United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.W., Appellant 

and 

U.S. POSTAL SERVICE, ALTON POST 

OFFICE, Alton, NH, Employer 

__________________________________________ 

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Docket No. 14-730 

Issued: January 8, 2015 

Appearances: Case Submitted on the Record

James G. Noucas, Jr., Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 12, 2014 appellant, through his attorney, filed a timely appeal of a 

September 19, 2013 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 the case. 

ISSUE 

The issue is whether appellant sustained an injury in the performance of duty casually 

related to factors of his federal employment. 

On appeal, appellant, through counsel, contests the facts as set forth by the postmaster in 

his letter controverting the claim. He also argues that the medical evidence was sufficient to 

establish appellant’s claim or in the alternative, was sufficient to require further development of 

the evidence. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 16, 2012 appellant, then a 49-year-old rural mail carrier, filed a traumatic injury 

claim alleging that as a result of the repetitive actions with his right shoulder, hand, arm, and 

neck during the course of his federal employment, he had developed herniated bulging discs at 

C5, C6, and C7 and an occupational disease in his neck, shoulders, arm, hand, and fingers. He 

noted that he opens about 500 mailboxes a day and loaded and unloaded a thousand pieces of 

mail per day. Although appellant filed a traumatic injury claim, he indicated on the claim form 

that his claim was actually for an occupational disease. 

The employing establishment, through Lisa M. Gallagher, controverted appellant’s claim 

and noted that appellant had been on unpaid leave pending removal since December 3, 2011 and 

that he never reported being injured on the job. It noted that appellant filed his claim almost 

seven months after he was taken out of work on December 3, 2011. The employing 

establishment also contended that appellant left his last employing establishment, Federal 

Express (FedEx), due to a back and neck injury for which he needed major surgery and that it 

was not clear to what extent his prior injury at FedEx impacted his current condition. 

In response to questions from OWCP, appellant contended that his injuries occurred over 

a period of time and that he started noticing discomfort and pain in August 2011 but did not 

realize that it was work related at that time. He contended that his injuries were not related to his 

prior injury with FedEx. 

By decision dated August 21, 2012, OWCP denied appellant’s claim because appellant 

had not submitted any evidence containing a medical diagnosis. It also administratively 

converted his claim to one for an occupational disease. 

On September 6, 2012 OWCP requested reconsideration. On November 29, 2012 

counsel entered an appearance in the case and requested that appellant’s claim be expanded to 

include a right shoulder medical condition. 

In a June 15, 2012 report, Dr. Anthony A. Salerni, a Board-certified neurosurgeon, 

diagnosed appellant with cervical radiculopathy. He noted that appellant had an anterior cervical 

discectomy and fusion at C5-6 and C6-7 approximately 10 days ago. Dr. Salerini noted that 

appellant was complaining of increased pain in the last couple of days. He noted that there was 

no neurologic evidence of any problems, but that a small hematoma could be present, and 

recommended a computerized tomography scan to try to rule this out. Appellant also submitted 

the report of the June 8, 2012 operation, wherein Dr. Salerini noted that he conducted a C5-6 and 

C6-7 anterior cervical discectomy and fusion with Osteocel and insertion of PEEK interbody 

devices. In addition, he submitted Dr. Salerni’s progress notes dated from May 10 through 

September 19, 2012. In the initial note of May 10, 2012, Dr. Salerni noted that appellant 

reported daily neck pain worsened September or October 2011. He noted that appellant 

attributed this to his rural mail carrier duties. At that time, Dr. Salerni noted his impression as 

neck pain C5-6, C6-7, right triceps weakness. In a June 13, 2012 report, he noted that appellant 

reported almost complete relief of pain in the right shoulder, thumb, index, and long finger. In a 

July 25, 2012 note, Dr. Salerni noted that appellant appeared much better, but did note some mild 
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spondylitic disease at the level above the fusion. In a September 19, 2012 note, he indicated that 

he wrote prescriptions for therapy and also noted that chiropractic care can also help. 

In an October 29, 2012 report, Dr. Barry C. Gendron, an osteopath, interpreted 

appellant’s diagnostic study of the right shoulder as showing normal biceps, infraspinatus, and 

subscapularis tendons, no bicipital subluxation dynamically, and right acromioclavicular joint 

normal. He noted an increase hypoechoic signal with the right supraspinatus tendon consistent 

with a small articular surface tear. Dr. Gendron noted that a torn labrum cannot be ruled out. 

