United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.D., Appellant 

and 

U.S. POSTAL SERVICE, SOUTHEASTERN 

PROCESSING & DISTRIBUTION CENTER, 

Southeastern, PA, Employer 

__________________________________________ 

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Docket No. 16-1083 

Issued: March 20, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., 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 25, 2016 appellant, through counsel, filed a timely appeal from a January 19, 

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 to consider the merits of the case. 

ISSUE 

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

disease 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

On appeal, counsel contends that there was a conflict of medical evidence requiring 

referral to an impartial medical examiner. 

FACTUAL HISTORY 

On February 4, 2009 appellant, then a 53-year-old small parcel bundle sorter, filed a 

traumatic injury claim (Form CA-1) alleging that she injured her lower back and both legs on 

February 3, 2009 while pulling stuck hampers apart. She underwent a lumbar magnetic 

resonance imaging (MRI) scan on March 3, 2009 which demonstrated desiccation throughout the 

lumbar disc spaces. The MRI scan also showed a probably small central disc protrusion at T11-

12, as well as a small central herniation at L2-3 with central canal stenosis. At L4-5 appellant 

exhibited a central and left-sided disc protrusion. Appellant’s attending physician, Dr. Janine M. 

Darby, a Board-certified family practitioner, diagnosed back pain, spinal stenosis of the lumbar 

region and herniated disc on March 13 and April 13, 2009. 

In a note dated April 2, 2009, Dr. Russell Amundson, a Board-certified neurosurgeon, 

noted that appellant had a work incident of pulling hampers apart, which resulted in back pain. 

He reported no distinct radicular findings on motor, sensory, or reflex examination. 

Dr. Amundson found mild tenderness in the back to palpation at the lumbosacral region as well 

as limited lumbar range of motion. He interpreted appellant’s MRI scan to show disc bulges, but 

no surgically significant pathology. 

Dr. Darby completed a report on May 1, 2009 and diagnosed lumbar disc herniation with 

spinal stenosis and attributed this condition to appellant’s February 3, 2009 employment injury. 

OWCP accepted appellant’s claim for lumbar sprain on April 29, 2009. Appellant 

returned to her date-of-injury position on May 4, 2009 with no restrictions. 

Appellant sought treatment in the hospital emergency room on October 15, 2011 from 

Dr. Vibha Gambhir, a physician Board-certified in emergency medicine, due to buttock pain 

radiating to her right heel. She reported an exacerbation of her sciatica on October 14, 2012. 

Dr. Gambhir diagnosed lumbar radiculopathy and cervical strain. 

On October 17, 2011 Dr. Darby described appellant’s employment activities of pushing a 

heavy cart on Friday and her pain from her heel to the right side of her head. She found vertebral 

spine tenderness and paraspinal tenderness. Appellant was unable to complete straight leg 

raising due to pain. Her lower extremities had normal motor and sensory examinations. 

Dr. Darby diagnosed back pain and radiculopathy. 

Appellant filed a claim for a recurrence of disability (Form CA-2a) on October 17, 2011 

and alleged on October 14, 2011 that she sustained a recurrence of disability due to her 

February 3, 2009 employment injury. She alleged that she was pushing filled wire containers 

and felt a tightness and burn across her lower back. Appellant continued to work and 

experienced a sharp pain down her right buttock and leg. She alleged that she had two herniated 

discs and spinal stenosis from her February 3, 2009 employment injury. 

Dr. Andrew A. Badulak, a Board-certified family practitioner and osteopath, examined 

appellant on November 18, 2011. He reported that she injured her back on October 14, 2011 
3

moving a large iron cage full of mail weighing approximately 2,000 pounds. Dr. Badulak 

indicated that appellant developed acute back pain while pulling the iron cage. He noted her 

preexisting condition of advanced degenerative disease of the lumbar spine with spinal stenosis. 

Dr. Badulak found posterior gluteal and lateral thigh discomfort on the right with straight leg 

raising. Appellant’s neurological examination was normal as was her motor function in both 

lower extremities. He diagnosed acute onset of right lower extremity radicular symptoms 

involving the L5 distribution and multilevel degenerative disc disease of the lumbar spine with 

spinal stenosis and neural foraminal narrowing. 

