United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.C., Appellant 

and 

U.S. POSTAL SERVICE, TEXTILE FINANCE 

POST OFFICE, Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 14-1927 

Issued: February 13, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 2, 2014 appellant, through counsel, filed a timely appeal from an 

August 11, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant met her burden to prove that she sustained an injury to her 

neck, shoulder, arms, and hands causally related to factors of her federal employment. 

FACTUAL HISTORY 

This case has previously been before the Board. On April 1, 2011 appellant, then a 52-

year-old sales associate clerk, filed an occupational disease claim alleging that she sustained an 

injury to her neck, shoulder, arms, and hands due to performing repetitive work duties. She 

 1

 5 U.S.C. § 8101 et seq. 
2

became aware of her condition and its asserted relationship to her employment on 

March 2, 2011. Appellant did not stop work. 

By letter dated April 15, 2011, OWCP requested that appellant submit further factual and 

medical information, including a detailed report from her attending physician addressing the 

causal relationship between any diagnosed condition and the identified work factors. 

In a decision dated June 3, 2011, OWCP denied appellant’s claim after finding that she 

did not submit sufficient factual evidence to establish that she experienced the identified work 

duties. It noted that she had not responded to its request for additional evidence. 

An August 6, 2009 magnetic resonance imaging (MRI) scan study, received by OWCP 

on June 9, 2011, showed straightening of the cervical lordotic curve, degenerative spondylosis 

from C4-5 to C6-7 with osteophyte formation and narrowing of the intervertebral disc spaces, a 

small syrinx from mid C6 to C6-7, and an arachnoid cyst at C6-7 on the right. 

In a report dated September 28, 2009, Dr. Ben Shwachman, a Board-certified 

anesthesiologist, reviewed appellant’s history of neck pain radiating into the left upper extremity 

for the past year. He diagnosed degenerative disc disease of the cervical spine with 

radiculopathy. In a September 28, 2009 addendum, Dr. Shwachman reviewed the MRI scan 

study and diagnosed cervical lordotic curve straightening and spondylosis from C4-5 and C6-7 

with disc space narrowing and osteophyte formation. 

On April 19, 2010 Dr. Shwachman discussed appellant’s complaints of “neck pain 

radiating to the left upper extremity with some cramping in her hand.” He noted that an MRI 

scan study showed an arachnoid cyst at C6-7.2

In an August 31, 2010 certification of health care provider form submitted in connection 

with a leave request under the Family and Medical Leave Act, Dr. Shwachman diagnosed 

cervical sprain/strain, degenerative disc disease, cervical syrinx at C5 to C7, foraminal stenosis 

of the cervical spine, and a right arachnoid cyst at C6-7. He advised that appellant would have 

flare-ups of her condition and be periodically incapacitated from work. 

On May 11, 2011 Dr. Kaleem Uddin, a Board-certified neurologist, discussed appellant’s 

symptoms of pain on the left side from the hand to the scapula area. He diagnosed possible left 

scapular myofascitis and left carpal tunnel syndrome. Electrodiagnostic testing performed on 

May 18, 2011 yielded normal findings. 

On November 17, 2011 Dr. Antoine G. Khoury, a chiropractor, diagnosed cervical sprain 

and strain and myofascial pain syndrome of the cervical spine with left radiculopathy, thoracic 

and lumbar strain/sprain, bilateral carpal tunnel syndrome, cephalgia, and depression. He 

indicated that the injury occurred due to bending, lifting, reaching over the shoulder, and using a 

keyboard. Dr. Khoury advised that x-rays of the cervical spine revealed a reversal of the normal 

cervical lordosis, osteoarthritis, osteoporosis, and discogenic conditions at C5-6 and C6-7. He 

further found that x-rays of the lumbar spine showed straightening of the normal lumbar lordosis, 

 2

 On May 5, 2010 Dr. Shwachman preformed a cervical epidural steroid injection. 
3

osteoarthritis, osteoporosis, severe rotatory scoliosis on the left, and discogenic conditions at L3 

to S1. 

On November 19, 2011 appellant requested reconsideration. She described in detail the 

repetitive work duties to which she attributed her condition, including casing mail, lifting trays, 

working at the window section, working as a machine operator, and working as a flat sorter 

operator. 

