United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.A., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Kearny, NJ, 

Employer

__________________________________________

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Docket No. 18-1726

Issued: April 2, 2019

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 13, 2018 appellant, through counsel, filed a timely appeal from a July 5, 

2018 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.

 

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

ISSUE

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

shoulder, right wrist/hand, and lumbar conditions are causally related to the accepted factors of 

her federal employment.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts of the case as set forth in the 

Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On August 16, 2011 appellant, then a 51-year-old clerk, filed an occupational disease claim 

(Form CA-2) alleging that she sustained right shoulder, right wrist/hand, and lower back injuries 

due to performing her repetitive job duties.

4

 She indicated that she pushed mail trays on a roller 

up a conveyor belt, dislodged mail trays on the conveyor belt when they became stuck, sleeved 

mail trays with straps, and lifted and emptied mail bins when they were full. Appellant reported 

that she first became aware of her claimed conditions in June 2007 and first became aware of their 

relationship to her federal employment on August 10, 2011.

5

 She stopped work on 

August 10, 2011 and did not return.6

By decision dated November 15, 2011, OWCP denied appellant’s claim, finding that she 

failed to submit evidence sufficient to establish that the claimed conditions were causally related 

to the accepted factors of her federal employment. By decisions dated March 30, 2012 and 

February 26, 2013, it denied modification of its denial of her claim for work-related occupational 

conditions.7

Appellant subsequently appealed to the Board and, by decision dated September 9, 2013,8

the Board affirmed OWCP’s February 26, 2013 decision denying her claim for work-related 

occupational conditions. The Board found that she failed to submit a rationalized, probative 

medical opinion which related her alleged current right shoulder, right wrist/hand, and lower back 

conditions to federal employment factors.

 

3 Docket No. 17-0533 (issued August 7, 2017); Docket No. 13-1043 (issued September 9, 2013). 

4 OWCP assigned appellant’s claim OWCP File No. xxxxxx363.

5 Appellant reported that, approximately two months prior to filing her claim, she began working in a position which 

involved handling a greater volume of mail. In an accompanying statement, she described additional work duties 

including sweeping mail bins.

6 Appellant retired from the employing establishment on disability retirement commencing February 20, 2018. The 

case record reflects that OWCP previously accepted, under a separate file (OWCP File No. xxxxxx560), that she

sustained a work-related lumbar sprain on March 8, 2010. This injury is not the subject of the present appeal.

7

In these decisions, OWCP found that the medical reports submitted by appellant did not contain adequate medical 

rationale to establish her claim for work-related occupational diseases, including medical reports of Dr. Jeffrey F. 

Augustin, an attending Board-certified orthopedic surgeon, and Dr. Shailendra Hajela, an attending Board-certified 

physical medicine and rehabilitation physician.

8 Supra note 3.
3

On January 17, 2014 appellant, through counsel, requested reconsideration of her claim. 

Counsel submitted an October 30, 2013 report from Dr. Augustin who indicated that a magnetic 

resonance imaging (MRI) scan of her lumbosacral spine disclosed bulging annuli at T12-L1, L3-

4, and L5-S1 and moderate disc protrusion at L5-S1.9 He discussed appellant’s work duties and 

noted, “Repeated bending and lifting has caused [appellant] to have not only lumbar strain, but a 

disc protrusion.” Dr. Augustin opined that there was a direct correlation between the “heavy work”

she performed and her “injuries of rotator cuff, lumbar strain, and disc protrusion.”

By decision dated February 28, 2014, OWCP denied appellant’s claim, finding that she 

failed to submit evidence sufficient to establish that the claimed conditions were causally related 

to factors of her federal employment.

On January 30, 2015 appellant, through counsel, requested reconsideration and submitted 

a December 23, 2014 report from Dr. Hajela who advised that her history of injury might 

predispose her to the premature development of lumbar spine osteoarthritis. Dr. Hajela diagnosed 

lumbar dysfunction, lumbar radicular pain, lumbar disc protrusion at L4-5, bulging annuli at T12-

L1, L3-4, and L5-S1, and left hip bursitis. He noted that, based on appellant’s history, complaints, 

examinations, test results, and lack of previous symptoms, it was his opinion, within a reasonable 

degree of medical probability, that the diagnosed conditions were directly and causally related to 

her repetitive work activities.

The findings of June 29, 2015 electromyogram (EMG) and nerve conduction velocity 

(NCV) testing of appellant’s lower extremities showed reduced amplitude in the left and right 

tibial motor nerves and increased insertional activity associated with several nerve distributions

which innervated the left anterior tibialis, left biceps femoris, and left paraspinal muscles. The 

findings of a July 9, 2015 MRI scan of her lower back showed degenerative disc changes between 

the T12 and S1 levels.

By decision dated August 15, 2016, OWCP denied modification of the February 28, 2014 

decision, finding that appellant failed to submit a rationalized medical opinion establishing an 

occupational condition as alleged.

On September 26, 2016 appellant, through counsel, requested reconsideration. Counsel 

resubmitted a copy of the December 23, 2014 report of Dr. Hajela. By decision dated 

November 29, 2016, OWCP denied modification of its August 15, 2016 decision.