In a report dated January 20, 2012, Dr. Darby described appellant’s February 3, 2009 

employment injury and reviewed her MRI scan. She noted that appellant returned to full-duty 

work on May 4, 2009. Appellant reported in 2009 through 2010, her job duties changed to 

require her to handle and process extreme weight loads. On October 17, 2011 she sought 

treatment for severe back pain with radiation down the right leg. Dr. Darby diagnosed 

lumbosacral radiculopathy and back pain. Appellant underwent an additional MRI scan dated 

October 26, 2011, which demonstrated a disc bulge at L4-5 and a disc herniation at L5-S1. 

Dr. Darby attributed appellant’s conditions to repetitious and excessive lifting, pushing, pulling, 

tugging, or throwing of heavy weights of more than 30 pounds. She alleged that appellant’s back 

condition was exacerbated by dispatching weights in excess of 1,500 pounds. Dr. Darby 

provided work restrictions. 

In a letter dated April 6, 2012, OWCP informed appellant that she had not sustained a 

recurrence of her back condition as defined under FECA. It further explained that her claim was 

more appropriately considered a new injury from either a traumatic injury or an occupational 

disease. 

Dr. Darby completed a report on May 11, 2012 and diagnosed herniated disc syndrome 

and lumbosacral radiculopathy due to her October 14, 2011 employment injury. She provided 

work restrictions. Dr. Darby completed an attending physician’s form report (Form CA-20) on 

June 18, 2012 and diagnosed herniated disc syndrome and lumbosacral radiculopathy. She listed 

appellant’s history of injury as “herniated discs due to pulling injury on the job.” Dr. Darby 

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

by her employment activities. 

The employing establishment controverted appellant’s claim on May 30, 2012. 

Appellant’s supervisor noted that appellant had returned to work on October 11, 2011 following 

a leave of absence since August 30, 2011. She confirmed that on October 14, 2011 due to low 

mail volume that appellant and her coworkers were granted leave at the end of their shift. 

Appellant reported her back pain on October 15, 2011 and had not reported her condition on 

October 14, 2011. The employing establishment provided her job duties as lifting and carrying 

10 to 12 pounds for approximately eight hours a day, pushing and pulling up to 40 pounds, 

sitting continuous for approximately four hours a day and twisting, bending, and stooping for 

two hours intermittently. The employing establishment reported that during the last year mail 

volume had decreased and that consequentially there were days when appellant and her 

coworkers were allowed to use leave or were moved to another operation. 
4

On June 29, 2012 Dr. Badulak indicated that appellant sustained an injury on October 14, 

2011 and listed her symptoms of low back and leg pain. Appellant’s neurological examination 

was normal. Dr. Badulak diagnosed lumbar and thoracic radiculopathy. 

Appellant completed a narrative statement on September 5, 2012 and asserted that on 

October 11, 2011 the employing establishment instituted new carrier route revision testing 

schemes, which resulted in an unequal distribution of dispatched mail on one side of her 

machine.3

 On October 12, 2011 she began to alternate keying and dispatching mail in half hour 

increments. Appellant asserted that she and her partner dispatched 30 wire containers weighing 

in excess of 2,000 pounds each half hour rotation as compared to the previous scheme of 8 to 15 

containers in that time period. She was required to maneuver the iron containers for 50 feet with 

both right and left turns. Appellant alleged that the wheels were frequently clogged with string 

and strapping. She developed tightness in her back. Appellant was required to push the 

containers further because of the volume of containers amassed. On October 13, 2011 she 

continued with the new scheme and again experienced back tightness and strain. Appellant 

alleged that the mail volume was overflowing and could not be controlled by two people. By 

October 14, 2011 her back was very tight and felt as if it were burning. Appellant was 

dispatching a very full container from the machine and felt a sharp pain go down her right 

buttock and leg. She completed her tour by sitting and had difficulty walking from the building. 

On September 12, 2012 OWCP converted appellant’s claim to an occupational disease 

based on her September 5, 2012 statement. It requested additional medical evidence in support 

of her occupational disease claim and provided 30 days for a response. 

In a July 27, 2012 report, Dr. Badulak noted appellant’s worsening back pain. He stated 

that her injury occurred on October 14, 2011 and found that she was disabled. Dr. Badulak 

reviewed appellant’s October 26, 2011 MRI scan and found multilevel degenerative changes 

with a central disc herniation at L5-S1. He diagnosed lumbar and thoracic radiculopathy. 

