United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.G., Appellant

and

U.S. POSTAL SERVICE, MAIN POST OFFICE, 

Ronkonkoma, NY, Employer

__________________________________________

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Docket No. 18-0550

Issued: October 1, 2018

Appearances: Case Submitted on the Record

David A. Testone, 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 January 19, 2018 appellant, through his representative, filed a timely appeal from a 

September 1, 2017 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 to consider the merits of this case.

ISSUE

The issue is whether appellant has met his burden of proof to establish a back condition 

causally related to the accepted January 23, 2016 employment incident.

 

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

FACTUAL HISTORY

On February 18, 2016 appellant, then a 63-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that, on January 23, 2016, he sustained a compression fracture of his lumbar 

spine after lifting equipment at work. He did not stop work. 

In support of his claim, appellant submitted duty status reports (CA-17 forms) dated 

February 3 and 17 and March 15, 2016 from Dr. Ronald R. Bernardini, a chiropractor. On the CA17 forms Dr. Bernardini noted a January 23, 2016 injury date, provided work restrictions, and 

diagnosed spinal dislocation. Physical findings included severe lower spinal compression factures 

and neck pain. Dr. Bernardini also noted discal disease under the section titled, “other disabling 

conditions.”

A March 10, 2016 magnetic resonance imaging (MRI) scan of the lumbar spine revealed 

upper lumbar dextroscoliosis and disc bulges at L1-2, L2-3, L3-4, L4-5, and L5-S1.

A cervical MRI scan performed on March 10, 2016 revealed cervical lordosis, a disc bulge 

at C6-7, and disc herniations at C3-4, C4-5, and C5-6.

In a March 23, 2016 attending physician’s report (Form CA-20), Dr. Bernardini noted an 

injury date of January 23, 2016 and diagnosed lumbar subluxation dysfunction compression 

fracture, cervical segmental dysfunction, and thoracic dysfunction. Physical findings included 

neurological issues and acute compression fracture with discal trauma. Dr. Bernardini opined that 

the twisting and lifting 250 pounds caused the diagnosed medical conditions.

In a development letter dated April 6, 2016, OWCP advised appellant of the type of factual 

and medical evidence needed to establish his claim. It noted that under FECA, a chiropractor 

would only be considered a “physician” if he diagnosed a subluxation based upon x-ray evidence. 

OWCP afforded appellant 30 days to submit the necessary evidence.

Dr. Bernardini, in a February 3, 2015 case history form, noted that appellant was seen for 

complaints of neck and back pain. Appellant stated that the pain had been present for a week and

that he had backaches, neck pain, and sinus trouble. He also related that he had been involved in 

a minor automobile accident in the past five years.

A February 3, 2016 lumbar x-ray interpretation revealed multilevel discogenic 

degenerative disease, facet arthrosis, demineralized bones with dextrocurvature, mild L2 endplate 

depression, which might be indicative of a mild compression fracture of indeterminate age.

In patient care reexamination and clinical guideline form reports dated February 19, 

March 14, and April 5, 2016, Dr. Bernardini detailed treatment provided for appellant’s 

complaints of neck, mid back, and lower back pain.

In a February 3, 2016 report, Dr. Bernardini diagnosed discal lesions, soft tissue trauma, 

neurological impairment, sciatic neuritis, intersegmental dysfunction along with arthritic, and 

calcific arthritic degeneration which he attributed to the accepted January 23, 2016 work incident. 

Physical findings were provided. Dr. Bernardini reported that no diagnostic testing had been 

performed, but testing would follow. He advised that appellant was totally disabled.
3

In an April 5, 2016 Form CA-17, Dr. Bernardini provided work restrictions and reiterated 

diagnoses and findings from prior reports.

In an April 25, 2016 Form CA-17, Dr. Bernardini noted an injury date of January 23, 2016 

and listed work restrictions.

By decisions dated May 17 and 18, 2016, OWCP denied appellant’s claim. It found that 

the medical evidence submitted was insufficient to establish a diagnosed medical condition 

causally related to the accepted January 23, 2016 work incident.

On a form dated May 27, 2016, appellant requested both an oral hearing and review of the 

written record by an OWCP hearing representative.

In a June 13, 2016 Form CA-17 duty status report, Dr. Bernardini diagnosed spinal 

subluxation, which he attributed to the claimed January 23, 2016 work injury. Other disabling 

conditions included discal issues. Dr. Bernardini indicated that appellant was capable of working 

with restrictions.

On July 12, 2016 appellant requested reconsideration and submitted a June 22, 2016 report 

by Dr. Bernardini in support thereof. He withdrew his request for an oral hearing.

In a June 22, 2016 report, Dr. Bernardini noted that appellant denied any preexisting back 

condition. He observed the lack of any evidence of a preexisting back condition in appellant’s 

medical history. Thus, Dr. Bernardini opined that the diagnosed condition had been caused by the 

accepted January 23, 2016 work incident. He explained that the diagnosed subluxation was 

supported by lumbar spinal rotation and compression fractures and nerve compression found by

diagnostic testing.

By decision dated November 18, 2016, OWCP denied modification of the May 18, 2016 

decision, finding that the medical evidence of record was insufficient to establish a diagnosed 

condition causally related to the accepted January 23, 2016 employment incident.

