United States Department of Labor 

Employees’ Compensation Appeals Board 

___________________________________________

A.V., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

___________________________________________

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Docket No. 14-748 

Issued: October 3, 2014 

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 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 18, 2014 appellant, through her attorney, filed a timely appeal from the 

January 10, 2014 Office of Workers’ Compensation Programs’ (OWCP) decision which affirmed 

a prior decision, which found that she failed to establish that she sustained an injury as alleged. 

Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the issues in this 

case. 

ISSUE 

The issue is whether appellant has met her burden of proof in establishing that she 

sustained an injury in the performance of duty on November 30, 2012. 

FACTUAL HISTORY 

On December 3, 2012 appellant, then a 41-year-old mail processing clerk, filed a 

traumatic injury claim alleging that on November 30, 2012, she developed severe pain and 

burning in her neck, radiating down her shoulders, arms and hands as well as severe pain in her 

back and legs while at work. She stated that she was feeding and sweeping a machine, bending, 
2

stooping, twisting and reaching above the shoulder and repetitively lifting mail trays weighing 20 

to 40 pounds. Appellant stopped work on November 30, 2012. The employing establishment 

noted that she had a history of work-related injuries and it was her first day back from a prior 

work injury. 

In a duty status report and an attending physician’s report dated December 4, 2012, 

Dr. Samy F. Bishai, Board-certified in emergency medicine, noted that on November 20, 2012, 

appellant was working and lifting over 160 trays of mail into a processing machine and felt 

numbness in her feet, back, neck and shoulders. He advised that she also hit her elbows on a 

desk and she stumbled and fell to the floor. Dr. Bishai provided findings and diagnosed a 

herniated nucleus pulposus, internal derangement of the left shoulder and cervical disc. He 

checked the box “yes” in response to whether he believed the condition was caused or 

aggravated by the employment activity and advised that appellant was disabled from 

December 4, 2012 to January 18, 2013. OWCP also received a December 3, 2012 disability 

certificate from a nurse and discharge instructions. 

In a December 6, 2012 statement, Denise Santos, a coworker, noted that on 

December 1, 2012 she was walking past machine number 18 and saw appellant with a red face 

and neck. She indicated that appellant asked her for her help as she was going to pass out. 

Ms. Santos noted that she tried to keep appellant from falling but about halfway down, she fell 

and hit “pretty hard.” She indicated that appellant’s eyes rolled back and she looked dazed for a 

few minutes and started to cry. Ms. Santos noted calling 911 and waiting until the ambulance 

arrived. 

In a letter dated December 13, 2012, Larry E. Osalkowski, a health and human resource 

management specialist, controverted the claim. He noted that this was appellant’s third claim 

since June 11, 2011 and asserted that she did not want to work.1

 Mr. Osalkowski noted that on 

July 11, 2012, she underwent a functional capacity evaluation that demonstrated sub-maximum 

effort. He advised that on November 30, 2012 appellant returned to her date-of-injury job and 

that, at 4:35 p.m., she was at a supervisor desk filling out a leave form to go home, when she 

allegedly fainted. 

On December 14, 2012 OWCP informed appellant of the type of evidence needed to 

support her claim and requested that she submit such evidence within 30 days. 

In a December 4, 2012 narrative report, Dr. Bishai noted that appellant suffered injuries 

to her neck, back and left shoulder while working for the employing establishment. He advised 

that she was previously off work due to accepted injuries that included left rotator cuff syndrome 

and lumbosacral neuritis. Dr. Bishai stated that appellant’s supervisor ordered appellant to return 

to full duty on November 26, 2012 but she did not receive those orders until November 29, 2012. 

Appellant arrived at work at 10:00 p.m. on November 29, 2012 and was assigned to work on the 

delivery bar code sorter machine which processed the letters into carrier sequence. She started 

setting up the work by printing labels on the trays and moved the general purpose mail container 

(GPMC) which weighed about 242 pounds about 10 feet. Additionally, appellant was engaged 

in sweeping mail from 10:00 p.m. to 11:45 p.m., which involved grabbing handfuls of mail from 

 1

 Appellant’s other claims are not presently before the Board. 
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the machine onto the rack and bending, stooping, twisting and reaching above her head. 