In a progress report dated December 28, 2011, Dr. Khoury diagnosed cervical 

sprain/strain with myofascial pain syndrome and radiculopathy on the left side, thoracic and 

lumbar sprain/strain, cephalgia, depression, bilateral carpal tunnel syndrome, and foraminal 

stenosis of the cervical spine.3 He found that appellant was disabled from work. 

By decision dated February 22, 2012, OWCP modified its June 3, 2011 decision to reflect 

that appellant established the occurrence of the work factors identified as causing her condition. 

It denied her claim after finding that the medical evidence was insufficient to show that she 

sustained a diagnosed condition as a result of the accepted work factors. 

By letter dated November 12, 2012, counsel for appellant wrote, “I am submitting 

documentation to support the above-numbered claim. Upon receipt, please review the file and 

provide the status.” He enclosed a November 5, 2012 report from Dr. Khoury, who again 

discussed the November 2011 x-ray findings and further found that a March 8, 2012 MRI scan 

study showed disc bulging at L4-5 and a possible disc herniation with some spinal stenosis and 

degenerative changes at multiple levels. Dr. Khoury diagnosed cephalgia, cervical 

radiculopathy, carpal tunnel syndrome, thoracic, and lumbar sprain/strain, cervical disc 

conditions, and stenosis, a disc herniation and stenosis at L4-5, degenerative disc disease of the 

cervical and lumbar spine, anxiety and insomnia. 

In a report dated January 8, 2013, Dr. Frederic G. Nicola, a Board-certified orthopedic 

surgeon, noted that appellant had worked 34 years for the employing establishment. He 

discussed her work duties, including reaching, pushing, pulling, and performing repetitive neck 

and back movement using a computer. Dr. Nicola reviewed appellant’s history of resolved 

injuries to her lower back in 1983 and 2001 from unspecified events and an injury to her low 

back in 2002 from a motor vehicle accident. Appellant also experienced a whiplash injury in 

2006 from a fall. Dr. Nicola provided findings on examination and reviewed the diagnostic 

studies. He diagnosed cervical degenerative disc disease with radiculopathy and lumbosacral 

degenerative disc disease. Dr. Nicola stated, “Review of records indicates that [appellant] has 

been treated for long periods of time with a permanent aggravation sustained to her neck and 

back from her industrial exposure of working for the [employing establishment] from 

January 1979 until current. She has been on partial disability and temporary disability in those 

timeframes and has been on restrictions by her treating physician.” He opined that appellant 

experienced a permanent aggravation of degenerative joint disease of the cervical and lumbar 

spine based on her history, findings on examination, and his review of past medical records. He 

provided work restrictions. 

 3

 Dr. Khoury provided similar findings in progress reports dated February 9 through September 5, 2012. 
4

By letter dated May 14, 2013, counsel related that on March 19, 2013 he forwarded a 

January 8, 2013 report from Dr. Nicola. He asserted that OWCP had received the report within 

one year of its prior denial and requested that OWCP determine whether the report was 

“sufficient for reconsideration.” 

In a letter dated June 5, 2013, counsel maintained that he requested reconsideration 

before OWCP on December 5, 2012. On July 25, 2013 OWCP informed him that it did not have 

a request for reconsideration. By letter dated August 1, 2013, counsel related that he had 

submitted medical evidence from Dr. Nicola in April 2013 and noted that OWCP had also 

received a January 8, 2013 medical report from Dr. Nicola. Citing S.C.,

4

 he argued that a request 

for reconsideration did not need to be in any certain form and that OWCP had an obligation to 

develop new medical evidence received. 

By decision dated August 12, 2013, OWCP denied appellant’s request for reconsideration 

as untimely and insufficient to establish clear evidence of error. It indicated that it had received 

her May 14, 2013 request for reconsideration, submitted by counsel, on May 16, 2013, more than 

one year from the last merit decision. OWCP considered the January 8, 2013 report from 

Dr. Nicola, which it noted it had received on April 15, 2013, and found that it was insufficient to 

establish clear evidence of error. 

On September 6, 2013 appellant, through counsel, requested reconsideration. He argued 

that in S.C.,5

 the Board found that “the filing of additional information constituted a request for 

reconsideration.” Counsel also maintained that OWCP found that appellant had established fact 

of injury in its February 22, 2012 decision, but denied the claim based on causal relationship. He 

contended that the January 8, 2013 report from Dr. Nicola was sufficient to establish causal 

relationship. 

