United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Paoli, PA, Employer 

__________________________________________ 

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Docket No. 13-1970 

Issued: March 6, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 26, 2013 appellant, through her attorney, filed a timely appeal of a June 12, 

2013 decision of the Office of Workers’ Compensation Programs (OWCP) denying wage-loss 

compensation. 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 has established that she sustained neck and low back 

conditions in the performance of duty, causally related to factors of her employment. 

On appeal, appellant’s counsel contends that OWCP erred in relying upon the second 

opinion physician’s opinion in denying appellant’s claim. Counsel also argues that there is an 

unresolved conflict in the medical opinion evidence requiring referral for an impartial medical 

examination. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 3, 2010 appellant, then a 35-year-old part-time flexible clerk, filed an 

occupational disease claim alleging that her back condition was due to her employment duties. 

She related that she first became aware of her condition on August 4, 2008, but did not realize it 

was employment related until October 3, 2008.2

 

In a March 19, 2010 report, Dr. Steven Mandel, an examining Board-certified 

neurologist, diagnosed S1 radiculopathy with chronic and acute changes. 

In a March 22, 2010 report, Dr. Larry H. Chou, an examining Board-certified physiatrist, 

provided physical findings and reviewed objective evidence. He diagnosed left S1 acute chronic 

radiculopathy, L4-5, L5-S1 facet arthropathy and bilateral L5 and left S1 myotomes weakness. 

On August 26, 2010 OWCP received a March 12, 2010 report from Dr. Shailen Jalali, a 

treating Board-certified anesthesiologist and pain medicine physician, who diagnosed spinal 

stenosis, lumbar radiculitis and sacroilitis. 

By decision dated August 11, 2010, OWCP denied appellant’s claim. 

In a letter dated August 17, 2010, appellant’s counsel requested an oral hearing before an 

OWCP hearing representative, which was held on December 7, 2010. 

Following the hearing, appellant submitted additional medical evidence including reports 

from Dr. Frederick B. Vivino, a treating Board-certified internist and rheumatologist, as set forth 

below. 

In progess notes dated September 22 and December 9, 2009, Dr. Vivino noted findings 

on examination and diagnoses of cervical/lumbar spondylosis, L5-S1 radiculopathy, bilateral 

carpal tunnel syndrome and L4-5 spinal stenosis. In the December 9, 2009 progress note, 

appellant related having poor balance, falling twice at home since her last visit and “occassional 

episodes of back pain with heavy lifting at the [employing establishment].” 

In progress notes dated October 1, 2010, Dr. Vivino provided physical examination 

findings and diagnosed multiple sclerosis (MS), back pain, L4-5 lateral recess spinal stenosis and 

bilateral carpal tunnel syndrome. He noted that appellant’s magnetic resonance imaging (MRI) 

scan showed lateral recess stenosis at L4-5 and clincially that she had weakness in L2-4 

dermatones. Dr. Vivino related that “[t]his discordant finding would suggest the weakness to be 

more due to MS.” 

On January 24, 2011 OWCP received a February 12, 2010 progress note from Dr. Jalali 

diagnosing spinal stenosis, lumbar radiculitis and sacroilitis. 

By decision dated February 7, 2011, the hearing representative set aside the August 11, 

2010 decision denying appellant’s claim. The hearing representative found that the medical 

 2

 Appellant stopped work on April 9, 2010 and retired on disability in May 2011. 
3

evidence was insufficient to establish her claim, but sufficient to warrant further development of 

the evidence. OWCP was instructed to refer appellant for a second opinion evaluation after 

preparing a new statement of accepted facts. 

Following the February 7, 2011 decision, OWCP received a February 2, 2011 report and 

February 23, 2010 progress note from Dr. Vivino. In the February 23, 2010 progress note, 

Dr. Vivino provided physical examination findings as well as review of objective testings. 

Diagnoses included cervical/lumbar spondylosis, L5-S1 radiculopathy, bilateral carpal tunnel 

syndrome and L4-5 spinal stenosis. Appellant related having poor balance, no sciatica and no 

falls since November. She reported occasional back pain episodes due to heavy lifting at the 

employing establishment. 

