United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer

__________________________________________

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Docket No. 18-1621

Issued: August 23, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 23, 2018 appellant filed a timely appeal from March 22 and July 18, 2018 merit 

decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

ISSUE

The issue is whether appellant has met her burden of proof to establish consequential 

lumbar and cervical conditions causally related to her accepted October 11, 2008 and November 8, 

2011 employment injuries. 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the July 18, 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

FACTUAL HISTORY

On October 14, 2008 appellant, then a 41-year-old part-time flex carrier, filed a notice of 

traumatic injury claim (Form CA-1) alleging that she sustained neck and back injuries when a 

truck backed into her postal vehicle on October 11, 2008 while in the performance of duty. OWCP 

assigned the claim OWCP File No. xxxxxx712 and, by decision dated November 28, 2008, 

accepted the claim for lumbar and cervical sprains. Appellant stopped work intermittently and 

received wage-loss compensation on the supplemental rolls. 

On November 10, 2011 appellant filed a second notice of traumatic injury (Form CA-1) 

alleging that her postal vehicle was rear ended while she was stopped at a traffic light and she 

sustained a cervical injury on November 8, 2011 while in the performance of duty. OWCP 

assigned that claim, OWCP File No. xxxxxx371, and by decision dated December 28, 2011, 

accepted it for cervical strain. Appellant stopped work intermittently and received wage-loss 

compensation on the supplemental rolls.

On June 27, 2017 OWCP received a May 10, 2017 medical report, wherein Dr. Jacob M.

Morgenstern, a treating orthopedic surgeon, reported that appellant was evaluated for neck and 

lower back complaints. Dr. Morgenstern reported that on October 11, 2008 she was sitting in her 

delivery vehicle when another car backed into her vehicle. Appellant reported that, during the 

impact, her neck and whole body jerked forward violently and she experienced sharp pain to her 

neck and lower back. She was treated and x-rays were obtained and no fractures were found. 

Appellant was diagnosed with sprain of cervical spine and sprain of lumbar spine and was released 

back to work after 45 days of treatment. Dr. Morgenstern reported that, in November 2011, she

was out delivering mail when her vehicle was rear ended by a drunk driver. This incident 

aggravated and intensified appellant’s cervical condition. Dr. Morgenstern reported that a

magnetic resonance imaging (MRI) scan of the cervical spine completed at that time revealed right 

paracentral disc herniation at C6-7 with impingement upon the cervical spine cord and mass effect 

upon thecal sac. Appellant recounted that she received treatment via physical therapy and 

injections and returned to work in a limited-duty capacity which entailed sitting at a desk and 

keying for long hours. She reported that this position caused a worsening of her conditions and 

increased symptoms to her lower back and cervical spine. Appellant reported ongoing constant 

paresthesia in the upper and lower extremities with pain upon sitting for long periods of time. 

Dr. Morgenstern further noted pain to the lower back with associated radicular symptoms, and 

signs of cervical radiculopathy symptoms which were aggravated with prolonged neck flexion and 

mechanical manipulation. 

Dr. Morgenstern provided findings on physical examination and diagnosed lumbosacral 

radiculopathy, lumbosacral spondylosis, and cervical radiculopathy. He opined that appellant’s

diagnosed conditions were proximately and directly caused by both work-related motor vehicle 

accidents based on her medical history, objective diagnostic studies, and findings on physical 

examination. Dr. Morgenstern reported that the A.M.A., Guides3 discussed the significant 

correlation to radiculopathies of the back and neck to high impact trauma such as motor vehicle 

accidents. Further, he provided evidence by way of research which found that radiculopathies of 

the cervical spine and the lumbosacral spine were found to be significantly higher in those patients 

 

3 American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) 

(6th ed. 2009).
3

involved in motor vehicle accidents. Dr. Morgenstern explained that, along with the additional

strenuous repetitive work that appellant performed as a mail carrier, her condition was clearly work 

related. He opined that the mechanism of injury was the high impact trauma from the motor 

vehicle accident. Dr. Morgenstern explained that the spine was made up of several bony joints 

called vertebrae and in between theses joints were the discs which act as a cushion to absorb shock. 

