United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Merrifield, VA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-1252

Issued: June 4, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 6, 2018 appellant, through counsel, filed a timely appeal from a May 23, 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 May 23, 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 her burden of proof to establish a spinal condition 

causally related to the accepted March 30, 2018 employment incident.

FACTUAL HISTORY

On April 9, 2018 appellant, then a 28-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on March 30, 2018 she injured her back when she bent down to drop 

off a package while in the performance of duty. In an undated narrative statement accompanying 

her claim, she advised that she had rods placed in her back in October 2013 due to nonemploymentrelated scoliosis. Appellant explained that, when she set down three packages while delivering 

mail on March 30, 2018, she heard a loud popping and snapping sound and felt movement in her 

back. She told her supervisor that something was wrong with her back and made an appointment 

to see a physician.

In an April 9, 2018 statement, the employing establishment asserted that appellant’s claim

should be accepted as an aggravation. It noted that she had rods in her back due to scoliosis 

unrelated to her employment, but had “aggravated her conditions by lifting a package.”

In a development letter dated April 11, 2018, OWCP informed appellant of the deficiencies 

of her claim, noting that she had not submitted medical evidence containing a diagnosis of a 

medical condition. It afforded her 30 days to submit the requested medical evidence, including 

medical records related to her back surgery in October 2013 and a reasoned opinion addressing 

how the identified employment incident caused or aggravated a diagnosed condition. 

Subsequently, OWCP received a report dated March 30, 2018 from Dr. Christopher Good, 

a Board-certified orthopedic surgeon, who examined appellant for complaints of lower back pain. 

Dr. Good noted that she had undergone scoliosis thoracolumbar fusion surgery four and a half 

years earlier. He obtained a history of appellant experiencing a sudden “pop” in her back and 

sharp pain on that date after bending over to deliver a package. Reviewing x-rays, Dr. Good noted 

a break in her rod at the L3 level on the left. On physical examination, he found tenderness to 

palpation over the left L3-4, L4-5, and L5-S1 facet joints with spasm over the left lumbar 

paraspinal muscles. Dr. Good diagnosed painful orthopedic hardware, a failed orthopedic implant,

and to evaluate for pseudoarthritis or arthrodesis after fusion. He attributed the break in appellant’s 

rod at L3 on the left “to [appellant’s] injury while at work.” Dr. Good opined that she should 

remain off work pending further evaluation and ordered a computerized tomography (CT) scan. 

On April 4, 2018 Dr. Good reviewed appellant’s history of an injury while at work one 

week earlier bending over to deliver a package. He noted that she had a broken rod at the L3 level 

on the left below her L3 pedical screw head. CT scans revealed a stable bony fusion of the lumbar 

spine. Dr. Good diagnosed thoracic and lumbar scoliosis, painful orthopedic hardware, and a 

failed orthopedic implant. He recommended that appellant stay off work for the next one to two 

weeks until he could review her whole body scan. 

In a progress report dated April 18, 2018, Dr. Good evaluated appellant for low back pain 

on the left side of the spine and discussed her history of a March 30, 2018 injury at work while 

delivering mail. On physical examination, he found significant tenderness to palpation over the 

left sacroiliac joint and right lumbar paraspinal muscles. Dr. Good diagnosed thoracic and lumbar 
3

scoliosis, sacroiliitis, and a failed orthopedic implant. He assessed painful orthopedic hardware. 

Dr. Good reviewed a CT scan, noting that he was concerned about pseudoarthrosis at L3-4 due to 

appellant’s pain, broken rod, and increased uptake on a bone scan. He recommended that she stay 

off work for two weeks until their follow-up visit for reevaluation. In a duty status report (Form 

CA-17) of even date, Dr. Good found that appellant was disabled from employment. He checked 

a box marked “yes” indicating that the history of injury given corresponded to that on the form of 

her breaking a rod in her back bending down to deliver a package.

