United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.R., Appellant

and

U.S. POSTAL SERVICE, BAY STATION, 

Brooklyn, NY, Employer

__________________________________________

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Docket No. 21-0574

Issued: August 10, 2022

Appearances: Case Submitted on the Record

Russell Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On March 2, 2021 appellant, through counsel, filed a timely appeal from a September 3, 

2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider 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 The Board notes that following the September 3, 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.

3

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met her burden of proof to expand the acceptance of her 

claim to include additional conditions as causally related to her accepted December 19, 2019 

employment injury.

FACTUAL HISTORY

On January 14, 2020 appellant, then a 56-year-old city letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 19, 2019 she injured her left leg and the left side of 

her lower back when she tripped while in the performance of duty. She explained that she tried to 

catch herself, heard a pop, and then felt pain in her left leg radiating into her back. Appellant 

stopped work on that date.

In December 23, 2019 form reports, Dr. Arkadiy Shusterman, an osteopath specializing in 

internal medicine, noted that appellant had tripped over a broken sidewalk. He diagnosed lumbar 

disc displacement and myalgia. Dr. Shusterman indicated by checking a box marked “Yes,”

indicating that she had preexisting conditions and that her diagnosed conditions were caused or 

aggravated by her employment activity. He found appellant was totally disabled from work.

In a February 7, 2020 development letter, OWCP requested additional factual and medical 

evidence in support of the claim and provided a questionnaire for appellant’s completion. It

afforded her 30 days to respond.

On February 18, 2020 appellant completed the development questionnaire, explaining that 

on the date of her alleged injury, she was returning to the employing establishment from her route 

and tripped over a broken sidewalk. She also provided additional medical evidence, including a

December 20, 2019 left hip x-ray, which demonstrated mild arthritic changes and probable bone 

island in the intertrochanteric region.

In notes dated December 27, 2019 and January 20 and March 2, 2020, Dr. Shusterman 

found that appellant was status post a December 19, 2019 job-related accident with diagnoses of 

thoracic myofasciitis, lower back syndrome, lumbosacral myofasciitis, possible lumbosacral disc 

displacement, and left hip internal derangement.

By decision dated March 11, 2020, OWCP accepted that the December 19, 2019 

employmentincident occurred as alleged. However, it denied the claim, finding that appellant had 

not submitted medical evidence containing a medical diagnosis causally related to the accepted 

incident. OWCP, thus, found that the requirements had not been met to establish an injury as 

defined by FECA.

OWCP received additional medical evidence. On January 23, 2020 appellant underwent a 

lumbar spine magnetic resonance imaging (MRI) scan, which demonstrated disc bulge at L2-3, 

and disc herniations at L3-4, L4-5, and L5-S1. It also demonstrated grade 1 anterior subluxation 

of L4 onto L5 due to severe facet hypertrophic changes. 

On February 6, 2020 appellant underwent a left hip MRI scan, which demonstrated mild

osteoarthritic changes and increased signals at the attachment of the semimembranosus and biceps 
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femoris tendon to the left ischial tuberosity consistent with musculotendinous sprains/strains 

and/or partial tears.

On February 20, 2020 Dr. Aleksander Khalmov, an osteopath, noted appellant’s history of 

injury on December 19, 2019 and reviewed her diagnostic studies. He diagnosed herniated lumbar 

disc. 

In a February 25, 2020 report, Dr. Igor E. Cohen, a Board-certified neurologist, described 

appellant’s December 19, 2019 employment incident and diagnosed thoracic spine pain, lower 

back syndrome, lumbosacral nerve root injuries, disc bulges at L2-3 and disc herniations at L3-4, 

L4-5, and L5-S1, cervical myofasciitis, and left hip derangement.

On March 18 and April 13, 2020 Dr. Shusterman reviewed his prior notes and opined that 

appellant’s left hip and lower back conditions were directly related to her December 19, 2019 

employment incident. He described the employment incident noting that she tripped over a broken 

sidewalk and forcibly twisted her left hip and back to avoid falling, resulting in a popping 

sensation. Dr. Shusterman diagnosed left hip sprain/strain, thoracic sprain/strain, and lumbar spine 

sprain/strain as directly and causally related to the accepted employment incident. He also 

reviewed the MRI scans of the left hip, which demonstrated musculotendinous sprain/strain, and 

of the lumbar spine, which demonstrated multiple disc bulges and disc herniations. 

Dr. Shusterman opined that based on the MRI scans, appellant also sustained traumatic left hip 

internal derangement and traumatic lumbar spine disc herniation due to the accepted December 19, 

2019 employment incident.

In an April 30, 2020 note, Dr. Khalmov described the December 19, 2019 employment 

incident and found that appellant developed additional back symptoms including lower extremity 

weakness and radiating pain following her slip. He f ound diminished sensation in the L5 

dermatome in the left lower extremity as well as weakness in the quadriceps and psoas muscles. 

Dr. Khalmov diagnosed herniated lumbar disc with radiculopathy and found that she was totally 

disabled.

