United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Apopka, FL, Employer

__________________________________________

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Docket No. 19-0921

Issued: October 23, 2019

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 25, 2019 appellant, through counsel, filed a timely appeal from a September 26, 

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 following the September 26, 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

ISSUE

The issue is whether appellant has met his burden of proof to establish disability on or after 

October 31, 2016 causally related to his accepted September 15, 2016 employment injury.

FACTUAL HISTORY

On September 19, 2016 appellant, then a 53-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on September 15, 2016 he sustained a back condition when

delivering mail while in the performance of duty. He stopped work on September 16, 2016.

In an authorization for examination and/or treatment form (Form CA-16) completed on 

October 12, 2016, Dr. Nadia M. Sadek, a Board-certified family practitioner, indicated that 

appellant reported experiencing low back pain while delivering mail. She noted findings of spinal 

stenosis and lumbar disc bulge. On November 1, 2016 Dr. Sadek diagnosed disc bulges at L3-4 

and L4-5, with spinal stenosis at L3-4, related to the September 15, 2016 employment injury. 

OWCP accepted appellant’s claim for spinal stenosis of the lumbar region at L3-4 and 

intervertebral disc disorders of the lumbar region with myelopathy at L3-4 and L4-5. Appellant 

received continuation of pay for the period September 16 to October 30, 2016.

On November 16, 2016 appellant filed a claim for compensation (Form CA-7) claiming 

wage-loss compensation for the period October 31 to November 11, 2016 due to his September 15, 

2016 employment injury.

4

 He later filed Forms CA-7 claiming employment-related disability for 

periods commencing after November 11, 2016.

In a November 22, 2016 development letter, OWCP requested that appellant submit 

additional evidence, including a rationalized medical opinion explaining how and why the 

accepted September 15, 2016 employment injury precluded him from working on or after 

October 31, 2016.

In response, appellant submitted a December 5, 2016 excuse slip from Dr. Sadek who 

indicated that appellant should be off work for four weeks. In a December 5, 2016 duty status 

report (Form CA-17), she listed the date of injury as September 15, 2016 and the diagnoses “due 

to injury” as spinal stenosis and degenerative disc disease. Dr. Sadek determined that appellant 

could not perform his regular work.

In a December 9, 2016 “initial evaluation” report, Dr. Robert R. Reppy, an osteopath and 

Board-certified family practitioner, noted that appellant reported that, while delivering mail on 

September 15, 2016, he experienced sudden severe low back pain and was unable to move after 

he bent down low to place mail in a mail receptacle. He indicated that this bending action resulted 

in hyperflexion of appellant’s lumbar spine. Appellant further reported that he presently had 

lumbar pain which radiated bilaterally to points just distal to his knees (right greater than left), and 

that he had leg pain and weakness which limited his walking to 100 feet at a time and caused his 

legs to buckle several times a week. Dr. Reppy diagnosed lumbar stenosis and degenerative 

lumbar disc disease, especially at L3-4 and L4-5.

 

4 Appellant had received continuation of pay for his time off work from September 16 to October 30, 2016.
3

In a December 9, 2016 Form CA-17, Dr. Reppy listed the date of injury as September 15, 

2016 and the diagnosis “due to injury” as spinal stenosis. He found that appellant could not work 

for four weeks.

By decision dated December 23, 2016, OWCP denied appellant’s claim because he had not 

submitted medical evidence sufficient to establish disability on or after October 31, 2016 causally 

related to his accepted September 15, 2016 employment injury. It found that the reports of

Dr. Sadek and Dr. Reppy did not contain a rationalized medical opinion regarding the claimed 

period of employment-related disability. 

On April 21, 2017 appellant, through counsel, requested reconsideration of the 

December 23, 2016 decision.

