United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.H., Appellant

and

U.S. POSTAL SERVICE, MENOMONIE POST 

OFFICE, Menomonie, MN, Employer

__________________________________________

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Docket No. 20-0839

Issued: May 25, 2021

Appearances: Case Submitted on the Record

Andrew Douglas, 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 March 6, 2020 appellant, through counsel, filed a timely appeal from a February 18, 

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.

 

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 his burden of proof to establish a lumbar condition 

causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On October 19, 2016 appellant, then a 53-year-old rural carrier associate, filed an 

occupational disease claim (Form CA-2) alleging that he developed lower back facet sprain due to 

factors of his employment, including significant twisting motions required during mail delivery. 

He noted that he first became aware of this condition and its relationship to his employment duties 

on September 16, 2016. Appellant stopped work on October 5, 2016.

In an October 4, 2016 report, Dr. Darren K. Lokkesmoe, Board-certified in internal 

medicine, diagnosed mechanical low back pain with some mild lumbar nerve impingement 

symptoms. He related that appellant developed back pain approximately three weeks prior after 

feeling a pop in his back while delivering mail. Appellant’s physical examination revealed positive 

straight-right leg raising.

An October 13, 2016 x-ray interpretation of appellant’s lumbar spine revealed minimal 

L4_5 and L5-S1 degenerative changes.

Dr. Jay Loftsgaarden, a Board-certified physiatrist, reported on October 13, 2016 that 

appellant was seen for low back complaints and grinding pain radiating down the right leg. 

Appellant related that his pain began about a month previously while delivering mail, after he felt 

a pop in his back while twisting to the side. His physical examination findings included tenderness 

over the medial area to the right sacroiliac joint region, limited flexion, severe pain on back rotation 

or extension, limited internal left hip rotation with pain in the groin region and some over the 

femoral head, mild right hip range of motion, positive straight leg raising on the right, and full 

bilateral ankle and knee range of motion. Dr. Loftsgaarden diagnosed facet sprain, degenerative 

facet arthritis, and degenerative disc disease, which occurred in context of appellant’s mail carrier 

job, which required constant turning to the left. Additionally, he noted that there were elements 

of radiculopathy. In a duty status report (Form CA-17) of even date, Dr. Loftsgaarden diagnosed 

lumbar facet sprain, which he attributed to appellant’s work. He advised that appellant was 

disabled from work.

On October 21, 2016 Dr. Loftsgaarden reviewed x-ray interpretations and provided 

examination findings. He found appellant’s symptoms were now more consistent with a diagnosis 

of radiculopathy. In a form report of even date, Dr. Loftsgaarden diagnosed lumbar radiculopathy 

and indicated by check mark that it was work related. He placed appellant off work pending further 

evaluation.

An October 25, 2016 x-ray report of appellant’s lumbar spine related findings of L4-5 and 

L5-S1 broad-based posterior bulges and mild L4-5 neural foraminal narrowing.

In November 10, 2016 development letter, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. It advised him of the type of factual and medical 
3

evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30 

days to submit the necessary evidence.

OWCP subsequently received additional evidence. Dr. Loftsgaarden, in a November 3, 

2016 report, noted appellant’s continued pain complaints. Review of appellant’s magnetic 

resonance imaging (MRI) scan revealed some L4-5 and L5-S1 mild foraminal stenosis. 

Dr. Loftsgaarden found appellant’s dorsiflexor weakness was suggestive of L5 radiculopathy. He 

concluded that appellant was to remain off work.

In form reports from dated November 3, 17, and December 8, and 27, 2016,

Dr. Loftsgaarden diagnosed lumbar radiculopathy and indicated by checking a box marked “Yes”

that the diagnosed conditions were work related. He placed appellant off work pending further 

evaluation.

In a December 8, 2016 report, Dr. Loftsgaarden indicated that appellant’s condition looked 

more likely related to facet arthritis, but there was a suggestion of a discogenic-type problem based 

on appellant’s pain relief following injections. Physical examination findings included limited 

back extension and flexion and normal lower limbs strength.