In a January 4, 2017 report, Dr. Thomas J. Dowling, an examining Board-certified 

orthopedic surgeon, diagnosed low back discogenic pain, L3-4 and L4-5 herniated nucleus 

pulposus, and lumbar spinal stenosis. He noted appellant’s history of a lifting injury at work with 

no abatement in pain following the incident.3 Dr. Dowling noted no history of back issue, noted a 

March 10, 2016 MRI scan, and provided examination findings. He concluded further review was 

required to determine the etiology of appellant’s symptoms and appropriate type of treatment.

On January 24, 2017 appellant, through his representative, requested reconsideration. The

representative asserted that OWCP incorrectly found that appellant had a preexisting back

condition.

By decision dated April 13, 2017, OWCP denied modification of its prior decision.

 

3 The report notes January 23, 2016 under “D/A,” but in the narrative history of injury the date is noted as 

January 26, 2016.
4

On June 7, 2017 appellant requested reconsideration. His representative asserted that 

OWCP failed to follow mandated OWCP procedure and improperly denied the claim.

On August 9, 2017 OWCP received progress notes dated February 28 and June 27, 2013, 

March 10 and, May 16, 2014, November 5, 2015, and May 9, 2016. The signature on the forms 

is illegible and there is no diagnosis noted on any of the forms.

By decision dated September 1, 2017, OWCP denied modification of its April 13, 2017 

decision, finding that appellant had not established that his diagnosed medical condition was 

causally related to the accepted employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

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

United States within the meaning of FECA, 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.5 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.6

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether fact of injury has been established.7 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.8 Second, the employee must

submit sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.9

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.11 The opinion of the physician must be based on a complete 

 

4 Supra note 2. 

5 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7 B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8 D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9 C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra

note 5.

10 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006).

11 J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).
5

factual and medical background of the employee, must be one of reasonable medical certainty, and 

must be supported by medical rationale explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the employee.12 

Where there is medical evidence of a preexisting condition involving the same part of the 

body as the claimed employment injury, the issue of causal relationship invariably requires inquiry 

into whether there was employment-related aggravation, acceleration, or precipitation of the 

underlying condition.13 Accordingly, the physician must provide a rationalized medical opinion 

which differentiates between the effects of the work-related injury or disease and the preexisting 

condition.14 Such evidence will permit the proper kind of acceptance, such as whether the 

employment-related aggravation was temporary or permanent.15

ANALYSIS

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

causally related to the accepted January 23, 2016 employment incident.

Dr. Dowling, in a January 4, 2017 report, diagnosed low back discogenic pain, L3-4 and 

L4-5 herniated nucleus pulposus, and lumbar spinal stenosis. He opined that further review was 

required to determine the cause of the diagnosed conditions. The Board has held that medical 

evidence that does not offer any opinion regarding the cause of an employee’s condition is of 

limited probative value on the issue of causal relationship.16 As Dr. Dowling offered no opinion 

as to the cause of the diagnosed conditions, his opinion is insufficient to support appellant’s 

burden.

Appellant also submitted reports and CA-17 forms from Dr. Bernardini, a chiropractor. In 

his April 5, 2016 report, Dr. Bernardini specifically noted that no diagnostic testing had been 

performed. He did not provide explanation in any of his reports that a subluxation had been 

diagnosed based upon x-ray evidence. Dr. Bernardini’s reports therefore are of diminished 

probative medical value as he is not considered a physician under FECA due to his failure to 

diagnose spinal subluxation based upon x-ray evidence.

17

 

 

12 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

13 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) 

(January 2013). See A.W., Docket No. 17-285 (issued May 25, 2018)

14 Id.

15 Id.

16 C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

17 Section 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. The term physician 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. R.M., 59 ECAB 690 (2008); Pamela K. Guesford, 53 ECAB 726 

(2002); see Merton J. Sills, 39 ECAB 572, 575 (1988).
6

The remaining medical evidence of record, including diagnostic test reports, is of limited 

probative value and insufficient to establish the claim as this evidence does not specifically address 

whether appellant’s diagnosed conditions are causally related to the accepted January 23, 2016 

work incident.18

The record before the Board is without rationalized medical evidence establishing that 

appellant sustained a back condition causally related to the accepted January 23, 2016 employment

incident. OWCP advised appellant that it was his responsibility to provide a comprehensive 

medical report which described his symptoms, test results, diagnosis, history of treatment, and the 

physician’s opinion, with medical reasons, on the cause of his conditions. Appellant has failed to 

submit appropriate medical documentation in response to OWCP’s request. The Board has held 

that the mere fact that a condition manifests itself during a period of employment does not raise an 

inference of causal relation.19 An award of compensation may not be based on surmise, conjecture, 

speculation, or on the employee’s own belief of causal relation.20 

The Board thus finds that the medical evidence of record is insufficient to establish that 

appellant sustained a back condition causally related to the accepted January 23, 2016 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 has not met his burden of proof to establish a back condition

causally related to the accepted January 23, 2016 work incident.

 

18 See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical

evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value 

on the issue of causal relationship).

19 L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB 

559 (2006).

20 S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303 (2007); Donald W. Long, 41 ECAB 142 (1989).
7

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated September 1, 2017 is affirmed.

Issued: October 1, 2018

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