On October 3, 2012 Dr. Darby diagnosed lumbar/thoracic radiculopathy and right L5 

radicular pain and attributed appellant’s current condition to an October 14, 2011 injury. She 

opined that appellant had been totally disabled since October 17, 2011. 

Dr. Darby completed a report on October 15, 2012. She reported that appellant sought 

emergency room treatment on October 15, 2011 for severe back pain radiating down the right 

leg. Dr. Darby explained the process change at the employing establishment on October 11, 

2011 on appellant’s bundle sorting machine and the resulting increase in mail volume through 

appellant’s duty station. Appellant related that her back pain increased from October 11 through 

14, 2011 when she moved a full container and felt a sharp back pain radiating down her right leg. 

Dr. Darby diagnosed lumbosacral radiculopathy and back pain. She noted that an MRI scan 

showed a new disc herniation at L5-S1. Dr. Darby opined that appellant’s current conditions 

were causally related to repetitious and excessive lifting, pushing, pulling, tugging, or throwing 

of weights greater than 30 pounds. She also attributed appellant’s condition to intense strain of 

skeletal lumbosacral areas by dispatching weights in excess of 1,500 pounds. Dr. Darby noted, 

“The modifications made to the machine necessitated unusually heavy volume of mail to be 

 3

 Appellant submitted a duplicate statement on October 15, 2012. 
5

dispatched in a much more frequent design than normal, causing further strain and aggravation 

leading to the injury on October 14, 2011.” 

In a November 19, 2013 decision, OWCP denied appellant’s occupational disease claim 

finding that she had not established her employment duties as alleged. It indicated that the 

employing establishment disputed her description of her position requirements. 

Counsel requested an oral hearing on December 9, 2013. On May 19, 2014 he submitted 

additional evidence. One of appellant’s coworkers, Ms. M., completed a statement on May 15, 

2014 and confirmed that during the week of October 11 through 14, 2011 normal schemes were 

not used on the small parcel bundle sorter machine. She asserted that the test schemes were not 

well planned and that 90 percent of the mail fell on one side of the machine. Ms. M. alleged, 

“The amount of mail that fell was extreme to say the least. We were bombarded with an 

overwhelming portion of the entire mail volume falling to our side of the machine.” She further 

noted that the dispatch of containers was more than doubled from the normal 10 to 15 containers 

per half hour. Ms. M. reported that the aisles were clogged with the number of wire containers 

dispatched forcing both appellant and her to push and pull the containers in a tight area for 

longer distances. She noted that the testing scheme continued for three weeks before the severe 

imbalance of the mail flow was adjusted. 

During the hearing, held on May 21, 2014, counsel submitted a report from Dr. Darby 

dated June 30, 2014. Dr. Darby concluded, “It is my professional opinion that [appellant’s] disc 

herniation at L5-S1 [with] moderate central canal narrowing was a direct result of her work 

injury that began on October 11, 2011.” In an August 5, 2014 decision, OWCP’s hearing 

representative vacated the November 19, 2013 decision finding that appellant had established her 

work factors occurred as alleged. She remanded the case for OWCP to further develop the 

medical evidence by referral to a second opinion physician. 

On October 17, 2014 OWCP referred appellant, a statement of accepted facts, and a list 

of questions for a second opinion evaluation by Dr. Steven J. Valentino, an osteopath with 

certifications in orthopedic surgery and spine surgery. In a November 5, 2014 report, 

Dr. Valentino noted her work history of increasing back pain over the course of three days due to 

a new scheme on the sorting machine. He reviewed appellant’s medical history including x-rays, 

which demonstrated degenerative changes without compression fracture or subluxation. 

Dr. Valentino found that her March 3, 2009 MRI scan revealed multilevel spondylosis. He 

performed a physical examination and found no spasm, malalignment, trigger points, or 

subluxation of the spine. Dr. Valentino also reported that appellant’s neurologic examination 

was normal. He diagnosed preexisting lumbar degenerative disc disease. Dr. Valentino opined 

that appellant did not sustain an injury related to her employment activities as there were no 

acute findings to collaborate her radicular-like symptoms. He concluded that she could return to 

her date-of-injury position with no restrictions. 

