United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

MURRAY BRANCH, Cincinnati, OH, Employer

__________________________________________

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Docket No. 17-0902

Issued: March 9, 2018

Appearances: Case Submitted on the Record

Kevin L. Card, 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 March 20, 2017 appellant, through her representative, filed a timely appeal from a

December 22, 2016 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 Appellant timely requested oral argument pursuant to section 501.5(b) of Board’s Rules of Procedure. 20 

C.F.R. § 501.5(b). By order dated August 10, 2017, the Board exercised its discretion and denied the request, 

finding that the arguments on appeal could adequately be addressed based on the case record. Order Denying 

Request for Oral Argument, Docket No. 17-0902 (issued August 10, 2017).
2

ISSUE

The issue is whether appellant met her burden of proof to establish a neck condition 

causally related to the accepted September 28, 2013 employment incident.

On appeal appellant’s representative contends that appellant had submitted all the 

necessary medical documentation for acceptance of her claim. 

FACTUAL HISTORY

On November 12, 2013 appellant, then a 54-year-old city letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on September 28, 2013 she sustained a neck/spine injury 

at C5 and C6 due to her employment duties. She advised that her pain increased through the day 

as she delivered her mail route. Appellant stopped work on the date of injury.

On the claim form and by letter dated November 19, 2013, the employing establishment 

controverted the claim. It noted that appellant did not report her claimed injury on the day of the 

accident and this prevented it from investigating the matter on that day. The employing 

establishment also asserted that she complained about neck pain prior to the date in question.

OWCP, in a November 22, 2013 development letter, advised appellant of the deficiencies 

in her claim. She was afforded 30 days to respond to its development questionnaire. On 

December 3, 2013 appellant responded and related that on September 28, 2013 she developed 

increased sharp pain in the left side of her neck and through her left shoulder while walking and 

delivering mail on her route. Later that evening appellant mentioned her pain to another carrier. 

She treated her pain at home with heat, but sought medical treatment on September 29, 2013 

from a massage therapist in her physician’s office. This treatment provided only minor relief. 

On September 30, 2013 appellant noted being evaluated by a Dr. Moloney,

4 who advised her not 

to return to work until her condition was resolved with treatment. She explained the delay in 

filing her claim, noting that she thought she possibly had a soft tissue or muscle strain that would 

resolve with physical therapy, anti-inflammatory medication, and time. Appellant was referred 

to a neurosurgeon, who performed a magnetic resonance imaging (MRI) scan which revealed a 

traumatic injury to her cervical spine. 

OWCP received a December 18, 2013 medical report in which Douglas Montgomery, a 

physician assistant, examined appellant and provided an impression of cervical disc herniation at 

C5-6, left, and cervical degenerative disc disease (DDD) with foraminal stenosis C6-7. 

Mr. Montgomery referred her for a cervical epidural steroid injection at C5-6.

OWCP also received a December 18, 2013 report from Dr. Marybeth Brune, a Boardcertified internist, who noted appellant’s complaints of neck and left shoulder pain and 

headaches, and a history of her social and medical background. Dr. Brune described findings on 

examination and advised that she sustained a work injury on September 28, 2013. She noted that 

appellant had not worked since September 30, 2013. 

 

4 The Board notes that the professional qualifications of Dr. Moloney are not contained in the case record.
3

In a December 18, 2013 disability certificate, Dr. Alfred Kahn, III, an attending Boardcertified orthopedic surgeon, advised that appellant could not work until after she had an epidural 

steroid injection and a follow-up evaluation. On December 23, 2013 he provided, in an attending 

physician’s report (Form CA-20), and a history of injury that on September 28, 2013 appellant 

developed symptoms after carrying a bag on her left shoulder as part of her work duties. 

