United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.G., Appellant

and

U.S. POSTAL SERVICE, WINFIELD POST 

OFFICE, Winfield, MO, Employer

__________________________________________

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Docket No. 20-0454

Issued: October 29, 2020

Appearances: Case Submitted on the Record

Stephanie Leet, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 27, 2019 appellant, through counsel, filed a timely appeal from a July 11, 

2019 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 January 17, 2018 employment incident.

FACTUAL HISTORY

On September 17, 2018 appellant, then a 45-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on January 17, 2018 she injured her back and experienced 

shooting pain down her left leg to her left foot and on the left side of her back as a result of loading 

mail trays and heavy parcels into her vehicle while in the performance of duty. She stopped work 

on January 18, 2018 and returned to work on January 22, 2018. In a witness statement on the 

claim form, C.S., a coworker, indicated that appellant called her crying about having severe back 

pain that ran down her leg. On the reverse side of the claim form appellant’s postmaster indicated 

that she was injured in the performance of duty, but that she had not informed him about the injury 

on the date of injury.

In a November 29, 2018 letter, the employing establishment controverted appellant’s 

claim, contending that she had waited until November 2018 to file an injury report for an injury 

that allegedly occurred “on January 18, 2018.” It further contended that any current knee, leg, or 

back pain could potentially be related to her private activities and not job related. 

OWCP, in a December 12, 2018 development letter, informed appellant of the deficiencies 

of her claim. It advised her of the type of factual and medical evidence necessary to establish her 

claim and provided a questionnaire for her completion regarding the facts and circumstances of 

the injury. In a separate development letter of even date, OWCP requested that the employing 

establishment provide additional information including comments from a knowledgeable 

supervisor, the identification and job title of C.S., and an explanation of appellant’s work activities. 

It afforded both parties 30 days to submit the necessary evidence.

On January 4, 2019 appellant responded to OWCP’s development questionnaire. She 

recounted that on the date of injury she was loading her vehicle with trays of mail and parcels in 

the employing establishment’s parking lot. Appellant experienced low back pain, but she delivered 

mail until she stopped due to intensified pain in her back that ran down to her leg and toes. She 

left work and sought medical treatment. Appellant indicated that she had never been hurt on the 

job. She noted that C.S. was a clerk at the employing establishment. 

In physician progress notes dated April 2 and 12, 2018, Dr. Wendy L. Meyr-Cherry, an 

attending Board-certified family practitioner, indicated that appellant noted a history that she 

experienced pain down her left leg which she thought was related to lifting packages, turning, and 

twisting full time at work. She provided findings on examination and diagnosed acute left-sided 

low back pain with left-sided sciatica.

Daily notes from physical therapists dated April 10 through May 10, 2018 addressed 

treatment of appellant’s lumbar conditions.
3

In medical reports dated May 17, 25 and 30, and June 15 and 20, 2018, Dr. Thomas J. 

Malbrough, a Board-certified physiatrist, noted a history of injury that appellant had an onset of 

lower back pain beginning in late February or early March 2018. Six to eight weeks later she 

reported the onset of worsening pain in her lower back and left lower extremity. Appellant 

indicated that her pain occurred right after she had carried, lifted, and delivered heavy packages at 

work. Dr. Malbrough discussed examination findings and provided assessments of acute left-sided 

low back pain with left-sided sciatica, other intervertebral disc displacement, lumbar region, spinal 

stenosis of the lumbar region without neurogenic claudication at L4-5 and L5-S1, and degenerative 

disc disease at L4-5 and L5-S1.

In a May 22, 2018 lumbar spine magnetic resonance imaging (MRI) scan report,

Dr. Vikram A. Rao, a Board-certified diagnostic radiologist, provided impressions of multilevel 

degenerative disc disease and facet arthropathy, diffuse disc bulge at L4-5 with left foraminal 

annular fissure, including disc material that abutted the L5 nerve roots in the subarticular zone 

bilaterally; and degenerative disc disease at L5-S1 with central/left paracentral disc protrusion, 

disc material that abutted the left S1 nerve root, and a nerve root that was not compressed.