By decision dated December 2, 2014, OWCP denied appellant’s occupational disease 

claim finding that the medical evidence of record did not establish a diagnosed condition as a 

result of her accepted employment activities in October 2011. 
6

Counsel requested an oral hearing on December 8, 2014, which was held on 

March 26, 2015. He argued that the statement of accepted facts provided to Dr. Valentino was 

insufficient as it did not describe the impact of the change in sorting scheme on appellant’s 

workload or activities. 

By decision dated May 8, 2015, OWCP’s hearing representative vacated the December 2, 

2014 decision. She noted that the statement of accepted facts had improperly indicated that the 

new sorting scheme began on October 12, 2011 rather than October 11, 2011. The hearing 

representative also found that the statement of accepted facts failed to describe the increased 

volume of mail on her side of the machine due to uneven distribution caused by the new sorting 

scheme resulting in more than 30 wire containers per hour rather than the normal 8 to 15. She 

noted the greater distance that appellant was required to move the wire containers. The hearing 

representative further found that Dr. Valentino had not clearly reviewed the October 26, 2011 

MRI scan and had not provided medical rationale in support of his opinion regarding appellant’s 

preexisting lumbar degenerative disc disease. She remanded the case for OWCP to request a 

supplemental report based on an updated statement of accepted facts to include a complete 

description of appellant’s altered job duties beginning October 11, 2011. The hearing 

representative directed OWCP to request that Dr. Valentino address both MRI scans, clarify 

whether the identified herniated disc was responsible for her radicular symptoms, and to explain 

whether appellant’s degenerative disc disease was preexisting. She noted that his opinion should 

be well reasoned, based on an accurate definition of causal relationship, and supported by the 

evidence of record. 

OWCP formulated a new statement of accepted facts on June 9, 2015, noting that 

appellant’s work output per hour doubled with the adjusted machine scheme from October 11 

through 14, 2014. It also provided Dr. Valentino with a new list of questions. OWCP asked that 

he address the findings on both MRI scans, clarify the impact of the L5-S1 disc herniation, 

explain whether appellant’s degenerative disc disease was preexisting, provided the definition of 

causal relationship, and asked that he support his opinions with evidence in the record and 

medical reasoning. 

Dr. Valentino provided a supplemental report on June 15, 2015. He reviewed the 

March 3, 2009 MRI scan and found desiccation throughout the lumbar discs as well as 

transitional anatomy. Dr. Valentino noted a small central herniation at L2-3, a disc protrusion at 

L4-5, and a L5-S1 transitional level. He found that the October 26, 2011 MRI scan did not note 

transitional anatomy, but a disc bulge at L3-4 and a protruding disc at L5-S1. Dr. Valentino 

concluded, “[W]hen one takes into account the transitional anatomy, there is no evidence of a 

new disc herniation or protrusion on the October 26, 2011 MRI [scan].” He further opined, 

“Given this finding as well as the lack of specific radicular complaints, I do not find that 

[appellant] sustained a work-related back condition as a result of her working the new sorting 

scheme for the period of October 11, 2014 through October 14, 2015.” Dr. Valentino found that 

appellant had a prior history of disc herniation, sciatica, stenosis, and degenerative change. He 

concluded that her degenerative disc disease was preexistent and not aggravated by work factors. 

In a July 24, 2015 decision, OWCP denied appellant’s claim for an occupational disease 

finding that Dr. Valentino’s report was entitled to the weight of the medical evidence. 
7

On August 5, 2015 counsel requested an oral hearing, which was held on 

November 13, 2015. He argued that Dr. Valentino failed to explain what transitional anatomy 

was in his June 15, 2015 report. Counsel further pointed out factual errors in Dr. Valentino’s 

report as well as contractions regarding the presence of radicular complaints. 

By decision dated January 19, 2016, OWCP’s hearing representative affirmed the 

July 24, 2015 decision. He found that Dr. Valentino had provided an accurate history of injury, 

definitive diagnosis, and provided medical reasoning supporting that appellant did not sustain an 

injury as a result of her occupational activities. The hearing representative found that appellant 

had failed to meet her burden of proof to establish an injury due to her employment duties from 

October 11 through 14, 2011. 

LEGAL PRECEDENT 

OWCP’s regulations define an occupational disease as “a condition produced by the work 

environment over a period longer than a single workday or shift.”4

 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 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 evidence required to establish causal 

relationship is rationalized medical opinion evidence, based upon a complete factual and medical 

background, showing a causal relationship between the claimed condition and identified factors. 