Appellant submitted an undated report from Dr. Sadek who noted that appellant reported 

that on September 15, 2016 he reached down to put mail in a box and felt excruciating low back 

pain when attempting to return to an upright position.5 She diagnosed medical conditions found 

in a September 28, 2016 magnetic resonance imaging (MRI) scan, including a broad-based 

intervertebral disc bulge at L3-4 with mild spinal stenosis, disc desiccation/narrowing, and mild 

bilateral neural foraminal narrowing, as well as an intervertebral disc bulge at L4-5 with 

superimposed small central protrusion, moderate spinal stenosis, annular fissure, bilateral lateral 

recesses narrowing, and mild bilateral neural foraminal narrowing.

6

 Dr. Sadek opined that 

appellant’s work activities contributed to these “disabling medical conditions.” She noted that, 

based on her physical examination of appellant and her review of the medical records, it was more 

probable than not that the September 15, 2016 employment incident contributed to the “disabling 

diagnoses, impairments, and disabilities” identified in her report.7 Dr. Sadek indicated that OWCP 

had already accepted appellant’s claim for disabling medical conditions that prevented him from 

performing his regularly and specially assigned job duties and she noted, “Based on the MRI, and 

the clinical examinations that I personally performed of [appellant], the medications that he was 

prescribed by various physicians and the medical reports that I reviewed (including the emergency 

room report the day of the injury), it is my medical opinion that [appellant] has been totally 

disabled from all work from the date of injury to the present.”

8

In a December 19, 2016 report, Dr. Reppy provided a description of the September 15, 

2016 employment incident which was similar to that contained in his December 9, 2016 report. 

He noted that, on September 15, 2016, when appellant bent down to the extreme range of his back 

motion, this hyperflexion of his lumbar spine while bearing weight in his arms resulted in the 

application of sufficient compression force to cause disc protrusions at L3-4 and L4-5 in a posterior 

direction. Dr. Reppy indicated that the disc protrusions impinged on the nerve roots as they exited 

the spinal column and thereby caused pain to those areas of the lower extremities to which the 

 

5 OWCP received this report on December 28, 2016.

6 The case record contains a report of the September 28, 2016 MRI scan which, in its conclusion section, includes 

the diagnoses referenced byDr.Sadek. 

7 Dr. Sadek inadvertently listed the date of the employment incident as June 19, 2016 in the “statement of causal 

connection” portion of herreport, but she properly listed it as June 15, 2016 in other portions of the report.

8 Dr. Sadek opined that appellant would continue to be totally disabled for the immediate future until it was 

determined how he responded to physical therapy or, if necessary, back surgery.
4

nerves traveled. He maintained that the consequence of these disc protrusions was that appellant’s 

legs grew weak even after a short distance of walking and that his symptoms forced him to cease 

activity after walking as short a distance as 100 feet.9 Dr. Reppy opined that lifting heavy objects 

would further the compression of appellant’s involved lumbar discs, thereby making them bulge 

more and impinge even harder on the nerve roots. He noted that appellant’s rural carrier position 

required him to carry up to 70 pounds and that he would not meet the minimum qualifications for 

this position given that he could not lift more than 20 pounds without experiencing extreme leg 

pain and weakness. Dr. Reppy indicated, “It is my expert medical opinion that the conditions 

diagnosed above are directly related to his injury of September 15, 2016 and both preclude him 

from the ability to perform the required tasks....”

In several CA-17 forms dated between January 6 and April 7, 2017, Dr. Reppy listed the 

date of injury as September 15, 2016 and the diagnosis “due to injury” as spinal stenosis, and 

indicated that appellant could not work for various periods. In a January 6, 2017 narrative report, 

he advised that appellant could not work for the next five weeks. These reports collectively 

identified a period of total disability from January 6 to April 21, 2017. In CA-17 forms dated

May 5, June 2, and July 7, 2017, Dr. Reppy indicated that appellant could perform part-time work 

with restrictions. In additional narrative reports dated between February 10 and May 5, 2017, he 

diagnosed such conditions as stenosis of the lumbar spine, herniated disc at L5-S1 with 

radiculopathy of the lower extremities, and multifocal entrapment of the nerve roots at L4 and 

L5.10

By decision dated July 6, 2017, OWCP denied modification of its December 23, 2016 

decision. 

