United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Edison, NJ, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1110 

Issued: November 9, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On May 2, 2016 appellant, through counsel, filed a timely appeal from a January 25, 

2016 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 over the merits of this case.3

 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.

3

 The Board notes that appellant submitted additional evidence following the January 25, 2016 decision. 

However, since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final 

decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. 

Pruitt, 57 ECAB 126 (2005). 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish that her alleged 

cervical, lumbar and shoulder conditions were causally related to factors of her federal 

employment. 

FACTUAL HISTORY 

This case has previously been before the Board.4 In a decision dated May 15, 2015, the 

Board found that appellant had not met her burden of proof to establish that her alleged cervical, 

lumbar, and bilateral shoulder conditions were causally related to factors of her employment. 

The Board determined that the medical evidence submitted lacked medical rationale sufficient to 

demonstrate that her diagnosed conditions resulted from her federal employment. The facts and 

circumstances of the case as set forth in the Board’s prior decision are incorporated herein by 

reference. The facts relevant to this appeal are set forth below. 

On August 28, 2013 appellant, then a 37-year-old parcel post machine operator, filed an 

occupational disease claim (Form CA-2) alleging that she sustained “other disorders due to 

repeated trauma.” She first became aware of her condition and realized it resulted from her 

employment on July 29, 2013. Appellant indicated that she was last exposed to the elements that 

allegedly caused her condition on August 20, 2013. She worked modified duty beginning 

August 29, 2013. In an attached statement, appellant related that she sustained a work-related 

injury due to heavy lifting, processing mail, lifting over her shoulders, removing trays from 

containers, and putting mail in the trays. 

Appellant underwent various diagnostic examinations. In a July 29, 2013 magnetic 

resonance imaging (MRI) scan of the lumbar spine, Dr. Mohammad I. Jilani, a Board-certified 

diagnostic radiologist, who specializes in neuroradiology, observed central L5-S1 disc herniation 

and L4-5 disc bulge. In his review of an August 19, 2013 MRI scan of the cervical spine, 

Dr. Noam S. Eshkar, a Board-certified diagnostic radiologist specializing in neuroradiology, 

reported focal central disc herniation at C3-4 and C4-5, broad-based left paracentral disc 

herniation at C6-7, and disc bulging at C5-6. 

Dr. Rosa M. Neno, a Board-certified internist, initially examined appellant and in a 

September 13, 2013 report noted that she treated appellant for cervical radiculopathy, intractable 

neck and mid-back pain, and herniated discs of the cervical and lumbar spine. She related that 

appellant’s medical condition occurred due to working at the employing establishment lifting 

heavy boxes, bags, and parcels, and “keying” every day for the past 15 years. Dr. Neno 

requested that appellant be excused from work. 

Appellant was also examined by Dr. Mark A.P. Filippone, Board-certified in physical 

medicine and rehabilitation, who discussed in reports dated September 27 to November 8, 2013 

that appellant worked as a clerk for the employing establishment since 1994 and was injured at 

work. He related that appellant experienced low back, neck, and left shoulder pain as well as 

numbness and tingling into the right upper extremity. Upon examination, Dr. Filippone observed 

 4

 Docket No. 15-607 (issued May 15, 2015). 
3

pain, guarding, and spasm in the cervical paraspinals and suboccipital musculature and pain, 

guarding, and spasm in the lumbar paraspinals. Examination of the upper extremities revealed 

pain on palpation over the anterior aspect of both shoulders and limitation of terminal 

glenohumeral abductions bilaterally with pain and impingement in the shoulders. Dr. Filippone 

diagnosed cervical radiculitis, internal derangement of both shoulders, and lumbosacral 

radiculitis. He provided various attending physician’s reports dated September 27, 2013 to 

May 7, 2014, which indicated that appellant was totally disabled. 

In a decision dated November 20, 2013, OWCP denied appellant’s occupational disease 

claim finding that she had not established fact of injury. It determined that appellant had not 

sufficiently described the factors of employment that she believed caused her medical conditions 

and had failed to submit sufficient medical evidence to establish a diagnosed condition causally 

related to factors of her employment. 

