United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.N., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Carbondale, IL, Employer 

__________________________________________ 

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Docket No. 16-0960 

Issued: November 8, 2016 

Appearances: Case Submitted on the Record

Lonnie Boylan, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 4, 2016 appellant, through her representative, filed a timely appeal of a 

December 17, 2015 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 to consider the merits of this case. 

ISSUE 

The issue is whether appellant met her burden of proof to establish cervical conditions 

causally related to factors of her federal employment. 

 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

FACTUAL HISTORY 

On October 10, 2014 appellant, then a 50-year-old sales and service distribution clerk, 

filed an occupational disease claim (Form CA-2) alleging that her cervical spinal stenosis, C4-7 

cervical disc prolapse, cervical radiculopathy, and cervical myelomalacia was caused or 

aggravated by her employment duties. She noted that she first became aware of the condition on 

October 25, 2011 and realized its connection to her employment on October 3, 2011. The 

employing establishment noted that appellant was retired and her last workday was 

October 24, 2011. 

By letter dated November 17, 2014, OWCP informed appellant that the evidence of 

record was insufficient to support her claim. Appellant was advised as to the medical and factual 

evidence required and afforded 30 days to provide this information. 

In response to OWCP’s request, it received appellant’s statement, the employing 

establishment’s response, and evidence pertaining to her claim under OWCP File No. 

xxxxxx130.3 In a statement dated October 10, 2014, appellant noted that she had worked for 15 

years for the employing establishment in positions with repetitive job duties. The positions she 

held with the employing establishment included sales and service distribution clerk, motor 

vehicle operator and tractor trailer operator, mail processing clerk, and city letter carrier. 

Appellant alleged that all of the positions required intermittent lifting of up to 70 pounds, while 

the sales and service distribution clerk position also required continuous lifting of 5 pounds. 

In an October 14, 2014 response, Martin Castaldia, postmaster, disputed appellant’s 

claim that she was required to continuously lift 5 pounds and intermittently lift 70 pounds in her 

position as sales and service distribution clerk. He also noted that she worked a part-time 

flexible schedule. 

By decision dated January 9, 2015, OWCP denied appellant’s claim as it found that the 

evidence of record was insufficient to establish the alleged factors of federal employment. On 

January 12, 2015 it reissued the January 9, 2015 decision as it had been mailed to appellant’s old 

address. 

In a March 2, 2015 report, Dr. Giriwarlal Gupta, a treating Board-certified internist and 

neurologist, diagnosed cervical radiculopathy, cervical cord compression, cervical spinal 

stenosis, and myelomalacia, which he opined had been aggravated by appellant’s repetitive job 

duties. In reviewing her employment history, he noted that she started working for the 

employing establishment in March 1996 and stopped work on October 25, 2011. Dr. Gupta 

provided a description of positions appellant had reported and the physical requirements she had 

reported associated with those positions. He opined that the requirement of continuous lifting of 

5 pounds, intermittent lifting of 70 pounds, walking, standing, kneeling, bending, stooping, 

 3

 The evidence pertaining to appellant’s prior claim includes decisions dated August 6, 2012, part of a March 3, 

2013 hearing representative’s decision, and April 14, 2014 concerning the denial of her occupational disease claim. 

Appellant filed a claim alleging that on September 29, 2011 she first became aware of her condition, but did not 

realize her cervical radiculopathy, cervical disc prolapse, and C4-7 cervical myelomalacia was employment related 

until May 1, 2012. OWCP, in these decisions, found that she had failed to establish the factual aspect of her claim. 
3

twisting, pushing, reaching above the shoulders, pulling, and carrying mail for eight hours per 

day five days per week “must have aggravated her lumbar radicular and spinal cord pyramidal 

disease process.” Dr. Gupta opined that these duties adversely impacted appellant’s cervical 

spine, resulting in cervical cord compression, cervical roots compress, and myelomalacia. He 

further noted that her repetitive activities had direct impact on her cervical spine including 

aggravating her cervical cord compression, cervical radiculopathy, and myelomalacia. Dr. Gupta 

concluded that appellant sustained permanent aggravation of her preexisting cervical 

myelomalacia, cervical myelomalacia, cervical spinal cord compression with cervical spinal 

canal stenosis, and myelopathy due to her repetitive work duties. He opined that there was no 

other reasonable explanation. 

In her May 5, 2015 statement, appellant reiterated information regarding the positions she 

held at the employing establishment from March 1999 to October 25, 2011 from her October 10, 

2014 statement. On May 28, 2015 appellant’s representative requested reconsideration. 

On August 26, 2015 OWCP referred appellant for a second opinion evaluation with 

Dr. Robert F. Draper, a Board-certified orthopedic surgeon, to determine whether the diagnosed 

conditions were causally related to her factors of employment. 

In a September 30, 2015 report, Dr. Draper based upon a review of the statement of 

accepted facts, medical evidence, and physical examination, diagnosed cervical spinal stenosis, 

cervical myelomalacia, C4-7 degenerative disc osteophyte pathology, and status post C5-6 

anterior cervical discectomy fusion, which he found unrelated to appellant’s employment. He 

opined that there was no evidence of any permanent aggravation, acceleration, or precipitation of 

her degenerative cervical spine condition. Dr. Draper attributed appellant’s symptoms and 

complaints to her cervical spinal stenosis. He observed that she did not exhibit the stumbling 

gait during his examination that was noted in her history. 

On October 5, 2015 OWCP referred appellant to Dr. Amir H. Fayyazi, a Board-certified 

orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Dr. Draper 

and Dr. Gupta regarding whether her cervical conditions were caused or aggravated by her 

federal employment. 

