United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.T., Appellant

and

U.S. POSTAL SERVICE, RUSKIN POST 

OFFICE, Sun City Center, FL, Employer

__________________________________________

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Docket No. 21-0110

Issued: December 8, 2021

Appearances: Case Submitted on the Record

Joanne Marie Wright, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 3, 2020 appellant, through her representative, filed a timely appeal from a 

June 4, 2020 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 June 4, 2020 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 her burden of proof to expand the acceptance of her 

claim to include a cervical condition causally related to or as a consequence of the accepted 

September 3, 2009 employment injury.

FACTUAL HISTORY

On September 3 2009 appellant, then a 47-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she injured her right lower back when she tripped 

and fell to the ground while in the performance of duty. She stopped work on September 4, 2009

and returned to work on September 8, 2009. OWCP accepted the claim, assigned OWCP File No. 

xxxxxx695, for lumbar sprain. It subsequently expanded acceptance of the claim to include 

displacement of a lumbar intervertebral disc at L2-3 without myelopathy. On February 11, 2013 

appellant underwent an anterior lumbar interbody fusion at L2-3. OWCP paid her wage-loss 

compensation on the supplemental rolls for intermittent time lost from work. Appellant returned

to work for four hours per day on July 22, 2013.

OWCP subsequently accepted appellant’s June 24, 2013 occupational disease claim (Form 

CA-2) for left lateral epicondylitis, assigned OWCP File No. xxxxxx389. Under that file number, 

appellant began working four hours per day modified duty in April 2014. OWCP paid her based 

on her loss of wage-earning capacity determination in OWCP File No. xxxxxx389 effective 

April 29, 2014. It administratively combined OWCP File No. xxxxxx389 and OWCP File No. 

xxxxxx695, with the latter serving as the master file.

An August 30, 2013 magnetic resonance imaging (MRI) scan of the cervical spine 

demonstrated mild degenerative disc disease at C4-5 and C5-6 with mild C5-6 kyphosis and mild 

canal stenosis without cord compression, disc herniation, or fracture.

In a report dated April 23, 2014, Dr. Marc Weinstein, a Board-certified orthopedic surgeon, 

discussed appellant’s complaints of radiating low back pain and neck pain with headaches. On 

May 6, 2014 he evaluated appellant for new complaints of neck pain, headaches, and bilateral 

lower extremity pain and continued complaints of low back pain.

On June 3, 2014 Dr. Howard B. Jackson, a Board-certified physiatrist, evaluated appellant 

for improved headaches, and unchanged neck, low back, right lower extremity, left buttock/sacral, 

and left lower extremity pain. Regarding the cervical spine, he diagnosed neck pain due to cervical 

disc pain. Dr. Jackson continued to provide progress reports in 2014 and 2015 describing his 

treatment of appellant for pain management. On October 15, 2015 he evaluated her for pain in the 

low back, left buttock/sacral area, left lower extremity, and tailbone. Dr. Jackson noted that 

appellant had been in an accident on October 6, 2015 that had caused increased pain. 
3

In a report dated January 19, 2016, Dr. Jackson advised that he had initially treated 

appellant on December 3, 2009 for low back pain.4 He noted that on May 6, 2014 she complained 

of neck pain. Dr. Jackson indicated that he had evaluated appellant on October 20, 2015 for 

increased pain in the same areas following an October 13, 2015 motor vehicle accident (MVA). 

He diagnosed neck and upper extremity pain as a result of cervical disc pain and radiculitis directly 

due to her “job as a letter carrier or it is secondary to the increased compensatory forces on her 

cervical spine from her lumbar fusion.” 

Dr. Jackson continued to provide reports describing his treatment of appellant for pain 

management from January through July 2016. 

In a development letter dated September 14, 2016, OWCP noted that appellant had claimed 

neck pain due to cervical disc disorder with radiculitis causally related to her accepted 

September 3, 2009 employment injury. It informed her, however, that pain was a symptom and 

thus not compensable. OWCP requested that appellant submit additional factual and medical 

information in support of her claim, including a reasoned opinion from her physician explaining 

how a new condition resulted from or was a consequence of her accepted September 3, 2009 

employment injury. It afforded her 30 days to submit the requested information. 

An MRI scan of the cervical spine dated September 21, 2016 revealed cervical 

hypolordosis, a central to slightly left disc herniation at C4-5 indenting the dural sac, and disc 

space narrowing and desiccation due to a broad osteophytic ridge at C5-6.