In a December 12, 2016 report, Dr. Loftsgaarden noted that he had seen appellant five 

times since an initial evaluation on October 13, 2016. Appellant related developing pain and

feeling a pop in his back after twisting in his employment vehicle. The initial diagnosis was facet 

sprain the setting of facet degenerative arthritis and degenerative disc disease. Dr. Loftsgaarden

reviewed an MRI scan, which showed minor disc bulges and arthritis. He found appellant disabled 

from work due to his inability to perform the twisting required in his job.

A December 29, 2016 MRI scan revealed mild degenerative sacroiliac joint changes and 

no significant changes suggest of synovitis or infection.

By decision dated January 11, 2017, OWCP denied appellant’s occupational disease claim, 

finding that the medical evidence of record was insufficient to establish that his diagnosed lumbar 

condition was causally related to the accepted factors of his federal employment.

OWCP received a January 10, 2017 report from Dr. Terry K. Schiefer, a Board-certified 

neurological surgeon, who diagnosed right-sided L5-S1 radiculopathy, right-sided L4-5 moderate 

lateral recess stenosis, right-sided L5-S1 mild-to-moderate lateral recess stenosis, low back pain, 

and right lower extremity weakness. Under history of injury, Dr. Schiefer noted that appellant 

initially felt a twinge in his back while working and subsequently felt a signficant pop in his back. 

Since the incident, appellant reported having severe back pain radiating into this lower extremities, 

greater on the right. Dr. Schiefer recommended right-sided L4-5 and L5-S1 hemilaminectomy and 

possible discetomy based on appellant’s symptoms, diagnostic test, and examination findings.

A hospital record reflects that appellant underwent a surgical procedure on January 19, 

2017 with preoperative and postoperative diagnoses of L5 and S1 right-sided radiculopathies, L5-

S1 right-sided disc protrusion, and L4-5 and L5-S1 right-sided laeral recess stenosis. January 19, 

2017 x-ray interpretation of appellant’s lumbar spine noted a history of radiculopathy and 

impression of L4-5 and L5-S1 hemilaminectomy with L5-S1 discectomy.
4

In progress notes dated January 20, 2017, Dr. Schiefer diagnosed right lower extremity 

weakness, right-sided L5-S1 radiculopathy, right-sided L4-5 moderate lateral recess stenosis, 

right-sided L5-S1 mild-to-moderate lateral recess stenosis, low back pain, and stauts post rightsided L4-5 and L5-S1 hemilaminectomy and L5-S1 microdiscetomy, which was performed on 

January 19, 2017. Appellant related significant improvement in his pain following the surgery.

Dr. Schiefer, in a January 26, 2017 report, advised that appellant was seen on January 10, 

2017 for lumbar complaints. Appellant described that, since September 2016, he had severe low 

back pain radiating mainly into the right lower extremity. Since appellant had not responded to 

conservative treatment, Dr. Schiefer performed L4-5 right-sided hemilamenctomy and 

microdiscectomy surgery on January 19, 2016. He attributed appellant’s L4-5 radiculopathy 

symptoms and surgery to the accepted employment factors.

On February 3, 2017 appellant requested a telephonic hearing before a representative of

OWCP’s Branch of Hearings and Review, which was held on July 18, 2017.

Appellant submitted additional evidence. In progress notes dated February 23, 2017,

Dr. Donald T. Bodeau, a Board-certified occupational medicine physician, related that appellant 

had been in good health until sustaining a work injury on September 16, 2016 when he felt a pull 

in his lower back while delivering mail. He noted appellant’s physical examination findings and 

diagnosed significant postlaminectomy back and radicular pain and status post 1 level 

microdiscectomy, and 2 level hemilaminectomy. Dr. Bodeau related that appellant would be 

disabled from work for at least three months.

