United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Channahon, IL, Employer

__________________________________________

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Docket No. 18-1736

Issued: March 13, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 17, 2018 appellant, through counsel, filed a timely appeal from an 

August 10, 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 establish a back condition 

causally related to the accepted September 21, 2017 employment incident.

FACTUAL HISTORY

On September 25, 2017 appellant, then a 41-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on September 21, 2017 she strained her lower back while on her 

route at work. She stopped work on September 26, 2017 and has not returned. 

OWCP subsequently received a test form report dated September 26, 2017 from

Dr. Rebecca C. Kuo, an attending Board-certified orthopedic surgeon, who provided appellant’s 

diagnoses of other intervertebral disc displacement, lumbar region, low back pain, and 

radiculopathy, lumbar region. In a referral slip dated September 26, 2017, Dr. Kuo ordered 

physical therapy, three times a week for four weeks and again noted her diagnosis of intervertebral 

disc displacement, lumbar region. 

In an October 11, 2017 statement, appellant described the September 21, 2017 incident

when, around 2:00 p.m., she finished her route, which involved delivering mail and a great deal of 

packages, including a very heavy package. She tried to exit her mail truck, but was unable to do 

so and experienced excruciating pain in her lower back that went down to her leg. 

Appellant submitted a lumbar spine magnetic resonance imaging (MRI) scan report dated 

September 25, 2017 from Dr. Biren M. Patel, a Board-certified diagnostic radiologist. Dr. Patel

provided an impression of left posterolateral annular tears at L2-3 and L3-4 with small foraminal 

disc protrusions causing mild left foraminal stenosis. 

In a September 26, 2017 letter, Dr. Kuo advised that appellant had been under her care and 

that appellant was unable to return to work until released. In an attending physician’s report (Form 

CA-20) dated September 28, 2017 and a duty status report (Form CA-17) dated September 28, 

2017, she noted the date of injury as September 20, 20173and September 21, 2017, respectively. 

In the Form CA-20 report and Part B of an authorization for examination and/or treatment (Form 

CA-16), an attending physician’s report dated September 28, 2017, Dr. Kuo responded “not 

applicable” when asked what history of the employment injury or disease did the employee give 

to her. In the Form CA-17 report, she related a history of injury that appellant was picking up 

boxes/packages which affected her lumbar region. In these reports, Dr. Kuo reiterated her 

diagnosis of intervertebral disc displacement, lumbar region and advised that appellant was totally 

disabled from work from September 21 to approximately December 14, 2017. In the Form CA20 report, she did not respond to the question of whether the diagnosed condition was caused or 

aggravated by the described employment activity. In the Form CA-17 report, Dr. Kuo advised that 

the diagnosed condition was due to injury. In the Form CA-16 attending physician’s report, she

 

3 Dr. Kuo inadvertently listed the date of injury as September 20, 2017 rather than September 21, 2017 in her 

September 28, 2017 Form CA-17 report and later submitted reports discussed infra, as she accurately described the 

incident, which was subsequently accepted as work related by OWCP. 
3

checked a box marked “yes” indicating that appellant’s diagnosis of intervertebral disc 

displacement, lumbar region was caused or aggravated by the described employment activity. 

OWCP, by development letter dated October 16, 2017, informed appellant that, initially,

her claim was administratively handled to allow payment of a limited amount of medical expenses 

as it appeared to be for a minor injury that resulted in minimal or no lost time from work and 

continuation of pay was not controverted by the employing establishment. However, appellant’s 

claim was now being reopened for adjudication because she had not returned to work in a fulltime capacity. OWCP requested that she respond to a questionnaire describing the immediate 

effects of her injury, history of any other injury, and medical treatment received, and the weight 

of the package involved in the employment incident. It also requested that appellant submit a 

medical report from her attending physician which included a diagnosis, history of the injury, 

examination findings, and a rationalized opinion explaining how the employment incident caused 

or aggravated her medical condition. 

OWCP received additional medical evidence from Dr. Kuo. Dr. Kuo, in a partial report 

dated November 2, 2017, indicated that she examined appellant on October 12, 2017 and the 

examination was grossly unchanged from the last time. She advised that appellant had an annular 

tear and slight herniation at L3-4 for which she recommended an injection. In a referral slip dated 

November 2, 2017, Dr. Kuo ordered physical therapy, three times a week for four weeks and again 

noted her diagnosis of other intervertebral disc displacement, lumbar region. Subsequently, 

physical therapy notes were received.

OWCP also received a progress note dated October 31, 2017 from Trisha E. Durham, a

certified family nurse practitioner, in which she assessed annular tear of the lumbar disc, lumbar 

disc herniation with radiculopathy, lumbar foraminal stenosis, low back pain, and myofascial pain. 

