United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.E., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Oakland, CA, Employer 

__________________________________________ 

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Docket No. 16-1803 

Issued: February 2, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 9, 2016 appellant, through counsel, filed a timely appeal from a July 14, 

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. 

ISSUE 

The issue is whether appellant met her burden of proof to establish an occupational 

disease in the performance of duty. 

 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.3 The facts and circumstances of the case 

as set forth in the Board’s prior decision and order are incorporated herein by reference. The 

relevant facts are included below. 

On May 20, 2013 appellant, then a 61-year-old clerk, filed an occupational disease claim 

(Form CA-2) alleging that she sustained injury to her back and both legs due to performing her 

job duties over time. Regarding the relationship of the claimed injury to her work, she noted, 

“This is an ongoing injury. By working in the mail case & the window makes me hurt. I’m not 

doing anything out of the ordinary. It just keep getting worse.” [sic] Appellant noted that on 

February 13, 2013 she first became aware of her claimed condition and its relationship to her 

work. She stopped work on January 15, 2013. 

In an accompanying May 20, 2013 statement, appellant advised that her work required 

her to engage in stooping and kneeling, and that she was required to move around to process mail 

that fluctuated in weight. She noted that, when she cased mail, she had to reach for and lift 

packages and that, when she lifted a package, she might be required to turn her back to the left or 

right. Appellant indicated that she worked 40 hours a week. 

Under a separate claim (File No. xxxxxx968), OWCP had previously accepted a 

lumbosacral strain on January 29, 1999 due to lifting and throwing mail sacks on that date. 

Appellant filed claim forms alleging disability commencing January 15, 2013 in connection with 

her January 29, 1999 injury. In a May 9, 2013 decision issued under that OWCP file number, 

OWCP denied appellant’s claim because she failed to submit sufficient medical evidence to 

establish that the claimed disability was related to her January 29, 1999 injury. It found that the 

medical evidence of record, including a February 13, 2013 report of Dr. Michael E. Hebrard, an 

attending Board-certified physiatrist, suggested that she might have a potential claim for a new 

work-related occupational disease. After the issuance of this decision, appellant filed the present 

occupational disease claim.4

Appellant resubmitted the February 13, 2013 report of Dr. Hebrard in connection with the 

present claim. Dr. Hebrard noted that appellant reported constant and significant “achy, stinging, 

numbing, cramping, and throbbing pain going down to both her legs.” The pain was reported as 

being worse with prolonged sitting, standing, walking, stooping, crouching, bending, twisting at 

the waist, pushing, pulling, reaching, and lifting. Dr. Hebrard indicated that on physical 

examination appellant had hypesthesias along the medial aspect of her feet and legs. He 

diagnosed lumbosacral strain and noted, “Beyond the OWCP accepted diagnosis of lumbosacral 

strain, the patient does have anatomic disc and spinal pathology, which was aggravated in the 

course of [appellant’s] employment with the long prolonged periods of standing, twisting, 

bending, reaching, pushing, pulling, lifting activities over the 30+ years of service within the 

[employing establishment].” Dr. Hebrard indicated that these activities led to ongoing 

 3

 Docket No. 14-1496 (issued November 7, 2014). 

4

 The issue of whether appellant sustained any periods of disability due to her January 29, 1999 traumatic work 

injury is not currently before the Board. 
3

cumulative trauma which caused significant aggravation of appellant’s underlying and 

preexisting condition. 

In a June 17, 2013 report, Dr. Hebrard noted that it was his opinion to a reasonable 

degree of medical certainty, and on a more-probable-than-not basis, that appellant’s medical 

condition was aggravated as a result of the “natural history of her industrially-related injury 

which was a traumatic injury to the back in 1999.” He opined that, based on the work-related 

mechanisms, including a more than 30-year history of twisting, bending, reaching, pushing, and 

pulling, there had been increased intradiscal pressure that ultimately led to inflammation and 

irritation to the circumferential fibers of the annulus, pressuring the adjacent nerve roots and 

sending radicular pain down the leg. 

The findings of electromyogram (EMG) and nerve conduction velocity (NCV) testing 

obtained by Dr. Hebrard on June 26, 2013 showed evidence of right sciatic neuropathy affecting 

the peroneal branch of that nerve. There was no electrodiagnostic evidence for a peripheral 

neuropathy. 

By letter dated July 26, 2013, OWCP requested that Dr. Hebrard provide clarification of 

his June 17, 2013 report. Dr. Hebrard was asked to further explain how appellant’s specific 

work duties caused or contributed to any diagnosed medical condition. 