By decision dated September 25, 2013, OWCP denied appellant’s request for 

reconsideration after finding that the request was untimely and did not show clear evidence of 

error. It found that it was not required to further develop a claim upon receipt of new medical 

evidence and that a request for reconsideration was necessary to consider the evidence. 

Appellant appealed to the Board. By decision dated June 3, 2014, the Board determined 

that OWCP improperly concluded that appellant did not timely file a reconsideration request.6

 

The Board found that counsel submitted a request for reconsideration on November 12, 2012, 

which was within one year from the last merit decision dated February 22, 2012. The Board 

noted that, even though counsel did not use the word reconsideration, he submitted additional 

evidence under the proper file number and requested that OWCP review the evidence. It thus set 

aside the August 12 and September 24, 2013 OWCP decisions and remanded the case for OWCP 

to consider the evidence submitted under the standard for timely reconsideration requests. 

 4

 Docket No. 13-0738 (issued July 8, 2013). 

5 Id. 

6

 Docket No. 14-170 (issued June 3, 2014). 
5

By decision dated August 11, 2014, OWCP denied modification of its February 22, 2012 

decision. It determined that Dr. Khoury was not a physician under FECA as he did not diagnose 

a spinal subluxation. OWCP further found that Dr. Nicola’s report was insufficiently 

rationalized to establish that appellant sustained a permanent aggravation of a spinal condition 

due to factors of her federal employment. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA7 has the burden of establishing 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; that an injury was sustained while in the performance of duty as alleged; and that any 

disability and/or specific condition for which compensation is claimed are causally related to the 

employment injury.8 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.9

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

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed;10 (2) a 

factual statement identifying employment factors alleged to have caused or contributed to the 

presence or occurrence of the disease or condition;11 and (3) medical evidence establishing the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant.12

The medical evidence required to establish causal relationship generally is rationalized 

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

medical background of the claimant,13 must be one of reasonable medical certainty14 explaining 

the nature of the relationship between the diagnosed condition and the specific employment 

factors identified by the claimant.15

 7 See supra note 1. 

8 Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989). 

9 See Ellen L. Noble, 55 ECAB 530 (2004). 

10 Michael R. Shaffer, 55 ECAB 386 (2004). 

11 Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001). 

12 Beverly A. Spencer, 55 ECAB 501 (2004). 

13 Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001). 

14 John W. Montoya, 54 ECAB 306 (2003). 

15 Judy C. Rogers, 54 ECAB 693 (2003). 
6

Section 8101(2) of FECA provides that the “term ‘physician’ includes chiropractors 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....”16 A 

chiropractor cannot be considered a physician under FECA unless it is established that there is a 

subluxation as demonstrated by x-ray evidence.17 OWCP regulations at 20 C.F.R. § 10.5(bb) 

define subluxation as an incomplete dislocation, off-centering, misalignment, fixation, or 

abnormal spacing of the vertebrae, which must be demonstrable on any x-ray film to an 

individual trained in the reading of x-rays.18

ANALYSIS 

Appellant alleged that she experienced pain in her neck, shoulder, arms, and hands as a 

result of repetitive work duties. OWCP accepted the occurrence of the claimed employment 

factors. The issue therefore is whether the medical evidence establishes a causal relationship 

between the claimed conditions and the identified employment factors. 

In a report dated September 28, 2009, Dr. Shwachman discussed appellant’s history of 

neck pain for the past year radiating into the left upper extremity. He diagnosed degenerative 

disc disease of the cervical spine with radiculopathy and, after reviewing an MRI scan study, 

straightening of the cervical lordotic curve, spondylosis from C4-5 and C6-7 with disc space 

narrowing, and osteophyte formation. On April 10, 2010 Dr. Shwachman related that appellant 

complained of radiating neck pain and that an MRI scan study showed a C6-7 arachnoid cyst. In 

his reports, however, he did not address the cause of the diagnosed conditions. Medical evidence 

that does not offer any opinion regarding the cause of an employee’s condition is of diminished 

probative value on the issue of causal relationship.19 

In a certification of health care provider form dated August 31, 2010, Dr. Shwachman 

diagnosed cervical sprain/strain, degenerative disc disease, cervical syrinx at C5 to C7, foraminal 

stenosis of the cervical spine and a right arachnoid cyst at C6-7. He opined that appellant would 

experience intermittent disability from employment due to her condition. Again, however, 

Dr. Shwachman did not address causation and thus his report is of little probative value on the 

issue of causal relationship.20

In a report dated May 11, 2011, Dr. Uddin reviewed appellant’s history of pain from the 

left hand to left scapula. He diagnosed possible left scapular myofascitis and left carpal tunnel 

syndrome. Dr. Uddin did not provide an opinion on the cause of the diagnosed conditions of left 

scapular myofascitis and left carpal tunnel syndrome. Consequently, his report is insufficient to 

meet appellant’s burden of proof. 