By decision dated December 12, 2012, OWCP found that the evidence submitted to 

support the reconsideration request was not sufficient to warrant modification of the prior 

decision. 

On January 28, 2013 appellant requested reconsideration. In a January 22, 2013 

statement, he indicated that he worked for the employing establishment starting in 2004 as a rural 

route carrier and that in August 2011, he started to notice pain and numbness in his right hand, 

thumb, index and middle finger and soreness radiating down the right side of his neck, and his 

shoulder, and collar bone. Appellant noted that his hand, neck, and shoulder pain got 

progressively worse starting in August 2011. He stated that the numbness in his hand went away 

after surgery for two herniated discs, and a fusion in his neck in June 2012. Appellant noted that 

the neck and shoulder pain persisted and that he was now being treated for myofasical pain 

syndrome (cervical), and a right rotator cuff tear. He discussed the details of his federal duties 

and indicated that he believed that his neck, shoulder and hand injuries were caused by his work 

as a rural route carrier. Appellant also noted a work-related injury in 1998 while working for 

FedEx, for which he had three surgeries from 1999 to 2000 when they tried to fuse his vertebrae 

at L4-5 and L5-S1. He indicated that this injury occurred while he was carrying a cooler from a 

customer pickup and slipped on a snowy and icy driveway. Appellant stated that his feet came 

out from under him and he landed on his lower back, blowing out his disc. He noted that he did 

not suffer any injury to his neck or shoulder as a result of the injury with FedEx. 

In a November 6, 2012 unsigned report Seacoast Area Physiatry indicated that appellant 

was treated for neck and shoulder pain. 

In a January 11, 2013 report, Dr. John J. Walsh, Jr., a Board-certified orthopedic surgeon, 

noted that appellant stated that he started working for the employing establishment in 2004 as a 

rural route carrier and that he continues to hold that position. Appellant told Dr. Walsh that in 

August 2011 he began to notice pain and numbness in his right hand and soreness radiating down 

the right side of his neck and into his shoulder, and that his hand, neck, and shoulder pain 

became progressively worse in August 2011. Dr. Walsh reviewed appellant’s medical records 

and conducted a physical examination. He assessed appellant with cervical disc herniations C5-6 

and C6-7 with radiculopathy/radiculitis; status post anterior cervical discectomy and fusion C5-6 

and C6-7; cervical myofascial pain syndrome secondary to the above; and possible torn glenoid 

labrum right shoulder. Dr. Walsh opined that the above diagnoses and resultant disability are the 

result of a cumulative trauma disorder which is a direct result of appellant’s work activities 

involving repetitive use of his neck and upper right extremity as outlined in his statement. He 

noted that these activities include turning and twisting of the neck and reaching over a thousand 

times a day in the process of sorting, casing, and delivering mail as a rural route letter carrier. 
4

Dr. Walsh noted that as the result of this cumulative trauma disorder appellant was restricted in 

his ability to perform tasks which involve or require repetitive, sustained or exertional use of his 

neck and/or right upper extremity. He further opined that the medical treatment appellant 

received was directly related to his employment-related injury. 

By decision dated May 2, 2013, OWCP determined that the elements of fact of injury in 

the performance of duty had been met, but that there was still insufficient evidence to establish 

the requirement of causal relationship for coverage under FECA. 

On June 20, 2013 appellant again requested reconsideration. Appellant, through counsel, 

submitted a June 7, 2013 addendum by Dr. Walsh, who noted that there was a fundamental 

difference between appellant’s work at FedEx and his work for the employing establishment in 

that at FedEx he would need to pick up larger packages and boxes and carry them. Dr. Walsh 

found that the structure stress of this work activity was to the lumbosacral spine not the cervical 

spine and it did, in fact, result in herniation of the intervertebral discs at L5-S1 and L4-5 in the 

lower back. He concluded that the lumbosacral disc herniation was unrelated to the disc 

herniation in appellant’s cervical spine which occurred over 10 years later and which was the 

result of a completely different mechanism of injury. Dr. Walsh described appellant’s work as a 

rural letter carrier as requiring repetitive twisting of the cervical spine as he sorted mail into 