On August 6, 2018 Dr. Vilaas S. Shetty, a Board-certified diagnostic radiologist and 

neuroradiologist, reported that an x-ray of the lumbar spine was normal and no abnormal 

translational motion was identified in flexion or extension.

In an August 27, 2018 report, Dr. Jeffrey L. Thomasson, a Board-certified diagnostic 

radiologist and neuroradiologist, examined appellant and provided an assessment of left lumbar 

radiculopathy. In a progress note of even date, he indicated that she was status post lumbar 

myelogram and that a post-myelogram computerized tomography (CT) scan was to follow.

An August 27, 2018 lumbar CT scan report by Dr. Lukasz J. Curylo, a Board-certified 

orthopedic surgeon, provided assessments of left L5-S1 disc herniation, smaller left L4-5 disc 

herniation, and that appellant was recovering well status following a myelogram. In an operative 

report dated September 21, 2018, Dr. Curylo performed a lumbar discectomy to treat appellant’s

diagnosed left side L5-S1 lumbar disc herniation with intractable radiculopathy.

In reports dated August 30, 2018, Dr. Timothy G. Morgan, a Board-certified diagnostic 

radiologist and neuroradiologist, examined appellant and provided an assessment of postural 

headaches following a recent lumbar myelogram. In an August 31, 2018 report, he noted that he 

had performed a fluoroscopically-guided epidural blood patch for her postural headaches.

A September 11, 2018 chest x-ray report by Dr. David M. Niebruegge, a Board-certified 

diagnostic radiologist and neuroradiologist, noted an impression of no acute radiographic 

abnormality.

By decision dated January 22, 2019, OWCP denied appellant’s traumatic injury claim,

finding that the evidence of record was insufficient to establish that an employment incident 

occurred, as alleged. It concluded, therefore, that the requirements had not been met to establish 

an injury as defined by FECA. 

OWCP thereafter received medical evidence previously submitted by appellant. It also 

received a September 21, 2018 lumbar spine x-ray report by Dr. Debra D. Rosenthal, a Board-
4

certified diagnostic and nuclear radiologist, who provided an impression of satisfactory 

intraoperative image.

On February 20, 2019 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held on May 29, 2019. Following the hearing, counsel submitted 

a June 27, 2018 letter in which she cited Board precedent and asserted that appellant’s 

uncontroverted statement of injury established that her injury occurred, as alleged. She further 

asserted that the accompanying reports from Dr. Curylo and Dr. Malbrough3established a causal 

relation between appellant’s January 17, 2018 claimed employment injury and her diagnosed 

conditions.

On June 28, 2019 OWCP received an October 11, 2018 predisciplinary interview 

statement, that resulted from appellant’s failure to report an on-the-job injury, in which the 

postmaster noted that he was not disputing her statement that she was hurt on the job. He noted, 

however, that appellant did not report the claimed injury on the same date of its occurrence.

Dr. Curylo, in reports dated August 6 and September 4, 2018 and a follow-up note dated 

October 8, 2018, provided examination findings and reviewed diagnostic test results. He provided 

impressions of lumbago and sciatica secondary to L5-Sl disc herniation on the left with a S1 

radiculopathy and mostly subjective sensory, and that appellant had failed physical therapy, antiinflammatory medications, and epidural injections and slowly resolving symptoms after a lumbar 

microdiscectomy. Dr. Curylo indicated that, as of August 6, 2018, she also had five months of 

moderate-to-severe pain. He recommended a CT myelogram to define better the extent of disc 

herniation. 

In a May 13, 2019 letter, Dr. Curylo noted that appellant reported to him that she had no 

preexistent back conditions and was never treated for back issues prior to the acute onset of 

symptoms at work. He indicated that if appellant had no preexistent lumbago/sciatica prior to the 

acute onset at work then it was more likely than not true that the act of lifting and transferring 

multiple heavy parcels caused her lumbar L5-S1 disc herniation. Dr. Curylo advised that this, in 

turn, caused compression of the left S1 nerve root resulting in sciatica/radiculopathy. He noted 

that he was not aware of any new injuries or intervening causes occurring after appellant’s workrelated onset of symptoms to aggravate or cause the L5-S1 disc herniation.