In an August 23, 2013 supplemental report, Dr. Hebrard indicated that he had submitted 

medical evidence to support to a reasonable degree of medical certainty, and on a moreprobable-than-not basis, that the condition of appellant’s lumbar spine had deteriorated and was 

causally related to the 1999 industrial injury which continued to worsen overtime. He noted that 

sitting caused five times more interdiscal pressure of the lumbosacral spine than did standing and 

walking, resulting in damage to the circumferential fibers of the intervertebral discs of the 

annulus. Dr. Hebrard indicated, “There is microscopic tearing and thereby posterior bulging of 

the disc resulting in compressive forces along the adjustment nerve roots, sending pain, 

paresthesias, and weakness down through the lower extremities. There is MRI scan evidence to 

substantiate this which is consistent with clinical evaluation.” 

By decision dated September 6, 2013, OWCP denied appellant’s claim finding that 

appellant failed to submit sufficient medical evidence to establish an occupational disease in the 

performance of duty. It found that Dr. Hebrard had failed to adequately explain how any 

condition had been caused or changed by appellant’s specific work duties. OWCP also noted 

that Dr. Hebrard was essentially asserting that all of appellant’s activities caused a worsening in 

the underlying condition and indicated that it was unclear how her employment had actually 

caused or contributed to the worsening of any condition. 

Appellant requested a hearing with an OWCP hearing representative regarding the denial 

of her claim. She submitted a December 9, 2013 report of Dr. Hebrard in support of her claim. 

Dr. Hebrard detailed examination findings and indicated that appellant’s underlying lumbar 

stenosis and spondylosis were aggravated during the course of her employment due to engaging 

in prolonged standing, sitting, bending, and lifting over the years. He noted, “It is the opinion of 

the undersigned there is a causal relationship between the patient’s functional deficits and 
4

impairment and her job due to the twisting, bending, prolonged standing, sitting, and standing 

activities.” 

At the February 27, 2014 hearing, appellant testified that she was not working and had 

retired on January 31, 2014. She advised that, after her January 29, 1999 work injury, she was 

provided limited-duty work, including logging in trucks and doing paperwork at the computer. 

Appellant testified that approximately five years before retiring in January 2014 she had returned 

to performing her regular duties which included a great deal of lifting, twisting, bending, and 

stooping.5

 She noted that in January 2013 she began having excruciating pain and stopped work. 

In a May 14, 2014 decision, OWCP’s hearing representative affirmed OWCP’s 

September 6, 2013 decision finding that appellant had not met her burden of proof to establish an 

occupational disease in the performance of duty. She noted that the reports of Dr. Hebrard did 

not contain a rationalized medical opinion explaining how specific work duties over time 

contributed to the claimed medical conditions. 

In a November 7, 2014 decision, the Board affirmed OWCP’s May 14, 2014 decision 

finding that appellant did not establish an occupational disease in the performance of duty. The 

Board found that the reports of Dr. Hebrard were of limited probative value in establishing a 

work-related occupational condition because he did not adequately explain what specific duties 

appellant performed or how the specific work duties caused an aggravation of her preexisting 

back condition. 

In a letter dated April 20, 2015, appellant, through counsel, requested reconsideration of 

her claim for a work-related occupational disease. Counsel asserted that an attached March 20, 

2015 report of Dr. Hebrard established appellant’s claim. 

In his March 20, 2015 report, Dr. Hebrard discussed his previously submitted 

December 9, 2013 report. He noted that appellant had preexisting spinal disc disease and that 

twisting and bending at the waist aggravated that injury. Dr. Hebrard generally indicated that 

repetitive bending and twisting at the waist caused increased axial loading and sheering along the 

intervertebral discs and that spinal disc disease simply meant that there were circumferential 

tears along the discs. He indicated that bending forward, twisting, or lifting caused tilting of the 

pelvis and bulging of the discs posteriorly, resulting in pressure along the nerve endings with 

pain, paresthesias, and weakness in the legs. Dr. Hebrard opined that appellant’s spinal disc 

condition was a permanent aggravation of an underlying, preexisting condition. He noted that 

her job duties of twisting and bending resulted in cumulative trauma which contributed to 

postural changes, forcing the discs into a posterior position where they permanently compressed 

the adjacent nerve endings with the subsequent weakness, numbness, and pain in her legs. 

Dr. Hebrard indicated that appellant’s ongoing performance of her job duties including twisting, 

bending, pushing, pulling, and reaching continued to aggravate her spinal condition permanently. 

 5

 Appellant asserted that she returned to performing her old duties because someone had bid on the limited-duty 

position she had been performing. 
5

By decision dated July 16, 2015, OWCP denied appellant’s claim for a work-related 

occupational disease. It found that the March 20, 2015 report of Dr. Hebrard was not sufficiently 

well rationalized to establish her claim. 

In a letter dated April 15, 2016, appellant, through counsel, requested reconsideration of 

OWCP’s July 16, 2015 decision denying her claim for a work-related occupational disease. 