Dr. Kahn noted findings and diagnosed cervical herniated nucleus pulposus (HNP), degeneration

of cervical intervertebral disc, and cervical spinal stenosis. He indicated by checking a box

marked “yes” that the diagnosed conditions were caused or aggravated by an employment 

activity. Dr. Kahn explained that appellant’s symptoms developed with letter carrying. He

advised that she became totally disabled on October 1, 2013 and estimated that she would be 

disabled through March 1, 2014. In a December 18, 2013 duty status report (Form CA-17),

Dr. Kahn provided a history of injury that on September 28, 2013 appellant had increasing pain 

on the left side of her neck. He reiterated his prior diagnoses of cervical HNP and diagnosed 

cervical DDD. Dr. Kahn related that the diagnosed conditions were due to injury. He indicated 

that appellant was unable to perform her regular work duties and that she had not been advised to 

return to work.

By decision dated January 13, 2014, OWCP denied appellant’s traumatic injury claim 

because the medical evidence of record did not contain a rationalized medical opinion to 

establish a causal relationship between her diagnosed cervical condition and the accepted 

September 28, 2013 employment-related incident.

On February 4, 2014 appellant’s representative requested reconsideration. In support of 

the request, Dr. Kahn provided a January 28, 2014 report noting that appellant was under his care 

for cervical disc herniation at C5-6, left, and cervical DDD with foraminal stenosis at C6-7. He

advised that she had contacted him because OWCP required further information to establish 

causation. Dr. Kahn indicated that appellant had never been treated for cervical spine or 

shoulder symptoms before the claimed September 28, 2013 injury. He related that treatment 

records from his office indicated the immediate care she received after the date of injury and 

documented the effect of treatment and the reasoning for seeking care with his office. After 

reviewing the mechanics of appellant’s job, the symptoms she had after her workday, and the 

immediate care she sought the day after her injury, Dr. Kahn believed that her left cervical disc 

herniation at C5-6 and, at the very least, her significant aggravation of DDD with foraminal 

stenosis at C6-7 were causally related to the claimed September 28, 2013 injury. He noted that 

an attached October 23, 2013 MRI scan report documented the diagnoses. Dr. Kahn further 

noted that he was awaiting approval for at least one epidural steroid injection for appellant’s disc 

herniation at C5-6. He indicated that a follow-up visit was necessary to address possible anterior 

cervical decompression and fusion. Dr. Kahn opined that appellant would remain totally 

disabled until she received the epidural steroid and returned to his office for follow up.

In the October 23, 2013 cervical spine MRI scan report referenced by Dr. Kahn,

Dr. Galen Chun, a radiologist, diagnosed moderate left paracentral C5-6 disc protrusion 

resulting in a mass effect on the left side of the spinal cord, mild central canal stenosis, and mild 

left foraminal narrowing. He also noted a mild diffuse disc bulge at C4-6.
4

By decision dated May 5, 2014, OWCP denied modification of its January 13, 2014 

decision. It found that Dr. Kahn failed to provide a rationalized opinion explaining causal 

relationship. 

On August 12, 2014 appellant requested reconsideration. In support of her request, she 

submitted a July 31, 2014 statement that contained a chronological history of her left shoulder 

and neck symptoms and medical treatment from September 28 to December 18, 2013. Appellant 

also submitted a May 29, 2014 letter from a massage therapist who treated appellant’s neck pain.

In a July 10, 2014 report, Dr. Kahn disagreed with OWCP’s denial of appellant’s claim. 

He related that he had reviewed treatment records from other providers who treated her for the 

injury until she came under his care on December 18, 2013. Dr. Kahn opined that there was a 

causal relationship between appellant’s injury and the accepted work incident because testing 

and treatment were pursued in a very timely manner status post injury, she was observed, and her

symptoms and history she provided were consistently documented in her previous treatment and 

testing. He maintained that this left no doubt that she had a traumatic injury on September 28, 

2013 for which she sought treatment within 24 hours. Dr. Kahn asserted that his opinion on

causal relationship was documented throughout appellant’s treatment history starting on the date 

after her injury. Appellant’s description of injury involved carrying a very heavy mailbag, which 

rested on her extreme upper left shoulder and against her neck. Around lunchtime on 