Appellant subsequently appealed to the Board and, by decision dated August 7, 2017,10 the 

Board affirmed OWCP’s November 29, 2016 decision, finding that she failed to submit a 

rationalized, probative medical opinion relating her claimed right shoulder, right wrist/hand, and

lower back conditions to factors of her federal employment.

On June 5, 2018 appellant, through counsel, requested reconsideration of her claim.

 

9 The record includes the findings of December 4, 2009 MRI scan testing of the lumbosacral spine, which contains 

an impression of bulging annuli at T12-L1, L3-4, and L5-S1 and moderate disc protrusion at L4-5 (rather than at L5-

S1 as reported by Dr. Augustin).

10 Supra note 3.
4

Appellant submitted an April 18, 2018 MRI scan of her lumbar spine which showed diffuse 

annular bulges with facet hypertrophy and ligament thickening at L2-3, mild disc bulging with 

facet hypertrophy and ligament thickening at L3-4, annular bulge with a small central sub 

ligamentous midline disc protrusion at L4-5 (larger than bulge at L3-4), and diffuse annular bulge

with bulky facet hypertrophy at L5-S1.

The April 30, 2018 findings of EMG/NCV testing of appellant’s lower extremities revealed 

unremarkle results with respect to the bilateral peroneal motor, tibial motor, superficial peroneal 

sensory, and sural sensory nerves.11

In a May 3, 2018 report, Melissa Gallagher, an attending physician assistant, indicated that 

appellant presented complaining of back pain, which she reported had been present since she 

suffered a back injury at work in 2011. She detailed the findings of her physical examination and 

diagnosed hip bursitis, lumbar dysfunction, lumbar radiculopathy, and facet joint arthropathy.

By decision dated July 5, 2018, OWCP denied appellant’s claim, finding that she did not 

establish work-related occupational conditions of her right shoulder, right wrist/hand, and lower 

back.

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,12 that an injury was sustained in the performance of duty as 

alleged, and that any disability or medical condition for which compensation is claimed is causally 

related to the employment injury.13 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.14 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 or occurrence of the disease or condition; and (3) medical evidence 

establishing that the diagnosed condition is causally related to the identified employment factors.15 

The medical evidence required to establish causal relationship generally is rationalized medical

 

11 Appellant also submitted a copy of previously submitted June 29, 2015 EMG/NCV testing results.

12 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

13 J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

14 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

15 C.D., id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).
5

opinion evidence.16 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.17

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that her right 

shoulder, right wrist/hand, and lumbar conditions are causally related to factors of her federal 

employment.

As noted, the Board previously affirmed OWCP’s February 26, 2013 and November 29, 

2016 decisions. OWCP’s latest decision, and the subject of the current appeal, was issued on 

July 5, 2018. Findings made in prior Board decisions are res judicata absent any further review 

by OWCP under section 8128 of FECA.18 Therefore, the current analysis will focus on the relevant 

medical evidence received since OWCP’s November 29, 2016 merit decision, which is the 

evidence that was not before the Board when it last reviewed appellant’s claim on August 7, 2017.

Appellant submitted a May 3, 2018 report from Ms. Gallagher, an attending physician 

assistant, who indicated that appellant presented complaining of back pain which she reported had 

been present since she suffered a back injury at work in 2011. Ms. Gallagher diagnosed hip 

bursitis, lumbar dysfunction, lumbar radiculopathy, and facet joint arthropathy. This report does 

not constitute competent medical evidence because a physician assistant is not considered a 

“physician” as defined under FECA.19 As such, this evidence is insufficient to meet appellant’s 

burden of proof.

Appellant also submitted an April 18, 2018 MRI scan of her lumbar spine which showed 

degenerative disc disease changes, including disc bulges, at L2-3, L3-4, L4-5, and L5-S1. The 

April 30, 2018 findings of EMG/NCV testing of her lower extremities revealed unremarkle results 

with respect to the bilateral peroneal motor, tibial motor, superficial peroneal sensory, and sural 

sensory nerves. The Board notes, however, that these diagnostic testing reports would have no 

probative value with respect to appellant’s claim for work-related occupational conditions because 

the reports do not contain an opinion on the cause of the medical conditions described therein. The 

Board has held that reports of diagnostic testing lack probative value as they do not provide an 

 

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

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

18 See B.R., Docket No. 17-0294 (issued May 11, 2018).

19 See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 

2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and 

physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by state law).
6

opinion on causal relationship between the accepted employment factors and a diagnosed 

condition.20

As appellant has not submitted any rationalized medical evidence establishing that her right 

shoulder, right wrist/hand, and lumbar conditions are causally related to accepted factors of her 

federal employment, she has 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 not met her burden of proof to establish that her right 

shoulder, right wrist/hand, and lumbar conditions are causally related to factors of her federal 

employment.

ORDER

IT IS HEREBY ORDERED THAT the July 5, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 2, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

20 R.G., Docket No. 18-1045 (issued February 1, 2019). Appellant also submitted a copy of previously submitted 

June 29, 2015 EMG/NCV testing results, which the Board has previously found to be insufficient to establish her 

claim.