However, with forceful impact, the region experiences soft tissue injury and tendon, bone, muscle,

and disc inflammation. Dr. Morgenstern reported that, at times, the soft inner nucleus of the disc 

herniates outward causing nerve impingement in the respective regions. This impingement then

causes associated radicular symptoms, weakness, and significant pain. Dr. Morgenstern concluded 

with full medical certainty that appellant’s conditions were caused by her employment-related 

injuries through proximate causation and the claim should be accepted for her true conditions. An 

April 12, 2017 electrodiagnostic study and May 9, 2017 duty status report (Form CA-17) were

also provided. 

On December 13, 2017 appellant requested that the acceptance of her claims be expanded 

to include consequential pinched nerves of the back and neck as causally related to her two prior 

work-related motor vehicle accidents. She further requested that OWCP File Nos. xxxxxx712 and 

xxxxxx371 be administratively combined. 

In a development letter dated January 16, 2018, OWCP informed appellant that the 

evidence of record was insufficient to establish her claim. It indicated that Dr. Morgenstern did 

not state which motor vehicle accident caused her current diagnosed conditions. OWCP advised 

that appellant’s physician should compare the diagnostic test results of appellant’s cervical spine 

to determine if there was objective medical evidence to support that the second work-related motor 

vehicle accident caused a material change in the underlying condition. Appellant was advised of 

the medical and factual evidence needed. OWCP afforded her 30 days to submit the necessary 

evidence. 

By letter dated January 17, 2018, OWCP notified appellant that OWCP File 

Nos. xxxxxx712 and xxxxxx371 were administratively combined, with the former assigned as the 

master file. 

By letter dated February 5, 2018, appellant again requested that OWCP expand the 

acceptance of her claims to include the consequential conditions of lumbosacral radiculopathy, 

lumbosacral spondylosis, and cervical radiculopathy. She described her continued neck and back 

pain as a result of a pinched nerve which caused numbness in her arms and legs. Appellant argued 

that the November 8, 2011 motor vehicle accident aggravated her prior work-related motor vehicle 

accident which resulted in a back and neck injury. She further explained that the diagnostic testing 

submitted showed a change in her conditions following the second motor vehicle accident. 

Appellant described her employment duties as a city carrier which required arduous exertion and 

caused pain. 

In support of her claim, appellant submitted November 28, 2009 and January 15, 2013 

magnetic resonance imaging (MRI) scans of the cervical spine, a February 13, 2010 MRI scan of 

the thoracic spine and a January 15, 2013 MRI scan of the lumbar spine. 

In a November 28, 2009 diagnostic report, Dr. Allison Griffiths, a Board-certified 

diagnostic radiologist, reported that an MRI scan of the cervical spine demonstrated moderately 
4

advanced changes of spondylosis with varying degrees of disc bulge, prolapse, or herniation of 

C3-4 through C6-7. 

In a January 15, 2013 diagnostic report, Dr. Lavanya Chekuri, a Board-certified diagnostic 

radiologist, reported that an MRI scan of the cervical spine revealed abnormal findings when 

compared to the November 28, 2009 study. She reported a large new central and right paracentral 

disc herniation at C6-7, with indentation upon the cervical spinal cord and severe mass effect upon 

thecal sac. 

In a January 15, 2013 diagnostic report, Dr. Ritesh Darji, a Board-certified radiologist, 

reported that an MRI scan of the lumbar spine demonstrated minimal degenerative changes 

compared to the prior October 8, 2011 study, without evidence of a significant disc bulge, 

protrusion, or central/neural foraminal stenosis. 

Appellant also submitted work restrictions and appointment notes documenting treatment 

in 2012 and 2013. In a September 10, 2012 report, Dr. Howard Robinson, Board-certified in 

physical medicine and rehabilitation, diagnosed lumbosacral spondylosis without myelopathy, 

cervical degenerative disc disease, cervicalgia, and lumbago with minimal bulging at right L3-4. 

By decision dated March 22, 2018, OWCP denied expansion of appellant’s claims to 

include a consequential injury.

On April 23, 2018 appellant requested reconsideration. In support of her request, she 

resubmitted medical reports previously of record. Appellant also submitted a May 2, 2018 medical 

report from Dr. Morgenstern and a May 15, 2018 report from Dr. Garth Edwards, a chiropractor. 