On December 3, 2013, through counsel, OWCP received a request for a hearing before an 

OWCP hearing representative. A hearing was held on May 22, 2014. Appellant described in 

detail the various positions she held at the employing establishment and the physical 

requirements of each position. She noted that many of her employment duties involved 

repetitive lifting and twisting of her back and repetitive use of her arms. Appellant stated that in 

2000 she began to experience pain in her lower back and was eventually diagnosed with a 

bulging disc and minimal herniation. She described the medical treatment and various diagnostic 

examinations that she underwent. Appellant noted that she continued to work, which involved 

the same repetitive duties. In September 2013, the pain became so severe that she made an 

appointment with Dr. Neno. Counsel noted that appellant performed a lot of repetitive work, 

including sorting mail, processing mail, and working on sorting machinery from 1994 to 2013. 

He contended that the various medical reports supported causal relationship. 

Dr. Filippone continued to treat appellant, and in reports dated December 6, 2013 to 

June 13, 2014, related appellant’s continued complaints of numbness and tingling in the upper 

and lower extremities. He noted that appellant’s physical examination findings were unchanged. 

Dr. Filippone reported that appellant’s symptoms had continued over the past 10 years, 

especially when she attempted to do any repetitive activities which were an essential part of her 

job. He reviewed appellant’s employment duties as a parcel post distribution clerk and noted 

that the job required repetitive movements of the neck, shoulders, upper extremities, and mid and 

low back. Dr. Filippone diagnosed disc herniation at C3, C4, and C6, disc bulging at C5, central 

L5-S1 disc herniation, L4 disc bulge, and internal derangement of both shoulders. He opined 

that “the aforementioned abnormalities are directly and solely the result of the injury sustained 

while at work.” 

In reports dated December 17, 2013 to March 3, 2014, Dr. Neno indicated that she had 

treated appellant since 2000 for complaints of neck, shoulder, and back pain, which had 

worsened over time. She reported that appellant’s studies revealed herniated discs in both the 

cervical and lumbar spine and suffered from herniated discs in both the cervical and lumbar 

spine. Dr. Neno opined that appellant’s current medical condition had developed and was a 

direct cause of her working at the employing establishment lifting heavy boxes and bags, parcels, 

and being hunched over a computer keyboard “keying” in data daily over the past 15 to 16 years. 
4

By decision dated August 5, 2014, an OWCP hearing representative affirmed the 

November 20, 2013 denial decision with modification. She accepted that appellant’s job 

required repetitive movement of her back and upper extremities, but denied the claim finding 

insufficient medical evidence to establish a diagnosed condition causally related to her 

employment duties. 

On November 3, 2014 OWCP received appellant’s request, through counsel, for 

reconsideration. He reported that he was providing additional medical reports by Dr. Filippone 

which had additional medical reasons for his conclusion that appellant developed shoulder, neck, 

and back conditions as a result of her employment. 

In an August 15, 2014 report, Dr. Filippone indicated that appellant’s medical history and 

review of systems remained unchanged. He noted appellant’s complaints of neck pain, bilateral 

low back pain, and bilateral shoulder pain. Upon examination, Dr. Filippone observed pain, 

guarding, and spasm in the cervical paraspinals bilaterally, right more than left, and in the lumbar 

paraspinals and right sciatic notch. He opined that “all of the above is workers’ compensation 

caused solely.” 

By decision dated November 7, 2014, OWCP denied modification of the August 5, 2014 

decision. It found that the medical evidence of record failed to establish that appellant sustained 

an occupational disease as a result of her employment. 

Appellant appealed to the Board. In a May 15, 2015 decision, the Board affirmed 

OWCP’s November 7, 2014 denial decision. It determined that the medical evidence of record 

was insufficient to establish appellant’s occupational disease claim.5

On October 28, 2015 OWCP received appellant’s request, through counsel, for 

reconsideration. Counsel indicated that he was enclosing additional reports from Drs. Filippone 

and Neno, which supported appellant’s occupational disease claim. 