Dr. Bishai also advised that from 11:45 p.m. until 12:00 a.m., she was on a break and that 

afterwards, she returned to work on the same machine until 3:00 a.m., stopping for a half hour 

lunch. From 3:00 a.m. until 4:30 a.m., appellant started feeding the machine, which included 

lifting over 160 trays of mail weighing from 20 to 40 pounds each. Dr. Bishai advised that at 

4:30 a.m. she informed her supervisor that she was having severe pain and burning in her neck 

radiating down both shoulders and into her arms and hands, as well as down her legs. Appellant 

indicated that her supervisor asked her to complete a leave slip and that afterwards, she fell to the 

floor, tripping over a chair. She was taken to the emergency room, given a shot and sent home. 

Dr. Bishai noted findings that included tenderness over the dorsolumbar spine in the midline and 

moderate paraspinal muscle spasm affecting the paraspinal muscles of the dorsolumbar region. 

Appellant had normal range of motion and positive sciatic nerve stretching. 

Dr. Bishai diagnosed chronic lumbosacral strain; herniated disc as L5-S1; radiculopathy 

right and left legs, more severe on the left; bulging discs at L3-4 and L4-5; herniated lumbar disc 

at L5-Sl; radiculopathy right and left legs, more severe on the left; bulging discs at L3-4 and 

L4-5; lumbar degenerative disc disease; cervical disc syndrome with radiculopathy and left 

shoulder internal derangement. He opined that appellant had additional injuries to her back with 

radiculopathy being worse than before. Dr. Bishai advised that she had new injuries to her neck, 

arms and left shoulder. He noted that appellant should not have returned to work and that her 

return was due to poor judgment by a second opinion physician, Dr. Jonathan Black, a Boardcertified orthopedic surgeon.2

 Dr. Bishai recommended physical therapy and medication. In a 

January 3, 2013 report, he noted appellant’s history and treatment. Dr. Bishai repeated his prior 

diagnoses as well as sprain and contusion of the right elbow. 

On January 9, 2013 OWCP received an undated statement from appellant, who noted 

being assigned to a machine that required that she print labels, put the labels on trays and move 

10 GPMCs weighing 242 pounds each. Appellant indicated that she had to sweep mail from the 

machine to mail racks, sweep stackers and lift trays of mail weighing 20 to 40 pounds each. She 

stated that she performed her duties repeatedly, took a lunch break from 2:00 a.m. to 2:30 a.m. 

and then returned to the same machine. At around 4:30 a.m., appellant was in severe pain and 

had burning in her neck, down her shoulders, arms, hands and back. She indicated that she later 

bumped her right elbow on a desk and passed out, falling to the floor. OWCP received other 

reports, including several diagnostic reports, a December 4, 2012 nurses note and an unsigned 

duty status report dated January 3, 2013. 

In a January 5, 2013 statement, Mr. Osalkowski reiterated his assertions that appellant’s 

claim should not be accepted. 

By decision dated January 18, 2013, OWCP denied the claim. It found that the injury or 

events did not occur as alleged and that appellant did not submit sufficient medical evidence. 

Appellant requested a telephonic hearing, which was held on May 16, 2013. During the 

hearing, counsel noted that she had a prior accepted work injury under a separate claim and was 

 2

 The employing establishment indicates that Dr. Black was a second opinion physician utilized by OWCP in a 

prior claim. 
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sent to Dr. Black. He argued that appellant was improperly returned to full-duty work based 

upon Dr. Black’s opinion, even though her attending physician stated that she could not work. 

Counsel argued that there was a medical conflict in the other claim. 

Following the hearing, counsel, on June 11, 2013, restated his argument that appellant 

was forced back to work against the wishes of her physician on November 30, 2012 and 

sustained additional injuries while working on that date. Mr. Osalkowsi provided a 

June 18, 2013 statement noting his arguments regarding why the claim should be denied. 

Additional evidence was also received that included another statement from appellant describing 

her activities on the date of injury and a December 4, 2012 ultrasound of the cervical soft tissue 

which revealed thickening of the paravertebral muscles at C6-7. 

In an August 12, 2013 decision, an OWCP hearing representative affirmed OWCP’s 

January 18, 2013 decision. He found that the medical evidence was insufficient to establish that 

the diagnosed medical conditions were causally related to the claimed work activities during the 

six hours that appellant worked on November 30, 2012. 

On October 16, 2013 appellant requested reconsideration and reiterated that she was 

injured at work. 