Counsel argued that an attached February 3, 2016 report of Dr. Hebrard established appellant’s 

claim. 

In his February 3, 2016 report, Dr. Hebrard noted that appellant worked for the 

employing establishment for 35 years as a mail processing clerk and that her job duties required 

prolonged standing, walking, stooping, crouching, twisting, bending, grasping, fingering, 

pinching, pushing, pulling, lifting, and reaching below and above shoulder level. He indicated 

that he had previously indicated that appellant had anatomic disc and spinal pathology which 

were aggravated in the course of her employment due to prolonged periods of standing, twisting, 

bending, reaching, pushing, pulling, and lifting over the course of more than 30 years of service 

with the employing establishment. Dr. Hebrard advised that he based his opinion on the 

documents of record, his clinical examination, and his knowledge, training, and experience as a 

Board-certified physical medicine physician with specialization in spinal disorders affecting the 

nervous system, discs, and joints of the lumbar spine. He noted that it was his opinion, with a 

reasonable degree of medical certainty, more probable than not, that appellant’s accepted 

condition of the lumbar spine had materially worsened and that she had a permanent and 

irreversible disabling aggravation of the original 1999 injury. Dr. Hebrard indicated that 

appellant had a documented degenerative lumbar spinal disc disease which was accelerated by 

the performance of her job duties that required her to twist and bend repetitively as well as push, 

pull, and lift. He opined that appellant’s spinal disc disease was aggravated by the 1999 injury 

and was further aggravated by the job duties at the employing establishment. Dr. Hebrard 

discussed EMG and NCV testing from February 2014 and MRI scan testing from January 2015 

and noted: 

“Due to progression of pathology and the disease natural history as well as the 

requirements of her job since her 1999 injury, I find that the patient’s condition 

has materially worsened in terms of increased lower extremity weakness, 

significantly affecting sitting, standing, and walking tolerance; stiffness in the 

lumbar spine affecting her bending and twisting; and increased muscle spasms 

along the lumbar paraspinal muscles, also restricting movement and diminishing 

her independence with self-care, grooming, toileting, and hygiene.... The current 

diagnoses are: permanent aggravation of lumbar spine radiculopathy ...; 

permanent aggravation of lumbar spinal stenosis ...; and permanent aggravation 

of lumbar region spondylolisthesis....” 

In a decision dated July 14, 2016, OWCP denied modification of its July 16, 2015 

decision denying appellant’s occupational disease claim. It found that the February 3, 2016 

report of Dr. Hebrard was not sufficiently well rationalized to establish her claim. 
6

LEGAL PRECEDENT 

An employee seeking benefits under FECA 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 timely filed within the applicable 

time limitation period of FECA, that the 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.6 To establish fact of injury, an employee must submit 

sufficient evidence to establish that he or she experienced a specific event, incident, or exposure 

occurring at the time, place, and in the manner alleged.7 An employee must also establish that 

such event, incident, or exposure caused an injury.8 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.9

OWCP regulations define the term “[o]ccupational disease or illness” as a condition 

produced by the work environment over a period longer than a single workday or shift.10 To 

establish that an injury was sustained in the performance of duty in an occupational disease 

claim, an employee 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 

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

diagnosed condition is causally related to the employment factors identified by the employee.11

The medical evidence required to establish causal relationship generally is rationalized 

medical opinion evidence.12 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 established employment factors.13

 6

 5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989). 

7 J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007). 

8 Id. 

9 R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004). 

10 20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of 

Claims, Chapter 2.800.2b (June 2011). 

11 D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41 

ECAB 345 (1989). 

12 F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003). 

13 P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003). 
7

ANALYSIS 

On May 20, 2013 appellant filed an occupational disease claim alleging that she sustained 

injury to her back and legs due to performing her job duties over time.14 She indicated that her 

job since approximately early 2009 required her to case mail which involved reaching, lifting, 

twisting, bending, kneeling, stooping, and moving around. In several decisions, including a 

decision dated May 14, 2014, OWCP denied appellant’s claim because she failed to submit 

sufficient medical evidence to establish a work-related occupational disease. It found that the 

reports of Dr. Hebrard, an attending physician, did not contain a rationalized medical opinion 

explaining how specific work duties contributed to the claimed medical conditions. In a 

November 7, 2014 decision, the Board affirmed OWCP’s May 14, 2014 decision finding that 

appellant did not establish an occupational disease in the performance of duty. The Board 

determined that the reports of Dr. Hebrard, including those dated February 13, June 17, 

August 23, and December 9, 2013, did not contain adequate medical rationale in support of the 

doctor’s opinion on causal relationship. 

The Board finds that appellant failed to establish an occupational disease in the 

performance of duty. 