On November 9, 2017 appellant responded to OWCP’s development questionnaire. She 

related that she was sore between the date of injury and the date she first received medical attention. 

Appellant’s condition progressively worsened and she sought treatment in the emergency room. 

She indicated that the package weighed approximately 68 pounds. 

Appellant submitted complete reports dated November 2, 2017, completed by Shara 

DuPree4and Dr. Kuo, which indicated that appellant was examined on September 26 and 

October 12, 2017 for follow-up of her severe low back pain which began on September 20, 2017. 

She worked as a mail carrier and she had pain after lifting many heavy boxes. Findings on physical 

examination were reported. A lumbar spine MRI scan demonstrated a left neural foraminal annular 

tear and protrusion causing mild compression in the left neural foramen. The MRI scan also 

revealed mild bilateral facet arthropathy at L4-5 with some mild disc bulge causing mild neural 

foraminal stenosis. Dr. Kuo assessed left leg radiculopathy, likely L3 radiculopathy secondary to 

the foraminal herniation/annular tear at L3-4. She opined that, given the fact that the remaining 

disc actually looked fairly healthy, the annular tear was acute in nature and more likely than not 

the etiology of appellant’s symptoms. Dr. Kuo also opined that appellant’s symptoms were more 

likely than not related to her work-related activities. She recommended a left L3-4 epidural steroid 

injection and advised that, if everything failed, appellant may be a candidate for a left L3-4 

 

4 The Board notes that Ms. Dupree’s professional qualifications are not contained in the case record.
4

discectomy. Dr. Kuo advised that appellant would remain off work. In a referral slip dated 

November 2, 2017, she again ordered physical therapy, three times a week for four weeks and 

diagnosed other intervertebral disc displacement, lumbar region. 

On November 24, 2017 appellant filed a claim for compensation (Form CA-7) for leave 

used for the period November 6 to 24, 2017. 

In support of her claim, appellant submitted a Form CA-17 report dated November 21, 

2017 signed by Dr. Kuo who opined that appellant’s diagnosed condition of intervertebral disc 

displacement, lumbar region was due to her September 21, 2017 injury and that she had been

advised to not return to work. 

By decision dated November 30, 2017, OWCP denied appellant’s traumatic injury claim

and claim for compensation, finding that the medical evidence of record was insufficient to 

establish that her diagnosed medical condition was causally related to the accepted September 21, 

2017 employment incident. It determined that Dr. Kuo’s opinion on causal relationship was 

equivocal. 

OWCP thereafter received a November 6, 2017 progress note from Dr. Farooq A. Khan, 

Board-certified in anesthesiology and pain medicine. Dr. Khan examined appellant and diagnosed 

annular tear of the lumbar disc, lumbar disc herniation with radiculopathy, lumbar foraminal 

stenosis, low back pain, and myofascial pain. He performed a lumbar transforaminal steroid 

epidural injection.

On December 15, 2017 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative from the November 30, 2017 decision. 

OWCP subsequently received an unsigned Form CA-17 report dated December 12, 2017. 

The report noted clinical findings of intervertebral disc degeneration and that the diagnosed 

condition was due to a September 20, 2017 injury. The report also noted that appellant had been 

advised to not return to work. 

A Form CA-17 report dated January 2, 2018 with an illegible signature noted a history of 

injury that on September 20, 2017 appellant lifted boxes, twisted, and felt pain. The report 

provided clinical findings of intervertebral disc degeneration and indicated that the diagnosed 

condition was due to injury. 

In an undated Form CA-17 report, Dr. Kuo noted that appellant had been examined on 

February 15, 2018. She reiterated her opinion that appellant’s condition of intervertebral disc 

displacement was due to a September 21, 2017 injury. Dr. Kuo also reiterated that she had been 

advised to not return to work. In a February 15, 2018 report, she noted appellant’s history of injury

and physical examination and MRI scan test findings during her initial evaluation on 

September 26, 2017. Dr. Kuo referenced her prior opinion that appellant’s left neural foraminal 

annular tear and protrusion causing mild compression of the left neural foramen was acute in nature 

and more likely than not the etiology of her symptoms. She maintained that given her symptoms 

started at work on September 20, 2017 she believed that her symptoms which returned at work 

were more likely than not the etiology of her symptoms. Given the fact that appellant had not 

sought assistance or care for back pain or had a history of back pain, Dr. Kuo did not believe that 
5

she had a significant preexisting condition. She related that the only condition noted on the MRI 

scan was bilateral facet arthropathy at L4-5, which was not the level she questioned. Dr. Kuo 

further related that, even if the annular tear and herniation or disc bulge at L3-4 were preexisting, 

they would have been definitely aggravated by bending, twisting, and lifting at work. She indicated 

that appellant was being scheduled for surgery at L2-3 and L3-4, left-sided hemi laminectomies

and partial facetectomy as she was not doing well despite attempted epidural steroid injections and 

physical therapy. Dr. Kuo concluded that it was more likely than not that the work-related injury 

on September 20, 2017 caused the MRI scan findings and appellant’s symptoms leading to the 

need for surgery. 