Appellant also submitted additional evidence. In reports dated August 21, 2013, 

Dr. Bishai noted reviewing her history and provided findings on examination. He diagnosed 

chronic lumbosacral strain; herniated lumbar disc at L5-S1; radiculopathy right and left legs, 

more severe on the left; bulging discs at L3-4 and L4-5; lumbar degenerative disc disease; 

cervical disc syndrome with radiculopathy; internal derangement of the left shoulder; acromial 

impingement of the left shoulder; right elbow sprain; and right elbow contusion. Dr. Bishai 

opined that appellant was totally disabled due to her painful conditions. He indicated that she 

had severe and permanent aggravation of her preexisting conditions that she had while working 

for the employing establishment. Dr. Bishai stated that appellant was forced to return to work 

against his recommendations and had an aggravation on November 30, 2012. He repeated his 

previous description of her activities and opined that the injuries she suffered on that date were 

“simply an aggravation of preexisting conditions” that she suffered from previously. Dr. Bishai 

stated: 

“[Appellant] also suffered additional symptoms on that day as she suffered from 

pain in her neck with radiation down the arms and she suffered aggravation of her 

shoulder injuries as well as additional injuries to the shoulders and she also 

suffered aggravation of the preexisting conditions in her back leading to severe 

back pain with radiculopathy in both legs, more severe on the left side. The 

causal relationship between the patient’s current symptoms and the symptoms that 

she developed on the date of the injury of November 30, 2012 and its relationship 

to her work activities while she was working for the employing establishment on 

that date of November 30, 2012 are clear and easy to explain. The patient was 

using a lot of repetitive movements of bending, twisting, pushing, pulling, 

reaching above the shoulder and extending her body.” 
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Dr. Bishai opined that it was a “a well-known fact that patients who suffer from disc disease or 

injuries as this patient had suffered from due to previous work injuries that she suffered are prone 

to develop aggravation of these conditions because of these repetitive movements of bending, 

twisting, pulling, pushing, reaching above the shoulder and extending her body.” He explained 

that appellant worked for six hours doing many movements including reaching above the 

shoulder, twisting her body and lifting a stacker paddle above her shoulder. Dr. Bishai noted that 

she had to get up on her toes to place the mail and then place the mail on trays, while twisting, 

turning and using both hands to get mail. He stated that the trays weighed approximately 20 

pounds and appellant pushed a cart that weighed 1,000 pounds. Dr. Bishai opined that all of 

these movements that she did while using her arms above her shoulder level “have contributed 

and caused an aggravation of the preexisting problems with her shoulders including the torn 

rotator cuff muscles that were diagnosed as well as an aggravation of the shoulder impingement 

syndrome conditions that have been diagnosed in this case.” He noted that appellant’s back and 

neck conditions were explained because lifting caused her to expend a lot of energy and caused 

injury to the discs that usually suffered an aggravation of “these preexisting problems with the 

discs in terms of the rupture of the annulus fibrosis part of the discs and the bulging or herniation 

of the discs due to the nucleus pulposus bulging through the tears in the annulus fibrosis.” 

Dr. Bishai stated that this was a pathophysiological process that led to her severe symptoms in 

her neck and back as the disc herniation and bulges in both the cervical and lumbosacral spine 

led to radiculopathy in the arms and legs. He advised that causal relationship existed between 

appellant’s symptoms following the November 30, 2012 injury and her activities at work that 

night. Dr. Bishai opined that he had provided a rationalized opinion explaining that, after 

working six hours, she had an aggravation of her preexisting neck, back and shoulder conditions. 

He asserted that his opinion showed the activities that appellant did at work were related to her 

pain symptoms. Dr. Bishai opined that it was well known that when a patient had serious 

problems such as herniated discs and radiculopathy, in the arms and legs, as well as shoulder 

injuries due to rotator cuff syndrome and shoulder impingement, they could easily be aggravated 

by the type of work activities that she performed on November 30, 2012. He stated that within a 

reasonable degree of medical certainty, the diagnosed conditions were directly related to 

appellant’s work activities on November 20, 2012 and these activities aggravated her preexisting 

conditions that she suffered previously at work. Dr. Bishai indicated that her problems were all 

work related. 