On June 5, 2020 appellant, through counsel, requested reconsideration of the March 11, 

2020 decision and submitted additional medical evidence. In May 17, June 14, and July 12, 2020 

reports, Dr. MichaelJ. Katz, a Board-certified orthopedic surgeon, described her conditions prior 

to December 19, 2019 including left knee arthritis and lumbar spine conditions. He noted that 

appellant had a 1995 work injury to her back and ankle when she fell downstairs.

4

 Dr. Katz 

described her December 19, 2019 employment incident, reviewed her medical treatment, and 

evaluated her diagnostic studies. Following a physical examination, he diagnosed left hip 

sprain/strain and/or internal derangement, partial tear of the biceps femoris tendon of the left hip, 

thoracic strain with prior internal derangement, and lumbosacral derangement and opined that 

these diagnoses were causally related to the December 19, 2019 work incident. Dr. Katz further 

found that appellant’s preexisting T11-12 disc protrusion was aggravated by the December 19,

2019 twisting incident. He determined that she sustained a new L4-5 disc herniation, a new 

subluxation of L4 on L5, and new impingements of the L4, L5, and S1 nerve roots, which were 

4 OWCP assigned the present claim OWCP File No. xxxxxx742. Appellant has a previously accepted claim for 

back sprain, back contusion, and left ankle sprain causally related to a May 9, 1995 employment injury in OWCP File 

No. xxxxx890. OWCP is attempting to reconstruct File No. xxxxx890. 
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not present on the November 1, 2019 MRIscan. Dr. Katz attributed appellant’s injuries to twisting 

her spine when she tried to catch herself from falling. He found that there was movement in her 

spine, which caused the L4-5 vertebra and discs to shift causing a herniation, subluxation, and 

impingement of the nerve roots. Dr. Katz found that the popping sound appellant reported at the 

time of injury was consistent with lumbar disc herniation and left hip biceps femoris tear due to 

her accepted employment injury.

On June 13, 2020 appellant underwent electromyogram and nerve conduction velocity 

(EMG/NCV) studies, which demonstrated L5 radiculopathy on the left.

On September 3, 2020 OWCP accepted the instant claim for left hip muscle, fascia, and 

tendon strain, left hip sprain, strain of the muscle and tendons of the back wall of the thorax, sprain 

of the ligaments of the thoracic spine, and sprain of the muscle, fascia, and tendons of the lower 

back and sprain of the ligaments of the lumbar spine.

By separate decision dated September 3, 2020, OWCP denied expansion of the acceptance 

of appellant’s claim to include the additional conditions of lumbar disc bulge at L2-3, herniated 

discs at L3-4, L4-5, and L5-S1, cervical myofasciitis, left hip derangement, internal derangement 

of the thoracic region, lumbosacral derangement with radiculopathy, and lumbosacral 

myofasciitis, finding that the medical evidence of record did not provide medical rationale 

establishing these conditions as causally related to her accepted December 19, 2019 employment 

injury.

LEGAL PRECEDENT

When 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 rationalized medical opinion 

evidence to resolve the issue.6 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.7 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s 

employment injury.8

5 A.D., Docket No. 21-0143 (issued November 15, 2021); J.R.,Docket No. 20-0292 (issued June 26, 2020); W.L.,

Docket No. 17-1965 (issued September 12, 2018); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

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

7 F.A., Docket No. 20-1652 (issued May 21, 2021); M.V., Docket No. 18-0884 (issued December 28, 2018); 

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

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Id.
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ANALYSIS

The Board finds that this case is not in posture for decision with regard to the expansion of 

the acceptance of the claim to include the additional conditions of left hip internal derangement, 

partial tear of the biceps femoris tendon of the left hip, thoracic strain with prior internal 

derangement, lumbosacral derangement, aggravation of preexisting T11-12 disc protrusion, L4-5 

disc herniation, subluxation of L4 on L5, and impingements of the L4, L5, and S1 nerve roots.

In reports dated May 17, June 14, and July 12, 2020, Dr. Katz noted appellant’s history of 

injury recounting that appellant had twisted her spine when she tried to catch herself from falling. 

He opined that the movement in her spine caused the L4-5 vertebra and discs to shift resulting in

a herniation, subluxation, and impingement of the nerve roots. Dr. Katz further found that the 

popping sound appellant reported at the time of injury was consistent with lumbar disc herniation 

and left hip biceps femoris tear due to her accepted employment injury. He diagnosed left hip 

internal derangement, partial tear of the biceps femoris tendon of the left hip, thoracic strain with 

prior internal derangement, lumbosacral derangement, aggravation of preexisting T11 -12 disc 

protrusion, L4-5 disc herniation, subluxation of L4 on L5, and impingements of the L4, L5, and 

S1 nerve roots.

In his March 18, and April 13, 2020 notes, Dr. Shusterman also supported that appellant’s 

left hip and lower back conditions were directly related to her December 19, 2019 employment 

incident when she tripped over a broken sidewalk and forcibly twisted her left hip and back to 

avoid falling, resulting in a popping sensation. He found that based on the MRI scans, appellant 

sustained traumatic left hip internal derangement and unspecified traumatic lumbar spine disc 

herniation due to the accepted December 19, 2019 employment incident.