Dr. Bodeau, in a February 24, 2017 report, noted that appellant had a history of mild prior 

back pain, which generally was self-limited, as well as employment-related events occurring 

between September 16 and 30, 2016. Review of MRI scans taken on August 14, 2009 and on 

October 27, 2016 showed substantial structural changes. Dr. Bodeau attributed the change to 

appellant’s employment injury. He opined that appellant’s diagnosed disc herniation and lumbar 

radiculopathy were unquestionably caused by the accepted September 2016 employment factors. 

Dr. Bodeau explained that appellant’s work aggravated, precipitated, and accelerated his

underlying back condition beyond the normal progression of the disease.

A February 17, 2017 MRI scan revealed small focal lumbosacral central disc protrusion, 

postoperative changes left L5 hemilaminectomy new when compared with the October 27, 2016

MRI scan, and no spinal canal narrowing or neural foraminal narrowing at any level.

In reports dated March 10 and 31, 2017, Dr. Stephen M. Endres, a Board-certified 

anesthesiologist, diagnosed lumbar radiculitis, radiculopathy, and status post L5-S1 surgery.

Dr. Bodeau, in progress notes dated April 17, 2017, related that appellant was seen for 

postlaminectomy back pain and that he had been referred to the pain clinic for a spinal cord 

stimulator.

In progress notes dated May 12, 2017, Dr. Bodeau noted that appellant continued to 

complain of back and radicular pain and that he currently used a cane due to leg weakness.
5

Dr. Bodeau, in progress notes dated June 9, 2017, reported that appellant was doing well 

following implantation of a temporary spinal cord stimulator.

By decision dated October 2, 2017, OWCP’s hearing representative affirmed the 

January 11, 2017 decision denying appellant’s claim.

OWCP continued to receive medical evidence. In progress notes dated July 31, 2017,

Dr. Bodeau related examination findings and noted that appellant remained disabled. Diagnoses 

included persistent postlaminectomy back pain status post spinal cord stimulator implantation 

complicated by development of pulmonary embolus and pneumonia.

Dr. Bodeau, in progress notes dated September 8, 2017, noted that appellant reported 

substantial improvement in his leg and back pain and that he had not developed any additional 

pulmonary emboli. Physical findings included an antalgic gait, negative straight leg raising, and 

has trouble with tiptoe gait.

In progress notes dated October 20, 2017, Dr. Bodeau summarized appellant’s medical 

history. He noted that appellant had experienced some mechanical back issues in 2009, but no 

radicular or leg symptoms. Dr. Bodeau opined that the frequent repetitive lifting and twisting 

required in appellant’s job most likely aggravated, accelerated, and precipitated his underlying 

back condition beyond the normal progression and created appellant’s back and radicular leg pain, 

need for surgery, and associated care.

In an October 25, 2017 report, Dr. Bodeau related that appellant had been under his care 

for treatment of his occupational back injury, resulting lumbar laminectomy, and spinal cord 

stimulator. He noted that appellant provided a consistent history of injury involving repetitive 

lifting, bending, and twisting in sorting and delivering mail. Dr. Bodeau noted that, while 

appellant may have had a preexisting back condition, the incident occurring on or about 

September 16, 2016 clearly aggravated, accelerated, and precipitated his underlying condition 

beyond its normal progression.

In progress notes and a form report dated November 1, 2017, Dr. Bodeau opined that 

appellant had reached a plateau. He indicated that appellant was capable of working no more than 

four hours a day in a sedentary position. Work restrictions included: no lifting more 10 pounds;

rare bending, kneeling, squatting, twisting, climbing, and reaching above the shoulders; occasional 

forward reaching; and the ability to change his position every half hour as needed. Dr. Bodeau 

noted that appellant would require use of a cane and knee brace.

In progress notes dated March 9, 2018, Dr. Bodeau reiterated findings from his prior 

reports. He opined that appellant was permanently and totally disabled from any physically 

demanding employment.