In a June 17, 2017 statement, appellant’s representative requested that OWCP adjudicate 

whether acceptance of her claim should be expanded to include C4-5 and C5-6 degenerative disc 

disease and cervical radiculitis as a consequential injury. In support of her request, she resubmitted 

progress reports from Dr. Jackson dated May 6, 2014 and August 25, 2015, the January 19, 2016 

medical report from Dr. Jackson, and the September 21, 2015 MRI scan.

On September 5, 2018 OWCP received an undated statement from appellant asserting that 

she had been diagnosed with neck pain in the scapular region with radiation due to cervical disc 

disorder with radiculitis. Appellant denied a cervical condition prior to her February 11, 2013 

authorized lumbar surgery. She advised that she had sustained increased neck pain and ringing in 

the ears after an October 13, 2015 MVA. Appellant indicated that Dr. Jackson found that the 

accident had aggravated her cervical condition and that her cervical condition was causally related 

to her work duties or lumbar spinal fusion. 

The record contains reports from Dr.Jackson describing his treatment of appellant for pain 

management from October 2016 through December 2018. 

On September 11, 2018 OWCP expanded its acceptance of appellant’s claim to include a 

single episode of severe major depressive disorder without psychotic features.

4

In a report dated August 22, 2016, Dr.Christopher Linberg, a Board-certified orthopedic surgeon and OWCP 

referral physician, diagnosed left lateral epicondylitis and status post lumbar fusion at L2-3 with continued pain and 

new radicular symptoms on the left due to progressive adjacent level disease to include a disc herniation at L4-5 and 

degenerative disc disease at L3-4 and L4-5. He recommended that OWCP authorize additional lumbar surgery. 

OWCP authorized a lumbar fusion on January20, 2017.
4

By decision dated March 6, 2019, OWCP denied appellant’s request to expand acceptance 

of her claim to include a consequential cervical condition.

The record contains physical therapy reports from March through April 2019.

Dr. Jackson continued to submit progress reports regarding his treatment of appellant for 

pain management.

On March 6, 2020 appellant, through her representative, requested reconsideration. She 

summarized the medical evidence submitted in support of her request, noting that multiple 

physicians had described her complaints of neck pain. Appellant’s representative further reviewed 

the results of diagnostic testing. She maintained that the medical evidence demonstrated that 

appellant’s cervical condition had begun after her February 11, 2013 authorized lumbar surgery 

and requested that OWCP expand the acceptance of her claim to include degeneration of a cervical 

intervertebral disc and radiculitis.

In support of her request, appellant submitted an April 23, 2013 report fromDr. Keri Herro, 

a chiropractor. Dr. Herro evaluated her for left elbow pain and noted that she had no history of a 

prior neck injury or stiffness. She diagnosed neuralgia, neuritis, and radiculitis and cervical 

segmental dysfunction.

In a report dated December 12, 2013, Dr. Alfred Hess, a Board-certified orthopedic 

surgeon, discussed appellant’s complaints of left elbow pain, a stiff neck, and headaches. He 

diagnosed lateral epicondylitis.

Appellant further resubmitted Dr. Weinstein’s April 23, 2014 report evaluating her for low 

back pain and neck pain with headaches, progressreports fromDr. Jackson dated August 26, 2014, 

and June 23, 2015, and a May 6, 2014 report signed by a nurse practitioner. In his reports,

Dr. Jackson diagnosed neck pain secondary to cervical disc pain. 

By decision dated June 4, 2020, OWCP denied modification of its March 6, 2019 decision.

LEGAL PRECEDENT

Where an employee claims that a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.5

Causal relationship is a medical question that requires medical opinion evidence to resolve 

the issue.6 The opinion of the physician must be based on a complete factual and medical 

background, must be one of reasonable certainty, and must be supported by medical rationale 

explaining the nature of the relationship between the diagnosed condition and the accepted 

employment injury.7

5 K.T., Docket No. 19-1718 (issued April7, 2020); JajaK.Asaramo, 55 ECAB 200 (2004).

6 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

7

Id.
5

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, the question is whether compensability should be extended to a 

subsequent injury or aggravation related in some way to the primary injury. The rules that come 

into play are essentially based upon the concepts of direct and natural results and of the claimant’s 

own conduct as an independent intervening cause. 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.8

ANALYSIS

The Board finds that appellant has not met her burden of proof to expand the acceptance 

of her claim to include a cervical condition causally related to or as a consequence of the accepted 

September 3, 2009 employment injury.