September 28, 2013, and after she carried the bag for at least two and one-half hours without a 

break, she noted intensified pain, but continued her route thinking that rest after her workday 

would improve her symptoms. Dr. Kahn advised that this was a disc herniation manifesting 

itself through intensifying pain. He indicated that the heavy mailbag rested with some shifting 

against the C5-6 disc space and caused a herniation resulting in all later treatment. Dr. Kahn 

advised that the first response of the body in this type of injury was muscle tightening and pain 

production. He noted that the October 23, 2013 test results documented the diagnosis of disc 

herniation and confirmed why appellant’s bursting and ongoing pain began and persisted on 

September 28, 2013. Dr. Kahn noted that while she had some disc degeneration in the cervical 

spine, it had never been treated and only became symptomatic subsequent to this well-defined 

injury. He maintained that, of course, stenosis was also a causal diagnosis due to the narrowing 

and inflammation caused by the well-described and documented history and mechanics of the

injury. Dr. Kahn contended that, while he only saw appellant one time, he reviewed her entire 

history with previous treating physicians, which included these physicians’ diagnoses, testing,

and therapy. He asserted that all clearly pointed to the causal relationship of his diagnoses of 

disc herniation at C5-6 and cervical DDD with foraminal stenosis at C6-7.

In a November 4, 2014 decision, OWCP denied modification of its May 5, 2014 decision. 

It found that Dr. Kahn did not base his opinion relative to causal relationship on his own 

examination findings. OWCP also found that a massage therapist was not a physician under 

FECA. 

OWCP received progress notes dated August 3 and December 15, 2014, and August 3, 

2015 from Deborah A. Yauch, a respiratory therapist, and finalized by Dr. Kahn. Dr. Kahn

indicated that Ms. Yauch was his scribe. He reported appellant’s history and discussed findings. 

Dr. Kahn reiterated his prior diagnoses, noting that appellant received three epidural steroid 

injections without benefit. In an August 3, 2015 Form CA-20 report, he noted findings, restated
5

his diagnosis of C5-6 disc herniation, and indicated with a checkmark in a box marked “yes” that 

the diagnosed condition was caused or aggravated by the September 28, 2013 employment 

incident. Dr. Kahn restated his explanation that appellant’s symptoms developed while carrying 

a mailbag. He advised that she was totally disabled from October 1, 2013 to November 1, 2015. 

On September 10, 2015 appellant requested reconsideration of OWCP’s November 4, 

2014 decision. She submitted a February 19, 2015 report in which Dr. Kahn authenticated and 

concurred with Mr. Montgomery’s December 18, 2013 findings.

Appellant also submitted a June 19, 2015 report from Dr. Martin Fritzhand, a Boardcertified urologist. Dr. Fritzhand noted a history of the September 28, 2015 employment 

incident and reported findings which included diminished cervical spine range of motion and 

decreased muscle strength over the left biceps and deltoid. He noted that appellant had 

documented significant C5-6 disc herniation and DDD. Dr. Fritzhand advised that there was 

clear causality between the letter carrier job requirements she performed since October 1994 and 

the diagnosed cervical disc herniation. He noted appellant’s physical difficulties and maintained 

that it did not appear that she had reached maximum medical improvement (MMI). 

Dr. Fritzhand utilized the sixth edition of the America Medical Association, Guides to the 

Evaluation of Permanent Impairment5(A.M.A., Guides) and The Guides Newsletter

July/August 2009 edition to determine that appellant had nine percent permanent impairment of

the left arm.

Dr. Brune, in an August 20, 2015 progress note, related that appellant complained about 

left neck pain radiating to her left arm, which started while she was delivering mail on

September 28, 2013 and worsened through the day. Appellant also had a stiff neck that would 

not move. Dr. Brune noted appellant’s medical and family history. She reviewed the 

October 23, 2013 cervical MRI results and appellant’s systems. Dr. Brune discussed findings on 

physical examination and assessed a work-related injury and neck pain on the left side.

OWCP received Form CA-20 reports dated October 12, 2015 and March 29, May 4, and 

July 7, 2016 from Dr. Kahn who reiterated his prior diagnoses. Dr. Kahn again indicated with a 

checkmark in the box marked “yes” that the diagnosed conditions were caused or aggravated by 

the accepted September 28, 2013 work incident. He reiterated that appellant’s symptoms 

developed while carrying a mailbag. Dr. Kahn advised that she was totally disabled from 

October 1, 2013 to October 6, 2016. 