In a December 7, 2015 report, Dr. Fayyazi based upon a review of the medical evidence, 

medical and employment history, statement of accepted facts, and physical examination, 

diagnosed preexisting multilevel progressive degenerative disc disease and facet arthrosis, which 

he opined was unrelated to her employment. He also reviewed correspondence from the 

employing establishment, accident report, and statement of employment. Dr. Fayyazi reported 

that appellant worked for the employing establishment as a sales clerk for approximately 

15 years, but had last worked in October 2011. A physical examination revealed decreased 

lumbar and cervical range of motion, normal bilateral shoulder range of motion, no evidence of 

upper extremity deformity, decreased right C5 sensation, decreased sensation along the bilateral 

L5 distribution, and absent Waddell’s signs. Dr. Fayyazi summarized the diagnostic tests and 

medical reports from Drs. Gupta and Draper and noted a diagnosis of myelopathy due to spinal 

cord compression in 2011 based on radiographic evidence. He opined that myelomalacia and 

myelopathy were not due to either traumatic injury or repetitive injuries, but were preexisting 

conditions. In support of this conclusion, Dr. Fayyazi observed that myelomalacia is a natural 
4

and progressive process occurring in individuals who suffer from small canal diameter and 

osteophyte formation. According to him there was no indication of any employment 

involvement in appellant’s cervical condition. Dr. Fayyazi noted that he had reviewed 

Dr. Gupta’s report, which he opined was inconsistent with published literature and “what is 

considered to be factual.” In addition, he advised that myelomalacia and myelopathy are 

degenerative conditions with no correlation to any specific injury. 

By decision dated December 17, 2015, OWCP found the evidence of record sufficient to 

establish the factual basis of appellant’s claim, but insufficient to establish that the diagnosed 

cervical stenosis was caused or aggravated by the identified employment factors. It found that 

the weight of the medical opinion evidence rested with the opinion of the impartial medical 

examiner, Dr. Fayyazi. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4

 has the burden of proof to establish 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.5 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.6 

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.7

 

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

establish causal relationship is rationalized medical opinion evidence.8

 Rationalized medical 

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

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

compensable employment factors.9

 The opinion of the physician must be based on a complete 

 4 Supra note 2. 

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

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

7 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). 

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

642 (2006). 

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

factual and medical background of the employee, 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 employee.10 

Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.11 Where a case is 

referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of 

such specialist, if sufficiently well rationalized and based on a proper factual and medical 

background must be given special weight.12

ANALYSIS 

Appellant filed an occupational disease claim alleging that her repetitive job duties from 

her various positions aggravated cervical spinal stenosis, C4-7 cervical disc prolapse, cervical 

radiculopathy, and cervical myelomalacia. OWCP found the factual evidence sufficient to 

establish the alleged employment factors, but denied the claim as the medical evidence was 

insufficient to establish causal relationship. 

OWCP denied appellant’s occupational disease claim as it found that the weight of the 

medical opinion evidence rested with the opinion of Dr. Fayyazi, the impartial medical examiner. 

However, the Board finds that Dr. Fayyazi’s December 7, 2015 report is not sufficiently well 

rationalized to be accorded the special weight of medical opinion. Dr. Fayyazi concluded that 

appellant did not sustain a work-related occupational disease. He diagnosed preexisting 

multilevel progressive degenerative disc disease and facet arthrosis and myelopathy due to spinal 

cord compression based on radiographic evidence. Dr. Fayyazi concluded that her myelomalacia 

and myelopathy were preexisting conditions and unrelated to either a traumatic or repetitive 

work injury. He observed that myelomalacia is a natural and progressive process occurring in 

individuals who suffer from small canal diameter and osteophyte formation and was not 

employment related. 

The Board finds that Dr. Fayyazi’s conclusion on causal relationship is vague and lacks 

sufficient medical rationale.13 Dr. Fayyazi concluded that the cervical myelomalacia and 

myelopathy were not aggravated by work factors, but he did not provide any detailed explanation 

for his stated conclusion. 

Dr. Fayyazi also noted reviewing and disagreeing with Dr. Gupta’s report as it was not 

based on the facts or published medical literature. The Board has previously noted that causal 

relation is a medical question that generally can only be established by competent medical 

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

11 5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006). 

12 V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994). 

13 Supra note 10. 
6

opinion evidence.14 Scientific studies, like medical literature, have probative value only to the 

extent they are interpreted by a physician rendering an opinion on causal relation.15 Dr. Fayyazi 

opined appellant’s condition was preexisting and there was no basis in the literature to attribute 

aggravation to employment factors, but he did not provide an explanation of his conclusion, 

based upon interpretation of specific medical literature.16 

For the above-described reasons, the opinion of Dr. Fayyazi is in need of clarification. 

Therefore, in order to resolve the continuing conflict in the medical opinion, the case will be 

remanded for a supplemental report to provide rationale regarding whether appellant sustained a 

work-related occupational disease.17 After such further development as OWCP deems 

necessary, an appropriate decision should be issued regarding her occupational disease claim. 

CONCLUSION 

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

 14 Robert G. Morris, 48 ECAB 238 (1996). 

15 Elizabeth H. Kramm, claiming as widow of Leonard O. Kramm, 57 ECAB 117 (2005). 

16 Supra note 10. 

17 F.D., Docket No. 09-1346 (issued July 19, 2010); V.G., 59 ECAB 635 (2008); Nancy Keenan, 56 ECAB 

687 (2005). 
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ORDER 

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

Compensation Programs dated December 17, 2015 is set aside and the case remanded for further 

proceedings consistent with the above opinion. 

Issued: November 8, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board