In progress notes dated April 19, 2018, Melissa C. Brown, an advanced practice registered 

nurse, noted that appellant was seen for back pain. She diagnosed right-sided L5-S1 radiculopathy, 

right-sided L4-5 moderate lateral recess stenosis, low back pain, right-sided L5-S1 mild-tomoderate lateral recess stenosis, right lower extremity weakness, and status post right-sided L4-5 

and L5-S1 hemilaminectomy and L5-S1 microdiscectomy.
6

On May 22, 2018 appellant requested reconsideration.

By decision dated October 15, 2018, OWCP denied modification, finding that the medical 

evidence of record was insufficiently rationalized to establish causal relationship between the 

diagnosed conditions and the accepted employment factors.

On December 18, 2018 appellant requested reconsideration and submitted additional 

evidence.

In a report dated November 28, 2018, Dr. Michael Fitzgerald, an occupational medicine 

specialist Board-certified in family medicine, noted that appellant sustained a back injury due to 

his employment as a rural letter carrier. He explained that appellant’s job duties required frequent 

awkward positions twisting, reaching, lifting, pulling, and bending, which contributed to the 

diagnosed L5-S1 lumbar disc herniation. Dr. Fitzgerald noted that appellant had previously been 

treated for a 2009 back injury. He compared the MRI scans taken at the time, which showed mild 

L5-S1 disc bulge with early disc desiccation and no neural foraminal or spinal canal compromise, 

with an MRI scan following the 2016 injury, which showed L4-5 and L5-S1 disc bulging 

progression with L4-5 disc abutting the L5 nerve on the right. Dr. Fitzgerald opined that

appellant’s work activities accelerated, aggravated, and precipitated chronic lumbar degenerative 

disc disease resulting in disc herniation.

By decision dated February 13, 2019 OWCP denied modification.

On March 27, 2019 appellant requested reconsideration.

By decision dated April 19, 2019, OWCP denied appellant’s request for reconsideration as 

he failed to identify the grounds for his request or submit any evidence in support of his request.

OWCP subsequently received a November 12, 2019 report, wherein Dr. Fitzgerald noted

that on November 28, 2018 he had taken over appellant’s care and treatment following

Dr. Bodeau’s retirement. Dr. Fitzgerald related that appellant sustained a back injury on 

September 16, 2016 as a result of his rural mail carrier duties. Appellant’s job duties required 

frequent twisting of the back, pulling, reaching, and lifting up to 70 pounds. On the date of injury 

he related that he felt a pop in his lower lumbar area and bilateral leg numbness while performing 

his work duties. Dr. Fitzgerald summarized the treatment provided, including diagnostic test 

results, surgery, and cord stimulator implantation. He reported that following implantation of the 

spinal cord stimulator that appellant developed a pulmonary embolism, chest pain, and fever. 

Diagnoses included lumbar disc disease with right-sided L5 and S1 radiculopathies and 

postlaminectomy syndrome, which he attributed to the accepted September 16, 2016 work 

incident. In support of this conclusion, Dr. Fitzgerald explained that the twisting, bending, turning, 

and lifting aggravated appellant’s chronic lumbar degenerative disc disease beyond its normal 

course. This aggravation was caused by significantly increased pressure on the intervertebral discs 

causing new or worsening protrusions, which in turn caused radiculopathy and nerve impingement 

from the protrusion into disc material. Dr. Fitzgerald indicated that his opinion and findings were 

supported by the progressive changes noted on MRI scans, initial physical examination findings, 

and symptoms. Regarding appellant’s 2009 treatment for back pain, Dr. Fitzgerald noted that his

symptoms had resolved with physical therapy and no back pain had been reported in a 
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December 2015 visit. Moreover, appellant was asymptomatic until performing the repetitive rural 

mail carrier duties. Dr. Fitzgerald opined that the January 19, 2017 surgery and spinal cord 

stimulator were medically necessary to treat his condition. He concurred with Dr. Bodeau’s 

opinion that appellant was permanently and totally disabled from work.

On November 27, 2019 appellant, through counsel, requested reconsideration.