 16 5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003). 

17 Pamela K. Guesford, 53 ECAB 726 (2002). 

18 20 C.F.R. § 10.5(bb); Mary A. Ceglia, 55 ECAB 626 (2004). 

19 S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003). 

20 Id. 
7

On November 17, 2011 Dr. Khoury diagnosed cervical sprain and strain and myofascial 

pain syndrome of the cervical spine with left radiculopathy, thoracic and lumbar strain/sprain, 

bilateral carpal tunnel syndrome, cephalgia, and depression. He attributed the conditions to 

appellant’s work duties. Dr. Khoury advised that x-rays of the cervical spine revealed a reversal 

of the normal cervical lordosis, osteoarthritis, osteoporosis, and discogenic conditions at C5-6 

and C6-7. He further found that x-rays of the lumbar spine showed straightening of the normal 

lumbar lordosis, osteoarthritis, osteoporosis, severe rotatory scoliosis on the left, and discogenic 

conditions at L3 to S1.21 In a report dated November 5, 2012, Dr. Khoury found that appellant’s 

work duties at the employing establishment caused her neck, back, and wrist injury. He 

diagnosed cephalgia, cervical radiculopathy, carpal tunnel syndrome, thoracic, and lumbar 

sprain/strain, cervical disc conditions and stenosis, a disc herniation and stenosis at L4-5, 

degenerative disc disease of the cervical and lumbar spine, anxiety and insomnia and provided 

permanent work restrictions. As discussed, section 8101(2) of FECA provides that the “term 

‘physician’ includes chiropractors 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....”22 A chiropractor cannot be considered a physician under 

FECA unless it is established that there is a subluxation as demonstrated by x-ray evidence.23 

Dr. Khoury did not diagnose a subluxation as demonstrated by x-ray; consequently, he is not 

considered a “physician” under FECA and his reports are of no probative value.24 

On January 8, 2013 Dr. Nicola discussed appellant’s history of working at the employing 

establishment performing repetitive movements with her neck and back using a computer and 

reaching, pushing, and pulling. He noted that she sustained prior low back injuries in 1983, 

2001, and 2002 and a whiplash injury in 2006. Dr. Nicola diagnosed cervical degenerative disc 

disease with radiculopathy and lumbosacral degenerative disc disease. He determined that 

appellant sustained a permanent aggravation of cervical and lumbar degenerative joint disease 

from working at the employing establishment. Dr. Nicola did not, however, provide any 

rationale for his causation finding. A mere conclusion without the necessary rationale explaining 

how and why the physician believes that a claimant’s accepted exposure could result in a 

diagnosed condition is not sufficient to meet a claimant’s burden of proof.25 

An award of compensation may not be based on surmise, conjecture, speculation, or upon 

appellant’s own belief that there is a causal relationship between her claimed condition and his 

employment.26 She must submit a physician’s report in which the physician reviews those 

 21 Dr. Khoury submitted progress reports dated December 28, 2011 through September 5, 2012 in which he 

diagnosed cervical sprain/strain with myofascial pain syndrome and radiculopathy on the left side, thoracic and 

lumbar sprain/strain, cephalgia, depression, bilateral carpal tunnel syndrome, and foraminal stenosis of the cervical 

spine. 

22 5 U.S.C. § 8101(2). 

23 See supra note 18. 

24 Isabelle Mitchell, 55 ECAB 623 (2004). 

25 See supra note 12. 

26 D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001). 
8

factors of employment identified by her as causing his condition and, taking these factors into 

consideration as well as findings upon examination and the medical history, explain how 

employment factors caused or aggravated any diagnosed condition and present medical rationale 

in support of his or her opinion.27 Appellant failed to submit such evidence and therefore failed 

to discharge 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 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not met her burden to prove that she sustained an 

injury to her neck, shoulder, arms, and hands causally related to factors of her federal 

employment. 

ORDER 

IT IS HEREBY ORDERED THAT the August 11, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 13, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 27 D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).