In his February 2, 2011 report, Dr.Vivino reported that appellant was being treated for 

spinal stenosis, cervical and lumbosacral spondylosis, radiculopathy and bilateral carpal tunnel 

syndrome. He noted that she had increased back pain as a result of having to perform heavy 

lifting at the employing establishment. 

In a September 30, 2011 report, Dr. Robert Franklin Draper, Jr., a second opinion Boardcertified orthopedic surgeon, diagnosed MS, C3-4, C4-5, C5-6 and C6-7 degenerative bulging 

disc disease with facet hypertrophy and L2-3, L3-4, L4-5 and L5-S1 degenerative bulging disc 

disease, facet hypertrophy and osteoarthritis. He provided physical findings, reviewed the 

medical evidence and referenced the statement of accepted facts. Dr. Draper attributed 

appellant’s cervical and lumbar spine degenerative bulging disc disease and facet arthritis to the 

aging process. He opined that these conditions were unrelated to her job duties or her 

employment at the employing establishment. Dr. Draper concluded that appellant was capable 

of working with restrictions which he attributed to her MS, bilateral carpal tunnel syndrome and 

cervical and lumbar degenerative disc disease. 

By decision dated November 20, 2011, OWCP denied appellant’s claim that her 

employment caused or aggravated cervical and lumbar conditions. 

On November 28, 2011 appellant’s counsel requested an oral hearing before an OWCP 

hearing representative, which was held on March 30, 2012. 

By decision dated June 14, 2012, the hearing representative set aside the November 20, 

2011 decision and remanded for OWCP to obtain a supplemental report from Dr. Draper 

explaining his conclusions. 

In a September 20, 2012 supplemental report, Dr. Draper noted that all of the changes 

seen in the cervical, thoracic and lumbar MRI scans are due to the degenerative processes. He 

explained that disc osteophyte complexes, degenerative bulging disc disease, facet hypertrophy 

and facet osteoarthritis are degenerative processess which occur due to changes associated with 

the aging process. None of the changes seen were structural which would be attributable to 

trauma. Dr. Draper related that, by the age of 30, disc disease processes start with drying up of 

the disc or disc desiccation. At age 40 and 50 patients with disc degeneration develop bulging 

discs disease. The bone spurs and facet osteoarthritis appellant has “are part of the arthritis that 

develops in the neck and back with the aging process.” In concluding, Dr. Draper opined that 
4

her cervical and lumbar conditions were not employment related nor were they aggravated by her 

employment duties. 

By decision dated October 11, 2012, OWCP denied appellant’s claim that her cervical 

and lumbar conditions had been caused or aggravated by her employment. 

In an October 23, 2012 letter, appellant’s counsel requested an oral hearing before an 

OWCP hearing representative, which was held on March 25, 2013. 

By decision dated June 12, 2013, the hearing representative affirmed the denial of 

appellant’s claim. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3 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.4

 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.5 

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.6 

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

establish causal relationship is rationalized medical opinion evidence.7

 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is a causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.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 certainty 

 3 Supra note 1. 

4 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006). 

5 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 

6 D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238 

(2005); Donald W. Wenzel, 56 ECAB 390 (2005). 

7 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006). 

8 J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006). 
5

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 employee.9

ANALYSIS 

Appellant filed a claim alleging that her neck and back conditions were caused or 

aggravated by her employment. By decision dated October 11, 2012, OWCP denied her claim 

that her cervical and lumbar conditions had been caused or aggravated by her employment. On 

June 12, 2013 an OWCP hearing representative affirmed the denial of appellant’s claim. The 

Board finds that appellant has not established that her neck or back conditions are causally 

related to the implicated factors of her federal employment. 

In support of her occupational disease claim, appellant submitted reports from her 

treating physicians. In a February 12, 2010 progress note and a March 12, 2010 report, Dr. Jalali 

diagnosed lumbar radiculitis, sacroilitis and spinal stenosis. On March 19, 2010 Dr. Mandel 

diagnosed S1 radiculopathy with chronic and acute changes. Dr. Chou diagnosed left S1 acute 

chronic radiculopathy, L4-5, L5-S1 facet arthropathy and bilateral L5 and left S1 myotomes 

weakness in a March 22, 2010 report. Drs. Chou, Jalali and Mandel did not address how any of 

the diagnosed lumbar and back conditions were due to appellant’s employment duties. The 

Board has held that medical evidence which does not offer any opinion regarding the cause of an 

employee’s condition is of limited probative value on the issue of causal relationship.10 Thus, 

these reports are insufficient to support her claim. 