On May 4, 2018 Dr. Good followed up with appellant for complaints of left buttock pain

and provided a history of the March 30, 2018 employment incident. He indicated that her CT scan 

had confirmed a broken rod on the left at the L3 level and noted that she had failed to make 

significant progress with rest. On physical examination, Dr. Good found mild tenderness to 

palpation at the right sacroiliac joint and significant tenderness to palpation at the left sacroiliac 

joint and instrumentation. He noted that appellant ambulated with a slight antalgic gait on the left. 

Dr. Good diagnosed failed orthopedic implant, painful orthopedic hardware, and sacroilitis. He 

recommended an injection to “calm down” appellant’s symptoms. 

By decision dated May 23, 2018, OWCP denied appellant’s traumatic injury claim finding 

that she had not established a causal relationship between the accepted March 30, 2018

employment incident and her diagnosed spinal conditions. It concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA. 

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 of FECA,5that 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.6 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.7

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established.8 Fact of injury 

consists of two components that must be considered in conjunction with one another. The first 

 

4 Supra note 2.

5 S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

6 T.H., Docket No. 18-1736 (issued March 13, 2019); R.C., 59 ECAB 427 (2008).

7 T.E., Docket No. 18-1595 (issued March 13, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

8 S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388 (2008).
4

component is whether the employee actually experienced the employment incident that allegedly 

occurred.9 The second component is whether the employment incident caused a personal injury.10 

Causal relationship is a medical issue and the medical evidence required to establish causal 

relationship 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 incident.11

ANALYSIS

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

The Board notes initially that the employing establishment has not contested this claim. In 

a letter dated April 9, 2018 the employing establishment supported that the claim should be 

accepted for an aggravation. The employing establishment noted that appellant had rods placed 

in her back due to scoliosis which was not work related, however, she aggravated her condition by 

lifting a package. 

In a report dated March 30, 2018, Dr. Good noted that appellant had undergone scoliosis 

thoracolumbar fusion surgery four and a half years earlier. He advised that on March 30, 2018 she 

had bent down to deliver a package and had felt a sudden “pop” in her back, followed by immediate 

sharp pain. Reviewing x-rays, Dr. Good noted a break in her rod at the L3 level on the left. He 

diagnosed a failed orthopedic implant and pseudoarthritis after fusion. Dr. Good opined that the 

break in appellant’s L3 rod resulted from her injury at work and found that she was currently 

disabled from work. The Board finds that this March 30, 2018 report is sufficient to require further 

development of the medical evidence to see that justice is done.12 Dr. Good provided explanation 

as to how the mechanism of the accepted employment incident was sufficient to cause the 

diagnosed conditions.13 Following review of Dr. Good’s March 30, 2018 report, as well as his 

subsequent reports, it is found that his medical opinion is well rationalized and logical and is,

therefore, sufficient to require further development of appellant’s claim. 

It is well established that, proceedings under FECA are not adversarial in nature and, while 

appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.14 It has an obligation to see that justice is done.15

 

9 E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10 Id.; see also John J. Carlone, 41 ECAB 354 (1989). 

11 See S.S., supra note 8; H.B., Docket No. 18-0781 (issued September 5, 2018).

12 D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket 

No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

13 W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011); 

Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein).

14 See C.C., Docket No. 18-1453 (issued January 28, 2020); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).

15 N.L., Docket No. 19-1592 (issued March 12, 2020); see B.C., Docket No. 15-1853 (issued January 19, 2016).
5

On remand OWCP shall refer appellant to an appropriate specialist, along with the case 

record and a statement of accepted facts. Its referral physician shall provide a well-rationalized 

opinion as to whether her diagnosed medical conditions are causally related to the accepted 

employment factors. After this and other such further development of the case record as OWCP 

deems necessary, it shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the May 23, 2018 decision of the Office of Workers’

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

with this decision. 

Issued: June 4, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board