By decision dated February 18, 2020, OWCP denied modification.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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,4that 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.5 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.6

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit: (1) a factual statement identifying employment factors 

alleged to have caused or contributed to the presence or occurrence of the disease or condition; 

(2) medical evidence establishing the presence or existence of the disease or condition for which 

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is 

causally related to the employment factors identified by the claimant.7

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

relationship is rationalized medical evidence.8 The opinion of the physician must be based on a 

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

 

3

Id.

4 C.G., Docket No. 20-0957 (issued January 27, 2021); J.W., Docket No. 18-0678 (issued March 3, 2020); S.B., 

Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

J.S., Docket No. 18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018); 

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

6 L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No. 18-0914 (issued February 24, 2020); 

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

7 C.G., supra note 4; S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

8 A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 

238 (1996).
8

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.9

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.10

ANALYSIS

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

In support of his claim, appellant provided narrative medical reports from Dr. Fitzgerald

dated November 28, 2018 and November 12, 2019. Dr. Fitzgerald related appellant’s complaints

of lumbar pain and bilateral lower extremity numbness after September 16, 2016. He summarized 

appellant’s medical treatment and physical examination findings. Dr. Fitzgerald diagnosed lumbar 

disc disease with right-sided L5 and S1 radiculopathies and postlaminectomy syndrome, which he 

attributed to appellant’s employment. In both reports, he opined that appellant’s 2009 back 

condition was exacerbated by his employment duties, which included repetitive frequent twisting 

of the back, pulling, reaching, and lifting up to 70 pounds. In the November 12, 2019 report,

Dr. Fitzgerald further noted appellant’s history regarding September 16, 2016 and explained that

twisting, bending, turning, and lifting caused significantly increased pressure on the intervertebral 

discs causing new or worsening protrusions, which, in turn, caused radiculopathy and nerve 

impingement from the protrusion into disc material. In addition, he related that appellant’s 2009 

back condition had been successfully treated by physical therapy with no symptoms or reports of 

pain until September 16, 2016. Moreover, a review of appellant’s MRI scans showed a significant 

progression of the underlying lumbar disc bulge from the mild lumbar disc bulge shown on the 

2009 MRI scan. 

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.11 OWCP has an obligation to see that justice is 

done.12

The Board finds that Dr. Fitzgerald’s opinion demonstrates his knowledge of appellant’s 

preexisting lumbar conditions and, although his opinion is not sufficiently rationalized to meet 

 

9 R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J., 59 

ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); 

J.D., Docket No. 20-0404 (issued July 22, 2020); K.G., Docket No. 18-1598 (issued January 7, 2020); M.S., Docket 

No. 19-0913 (issued November 25, 2019).

11 See J.P., Docket No. 19-1206 (issued February 11, 2020); M.G., Docket No. 18-1310 (issued April 16, 2019);

Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

12 See J.P., id.; C.M., Docket No. 17-1977 (issued January 29, 2019); A.J., Docket No. 18-0905 (issued 

December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).
9

appellant’s burden of proof to establish his claim, it is sufficient to require further development of 

the case by OWCP.13 

Therefore, the Board finds that the case shall be remanded to OWCP. On remand OWCP 

shall prepare a statement of accepted facts, the medical evidence of record, and appellant to a 

specialist in the appropriate field of medicine for a second opinion evaluation. Upon referral, the 

physician shall conduct a physical examination and provide a rationalized medical opinion as to 

whether appellant’s lumbar conditions were caused or aggravated by factors of his employment. 

If the second opinion physician opines that the diagnosed conditions are not causally related, he 

or she must explain with rationale how or why the opinion differs from that of Dr. Fitzgerald’s 

reports. Following this, and any other further development as deemed necessary, OWCP 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 February 18, 2020 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: May 25, 2021

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

 

13 See J.P., id.; D.S., Docket No. 17-1359 (issued May 3, 2019); C.W., Docket No. 17-1293 (issued February 12, 

2018); see also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).