address slots for the over 500 postal customers on his route. He noted that the act of placing 

letter mail in the slots required continuous twisting of appellant’s head to the right, lift up or 

down to locate the correct slot in his cubicle and then place the letter into the slot on the right, 

left or directly in front of him. Dr. Walsh noted that after all the mail was slotted appellant 

would have to repeat the process to remove the mail from the individual slots and bundle it in 

preparation for the actual delivery to mail customers. He stated that the repetitive twisting of his 

cervical spine would then need to be repeated using the actual delivery of the mail to the 

postbox. Dr. Walsh indicated that appellant was required to repeat the twisting of the cervical 

spine thousands of times daily. He opined that the twisting of the neck, thousands of times daily, 

led to the structural deterioration of the intervertebral discs in the lower cervical spine and was 

the cause of the pain and numbness in the right arm and hand which he noted in August 2011. 

Dr. Walsh indicated that the pain and numbness was identified through objective imaging studies 

to be the result of disc herniation in the lower cervical spine at C5-6 and C6-7, causing pressure 

on the cervical nerve roots. He opined that the disc herniations required the anterior cervical 

discectomy and fusion of June 8, 2012. Dr. Walsh concluded that it was his opinion, “within a 

reasonable degree of medical certainty, it is more probable than not, that the torsional stress on 

the cervical spine produced by [appellant’s] work-related activity during the course of his 

employment with the [employing establishment] was the direct cause of this cervical disc 

herniation.” 

By letter dated August 29, 2013, Joseph Perry, the postmaster for appellant’s branch of 

the employing establishment, controverted appellant’s claim. He noted that appellant came to 

his branch as a part-time flexible carrier working two days a week and began working full time 

on January 14, 2011. Mr. Perry noted that on December 2, 2011 appellant was placed on 

emergency administrative leave without pay. He noted that at no time did appellant ever come to 

him to report any injury or pains in his neck, shoulders or hands, yet appellant was aware that he 

must report an injury to his postmaster immediately. Mr. Perry noted that it was suspicious that 

appellant put in his claim two years after the supposed injury and a few months after his 
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termination. He questioned how he could have worked nine hours and five minutes a day from 

August to December 2, 2011 if he was in that much pain. 

In a September 12, 2013 response to Mr. Perry’s statement, counsel contended that the 

postmaster was biased as he was controverting appellant’s claim, but that it was his role to 

develop claims. He indicated that Mr. Perry misrepresented appellant’s employment status as 

appellant had just separated from the employing establishment a few months ago. Counsel 

contended that appellant did not report his injury as he was trying to work through the pain and 

because he did not initially believe that it was employment related. It was not until appellant’s 

condition worsened in 2012 when he required surgery did he realize that it was employment 

related. He argued that appellant did not know that he had cervical disc herniations at C5-6 and 

C6-7 until the medical care he received in spring and summer of 2012. 

By decision dated September 19, 2013, OWCP denied modification of the May 2, 2013 

decision. 

LEGAL PRECEDENT 

An employee seeking compensation under FECA2

 has the burden of establishing the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence,3 including that he or she is an “employee” within the meaning of FECA4 and that he or 

she filed his or her claim within the applicable time limitation.5 The employee must also 

establish that he sustained an injury in the performance of duty as alleged and that his disability 

for work, if any, was 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 establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee 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 employee.8 

                                                             2 Id. at §§ 8101-8193. 

3 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968). 

4

 See M.H., 59 ECAB 461 (2008); see also 5 U.S.C. § 8101(1). 

5 R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122. 

6 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

7 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999). 

8 See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994). 
6

Causal relationship is a medical issue9

 and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. Rationalized medical 

opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether 

there is a causal relationship between the claimant’s diagnosed condition and the established 

incident or factor of employment. The opinion of the physician must be based on a complete 

factual and medical background of the claimant,10 must be one of reasonable medical certainty,11

and must be supported by medical rationale explaining the nature of the relationship between the 

diagnosed condition and the established incident or factor of employment.12 

ANALYSIS 

OWCP determined that appellant had established that he was exposed to the alleged 

employment conditions. However, it denied his claim for failure to establish a medical condition 

that was causally related to his federal employment. 