After the Board issued its November 7, 2014 decision affirming OWCP’s denial of 

appellant’s occupational disease claim, appellant submitted additional reports of Dr. Hebrard, 

including those dated March 20, 2015 and February 3, 2016. The Board finds that these reports 

are of limited probative value in establishing appellant’s claim for a work-related occupational 

disease because they do not contain adequate medical rationale. The Board has held that a 

medical report is of limited probative value on the issue of causal relationship if it contains a 

conclusion regarding causal relationship which is unsupported by medical rationale.15 These 

reports of Dr. Hebrard are strikingly similar to his earlier reports from 2013 which the Board, in its 

November 7, 2014 decision, found to be lacking adequate medical rationale. 

In his March 20, 2015 report, Dr. Hebrard opined that appellant’s spinal disc condition 

was a permanent aggravation of an underlying, preexisting condition. He noted that her job 

duties of twisting and bending resulted in cumulative trauma which contributed to postural 

changes, forcing the discs into a posterior position where they permanently compressed the 

adjacent nerve endings with the subsequent weakness, numbness, and pain in the legs. 

Dr. Hebrard indicated that appellant’s ongoing performance of her job duties, including twisting, 

bending, pushing, pulling, and reaching, continued to aggravate her spinal condition 

permanently. 

The submission of the March 20, 2015 report of Dr. Hebrard is insufficient to establish 

appellant’s claim because the report is not based on a complete factual history and Dr. Hebrard 

 14 Appellant stopped work on January 15, 2013. OWCP had previously accepted that she sustained a traumatic 

injury in the form of a lumbosacral strain on January 29, 1999 due to lifting and throwing mail sacks on that date. 

The issue of whether appellant sustained any periods of disability due to her January 29, 1999 traumatic work injury 

is not currently before the Board. 

15 C.M., Docket No. 14-88 (issued April 18, 2014). 
8

did not provide adequate medical rationale in support of his opinion on causal relationship.16 

Dr. Hebrard generally made reference to appellant engaging in periods of twisting, bending, 

pushing, pulling, and reaching, but he did not provide any detailed account of her work duties 

over time. He did not indicate how often she engaged in each of these activities. Dr. Hebrard 

provided a general discussion about how lumbar radiculopathy occurs, but he did not explain 

how such a process might have occurred given appellant’s particular work duties. He indicated 

that her work duties aggravated her preexisting degenerative back condition, but he did not 

describe the mechanism through which her work duties could have caused such an aggravation. 

Dr. Hebrard did not explain why appellant’s continuing complaints were not due to the natural 

progression of her preexisting nonwork-related degenerative back condition. 

In his February 3, 2016 report, Dr. Hebrard noted that he had previously indicated that 

appellant had anatomic disc and spinal pathology which were aggravated in the course of her 

employment due to prolonged periods of standing, twisting, bending, reaching, pushing, pulling, 

and lifting over more than 30 years of service with the employing establishment. He indicated 

that it was his opinion, with a reasonable degree of medical certainty, more probable than not, 

that appellant’s accepted condition of the lumbar spine had materially worsened and that she had 

a permanent and irreversible disabling aggravation of the condition of the January 29, 1999 

injury. Dr. Hebrard opined that appellant had a documented degenerative lumbar spinal disc 

disease which was accelerated by the performance of her job duties that required her to twist and 

bend repetitively as well as push, pull, and lift. He opined that appellant’s spinal disc disease 

was aggravated by the 1999 injury and was further aggravated by the job duties at the employing 

establishment. 

The submission of the February 3, 2016 report of Dr. Hebrard does not establish 

appellant’s occupational disease claim as it continues to lack the type of medical rationale based 

on an accurate history on the matter of causal relationship. Dr. Hebrard again provided a general 

and incomplete account of appellant’s work duties and therefore the opinion on causal 

relationship in this report is also based on an incomplete and inaccurate factual history. He 

provided an equivocal opinion regarding the cause of appellant’s medical condition in that he 

appears to relate her condition to both the earlier January 29, 1999 work injury and the 

performance of work duties over time without adequately detailing the nature of these ostensible 

contributions to her condition.17 Dr. Hebrard noted that appellant’s underlying lumbar stenosis 

and spondylosis were aggravated during the course of her employment due to the duties she 

performed, including prolonged standing, twisting, bending, reaching, pushing, pulling, and 

lifting, but he did not adequately explain how specific work duties caused such an aggravation of 

her underlying condition. 

For these reasons, appellant did not establish an occupational disease on the performance 

of duty and OWCP properly denied her claim. 

 16 See supra notes 12 and 13. 

17 See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956) (finding that an 

opinion which is equivocal in nature is of limited probative value regarding the issue of causal relationship). 
9

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish an 

occupational disease in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the July 14, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 2, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board