OWCP received additional records that include treatment notes dated November 22, 2013 

from Dr. Gregory F. Saric, Board-certified in family medicine and a January 8, 2014 report from 

Dr. Robert H. Reppy, an osteopath specializing in preventative medicine. Dr. Reppy examined 

appellant and repeated the diagnoses provided by Dr. Bishai. 

By decision dated January 10, 2014, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA 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 timely filed within the applicable time 
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limitation period of FECA3

 and that an injury was sustained in the performance of duty.4 These 

are the essential elements of each compensation claim, regardless of whether the claim is 

predicated upon a traumatic injury or an occupational disease.5

In order to determine whether an employee actually sustained an injury in the 

performance of duty, OWCP begins with an analysis of whether fact of injury has been 

established. Generally fact of injury consists of two components which must be considered in 

conjunction with one another. The first component to be established is that the employee 

actually experienced the employment incident which is alleged to have occurred. The second 

component is whether the employment incident caused a personal injury and generally this can 

be established only by medical evidence.6 The employee must also submit sufficient evidence, 

generally only in the form of medical evidence, to establish that the employment incident caused 

a personal injury.7

 The medical evidence required to establish causal relationship is usually 

rationalized medical evidence. Rationalized medical opinion evidence is medical evidence 

which includes a physician’s rationalized opinion on the issue of whether there is a causal 

relationship between the claimant’s diagnosed condition and the implicated employment factors. 

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

claimant, must be one of reasonable medical certainty and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant.8

 

ANALYSIS 

Appellant alleged that on November 30, 2012, she was feeding and sweeping a machine, 

bending, stooping, twisting and reaching above the shoulder; and repetitively lifting mail trays 

weighing 20 to 40 pounds in the performance of duty. The Board finds that the evidence 

supports that she performed such job duties on November 30, 2012. Although OWCP found that 

the medical evidence was insufficient to establish the claim, the Board finds that the case 

requires further development regarding whether appellant sustained a new traumatic injury in the 

performance of duty. 

Appellant submitted medical reports from Dr. Bishai which support that her work 

activities on November 30, 2012 aggravated her preexisting conditions and caused total 

disability. In his August 21, 2013 report, Dr. Bishai reviewed her history, noted findings and 

diagnoses and concluded that she had severe and permanent aggravation of her preexisting 

conditions due to her work at the employing establishment. He described appellant’s work 

activities and opined that her injuries were “simply an aggravation of preexisting conditions” that 

 3 Joe D. Cameron, 41 ECAB 153 (1989). 

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

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

6 See John J. Carlone, 41 ECAB 354, 357 (1989). 

7 Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee). 

8 D.E., 58 ECAB 448 (2007).
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she had previously in addition to new symptoms she sustained. Dr. Bishai supported causal 

relationship noting that she used a lot of repetitive movements and asserted that it was “well 

known” that patients with disc disease or injuries such as those sustained by her were prone to 

aggravate those conditions because of these repetitive movements of bending, twisting, pulling, 

pushing, reaching above the shoulder and extending her body. He opined that all of these 

movements as well as lifting above the shoulder aggravated appellant’s diagnosed conditions. 

The Board finds that this report, while not completely rationalized, is consistent in indicating that 

appellant sustained an employment-related cervical condition. 

Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, it shares 

responsibility in the development of the evidence to see that justice is done.9

 While Dr. Bishai’s 

reports are not sufficiently rationalized to discharge appellant’s burden of proving that her 

claimed conditions were caused or aggravated by factors of her employment on 

November 30, 2012, these reports are uncontroverted and raise an inference of causal 

relationship sufficient to require further development of the case record by OWCP.10 

On remand, OWCP should refer appellant, the case record and a statement of accepted 

facts to the appropriate specialist for an evaluation and a rationalized medical opinion regarding 

the cause of her condition.11 After such further development of the case record as OWCP deems 

necessary, a de novo decision shall be issued. 

On appeal, counsel made several arguments in support of appellant’s claim. In light of 

the Board’s disposition to remand her claim, it is premature to address these arguments. 

CONCLUSION 

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

 9 William J. Cantrell, 34 ECAB 1223 (1983). 

10 See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978). 

11 In view of assertions in the record by appellant and the employing establishment, that her symptoms have a 

connection with prior injury claims, OWCP may wish to consider whether these claims should be doubled. 
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ORDER 

IT IS HEREBY ORDERED THAT the January 10, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further action consistent with 

this decision. 

Issued: October 3, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board