OWCP thereafter received a May 30, 2019 report by Dr. Fridley. Dr. Fridley noted a 

history that on January 18, 2018 appellant presented crying and bent over with pain in her left S1 

joint. Appellant reported that her pain started on that day at work while working with parcels. 

Dr. Fridley provided an assessment of spinal subluxation of the left pelvis at L4 and L5. 

By decision dated July 11, 2019, an OWCP hearing representative affirmed the denial of 

appellant’s claim, with modification. The hearing representative found that, while appellant had 

established that the January 17, 2018 employment incident occurred, as alleged, the medical 

 

3 The Board notes that counsel resubmitted Dr. Malbrough’s May 17 and 25, 2018 reports along with her June 27, 

2018 letter.
5

evidence of record was insufficient to establish that her diagnosed medical conditions were 

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 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 of FECA,5that an injury was sustained in the performance of duty as alleged, and that 

any disability or medical 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 upon 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 and place, and in the manner alleged. The second component is whether the employment 

incident caused a personal injury and causal relationship can only be established by medical 

evidence.8

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

condition and an employment incident is rationalized medical opinion evidence.9 The opinion of 

the physician must be based on a complete 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 specific employment factors 

identified by the employee.10

 

4 Supra note 2.

5 F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. 

Cameron, 41 ECAB 153 (1989).

6 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

7 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September16, 2016); 

Delores C. Ellyett, 41 ECAB 992 (1990).

8 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989). 

9 S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G. 

Morris, 48 ECAB 238 (1996).

10 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).
6

ANALYSIS

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

Appellant submitted a series of reports by Dr. Curylo. In a May 13, 2019 report, Dr. Curylo 

diagnosed left L5-S1 disc herniation and lumbar sciatica/radiculopathy. He opined that it was 

“more likely true than not true” that appellant’s diagnosed conditions were caused by lifting and 

transferring multiple heavy parcels since she did not have preexistent back conditions. Dr. Curylo 

explained that this in turn caused compression of the left S1 nerve root resulting in 

sciatica/radiculopathy. He noted that he was unaware of any new injuries or intervening causes 

occurring after her work-related onset of symptoms to aggravate or cause her diagnosed 

conditions.

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares the responsibility in the development of the evidence to see that 

justice is done.11

Dr. Curylo is a Board-certified orthopedic surgeon who is qualified in his field of medicine 

to render rationalized opinions on the issue of causal relationship, and he provided a 

comprehensive understanding of the claimed mechanism of injury. The Board finds that, although 

his May 13, 2019 medical report is insufficiently rationalized to meet appellant’s burden of proof 

to establish her claim, it is relevant evidence in support of her claim, as it explains a physiological 

process by which the accepted employment incident could have caused or aggravated her 

diagnosed back conditions. Dr. Curylo’s May 13, 2019 medical report therefore raises an 

uncontroverted inference of a causal relationship between appellant’s claimed back conditions and 

the accepted employment incident. Further development of appellant’s claim is therefore 

required.12

On remand OWCP shall prepare a statement of accepted facts setting forth the accepted 

employment incident and refer appellant to a second opinion physician in the appropriate field of 

medicine for an examination and a rationalized medical opinion as to whether the accepted 

employment incident caused, contributed to, or aggravated the diagnosed back conditions.

13

 If the 

second opinion physician disagrees with the pathophysiological explanation provided by

Dr. Curylo, he or she must provide a fully-rationalized explanation explaining why Dr. Curylo’s 

opinion is unsupported. After this and other such further development deemed necessary, OWCP 

shall issue a de novo decision.

 

11 See J.D., Docket No. 18-0279 (issued January 6, 2020); K.P., Docket No. 18-0041 (issued May 24, 2019);

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

12 See J.D., id.; K.P., id.; M.K., Docket No. 17-1140 (issued October 18, 2017); G.C., Docket No. 16-0666 (issued 

March 17, 2017); John J. Carlone, supra note 8; Horace Langhorne, 29 ECAB 280 (1978).

13 See L.P., Docket No. 18-1252 (issued June 4, 2020).
7

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the July 11, 2019 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded for further proceedings consistent 

with decision of the Board.

Issued: October 29, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board