The belief of a claimant that a condition was caused or aggravated by the employment is not 

sufficient to establish causal relation.5

When there are opposing reports of virtually equal weight and rationale, the case will be 

referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides 

that, 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 and resolve the conflict of medical evidence.6

 This is called a referee 

examination and OWCP will select a physician who is qualified in the appropriate specialty and 

who has no prior connection with the case.7

ANALYSIS 

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

 4

 20 C.F.R. § 10.5(q). 

5 Lourdes Harris, 45 ECAB 545, 547 (1994). 

6

 5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007). 

7 R.C., 58 ECAB 238 (2006). 
8

Beginning October 14, 2011, appellant, who had a previously accepted claim for back 

strain, attributed her ongoing back condition to a change in machine scheme on October 11 

through 14, 2011. She provided a detailed description of the change in her duties during this 

period. Appellant also provided a statement from a coworker supporting her increased duties 

beginning October 11, 2011. 

Appellant also submitted medical evidence of an additional back condition, including a 

diagnosis of cervical strain, and lumbar radiculopathy from Dr. Gambhir. She submitted a series 

of reports from Drs. Darby and Badulak beginning October 17, 2011 diagnosing radiculopathy 

due to her duties. Appellant underwent an additional MRI scan dated October 26, 2011, which 

demonstrated a disc bulge at L4-5 and a disc herniation at L5-S1. Dr. Badulak reviewed her 

October 26, 2011 MRI scan and found multilevel degenerative changes with a central disc 

herniation at L5-S1. He diagnosed lumbar and thoracic radiculopathy. 

OWCP referred appellant for a second opinion evaluation with Dr. Valentino. 

Dr. Valentino examined her on November 5, 2014 over three years since her October 11, 2011 

employment duties changed, and found no spasm, malalignment, trigger points, or subluxation of 

the spine. He also reported that appellant’s neurologic examination was normal. Dr. Valentino 

diagnosed preexisting lumbar degenerative disc disease. He opined that she had not sustained an 

injury related to her employment activities as there were no acute findings to collaborate her 

radicular-like symptoms. Dr. Valentino concluded that appellant could return to her date-ofinjury position with no restrictions. In his June 15, 2015 supplemental report, he reviewed the 

March 3, 2009 MRI scan and found desiccation throughout the lumbar discs as well as 

transitional anatomy. Dr. Valentino found that the October 26, 2011 MRI scan did not note 

transitional anatomy, but a disc bulge at L3-4 and a protruding disc at L5-S1. Dr. Valentino 

found no evidence of a new disc herniation or protrusion on the October 26, 2011 MRI scan. 

Dr. Valentino further opined that appellant had not sustained a work-related back condition as a 

result of her working the new sorting scheme for the period October 11, 2014 through 

October 14, 2015. 

The Board finds that there is a conflict of medical opinion between appellant’s 

physicians, Drs. Darby and Badulak, and Dr. Valentino, OWCP’s second opinion physician, 

regarding results of her MRI scans, the relationship between her condition and her employment, 

and her diagnosed conditions. Beginning October 17, 2011 Drs. Darby and Badulak diagnosed 

work-related radiculopathy. Dr. Valentino, however, diagnosed preexisting lumbar degenerative 

disc disease and opined that appellant did not sustain an injury related to her employment 

activities. The Board therefore finds that there is a conflict regarding appellant’s specific 

diagnosis and whether this diagnoses is employment related. Dr. Badulak also reviewed the 

October 26, 2011 MRI scan and found multilevel degenerative changes with a central disc 

herniation at L5-S1. On the contrary, Dr. Valentino found no evidence of a new disc herniation 

or protrusion on the October 26, 2011 MRI scan. The Board further finds that there is a conflict 

of medical opinion regarding the findings demonstrated on the October 26, 2011 MRI scan. Due 

to the equal probative value of these reports, the Board finds that appellant’s claim must be 

referred to an impartial medical specialist to resolve this conflict. After this and such other 

development as OWCP deems necessary, it should issue a de novo decision. 
9

CONCLUSION 

The Board finds that this case is not in posture for decision and must be remanded for 

further development consistent with this decision of the Board. 

ORDER 

IT IS HEREBY ORDERED THAT the January 19, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further development. 

Issued: March 20, 2017 

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