In the May 2, 2018 report, Dr. Morgenstern repeated the assertions and findings from his 

May 10, 2017 report. He provided findings on physical examination and diagnosed lumbosacral 

radiculopathy, lumbosacral spondylosis, and cervical radiculopathy. Dr. Morgenstern opined that 

appellant’s conditions were proximately and directly caused by the work-related motor vehicle 

accident and that the claim should be accepted for these additional conditions. He emphasized 

that, following the November 2011 motor vehicle accident, a cervical spine MRI scan revealed 

right paracentral disc herniation at C6-7 with impingement upon the cervical spine cord and mass 

effect upon thecal sac. Dr. Morgenstern discussed the mechanism of injury pertaining to 

appellant’s work-related motor vehicle accidents and argued that sprains and strains were 

temporary and typically last six to eight weeks. However, research had shown that, when the 

patient presents with ongoing symptomology, the provider is to consider other differential 

diagnoses. Dr. Morgenstern reported that, in appellant’s claim, she presented with ongoing 

symptoms without a new external causation. He noted that this was documented as she had 

findings of neuropathies and multi-disc issues since the time of her initial injuries. 

Dr. Morgenstern further reported that appellant had not complained, or had any documented 

history of preexisting back or neck radiculitis prior to the work injuries, providing support that 

these conditions arose from the original employment-related injuries. 

In the May 15, 2018 report, Dr. Edwards reported that he had been treating appellant since 

March 23, 2011 for neck and back pain following a work-related motor vehicle accident. He noted 

that her claim was accepted for neck and back sprain based on the October 12, 2011 diagnostic 

studies obtained, noting that he was in agreement with the work-related diagnosis after her vehicle 
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was hit by another vehicle. Dr. Edwards reported that appellant received treatment from that date 

to the present under his care. He noted findings of joint pain and tenderness with reduced range 

of motion to the cervical and lumbar spine, as well as extreme tissue swelling and inflammation 

which heightened her pain. Dr. Edwards’ treatments included manual manipulation to maintain 

alignment of the lumbar spine, as well as ultrasound with interferential to reduce inflammation, 

muscle spasms, and eliminate scar tissue formation while also increasing range of motion. He 

reported that these treatments helped decrease appellant’s symptoms and improve her motions. 

By decision dated July 18, 2018, OWCP denied modification of the March 22, 2018 

decision finding that the medical evidence of record was insufficient to establish that appellant’s

consequential lumbosacral radiculopathy, lumbosacral spondylosis, and cervical radiculopathy 

were causally related to her accepted employment injuries. 

LEGAL PRECEDENT

It is an accepted principle of workers’ compensation law that when the primary injury is 

shown to have arisen out of and in the course of employment, every natural consequence that flows 

from the injury is deemed to arise out of the employment, unless it is the result of an independent, 

intervening cause attributable to the employee’s own intentional conduct.4 The basic rule is that a 

subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is 

compensable if it is the direct and natural result of a compensable primary injury.5 With respect 

to consequential injuries, the Board has held that, where an injury is sustained as a consequence 

of an impairment residual to an employment injury, the new or second injury, even though 

nonemployment related, is deemed, because of the chain of causation, to arise out of and in the 

course of employment, and is compensable.6

A claimant bears the burden of proof to establish a claim for a consequential injury. As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, showing causal relationship. Rationalized medical 

evidence is an opinion of reasonable medical certainty supported by sound medical rationale 

explaining the nature of the relationship of the diagnosed condition and the specific employment 

factors or employment injury.7

 

4 See C.R., Docket No. 18-1285 (issued February 12, 2019); D.L., Docket No. 18-0629 (issued November 16, 2018); 

Albert F. Ranieri, 55 ECAB 598 (2004); Clement Jay After Buffalo, 45 ECAB 707 (1994); John R. Knox, 42 ECAB 

193 (1990).

5 D.L., id.; S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); A. Larson, The Law of Workers’

Compensation § 10.01 (2005); Carlos A. Marrero, 50 ECAB 117 (1998).

6 R.V., Docket No. 18-0552 (issued November 5, 2018); L.S., Docket No. 08-1270 (issued July 2, 2009); Kathy A. 

Kelley, 55 ECAB 206 (2004).