Progress notes dated October 12, 2015 and July 6, 2016, signed by Ms. Yauch, and 

finalized by Dr. Khan, indicated that appellant presented with neck pain and again noted her

history. Dr. Kahn provided examination findings and restated his diagnoses of cervical DDD

and cervical disc herniation. In a May 2, 2016 Form CA-17 report, he noted findings and 

reiterated his diagnosis of HNP at C5-6 due to a September 28, 2013 injury. Dr. Kahn 

maintained that appellant was unable to perform her regular work duties and could not resume 

work. In a June 7, 2016 operative report, he described anterior cervical decompression and 

fusion at C5-C6, C6-C7 using VG2 allograft and Eagle Plus plating. The preoperative and 

 

5 A.M.A., Guides (6th ed. 2009).
6

postoperative diagnoses were severe DDD with total disc collapse at C6-C7, lesser extent at C5-

C6 with disc herniation at left paracentral C5-C6 and foraminal stenosis at C5-C7.

In an August 18, 2016 decision, OWCP denied modification of its November 4, 2014 

decision.

On September 21, 2016 appellant, through her representative, requested reconsideration. 

She submitted an October 21, 2013 progress note in which Dr. Brune noted appellant’s neck and 

left shoulder symptoms and medical and family history. Dr. Brune discussed findings on 

physical examination and assessed neck pain that was not responding to massage therapy or 

multiple chiropractor treatments. She ordered an MRI scan to rule out a herniated disc. 

Dr. Brune also assessed upper back pain on the left side and left arm numbness. In an undated 

addendum to her October 21, 2013 note, she reported findings from an October 22, 2013 cervical 

spine MRI scan.

6

In an August 31, 2016 letter, Dr. Kahn indicated that he had reviewed Dr. Brune’s

October 21, 2013 report. He noted her findings and diagnoses and related that they were 

symptoms revelatory of his subsequent diagnoses of cervical disc herniation at C5/C6 and DDD 

and stenosis at C6/C7 made on December 18, 2013. Dr. Kahn maintained that the MRI scan 

results listed in Dr. Brune’s addendum to her report were consistent with the type of injury 

appellant had on September 28, 2013. He opined that her October 21, 2013 report constituted 

contemporaneous medical evidence of the September 28, 2013 injuries. Based on his review of 

appellant’s medical records and physical examination, Dr. Kahn reiterated his prior opinion that 

her disc herniation was caused by carrying a heavy mail satchel on September 28, 2013.

By decision dated December 22, 2016, OWCP denied modification of its August 18, 

2016 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence7including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.8

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.9 

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

 

6 This appears to be a typographical error as the only cervical MRI scan of record is dated October 23, 2013.

7

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

8 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

9 S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).
7

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

incident at the time, place, and in the manner alleged.10 

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

generally can be established only by medical evidence.11 The evidence required to establish 

causal relationship is rationalized medical opinion evidence, based upon complete factual and 

medical background, showing a causal relationship between the claimed condition and the 

identified factors.12 The belief of the claimant that a condition was caused or aggravated by the 

employment is insufficient to establish a causal relationship.13

ANALYSIS

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

injury was caused or aggravated by the accepted September 28, 2013 employment incident. 

Appellant failed to submit sufficient medical evidence to establish a neck condition causally 

related to the accepted employment incident.

Appellant submitted several medical records from Dr. Kahn. In reports dated 

December 18, 2013 to August 31, 2016, Dr. Kahn examined appellant, reviewed cervical spine 

MRI scan test results, diagnosed disc herniation at C5-6 and cervical DDD with foraminal 

stenosis at C6-7, and opined that the diagnosed conditions and her associated disability were 

caused by her work on September 28, 2013. He reasoned that carrying a heavy mailbag at work 

that rested with some shifting against the C5-6 disc space resulted in the disc herniation and the

need for medical treatment. Dr. Kahn further reasoned that appellant had some disc degeneration 

in the cervical spine, but this condition had never been treated and it only became symptomatic 

after her well-defined injury on September 28, 2013. While Dr. Kahn offered an opinion on 

causal relationship, he did not sufficiently explain how the accepted work incident caused the 

diagnosed conditions and resultant disability.14 Further, the Board has held that the fact that a 

condition manifests itself or worsens during a period of employment15 or that work activities 

produce symptoms revelatory of an underlying condition does not raise an inference of causal 

relationship between a claimed condition and employment factors.16 Dr. Kahn’s remaining 

disability certificate, progress notes, and reports addressed appellant’s cervical conditions, 

June 7, 2016 cervical surgery, and resultant disability from work, but did not offer a medical 

 

10 Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

11 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).