On July 5, 2018 appellant, through counsel, requested reconsideration of the July 6, 2017 

decision.

Appellant submitted several narrative reports, dated between August 4, 2017 and 

August 10, 2018, in which Dr. Reppy reported physical examination findings and diagnosed such 

conditions as lumbar spinal stenosis, herniated disc at L5-S1 with radiculopathy of the lower 

extremities, and entrapment syndrome at the L4 and L5 nerve roots. In CA-17 forms dated 

between August 4, 2017 and August 10, 2018, Dr. Reppy diagnosed spinal stenosis related to the 

September 15, 2016 employment incident and indicated that appellant could not work for 

intermittent periods between August 4, 2017 and September 24, 2018.

11

 

9 Dr. Reppy indicated that impingement on appellant’s nerves could cause his legs to spontaneously buckle and for 

him to fall to the floor without warning.

10 Appellant also submitted January 13 and 19, 2017 reports from Dr. Tatyana Stepanenko, Board-certified in 

physical medicine and rehabilitation, who diagnosed spinal stenosis of the lumbar spine, degeneration of intervertebral 

disc, and lumbar radiculopathy. The findings of January18, 2017 electromyogram and nerve conduction velocity 

(EMG/NCV) testing showed evidence suggestive of right L4 and bilateral L5/S1 multi-focal nerve entrapment. 

11 In reports dated June 13, July 10, and August 14, 2018, Dr. Paul Webster, a Board-certified anesthesiologist, 

described his application of steroid injections in appellant’s lumbar region to help alleviate his pain. He diagnosed 

spinal stenosis of the lumbar region, intervertebral lumbar disc disorders with radiculopathy, and other intervertebral 

lumbar disc displacement. The findings of July 11, 2018 EMG/NCV testing showed evidence suggestive of left L5 

and bilateral S1 nerve entrapment.
5

In June 8 and 29, 2018 narrative reports, Dr. Reppy discussed the progression of 

appellant’s lumbar condition since the September 15, 2016 employment injury. He indicated that, 

for a period in 2017, he had placed appellant on part-time work restrictions in order to see if his 

employment-related lumbar conditions would improve with rest. Dr. Reppy noted that, after 

appellant’s employment-related lumbar condition did not improve with conservative care, he 

presented all signs of being a back surgery candidate and he advised that “due to this he was placed 

on no work status.”

By decision dated September 26, 2018, OWCP denied modification of its July 6, 2017 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of establishing the essential 

elements of his or her claim including the fact that the individual is an employee of the United 

States within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, that an injury was sustained in the performance of duty as alleged, and 

that any disability and/or specific condition for which compensation is claimed are causally related 

to the employment injury.12 In general the term disability under FECA means incapacity because 

of injury in employment to earn the wages which the employee was receiving at the time of such 

injury.13 This meaning, for brevity, is expressed as disability for work.14 

The medical evidence required to establish a causal relationship between a claimed period 

of disability and an employment injury is rationalized medical opinion evidence. 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 claimant.15

ANALYSIS

The Board finds that the case is not in posture for decision.

Appellant submitted an undated report from Dr. Sadek, received by OWCP on 

December 28, 2016, in which she discussed appellant’s September 15, 2016 employment incident 

and diagnosed intervertebral disc bulge at L3-4 with mild spinal stenosis and disc bulge at L4-5 

with superimposed small central protrusion and moderate spinal stenosis. She opined that, based 

on her physical examination of appellant and her review of the medical records, it was more 

probable than not that the September 15, 2016 employment injury contributed to these disabling 

 

12 S.W., Docket No. 18-1529 (issued April19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

13 See 20 C.F.R. § 10.5(f).

14 See S.W, supra note 12. See also A.M., Docket No. 09-1895 (issued April23, 2010); Roberta L. Kaaumoana, 54 

ECAB 150 (2002).