In a report dated January 19, 2016, Dr. Jackson indicated that he had begun treating 

appellant for low back pain on December 3, 2009. Appellant subsequently complained of neck 

pain on May 6, 2014. Dr. Jackson noted that appellant had increased pain after an October 13, 

2015 MVA. He diagnosed neck and upper extremity pain as a result of cervical disc pain and 

radiculitis due to either her employment duties or as a result of the increased stress on her cervical 

spine subsequent to her lumbar fusion. Dr. Jackson’s opinion, however, is equivocal regarding the 

cause of appellant’s condition and thus of diminished probative value.9 

The remaining evidence of record fails to address the cause of appellant’s condition. 

Dr. Jackson provided progress reports dated 2013 through 2019 describing his treatment 

of appellant for low back, bilateral extremity, and cervical pain. His diagnoses included neck pain 

arising from a cervical disc condition. Dr. Jackson, however, did not address the cause of 

appellant’s cervical condition. The 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 on the issue of 

causal relationship.10 Thus, the Board finds that Dr. Jackson’s reports are of no probative value 

on the issue of causal relationship and are insufficient to establish appellant’s burden of proof.

Similarly, the reports from Dr. Hess and Dr. Weinstein discuss appellant’s complaints of 

neck pain without offering any opinion as to the cause of her conditions. As noted, a medical 

opinion that lacks an opinion regarding the cause of an employee’s condition is of no probative 

value on the issue of causal relationship.11 The Board finds, therefore, that these reports are of no 

probative value on the issue of causal relationship and insufficient to meet appellant’s burden of 

proof.

8 K.S.,Docket No. 17-1583 (issued May 10, 2018); Arthur Larson & Lex K. Larson, The Law of Workers’

Compensation § 3.05 (2014).

9

See M.K., Docket No. 21-0520 (issued August23, 2021).

10 See J.M., Docket No. 19-1926 (issued March 19, 2021); L.D., Docket No. 20-0894 (issued January 26, 2021).

11 Id.
6

On April 23, 2013 Dr. Herro, a chiropractor, diagnosed neuralgia, neuritis, and radiculitis 

and cervical segmental dysfunction; however, this report is of no probative medical value as she 

did not diagnose spinal subluxation as demonstrated by x-ray evidence to exist.12

Appellant further submitted reports from a physical therapist and nurse practitioner. These 

reports, however, are of no probative value as physical therapists and nurse practitioners are not 

considered physicians as defined under FECA.13 

The record contains MRI scans of the cervical spine. However, diagnostic studies, standing 

alone, lack probative value on the issue of causal relationship as they do not address whether an 

employment incident caused the diagnosed condition.14

On appeal appellant’s representative contends that her authorized lumbar surgery 

contributed to the progression of her cervical disorder and was thus compensable as a 

consequential injury. Appellant, however, bears the burden of proof to establish a claim for a 

consequential injury by providing rationalized medical evidence showing how the subsequentlyacquired medical condition is a natural consequence of the prior employment injury. 15

 As the 

medical evidence of record is insufficient to establish causal relationship between appellant’s 

cervical condition and the accepted employment injury, the Board finds that she has not met her 

burden of proof.

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 expand the acceptance 

of her claim to include a cervical condition causally related to or as a consequence of the accepted 

September 3, 2009 employment injury.

12 Chiropractors are considered physicians under FECA 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. See 5 U.S.C. § 8101(2); R.N., Docket No. 19-1685 (issued 

February26, 2020); S.D.,Docket No. 19-1245 (issued January 3, 2020); Merton J. Sills, 39 ECAB 572, 575 (1988).

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

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

by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Causal Relationship, Chapter 2.805.3a(1) (January2013); C.S., Docket No. 20-1354 (issued January 29, 2021);see 

also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and 

physical therapists are not competent to render a medical opinion under FECA);E.W.,Docket No. 20-0338 (issued 

October 9, 2020); Jane White, 34 ECAB 515, 518 (1983) (physical therapists are not considered physicians under 

FECA).

14 C.H., Docket No. 20-0228 (issued October 7, 2020); E.G., Docket No. 17-1955 (issued September 10, 2018).

15 See T.S., Docket No. 20-0968 (issued August 17, 2021); C.H., Docket No. 20-0228 (issued October 7, 2020).
7

ORDER

IT IS HEREBY ORDERED THAT the June 4, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 8, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board