12 Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

13 Kathryn Haggerty, 45 ECAB 383, 389 (1994).

14 Willa M. Frazier, 55 ECAB 379 (2004); Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph 

Taylor, 6 ECAB 968 (1954) (medical reports without adequate rationale on causal relationship are of diminished 

probative value and do not meet an employee’s burden of proof).

15 Robert G. Morris, 48 ECAB 238-39 (1996); William Nimitz, Jr., 30 ECAB 567 (1979).

16 B.B., Docket No. 13-0256 (issued August 13, 2013); Richard B. Cissel, 32 ECAB 1910, 1917 (1981).
8

opinion addressing whether the diagnosed conditions, surgery, and any resultant disability were 

causally related to the accepted work incident. Medical evidence that does not offer an opinion

regarding the cause of an employee’s condition is of limited probative value on the issue of 

causal relationship.

17

 For the stated reasons, the Board finds that evidence from Dr. Kahn is 

insufficient to establish appellant’s claim. 

While Dr. Brune opined in a December 18, 2013 report and an August 20, 2015 progress 

note that appellant sustained a work-related injury on September 28, 2013, she failed to provide 

medical rationale to support her opinion. Dr. Brune noted a history of the September 28, 2013 

employment incident and indicated that appellant had not worked since September 30, 2013. 

She also reviewed the October 23, 2013 cervical MRI scan results, noted examination findings, 

and diagnosed left-sided neck pain. The Board has consistently held that pain is a symptom, 

rather than a compensable medical diagnosis.

18

 Moreover, Dr. Brune did not explain how 

appellant’s condition and resultant disability were causally to the accepted work incident.19 Her 

remaining progress notes failed to offer an opinion addressing whether the diagnosed conditions 

were caused or aggravated by the accepted work incident.20 For these reasons, the Board finds 

that Dr. Brune’s report and progress notes are insufficient to establish causal relationship. 

Dr. Fritzhand’s June 19, 2015 report is also insufficient to establish the claim. Although 

he indicated that appellant’s cervical disc herniation was employment related, he attributed her 

condition to job requirements going back to October 1994. Dr. Fritzhand did not specifically 

explain how work duties on September 28, 2013 caused or aggravated her present condition. 

Without medical rationale on this point, his opinion is of limited probative value on causal 

relationship.21

Dr. Chun’s October 23, 2013 diagnostic test findings are also insufficient to establish 

causal relationship as he did not provide an opinion on the cause of appellant’s diagnosed 

condition.22 Furthermore, the report from a massage therapist has no probative medical value as 

a licensed massage therapist is not considered a physician under FECA.23

The Board finds that appellant has failed to submit rationalized, probative medical 

evidence sufficient to establish a neck condition causally related to the September 28, 2013 

employment incident. Appellant therefore did not meet her burden of proof.

 

17 C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,

58 ECAB 149 (2006).

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

19 Supra note 14.

20 Supra note 17.

21 See supra note 14.

22 Supra note 17.

23 5 U.S.C. § 8101(2); A.M., Docket No. 12-0616 (issued October 15, 2012).
9

On appeal appellant’s representative contends that appellant had submitted all the 

necessary medical documentation for acceptance of her claim and the Board had the authority to 

make an award of benefits. For the reasons set forth above, the Board finds that the weight of 

the medical evidence does not establish that appellant sustained a neck condition causally related 

to the accepted September 28, 2013 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 failed to meet her burden of proof to establish a neck

condition causally related to the accepted September 28, 2013 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the December 22, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 9, 2018

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