The record also contains reports from Dr. Vivino diagnosing spinal stenosis, cervical and 

lumbosacral spondylosis, radiculopathy, bilateral carpal tunnel syndrome. Dr. Vivino offered no 

opinion as to the cause of appellant’s diagnosed conditions in progress notes dated 

September 22, 2009 and October 1, 2010. As noted above, medical evidence that does not offer 

any opinion regarding the cause of an employee’s condition is of limited probative value on the 

issue of causal relationship.11 Thus, these progress notes of Dr. Vivino are insufficient to meet 

appellant’s burden of proof to establish causal relationship between her cervical and back 

conditions and factors of her federal employment as they fail to offer an opinion on causal 

relationship. The December 9, 2009 and February 23, 2010 progress notes from Dr. Vivino are 

also insufficient to support her claim. While Dr. Vivino noted that appellant related having 

occasional episodes of back pain or increased back pain as the result of having to perform heavy 

lifting at work, they do not specifically address how work conditions caused or contributed to 

any diagnosed medical conditions.12 For these reasons, this evidence is not sufficient to meet her 

burden of proof. 

 9 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989). 

10 See A.D., 58 ECAB 149 (2006); Conard Hightower, 54 ECAB 796 (2003). 

11 Id. 

12 See Joan R. Donovan, 54 ECAB 615 (2003) (medical opinion regarding causal relationship must explain from 

a medical perspective how the current condition is related to the injury).
6

To further develop the claim, OWCP referred appellant to Dr. Draper for a second 

opinion as to whether her right knee condition was causally related to her accepted work injury. 

In his September 30, 2011 report, Dr. Draper diagnosed MS, C3-4, C4-5, C5-6 and C6-7 

degenerative bulging disc disease with facet hypertrophy and L2-3, L3-4, L4-5 and L5-S1 

degenerative bulging disc disease, facet hypertrophy and osteoarthritis. He opined that these 

conditions were unrelated to appellant’s job duties or her employment at the employing 

establishment, but were instead due to the aging process. In a September 20, 2012 supplemental 

report, Dr. Draper explained that disc osteophyte complexes, degenerative bulging disc disease, 

facet hypertrophy and facet osteoarthritis are degenerative processes which occur due to changes 

associated with the aging process. According to him, none of the changes seen were structural 

which would be attributable to trauma. Dr. Draper related that he bone spurs and facet 

osteoarthritis appellant has “are part of the arthritis that develops in the neck and back with the 

aging process.” In concluding, he opined that her cervical and lumbar conditions were not 

employment related nor were they aggravated by her employment duties. 

The Board finds that the opinion of Dr. Draper represents the weight of the evidence and 

establishes that appellant’s cervical and back conditions were not causally related to her accepted 

employment duties. Neither the fact that a claimant’s condition became apparent during a period 

of employment, nor the belief that the condition was caused, precipitated or aggravated by the 

employment is sufficient to establish causal relationship.13 Thus, appellant did not meet her 

burden of proof to establish that her cervical and back conditions are causally related to her 

employment duties. 

On appeal, appellant’s counsel contends that there is an unresolved conflict in the 

medical opinion evidence requiring referral for an impartial medical examination. As explained 

above none of the medical reports submitted by appellant were sufficient to establish her claim. 

As these reports either contained no opinion as to the cause of appellant’s conditions or were 

insufficiently rationalized, they are insufficient to create a conflict in the medical opinion 

evidence. Counsel also argues that Dr. Draper’s opinion is insufficient to support the denial of 

her claim. However, this argument is not supported by the evidence. As found above, 

Dr. Draper provided sufficient rationale supporting his conclusion that appellant’s cervical and 

back conditions were not employment related. His report constitutes the weight of the medical 

evidence. 

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 failed to meet her burden of proof to establish that she 

developed neck and back conditions in the performance of duty causally related to factors of her 

federal employment. 

 13 D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB 339 (2004); Anna C. Leanza, 48 ECAB 115 (1996). 
7

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 12, 2013 is affirmed. 

Issued: March 6, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board