The Board finds that, while the reports of Dr. Katz and Dr. Shusterman are not fully 

rationalized, these reports are sufficient to require further development of the medical evidence. 

The physicians rendered an opinion on the issue of causal relationship, provided a 

pathophysiological explanation of the mechanism of the injury, and demonstrated a comprehensive 

understanding of the medical record and case history. The Board has long held that it is 

unnecessary that the evidence of record in a case be so conclusive as to suggest causal connection 

beyond all possible doubt. Rather, the evidence required is only that necessary to convince the 

adjudicator that the conclusion drawn is rational, sound, and logical. 9 Although the opinions of

Drs. Katz and Shusterman are insufficiently rationalized to establish causal relationship, it is 

sufficient to require that OWCP further develop the medical evidence in the claim.10

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 

9 A.D., supra note 5; 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.

10 J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,

Docket No. 18-1360 (issued April12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); WilliamJ. 

Cantrell, 34 ECAB 1223 (1983).
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responsibility in the development of the evidence.11 OWCP has an obligation to see that justice is 

done.12

On remand OWCP shall refer appellant, a statement of accepted facts, and the medical 

record to a specialist in the appropriate field of medicine for an evaluation and a well-rationalized 

opinion as to whether the diagnosed conditions, as found by Drs. Katz and Shusterman, are 

causally related to the accepted December 19, 2019 employment injury. If the physician opines 

that the additional diagnosed conditions are not causally related to the employment injury, he or 

she must explain, with rationale, how or why the opinion differs from that of appellant’s 

physicians. Following this and such other further development as deemed necessary, OWCP shall 

issue a de novo decision regarding the expansion of the acceptance of appellant’s claim to include 

additional conditions.

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

of her claim to include the additional conditions of lumbar disc bulge at L2-3, herniated discs at 

L3-4, and L5-S1, cervical myofasciitis, lumbosacral myofasciitis, and radiculopathy.

In his February 25, 2020 report, Dr. Cohen described the December 19, 2019 employment 

incident and diagnosed the additional conditions of disc bulges at L2-3 and disc herniations at 

L3-4, L4-5, and L5-S1, and cervical myofasciitis. 

Dr. Shusterman also completed notes dated December 27, 2019, January 20, and March 2, 

2020, describing the December 19, 2019 job-related incident and diagnosing of thoracic 

myofasciitis, lower back syndrome, lumbosacral myofasciitis, and possible lumbosacral disc 

displacement. 

In his February 20 and April 30, 2020 notes, Dr. Khalmov noted appellant’s history of 

injury and diagnosed herniated disc with radiculopathy. 

While Dr. Cohen, Dr. Khalmov,and Dr. Shustermanprovided a description of the accepted 

employment incident, these physicians did not provide an attribution of appellant’s diagnosed 

conditions to the accepted December 19, 2019 employment incident. 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.13 Thus, the Board finds that the reports 

of Drs. Cohen, and Khalmov, and the December 27, 2019, January 20, and March 2, 2020 notes 

of Dr. Shusterman14 are of no probative value on the issue of causal relationship and are 

11 See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 

223 (1999).

12 See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J.,Docket No. 09-1481 (issued February 19, 2010); 

John J. Carlone, 41 ECAB 354 (1989).

13 See P.T., Docket No. 21-0110 (issued December 8, 2021); J.M.,Docket No. 19-1926 (issued March 19, 2021); 

L.D., Docket No. 20-0894 (issued January 26, 2021).

14 The diagnosed conditions listed in Dr. Shusterman’s March 18 and April 13, 2020 notes, including left hip 

sprain/strain, thoracic sprain/strain, and lumbar spine sprain/strain were accepted by OWCP.
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insufficient to establish appellant’s burden of proofto establish the additional conditions diagnosed 

therein.

The record contains MRI scans of the lumbar spine as well as EMG/NCV studies. 

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 

conditions.15

As the medical evidence of record is insufficient to establish causal relationship between 

appellant’s diagnosed conditions of disc bulges at L2-3 and disc herniations at L3-4, L4-5, and L5-

S1, cervical myofasciitis, lumbosacral myofasciitis, and radiculopathy and the accepted 

employment injury, the Board finds that she has not met her burden of proof with regard to these 

additional conditions.

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 the case is not in posture for decision regarding the additional 

conditions of left hip internal derangement, partial tear of the biceps femoris tendon of the left hip, 

thoracic strain with prior internal derangement, lumbosacral derangement, aggravation of 

preexisting T11-12 disc protrusion, L4-5 disc herniation, subluxation of L4 on L5, and 

impingements of the L4, L5, and S1 nerve roots. The Board further finds that appellant has not 

met her burden of proof to establish the additional conditions of lumbar disc bulge at L2 -3, 

herniated discs at L3-4, and L5-S1, cervical myofasciitis, lumbosacral myofasciitis, and 

radiculopathy as causally related to the accepted employment injury.

15 P.T., supra note 13; C.H., Docket No. 20-0228 (issued October 7, 2020); E.G., Docket No. 17-1955 (issued 

September 10, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the September 3, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: August 10, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board