15 E.J., Docket No. 09-1481 (issued February 19, 2010).
6

diagnoses that caused him to be totally disabled from all work from September 15, 2016 to the 

present.16 

In a December 19, 2016 report, Dr. Reppy provided a description of the September 15, 

2016 employment incident and discussed appellant’s back pain and leg pain/weakness related to 

the September 15, 2016 employment injury. He diagnosed degenerative disc disease of the lumbar 

spine at L3-4 and L4-5, and lumbar spinal stenosis. Dr. Reppy noted that appellant’s rural carrier 

position required him to carry up to 70 pounds and that he would not meet the minimum 

qualifications for this position given that he could not lift more than 20 pounds without 

experiencing extreme leg pain and weakness. He opined that the diagnosed conditions of lumbar 

spinal stenosis and degenerative lumbar disc disease at L3-4 and L4-5 were directly related to 

appellant’s September 15, 2016 employment injury and that both of these diagnosed conditions 

precluded him from performing his required work tasks.17

The Board notes that, in several of their reports, Dr. Sadek and Dr. Reppy related 

appellant’s disability commencing in late-2016 to two conditions: degenerative lumbar disc 

disease and lumbar spinal stenosis. While the former condition has not been accepted as related 

to the September 15, 2016 employment injury, the latter condition has, in fact, been accepted as 

related to that injury. Therefore, Dr. Sadek’s and Dr. Reppy’s reports contain a clear opinion that 

an employment-related condition at least partially contributed to appellant’s disability during the 

claimed period.18

Proceedings under FECA are not adversarial in nature, and OWCP is not a disinterested 

arbiter.19 The Board finds that while Dr. Sadek’s and Reppy’s reports are insufficient to meet 

appellant’s burden of proof, they raise an uncontroverted inference of causal relation between his 

claimed disability from work commencing October 31, 2016 and the accepted September 15, 2016 

employment injury. Further development of appellant’s claim is therefore required.20

On remand OWCP shall prepare a statement of accepted facts and refer appellant to an 

appropriate Board-certified specialist for a second opinion examination and an evaluation 

regarding whether he had disability from work on or after October 31, 2016 causally related to his 

 

16 In a December 5, 2016 Form CA-17, Dr. Sadek listed the date of injury as September 15, 2016 and the diagnoses 

“due to injury” as spinal stenosis and degenerative disc disease. She determined that appellant could not perform his 

regular work.

17 In Forms CA-17 dated between late 2016 and mid-2018, Dr. Reppy listed the date of injury as September 15, 

2016 and the diagnosis “due to injury”as spinal stenosis, and determined that appellant was either partially or totally 

disabled for various periods commencing in December 2016. In June 8 and 29, 2018 narrative reports, Dr.Reppy 

further discussed his opinion that appellant had periods of partial and total disability commencing in late 2016 due to

his accepted September 15, 2016 employment injury.

18 See G.B., Docket No. 10-0878 (issued December 17, 2010) (discussing coverage under FECA when there is only 

partial contribution by a given employment factor/condition).

19 See B.B., Docket No. 18-1321 (issued April5, 2019).

20 See C.M., Docket No. 17-1977 (issued January 29, 2019); John J. Carlone, 41 ECAB 354 (1989).
7

accepted September 15, 2016 employment injury. Following any necessary further development, 

OWCP shall issue a de novo decision.21

CONCLUSION

The Board finds that the case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the September 26, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board.

Issued: October 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

21 The record contains a Form CA-16 that was completed on October 12, 2016 by Dr. Sadek. Where an employing 

establishment properly executes a Form CA-16 authorizing medical treatment related to a claim for a work injury, the 

form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the 

examination/treatment regardless of the action taken on the claim. See Tracy P. Spillane, 54 ECAB 608 (2003). 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).