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is a rationalized medical report.13 The Board finds that the medical 

evidence does not establish this causal relationship. Dr. Salerni indicated that appellant 

attributed his medical condition to the duties of his federal employment, he did not reach an 

independent medical conclusion on causal relationship. Dr. Gendron did not address the issue of 

causal relationship. As such, these reports are of diminished probative value. The report from 

Seacoast Area Physiatry is of no probative value as it was unsigned. Thus, it does not constitute 

competent medical evidence as the author cannot be identified as a physician.14

Appellant also submitted medical reports wherein Dr. Walsh assessed him with cervical 

disc herniations at C5-6 and C6-7, cervical myofascial pain syndrome and possible torn glenoid 

labrum right shoulder. Dr. Walsh indicated that these medical conditions were the direct result 

of appellant’s work activities and the turning and twisting of his neck and reaching over a 

thousand times a day in the process of sorting, casing and delivering mail as a rural route carrier. 

OWCP required further information, and in a June 7, 2013 addendum, he distinguished 

appellant’s current injury from the injury he sustained while employed at FedEx. Dr. Walsh 

concluded that it was in his opinion that the torsional stress on the cervical spine produced by 

appellant’s employment-related activities was the direct cause of his cervical disc herniation. 

The Board finds that the opinions of Dr. Walsh are not sufficient to establish that 

appellant’s injuries are causally related to his federal employment due to errors in his 

presentation of the facts. Initially, the Board notes that Dr. Walsh’s opinion is not based on an 

                                                             9 Mary J. Briggs, 37 ECAB 578 (1986). 

10 William Nimitz, Jr., 30 ECAB 567, 570 (1979). 

11 See Morris Scanlon, 11 ECAB 384, 385 (1960). 

12 See William E. Enright, 31 ECAB 426, 430 (1980). 

13 A.L., Docket No. 14-753 (issued July 11, 2014). 

14 See Merton J. Sills, 39 ECAB 572, 575 (1988). 
7

accurate description of appellant’s employment. In his January 11, 2013 report, Dr. Walsh noted 

that appellant stated that he began working for the employing establishment in 2004 as a rural 

carrier and that he continues to hold that position. However, the record establishes that appellant 

only worked one day a week from 2004 to 2008 and two days a week from 2008 to 2011. 

Appellant only worked full time from January to December 2011. As of December 3, 2011, he 

was taken out of work by management for a reason unrelated to any injury. 

Dr. Walsh does not note appellant’s years of working only part time for the employing 

establishment or the fact that this employment ended in December 2011. Furthermore, he refers 

to appellant’s employment-related injury at FedEx as caused by the “structural stress” of picking 

up, carrying and loading larger packages, and boxes into his truck and then out for delivery. 

However, appellant indicated in his January 22, 2013 statement that he had three two-level back 

fusions between 1999 and 2001 due to a traumatic injury i.e., a fall wherein he landed on his 

lower back, while appellant was employed with FedEx. 

Dr. Walsh did not discuss how such a clearly serious traumatic injury and the resultant 

surgeries might not have also caused the later cervical condition. Because his opinions are not 

based on a complete and accurate factual history or medical history, they are of limited probative 

value.15 

The Board also notes that the medical records discussing appellant’s cervical condition 

began around the time of his June 8, 2012 surgery. As there is no medical evidence until the 

May 10, 2012 progress note by Dr. Salerni, there is a lack of documentation bridging appellant’s 

alleged symptoms in August 2011 and his surgery and cervical condition in June 2012.16 

Furthermore, appellant did not mention to his supervisor that he experienced pain in his neck or 

radiating pain into his extremities until after his cervical surgery on June 8, 2012, which was 6 

months after his last date of work with the employing establishment and 10 months after the 

alleged onset of symptoms. 

As appellant failed to submit rationalized medical opinion evidence establishing that he 

sustained an injury in the performance of duty causally related to the accepted factors of federal 

employment, he has not established his claim. 

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 appellant has not established that he sustained an injury in the 

performance of duty causally related to factors of his federal employment. 

                                                             15 See J.S., Docket No. 14-1425 (issued October 22, 2014); M.E., Docket No. 14-1064 (issued 

September 29, 2014). 

16 See M.K., Docket No. 10-866 (issued November 24, 2010); D.S., Docket No. 10-161 (issued October 5, 2010). 
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ORDER 

IT IS HEREBY ORDERED THAT the September 19, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 8, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board