United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1025 

Issued: March 2, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 18, 2016 appellant, through counsel, filed a timely appeal from a December 1, 

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 the case. 

ISSUE 

The issue is whether appellant has met her burden of proof to establish a lower back or 

cervical condition 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 

This case has previously been before the Board. On October 19, 2010 appellant, a 44-

year-old letter carrier, filed an occupational disease claim (Form CA-2), alleging that she 

developed lower back and cervical conditions causally related to factors of her federal 

employment. 

On December 4, 2010 OWCP advised appellant that it required factual and medical 

evidence to determine whether she was eligible for compensation benefits. It requested that she 

submit a comprehensive report from a treating physician describing her symptoms and the 

medical reasons for her condition, with an opinion as to whether her claimed conditions were 

causally related to factors of her federal employment. OWCP afforded appellant 30 days to 

provide the requested evidence. 

By decision dated January 14, 2011, OWCP denied the claim finding that she failed to 

submit medical evidence establishing a lower back or cervical condition causally related to 

factors of her federal employment. 

By letter dated January 21, 2011, appellant, through counsel, requested a hearing before 

OWCP’s Branch of Hearings and Review. The hearing was held on May 19, 2011. 

Appellant testified at the hearing that she had worked as a mail handler for 21 years. Her 

job duties included lifting sacks of mail weighing 20 to 80 pounds, lifting heavy bundles of 

catalogs, and pushing carts weighing several thousand pounds. Appellant also noted that she 

intermittently drove forklifts and tow motors, which required pushing or pulling mail carts to 

hook them to the vehicle. She stated that she stopped work on June 10, 2010 due to arm and 

back pain. 

In a May 5, 2011 report, received by OWCP on May 25, 2011, Dr. Bruce H. Grossinger, 

Board-certified in psychiatry and neurology, advised that, while appellant worked as a mail 

handler for 21 years, she had to do substantial physical work, including lifting, carrying, 

bending, pushing and pulling. He noted that she had to push heavy containers of mail, and as a 

consequence of performing these duties she developed radiating neck and low back complaints. 

Dr. Grossinger advised that appellant underwent a magnetic resonance imaging (MRI) scan of 

the lumbar spine on July 30, 2010, the results of which showed disc protrusions at L4-5 and 

L5-S1. He asserted that the MRI scan results correlated with a confirmatory positive 

electromyogram (EMG) which revealed moderate right S1 radiculopathy. Dr. Grossinger 

reported that appellant also underwent surgical procedures including lumbar facet medial branch 

blocks. Appellant received three such injections, most recently on March 30, 2011. 

Dr. Grossinger opined that these surgical injections were directly necessitated by her job as a 

mail handler for the employing establishment. He further advised that her examination had 

consistently been abnormal, with leg weakness, positive straight leg raising and sitting root signs, 

and an inability to maintain a posture for any length of time. 

Dr. Grossinger advised that, with respect to her cervical spine, appellant had evidence of 

chronic cervical strain with muscle spasm. He noted that appellant underwent an abnormal 

cervical MRI scan on July 30, 2010 and that the results of this test showed straightening of 
3

normal cervical lordosis compatible with muscle spasm. Dr. Grossinger opined that, in 

summary, appellant’s cumulative work as a mail handler for the employing establishment 

directly gave rise to her neck and low back conditions causing chronic somatic dysfunction of 

the cervical spine, tearing and protrusion of the annuli at L4-5 and L5-S1, and nerve injury 

confirmed via EMG as noted above. He advised that appellant was being considered for lumbar 

surgery. Dr. Grossinger reported that the procedure would involve two-level lumbar 

laminectomy, discectomy, and fusion, with titanium plates and allografting. He opined that this 

surgical procedure was reasonable, necessary, and referable to her federal employment at the 

U.S. Postal Service. Dr. Grossinger concluded that appellant was totally and permanently 

disabled from any and all gainful employment due to progressive neck and low back injuries. 

By decision dated July 29, 2011, OWCP’s hearing representative set aside the 

January 14, 2011 decision. She found that Dr. Grossinger’s May 5, 2011 report was sufficient to 

remand for further development of the medical evidence. 

In order to determine whether appellant had a lower back or cervical condition causally 

related to factors of her federal employment, OWCP referred her for a second opinion 

examination with Dr. Robert A. Smith, Board-certified in orthopedic surgery. In a report dated 

September 20, 2011, Dr. Smith noted that appellant had nonspecific neck and back pain and 

opined that her neck and back complaints were not work related based on a normal examination 

and the essentially age-related normal findings noted on her MRI scan. He asserted that given 

the normal neurological examination findings and the lack of any compressive lesion from either 

the cervical or lumbar MRI scans, her reported EMG findings were clinically insignificant. 

Dr. Smith opined that there was no evidence of any aggravation, precipitation, or acceleration of 

appellant’s mild preexisting degenerative disease related to her federal employment and that the 

disc bulges noted in her lumbar spine were preexisting and nonindustrial. He advised that there 

was no indication for any additional treatment due to her claimed neck and back pain and no 

identifiable pathology which would account for her symptoms. 