7

J.B., Docket No. 14-1474 (issued March 13, 2015).
6

ANALYSIS

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

lumbar and cervical conditions causally related to her accepted October 11, 2008 and November 8, 

2011 employment injuries.8 

In reports dated May 10, 2017 and May 2, 2018, Dr. Morgenstern provided firm medical 

diagnoses of lumbosacral radiculopathy, lumbosacral spondylosis, and cervical radiculopathy, he

however failed to provide a fully-rationalized opinion on the cause of appellant’s injury, but rather

cited general studies and research in support of his arguments.9 He reported that the mechanism 

of injury was due to the high impact trauma related to the motor vehicle accident. Dr. Morgenstern 

explained that discs located in the vertebrae of the spine act as a cushion to absorb shock however 

with forceful impact, the region experiences soft tissue injury and tendon, bone, muscle and disc 

inflammation 

The Board finds that Dr. Morgenstern failed to provide a clear, rationalized opinion that 

appellant’s current cervical and lumbar radiculopathies and lumbar spondylosis were natural 

progressions of the accepted cervical and lumbar sprains,so as to establish consequential injuries.

10

 

Dr. Morgenstern opined that her accepted lumbar and cervical sprains were conditions which were 

temporary and typically last six to eight weeks, however, he considered differential diagnoses. 

The Board notes that the January 15, 2013 MRI scan of the cervical spine revealed abnormal 

findings when compared to the prior November 28, 2009 study, resulting in a large new central 

and right paracentral disc herniation at C6-7 with indentation upon the cervical spinal cord and 

severe mass effect upon thecal sac. While the January 15, 2013 cervical spine MRI scan provided

evidence of additional diagnoses, Dr. Morgenstern failed to explain how these conditions were a 

consequence of the accepted lumbar and cervical strain conditions, which he related had resolved 

within weeks following the accepted injuries. The MRI scan changes alone are insufficient to 

establish a consequential employment-related injury without further explanation. Thus, the 

opinion of Dr. Morgenstern is insufficient to establish appellant’s claim.11 

The remaining medical evidence of record is also insufficient to establish consequential 

injuries. The work notes documented that appellant had been seen for treatment, recommended 

work restrictions, or requested that she be excused from work, but did not provide findings and 

opinions regarding the cause of her condition.12 Dr. Robinson’s September 10, 2012 report 

provided additional diagnoses, but failed to state any opinion on the cause of her injuries. The 

 

8 F.L., Docket No. 17-1613 (issued August 15, 2018).

9 C.F., Docket No. 08-1102 (issued October 10, 2008).

10 See Y.R., Docket No. 17-1187 (issued June 5, 2018). 

11 P.G., Docket No. 18-1547 (issued January 28, 2019).

12 L.D., Docket No. 18-1468 (issued February 11, 2019).
7

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.13 

Dr. Edwards’ May 15, 2018 report failed to substantiate any additional diagnoses. Section 

8101(2) of FECA14 provides that the term physician, as used therein, includes chiropractors only 

to the extent that their reimbursable services are limited to treatment consisting of manual 

manipulation of the spine to correct a subluxation, as demonstrated by x-ray to exist and subject 

to regulations by the Secretary.15 Because Dr. Edwards did not diagnose subluxation based upon 

x-ray evidence, he is not a qualified physician under FECA and his opinion does not constitute 

competent medical evidence.16 Thus, his report is insufficient to establish appellant’s 

consequential injury claim.

17

 

OWCP also received a number of diagnostic studies. However, the Board has explained

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

conditions were consequential to the accepted conditions.

18

The Board finds that the record lacks rationalized medical evidence establishing causal 

relationship of appellant’s additional lumbar and cervical conditions, by either direct causation, 

aggravation, or as a consequence of the accepted employment injuries. Thus, appellant has not 

met her burden of proof.

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s 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 establish consequential 

lumbar and cervical conditions causally related to the accepted October 11, 2008 and November 8, 

2011 employment injuries. 

 

13 See L.B., Docket No. 18-0533 (issued August 27, 2018); C.B., Docket No. 09-2027 (issued May 12, 2010); S.E.,

Docket No. 08-2214 (issued May 6, 2009). 

14 5 U.S.C. § 8101(2).

15 See 20 C.F.R. § 10.311; R.H., Docket No. 18-1544 (issued March 4, 2019); M.B., Docket No. 17-1378 (issued 

December 13, 2018).

16 J.K., Docket No. 19-0095 (issued June 18, 2019); R.P., Docket No. 18-0860 (issued December 4, 2018); Jay K. 

Tomokiyo, 51 ECAB 361, 367-68 (2000).

17 M.M., Docket No. 18-1096 (issued December 14, 2018); E.T., Docket No. 17-0265 (issued May 25, 2018).

18 F.S., Docket No. 19-0205 (issued June 19, 2019). 
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ORDER

IT IS HEREBY ORDERED THAT the July 18 and March 22, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: August 23, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board