggravated by his work. It accelerated and aggravated the preexisting condition. The permanence 

is related to the work.” Dr. Sicherman related that he understood that appellant had recently 

undergone lumbar fusion and instrumentation, which “was a direct result of the aggravation at 

work.” He opined that appellant was not able to continue working as a mason because of the 

stressful physical requirements. 

By decision dated July 24, 2017, OWCP’s hearing representative affirmed the October 18, 

2016 decision. 

On September 12, 2017 counsel provided OWCP with a copy of the November 19, 2015 

MRI scan. 

On April 11, 2018 appellant, through counsel, requested reconsideration and submitted an 

undated report from Dr. Steven Ferrer, a pain medicine specialist.
5

Dr. Ferrer noted that appellant had been under his care since September 26, 2016. He noted 

appellant’s history of injury and treatment, and indicated that appellant’s symptoms began in late 

2015. Dr. Ferrer noted that, at that time, appellant began experiencing low back pain radiating 

down the right lower extremity after an employment incident that occurred while removing 

scaffolding. He related that, over the next few months, appellant’s “symptoms remitted 

significantly with physical therapy and rest.”

Dr. Ferrer noted that appellant sustained a new low back injury while at work on 

September 8, 2016, while removing 20-pound plaques off of a wall. He advised that an MRI scan 

from September 17, 2016 was reportedly stable compared to his prior MRI scan from 

November 18, 2015. Dr. Ferrer also noted that, following additional treatment, appellant returned 

to work. He noted that conservative treatment was not ameliorating the conditions and as a result 

appellant underwent lumbar surgery. Dr. Ferrer diagnosed lumbar radiculopathy and low back 

pain. He opined that appellant was disabled from work and that his condition was permanent.

Dr. Ferrer indicated that he had reviewed appellant’s job responsibilities, and opined that

“it is likely that these duties precipitated his lumbar spinal injuries that prompted the need for

medical and surgical treatments.” He referred to several medical studies and journals regarding 

the effects of lumbar fusions and changes to the lumbar spine. Dr. Ferrer opined that appellant 

was no longer able to continue in his occupation as a mason due to numerous biomechanical factors

that would lead to further damage to his lumbar spine. He indicated that there was a likelihood 

that appellant would have “frequent sudden exacerbations” given his job duties.

By decision dated July 5, 2018, OWCP denied modification of the prior decision, finding 

that the medical evidence of record did not provide a rationalized opinion regarding how the 

November 16, 2015 employment incident caused or aggravated the diagnosed lumbar spine 

conditions.

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,5that 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 each and every compensation claim 

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

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. Generally, fact of 

 

4 5 U.S.C. § 8101 et seq. 

5 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 D.B., Docket No. 18-1359 (issued May 14, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).
6

injury consists of 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.8 The second component is whether the employment incident caused a personal 

injury.9

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

relationship is rationalized medical evidence.10 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.11

ANALYSIS

The Board finds that appellant has not established lumbar conditions causally related to the 

accepted November 16, 2015 employment incident. 

Dr. Sicherman provided work excuses through January 5, 2016. However, these work 

excuses do not constitute probative medical evidence because they do not provide a diagnosis and 

do not offer an explanation as to the cause of appellant’s injury.12 In his reports dated 

November 11, 16, 23, and December 21, 2015, January 5 and August 29, 2016, Dr. Sicherman 

provided diagnoses which included low back pain, lumbago with sciatica, and other intervertebral 

disc degeneration, lumbosacral region. However, he offered no opinion on causal relationship. 

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.13

In a November 23, 2015 Form CA-16, Dr. Sicherman checked the box marked “yes” in 

response to whether appellant had a concurrent or preexisting injury and noted “sciatic pain in the 

past.” He also checked the box marked “yes” in response to whether he believed the incident was 

the cause of the injury. However, the checking of a box “yes” in a form report, without additional 

explanation or rationale, is not sufficient to establish causal relationship.14

Dr. Sicherman’s February 4, 2016 treatment note was also of limited probative value as he

noted that appellant may have future problems with his intervertebral disc degeneration. However, 

the Board has held that a fear of future injury is not compensable under FECA.15

 

8 Elaine Pendleton, 40 ECAB 1143 (1989).

9 M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

10 G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

11 S.S., Docket No. 18-1488 (issued March 11, 2019).

12 Id.; see also Ceferino L. Gonzales, 32 ECAB 1591 (1981).

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

14 Calvin E. King, 51 ECAB 394 (2000); Linda Thompson, 51 ECAB 694 (2000).

15 I.J., 59 ECAB 408 (2008).
7

In a report dated September 27, 2016, Dr. Sicherman opined that appellant’s “disc 

condition is causally related to the incident at work and aggravated previously asymptomatic 

degenerative lumbar disc disease.” He explained the need for epidural lumbar injections was due 

to the herniated disc and bulging disc which were “directly related to the incident at work.” 