Dr. Khan, in a December 4, 2017 progress note, again reiterated his diagnoses of annular

tear of the lumbar disc, lumbar disc herniation with radiculopathy, lumbar foraminal stenosis, low 

back pain, and myofascial pain. He performed another lumbar transforaminal steroid epidural 

injection.

In a February 28, 2018 operative report, Dr. Kuo performed lumbar spine surgery. By 

decision dated August 10, 2018, an OWCP hearing representative affirmed the November 30, 

2017 decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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 each and every compensation claim 

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

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 

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

time, place, and in the manner alleged. 

The second component is whether the employment incident caused a personal injury and 

generally can be established only by medical evidence.8 

 

5 Supra note 2.

6 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

7 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q) 

(traumatic injury and occupational disease defined, respectively).
6

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

opinion evidence sufficient to establish such causal relationship.9 Rationalized medical opinion 

evidence is required to establish causal relationship. The opinion of the physician must be based 

on a complete factual and medical background, 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.10

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a back condition 

causally related to the accepted September 21, 2017 employment incident.

Appellant submitted a series of reports from her attending physician, Dr. Kuo, in support 

of her claim.

11

 In Form CA-17 reports dated September 28 and November 21, 2017 and an undated 

Form CA-17 report, Dr. Kuo diagnosed intervertebral disc displacement, lumbar region, and 

advised that the diagnosed condition was due to an injury on September 21, 2017. She also advised 

that appellant could not return to work. However, Dr. Kuo did not offer medical rationale 

explaining how the accepted employment incident caused the diagnosed condition and resultant 

disability.12 She did not explain how the mechanism of injury would have physiologically caused 

the diagnosed condition.13 Thus, Dr. Kuo’s reports are insufficient to establish appellant’s burden 

of proof.

Dr. Kuo, in a Form CA-16 attending physician’s report dated September 28, 2017, again 

diagnosed intervertebral disc displacement, lumbar region. She checked a box marked “yes”

indicating that the diagnosed condition was caused or aggravated by a described employment 

activity. Dr. Kuo removed appellant from work from September 21 through approximately 

December 14, 2017. The Board has held that a report that addresses causal relationship with a 

checkmark, without medical rationale explaining how the employment incident caused or 

aggravated the diagnosed condition, is of diminished probative value and insufficient to establish 

 

9 K.V., Docket No. 18-0723 (issued November 9, 2018).

10 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 7.

11 The Board notes that it appears that the employing establishment issued appellant a signed authorization for 

examination and/or treatment (Form CA-16) authorizing treatment with Dr. Kuo. The Board has held that where an 

employing establishment properly executes a CA-16 form, which authorizes medical treatment as a result of an 

employee’s claim for an employment-related injury, it creates a contractual obligation which does not involve the 

employee directly to pay the cost of the examination or treatment regardless of the action taken on the claim. See 20 

C.F.R. §§ 10.300, 10.304; R.W., Docket No. 18-0894 (issued December 4, 2018).

12 See C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009) 

(a medical report is of limited probative value on the issue of causal relationship if it contains a conclusion regarding 

causal relationship which is unsupported by medical rationale).

13 See C.F., id.; R.R., Docket No. 16-1901 (issued April 17, 2017).
7

causal relationship.14 Dr. Kuo failed to describe the employment activity that caused or aggravated 

the diagnosed condition as she responded “not applicable” when asked what history of the 

employment injury or disease did appellant give to her. Moreover, she also failed to offer medical 

rationale explaining how appellant’s diagnosed lumbar condition and disability status were caused 

or aggravated by delivering mail and heavy packages on September 21, 2017. Thus, the Board 

finds that Dr. Kuo’s report is insufficient to establish appellant’s burden of proof.15

Dr. Kuo’s November 2, 2017 and February 15, 2018 reports diagnosed left leg 

radiculopathy and L3 radiculopathy secondary to a foraminal herniation/annular tear at L3-4. She 

opined that it was more likely than not that the September 21, 2017 employment incident, which 

involved bending, twisting, and lifting, caused the diagnosed conditions and the need to perform

left-sided hemi laminectomies and a partial facetectomy at L2-3 and L3-4. The Board has held 

that medical opinions that are speculative or equivocal in character are of diminished probative 

value.16 Further, while Dr. Kuo noted that appellant had no back pain or preexisting back condition 

prior to the accepted work injury, an opinion that a condition is causally related to an incident 

because the employee was asymptomatic before the injury is insufficient, without adequate 

rationale, to establish causal relationship.17 For these reasons, the Board finds that her report is 

insufficient to meet appellant’s burden of proof. 