By decision dated November 25, 2011, an OWCP hearing representative denied 

appellant’s claim for a lower back or cervical condition. She found that the medical evidence, as 

represented by Dr. Smith’s referral opinion, established that her claimed lower back and cervical 

conditions were not causally related to employment factors. 

By letter dated December 28, 2011, appellant, through counsel, requested a hearing 

before OWCP’s Branch of Hearings and Review. 

In a January 4, 2012 report, Dr. Grossinger reiterated his previous findings and 

conclusions and expressed his disagreement with the opinion of Dr. Smith, the second opinion 

examiner. He noted that appellant had two abnormal disc bulges at L4-5 and L5-S1, without any 

other associated degenerative joint disease and thus there was no support from the MRI scan 

which suggested that the two disc bulges were degenerative in etiology. Dr. Smith further 

opined that appellant’s cumulative employment as a mail handler for over 21 years and her 

duties of lifting, carrying, bending, pushing, and pulling established that her lumbar and cervical 

conditions were work related. 
4

By decision dated February 13, 2012, OWCP’s hearing representative set aside the 

January 14, 2011 decision, finding that there was a conflict in the medical evidence between the 

opinion of Dr. Smith, the second opinion examiner, and Dr. Grossinger, appellant’s treating 

physician, regarding whether her claimed lower back and cervical conditions were causally 

related to employment factors. He remanded for referral to an impartial medical examiner to 

resolve the conflict in the medical evidence. 

OWCP referred appellant to Dr. Andrew J. Gelman, an osteopath, for a referee medical 

examination. In a report dated June 27, 2012, Dr. Gelman advised that appellant’s diagnoses of 

osteoarthritis, degenerative discopathy and lumbar facet syndrome were mostly attributable to 

aging and obesity. He did not consider appellant’s back and neck symptomatology attributable 

to her employment as a mail handler. 

By decision dated November 1, 2012, an OWCP hearing representative denied 

appellant’s claim for a lower back or cervical condition. She found that the medical evidence, as 

represented by Dr. Smith’s impartial medical opinion, established that her claimed lower back 

and cervical conditions were not causally related to employment factors. 

By letter dated November 8, 2012, appellant, through counsel, requested a hearing before 

OWCP’s Branch of Hearings and Review. The hearing was held on March 26, 2013. 

By decision dated June 12, 2013, an OWCP hearing representative affirmed the 

November 1, 2012 decision. Appellant appealed to the Board. In a March 11, 2014 decision,3

the Board set aside OWCP’s June 12, 2013 decision. The Board found that OWCP did not 

establish that Dr. Gelman was selected as an impartial medical examiner in a fair and unbiased 

manner. The Board therefore remanded the case to OWCP for proper selection of a referee 

physician. The complete facts of this case are set forth in the Board’s March 11, 2014 decision 

and incorporated herein by reference. 

OWCP referred appellant to Dr. John F. Perry for an impartial medical examination. In a 

July 25, 2014 report, Dr. Perry advised that, based on objective criteria, a physical examination, 

review of the medical records, and review of relevant medical literature, he was unable to 

diagnose a work-related condition. He opined that the kind of activities in which she engaged as 

a mail handler would not have been expected to produce her current low back and neck pain. 

Dr. Perry advised that the EMG findings were consistent with a degenerative process and her 

examination was nonspecific as he was unable to find any neurologic changes. He reported that 

her reflexes were physiologic, her sensation was intact, and her motor examination was normal 

with no atrophy of the extremities. Dr. Perry noted, however, that she was very obese and had 

extremely poor abdominal and general core support for her lumbar spine. He advised that none 

of the reports indicated disc herniation, traumatic disc protrusion, stress reactions of the bones, 

locahzecl edema, or anything else to demonstrate that she had sustained an injury. Dr. Perry 

concluded that the only objective findings were degenerative and that there was no correlation 

between her employment activity and the development of these degenerative changes in her low 

back and neck. He opined that she did not have a work-related condition. 

 3

 Docket No. 13-1995 (issued March 11, 2014). 
5

In a January 19, 2015 report, Dr. Grossinger noted his disagreement with Dr. Perry’s 

impartial medical opinion. He asserted that although Dr. Perry acknowledged that appellant 

sustained injuries to her neck and back he was unable to specify examination features. 

Dr. Grossinger opined that Dr. Perry erred by noting that the radiculopathy and the EMG 

findings are consistent with the degenerative process, asserting that lumbar spondylosis would 

not show up on an EMG test. He reiterated that appellant’s job as a mail handler/equipment 

operator directly caused the injuries to her neck and back as well as aggravating degenerative 

changes in the neck and back. 