However, Dr. Sicherman did not explain how he arrived at his conclusion. The Board has held 

that a report is of limited probative value regarding causal relationship if it does not contain 

medical rationale explaining how a given medical condition is causally related to an employment 

incident.16

In a May 25, 2017 report, Dr. Sicherman opined that “this was an injury and/or condition 

that was aggravated by his work. It accelerated and aggravated the preexisting condition. The 

permanence is related to the work.” Dr. Sicherman indicated that appellant had undergone lumbar 

fusion, which was a direct result of the aggravation at work.” However, his report again did not 

contain medical rationale explaining how appellant’s medical conditions were causally related to 

the employment incident.17 Medical rationale is especially important in a case such as this wherein

Dr. Sicherman had previously reported prior to the November 16, 2015 employment incident that 

appellant had a history of low back pain and right side distribution sciatica. The Board has 

explained that if 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.18 Dr. Sicherman’s reports are,

therefore, of limited probative value. 

Dr. Rosenberg, in a report dated December 28, 2015, noted that appellant had occasional 

spasms in the left leg, but no definite sciatica to correspond with the small left-sided L5-S1 disc 

herniation. The Board notes that Dr. Rosenberg offered no opinion on causal relationship. As 

previously noted, this is especially important as appellant has preexisting back conditions.19 

Dr. Rosenberg’s report was, therefore, of no probative value regarding the issue of causal 

relationship.20

OWCP also received reports from Dr. Ferrer who diagnosed lumbar radiculopathy and low 

back pain. After reviewing appellant’s employment duties, Dr. Ferrer provided only a speculative 

opinion when he advised that it was “likely that these duties precipitated his lumbar spinal 

injuries....” The Board has held that speculative and equivocal medical opinions regarding causal 

 

16 See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value 

regarding causal relationship if it does not contain medical rationale describing the relation between work factors and 

a diagnosed condition/disability). 

17 Id.

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

R.D., Docket No. 18-1551 (issued March 1, 2019).

19 Id.

20 See supra note 13.
8

relationship have no probative value.21 Dr. Ferrer also referenced several medical studies and 

journals regarding effects of lumbar fusions and changes to the lumbar spine. The Board has held 

that newspaper clippings, medical texts, and excerpts from publications are of no evidentiary value 

in establishing a causal relationship between a claimed condition and factors of the employee’s 

federal employment, as such materials are of general application and are not determinative of 

whether the specific condition claimed is related to the particular employment factors alleged by 

the employee.22 Dr. Ferrer’s report failed to provide a well-rationalized explanation as to how and 

whether the diagnosed conditions are causally related to the November 16, 2015 employment 

incident.

A November 19, 2015 MRI scan of appellant’s lumbar spine was also received. The Board 

has held that diagnostic studies lack probative value as they do not address whether the 

employment incident caused any of the diagnosed conditions.23

The Board therefore finds that there is no medical evidence of record which contains a 

reasoned explanation of how the November 16, 2015 employment incident caused or aggravated 

appellant’s diagnosed conditions. Thus, appellant has not met his burden of proof.24

On appeal counsel contends that the report of Dr. Ferrer was sufficient to establish that 

appellant sustained a work-related back injury. However, as explained above, the report of

Dr. Ferrer was insufficiently rationalized and 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 lumbar

conditions causally related to the accepted November 16, 2015 employment incident.

 

21 D.B., Docket No. 18-1359 (issued May 14, 2019); Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a 

physician supporting causal relationship need not be one of absolute medical certainty, the opinion must not be 

speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical certainty). 

22 See D.E., Docket No. 07-0027 (issued April 6, 2007). 

23 See J.S., Docket No. 17-1039 (issued October 6, 2017). 

24 The employing establishment issued a Form CA-16 to Dr. Sicherman on November 15, 2015. A properly 

completed CA-16 form authorization may constitute a contract for payment of medical expenses to a medical facility 

or physician, when properly executed. The form creates a contractual obligation, which does not involve the employee 

directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. The period 

for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated 

earlier by OWCP. See 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018); N.M., Docket 

No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).
9

ORDER

IT IS HEREBY ORDERED THAT the July 5, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 2, 2019

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