In narrative reports dated May 15 to November 18, 2015, Dr. Filippone related 

appellant’s continued complaints of numbness in her hand and cervical, lumbar, and bilateral 

shoulder pain. He indicated that appellant’s history was unchanged and that she reported no 

interval or intercurrent history of trauma or injury. Dr. Filippone noted that a June 12, 2015 MRI 

scan of the cervical spine revealed very abnormal findings, including posterior disc herniation at 

C3 and C4 and left paracentral posterior disc herniation at C5 and C6. Upon examination, 

Dr. Filippone observed pain, guarding, and spasm in appellant’s cervical and lumbar paraspinals 

and pain in the right shoulder. He noted that central and peripheral neurologic examinations and 

manual muscle testing were changed. Dr. Filippone reported positive right shoulder Neer’s and 

Hawkin’s impingement signs. In the June 23, 2015 report, he indicated that electromyogram 

(EMG) and nerve conduction velocity (NCV) studies that he performed revealed an abnormal 

needle EMG examination and indicated bilateral L5-S1 lumbosacral radiculopathy. 

Dr. Filippone opined that “all of the above is directly and solely the result of the injuries 

sustained while at work for the U.S. Post Office.” He further explained that these symptoms had 

developed while working on the LMBC processing mail and parcels innervating a lot of keying, 

 5 Supra note 4. 
5

trunk rotation, and bending in that activity as well as her other activities as a postal clerk working 

on the OCR, BCS, DBCS and pouching mail, all of which involves repetitive activities of the 

low back. Appellant’s cervical complaints are also consistent with the repetitive injuries 

involved in her work as a postal clerk since 1994.” Dr. Filippone provided a worksheet of 

EMG/NCV study findings, as well as handwritten notes pertaining to appellant’s physical 

examination. 

Dr. Filippone further clarified in his July 23, 2015 that he reviewed appellant’s job 

description as provided by her attorney and hundreds of pages of U.S. Government internet sites 

pertaining to job descriptions and equipment specifications. He provided weight and height 

specifications of the equipment that appellant used at work. Dr. Filippone noted that appellant 

stood at 5’2 – 1⁄2,” which was lower than the top of the postcon at 69 inches high. He explained 

that appellant worked repetitively between the scale, the hamper, and the postcon for 120 

minutes. Dr. Filippone reported that appellant had to fill five to seven postcons per hour. He 

related that, according to the employee handbook, a postcon weighed 240 pounds empty and up 

to 1,200 pounds loaded. Dr. Filippone calculated that appellant lifted between 2,880 and 6,720 

pounds per hour. He related that in 2008 appellant began to work as a mail processor/backup 

keyer, which required processing Priority and First Class and International Mail. Appellant 

described that she lifted sacks of mail weighing 20 pounds or more from the postcons, weighed 

the sacks, and placed the sacks in the hampers for separation. She claimed that she did eight or 

more postcons of sacks in an hour, which contained about 10 bags. Dr. Filippone indicated that 

appellant also worked as a parcel post distribution clerk and lifted military sacks weighing up to 

50 pounds and placed them on a scale about 18 inches off the floor. He related that appellant 

was lifting 13,400 pounds over a two-hour period, going between the scale, the hamper, and the 

postcons. Dr. Filippone also noted that the postcons on the top shelf were higher than appellant’s 

head. Therefore appellant had to perform duties which involved bending down to the scale, 

lifting up to the hamper, down and out of the hamper, in and out of the postcons. 

Dr. Filippone explained: 

“[Appellant] blew out the herniated dis[c]s causing the cervical radiculopathy 

(723.4) and shredded the shoulder (718.91) and blew out the thoracic lumbosacral 

disks causes (724.4) as the result of over-using the hands, elbows, shoulders, and 

neck both in lifting, bending, extending the neck, low back, and at fast pace 

without the body’s ability to relubricate itself and heal itself ... the setting of her 

workplace involved constant bending, rotation of the knees, mid back, low back, 

and upper extremities, and the reaching on a repetitive basis above the level of her 

head loading the top shelf of the postcon shelf more than explains the injury to the 

neck, shoulders, mid back, and low back.” 

Dr. Filippone noted that appellant remained totally disabled. 