By decision dated March 6, 2015, OWCP denied appellant’s claim for a lower back or 

cervical condition. It found that the medical evidence, as represented by Dr. Perry’s impartial 

medical opinion, established that her claimed lower back and cervical conditions were not 

causally related to employment factors. OWCP found that Dr. Perry’s July 25, 2014 report 

merited the weight of an impartial medical examiner. 

By letter dated March 17, 2015, appellant, through counsel, requested a hearing before 

OWCP’s Branch of Hearings and Review. The hearing was held on September 11, 2015. 

Appellant did not submit any additional medical evidence. 

By decision dated December 1, 2015, OWCP’s hearing representative affirmed the 

March 6, 2015 decision. She found that Dr. Perry’s report was reliable, probative, and 

persuasive with respect to its conclusions. OWCP’s hearing representative determined that 

Dr. Perry’s opinion was based on a proper factual and medical history and continued to 

constitute the weight of the medical evidence, as Dr. Perry carried the special weight of an 

impartial medical examiner. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4 has the burden of proof to establish that 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 limitation period of FECA, that an injury was sustained 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 upon a traumatic injury or an 

occupational disease.6

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; (2) a factual 

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

 4 Supra note 2. 

5 Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). 

6 Victor J. Woodhams, 41 ECAB 345 (1989). 
6

or occurrence of the disease or condition; and (3) medical evidence establishing that 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. 

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.7

ANALYSIS 

The Board finds that OWCP properly determined, based on Dr. Perry’s impartial medical 

report, that appellant was not entitled to compensation for a claimed lower back or neck 

condition. 

In his July 25, 2014 report, Dr. Perry asserted that he was unable to diagnose a workrelated condition based on objective criteria, her physical examination, review of the medical 

records and the relevant medical literature. He reported that her EMG findings were consistent 

with a degenerative process and that he was unable to find any neurologic changes during his 

examination, which was normal. Dr. Perry further advised that the kinds of activities in which 

she engaged as a mail handler would not have been expected to produce her current low back 

and neck pain. He noted that the only objective findings were degenerative and that there was no 

correlation between her employment activity and the development of these degenerative changes 

in her low back and neck. Dr. Perry concluded that appellant did not have a work-related 

condition. 

The Board finds that Dr. Perry’s impartial opinion negates causal relationship between 

appellant’s claimed lower back and neck conditions and factors of her employment. Dr. Perry’s 

opinion is sufficiently probative, rationalized, and based upon a proper factual background. 

Therefore, OWCP properly accorded Dr. Perry’s opinion the special weight of an impartial 

medical examiner.8

In opposition to Dr. Perry’s impartial medical opinion, appellant submitted a January 19, 

2015 report of Dr. Grossinger whereby he disagreed with Dr. Perry’s impartial medical opinion. 

He opined that Dr. Perry erred by noting that the radiculopathy and EMG findings were 

consistent with the degenerative process, and concluded that appellant’s job as a mail handler 

directly caused her claimed neck and back injuries. The Board finds that as Dr. Grossinger was 

on one side of the conflict resolved by Dr. Perry, Dr. Grossinger’s additional report is 

 7 Id.

8 Gary R. Seiber, 46 ECAB 215 (1994). 
7

insufficient to overcome the special weight accorded to Dr. Perry’s opinion, or to create a new 

conflict of medical opinion.9

Appellant subsequently requested an oral hearing but did not submit any additional 

medical evidence. An award of compensation may not be based on surmise, conjecture or 

speculation. Neither the fact that appellant’s condition became apparent during a period of 

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

employment is sufficient to establish causal relationship.10 Causal relationship must be 

established by rationalized medical opinion evidence. The medical evidence of record 

establishes that appellant failed to meet her burden of proof to establish that she has lower back 

and neck conditions causally related to her employment.11

On appeal counsel contends that Dr. Perry’s July 25, 2014 report did not merit the special 

weight of an impartial medical examiner. Specifically, with regard to counsel’s arguments 

relative to the statement of accepted facts, the Board finds that the statement of accepted facts is 

in compliance with FECA Procedure Manual 2.809.7. Thus, for the reasons stated above, the 

Board finds that OWCP properly accorded the weight to Dr. Perry. Appellant failed to meet 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(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has failed to meet her burden of proof in establishing a 

lower back or cervical condition causally related to factors of her federal employment. 

 9 Virginia Davis-Banks, 44 ECAB 389 (1993); Dorothy Sidwell, 41 ECAB 857 (1990). 

10 Id.

11 The Board notes that counsel argued that Dr. Glenn failed to consider the fact that Dr. Barr, OWCP’s referral 

physician, had noted that appellant had sustained a right rotator cuff tear. OWCP has never accepted this condition, 

however. Dr. Glenn found that appellant’s right shoulder was normal on examination, and for the reasons stated 

above the Board finds that OWCP properly accorded him the special weight of an impartial medical examiner and 

that his opinion represented the weight of the medical evidence. 
8

ORDER 

IT IS HEREBY ORDERED THAT the December 1, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 2, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board