Dr. Kuo’s remaining reports are also insufficient to meet appellant’s burden of proof. 

Within these additional reports, she again diagnosed lumbar conditions and addressed appellant’s 

medical treatment. However, Dr. Kuo failed to provide an opinion concluding that the accepted

September 21, 2017 employment incident caused or aggravated appellant’s diagnosed back 

conditions and medical treatment. Thus, these reports are of no probative value on the issue of 

causal relationship.18 

Dr. Patel’s September 25, 2017 diagnostic test report addressed appellant’s lumbar 

conditions, but failed to offer a medical opinion addressing whether the diagnosed conditions were 

caused or aggravated by the September 21, 2017 employment incident. The Board has held that 

reports of diagnostic tests lack probative value as they do not provide an opinion on causal 

relationship between appellant’s employment incident and a diagnosed condition.19

 

14 See S.G., Docket No. 18-0209 (issued October 4, 2018); R.A., Docket No. 17-1472 (issued December 6, 2017); 

Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

15 M.C., Docket No. 18-0361 (issued August 15, 2018).

16 See D.R., Docket No. 17-0971 (issued October 5, 2017); D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 

ECAB 206 (2004).

17 See F.H., Docket No. 18-1238 (issued January 18, 2019); J.R., Docket No. 18-0206 (issued October 15, 2018).

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

evidence which does not offer an opinion regarding the cause of an employee’s condition is of no probative value on 

the issue of causal relationship).

19 See C.F., supra note 13; S.G., Docket No. 17-1054 (issued September 14, 2017).
8

Similarly, Dr. Khan’s November 6, 2017 progress note also fails to establish appellant’s 

claim as he diagnosed annular tear of the lumbar disc, lumbar disc herniation with radiculopathy, 

lumbar foraminal stenosis, low back pain, and myofascial pain, but did not opine as to the causal 

relationship of the diagnosed conditions and the September 21, 2017 employment incident.20 

The October 31, 2017 progress note signed by Ms. Durham, a certified family nurse 

practitioner, and November 7 and 10, 2017 daily notes and progress note signed by appellant’s 

physical therapists have no probative medical value. Neither a nurse practitioner nor a physical 

therapist is considered a “physician” as defined under FECA.21 As such, this evidence is also 

insufficient to meet appellant’s burden of proof. 

The record contains an unsigned Form CA-17 report dated December 12, 2017 and Form 

CA-17 report dated January 2, 2018 with an illegible signature diagnosed intervertebral disc 

degeneration due to a September 20, 2017 injury. The Board has held that unsigned reports and 

reports that bear illegible signatures cannot be considered probative medical evidence because they 

lack proper identification.22 Thus, these reports are of no probative value.

The fact that a condition manifests itself during a period of employment is insufficient to 

establish causal relationship.23 Temporal relationship alone will not suffice. Entitlement to FECA 

benefits may not be based on surmise, conjecture, speculation, or on the employee’s own belief of 

a causal relationship.24 The Board finds that the record lacks rationalized medical evidence

establishing causal relationship between the September 21, 2017 employment incident and her 

diagnosed lumbar conditions.25 Thus, appellant has not met her burden of proof.26

On appeal, counsel contends that OWCP’s August 10, 2018 decision is contrary to fact and 

law. For the foregoing reasons, the Board finds that the medical evidence of record is insufficient 

to establish that appellant sustained a back condition causally related to the accepted September 21, 

2017 employment incident.

 

20 See supra note 18.

21 5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.

See 5 U.S.C. § 8102(2); M.M., Docket No. 16-1617 (issued January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320 

n.11 (2006) (lay individuals such as nurses, physician assistants and physical therapists are not competent to render a 

medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 

208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative 

medical evidence from a physician).

22 See D.S., Docket No. 18-0280 (issued June 12, 2018); R.M., 59 ECAB 690 (2008); D.D., 57 ECAB 734 (2006); 

Richard J. Charot, 43 ECAB 357 (1991).

23 Daniel O. Vasquez, 57 ECAB 559 (2006).

24 D.D., supra note 22.

25 See J.S., Docket No. 17-0507 (issued August 11, 2017).

26 K.L., Docket No. 18-1029 (issued January 9, 2019).
9

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 establish a back condition 

causally related to the accepted September 21, 2017 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the August 10, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 13, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board