In a September 10, 2015 report, Dr. Neno opined that appellant was totally and 

permanently disabled from injuries that she sustained at work while lifting heavy bags, repetitive 

rapid bending of heavy loads, and pushing heavy loads without any proper rest time. She noted 

that appellant’s symptoms and diagnostic findings confirmed this. Dr. Neno indicated that she 

agreed with Dr. Filippone’s July 23, 2015 report. 
6

Dr. Filippone diagnosed, in October 22, 2015 attending physician and duty status reports, 

cervical radiculopathy, lumbar radiculopathy, and derangement of the right shoulder. He 

checked a box marked “yes” that appellant’s condition was caused or aggravated by the 

described employment activity. Dr. Filippone indicated that appellant was totally disabled. 

In a decision dated January 25, 2016, OWCP denied modification of the May 15, 2015 

decision. It determined that Dr. Filippone’s reports lacked a well-reasoned medical explanation 

of how appellant’s work activities caused her cervical, lumbar, and bilateral shoulder conditions. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish the 

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

evidence6

 including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.7

 In an occupational disease claim, appellant’s burden requires 

submission of the following: (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

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

establish causal relationship is rationalized medical opinion evidence.9 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, 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 

ANALYSIS 

Appellant alleges that she sustained cervical, lumbar, and upper extremity conditions due 

to the repetitive use of her upper extremities as a parcel post machine operator. OWCP accepted 

the factors of appellant’s employment, but it denied her claim finding that the medical evidence 

failed to establish that her diagnosed conditions were causally related to her employment. The 

Board finds, however, that this case is not in posture for decision and requires further 

development regarding whether appellant sustained cervical, lumbar, and shoulder conditions 

causally related to employment factors. 

 6 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 

7 M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 

ECAB 1143, 1145 (1989). 

8 R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000). 

9 I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007). 

10 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 
7

Along with her October 28, 2015 reconsideration request, appellant submitted additional 

medical reports from Dr. Filippone. In reports dated May 15 to November 18, 2015, 

Dr. Filippone reviewed appellant’s work duties in detail and described the physical requirements 

of her positions as a keyer, parcel post distributer, and mail processor clerk. He provided 

physical examination findings and discussed appellant’s diagnostic examination results. 

Dr. Filippone diagnosed cervical radiculopathy, lumbar radiculopathy, and derangement of the 

right shoulder. He consistently opined that appellant’s injuries were “directly and solely the 

result of the injuries sustained while at work for the U.S. Post Office.” Dr. Filippone noted that 

the duties of keying information, rotating his trunk, and bending required repetitive use of 

appellant’s cervical and lumbar spine and appellant’s right shoulder. He described how 

appellant’s job duties affected her physically. The Board notes that Dr. Filippone’s July 23, 

2015 report provided a detailed description of appellant’s job duties at the employing 

establishment, the machines that she used, and the strain that appellant’s employment duties took 

on her cervical spine, lumbar spine, and upper extremities. 

Accordingly, the Board finds that Dr. Filippone’s reports, when read together, identified 

specific employment factors which appellant claimed caused her condition, identified physical 

examination and diagnostic findings, and explained how the identified employment factors 

caused or contributed to her cervical, lumbar, and bilateral shoulder conditions. He reiterated his 

opinion on causal relationship in various reports. 

The Board finds that Dr. Filippone’s opinion, while not sufficiently rationalized to meet 

appellant’s burden of proof, is sufficient, given the absence of any opposing medical evidence, to 

require further medical development of the record.11 In addition, Dr. Neno’s reports dated 

September 13, 2013 March 3, 2014 also provide an affirmative opinion regarding causal 

relationship. 

It is well established that proceedings under FECA are not adversarial in nature12 and 

while appellant has the burden to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.13 OWCP has an obligation to see that justice 

is done.14 The case, therefore, will be remanded to OWCP for further action consistent with this 

decision. On remand, after such further development of the case record as OWCP deems 

necessary, a de novo decision shall be issued. 

CONCLUSION 

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

 11 See A.F., Docket No. 15-1687 (issued June 9, 2016). See also John J. Carlone, 41 ECAB 354 (1989); Horace 

Langhorne, 29 ECAB 820 (1978). 

12 See e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978); 

William N. Saathoff, 8 ECAB 769, 770-71 (1956). 

13 Dorothy L. Sidwell, 36 ECAB 699, 707 (1985). 

14 William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974). 
8

ORDER 

IT IS HEREBY ORDERED THAT the January 25, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for additional development 

consistent with this decision. 

Issued: November 9, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board