United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer

__________________________________________

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Docket No. 17-1966

Issued: March 6, 2018

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 September 21, 2017 appellant, through counsel, filed a timely appeal of a June 13, 

2017 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 has 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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances outlined in 

the Board’s prior decisions are incorporated herein by reference. The facts relevant to this 

appeal are set forth below. 

On May 28, 2015 appellant then a 47-year-old mail handler, filed an occupational disease

claim (Form CA-2) alleging that she developed right arm, hand, shoulder, and upper back pain 

and numbness due to repeatedly bending, reaching, pushing, and pulling 450-pound over-theroad (OTR) containers at work. She did not immediately stop work.

Dr. Mark Eskander, a Board-certified orthopedist, treated appellant on May 28, 2015 for 

neck pain and numbness radiating into her right hand. Appellant reported a gradual onset of pain 

on March 23, 2015 due to pushing metal containers at work which caused her arm and neck pain 

to flare-up. Dr. Eskander noted positive findings and diagnosed cervical spondylosis and 

cervical disc displacement. A magnetic resonance imaging (MRI) scan of the cervical spine 

revealed disc osteophyte protrusion lateralized to the right, mild left neural foraminal narrowing 

at C6-7, and broad-based disc osteophyte protrusion with neural foraminal narrowing at C5-6 

and C4-5. On June 19, 2015 Dr. Eskander related appellant’s symptoms of radiating neck pain 

which began on March 23, 2015. Appellant reported performing repetitive lifting, moving, and 

pushing metal carts which weighed 400 pounds while at work. Dr. Eskander noted findings and 

diagnosed cervical myopathy stemming from overuse with lifting and pushing heavy carts at 

work. He recommended conservative treatment including nerve blocks. 

By decision dated July 20, 2015, OWCP denied appellant’s claim because she failed to

establish that she developed a medical condition causally related to the accepted factors of her 

federal employment.

On March 9, 2016 counsel requested reconsideration. A June 25, 2015 electromyogram 

(EMG) revealed acute moderate-to-severe right C6 radiculopathy and mild bilateral median 

nerve entrapment neuropathy across the carpal tunnels.

Appellant continued to be seen by Dr. Eskander. In July 9 and August 20, 2015 reports,

Dr. Eskander diagnosed cervical spondylosis, cervical disc displacement, carpal tunnel 

syndrome, and cervical radiculopathy. He noted that conservative treatment failed and 

recommended surgical intervention. On August 24, 2015 Dr. Eskander performed a C5 to C7 

anterior cervical discectomy and fusion and diagnosed cervical stenosis at C5 to C7. In reports 

dated October 2, 2015 and January 7, 2016, he noted that appellant reported improved pain after 

the cervical fusion surgery without radiation, numbness, or tingling in the arms. Dr. Eskander

diagnosed intervertebral disc displacement of the lumbar region, cervical disc displacement and 

cervical spondylosis and returned appellant to work full-time at light-duty status.

In a report dated April 1, 2016, Dr. Eskander noted appellant’s work duties as a mail 

handler involved loading and unloading packages from skids and conveyor belts and pulling and 

 

3 Docket No. 16-1872 (issued February 21, 2017).
3

moving OTR containers. He noted that she started working for the post office in January 2000 as 

a mail handler and that she worked six days a week, six hours a day, and sometimes eight hours a 

day on weekends. Dr. Eskander noted that she had to load and unload packages from skids and 

the conveyor belt and load them into large Gaylord boxes. He noted that the packages she 

unloaded were objects weighing over 20 pounds and some larger items weighed up to 70 pounds. 

Dr. Eskander reported that in 2005 she became a sack sorter where she was taking sacks off the 

conveyor and putting them onto the roads with overtime work. He observed that sometimes 

roads weighed 400 pounds and sometimes 700 pounds when fully loaded. Appellant performed 

these duties for a number of years and returned to mail handling work. She also drove a forklift, 

but all the time was working in sorting in a repetitive nature with heavy items. Dr. Eskander 

noted that she had recently been placed on light duty, basically just walking around sorting the 

mail that is too long to go in the machine or around. He opined that she had degenerative 

changes that were related to her work duties and became worse with overuse at work and were a 

significant factor in the development of her cervical condition. Dr. Eskander noted his opinion 

was given to a reasonable degree of medical certainty and that, but for the work duties appellant 

would not have developed these particular problems with cervical radiculopathy requiring 

anterior cervical discectomy and fusion.

By decision dated June 7, 2016, OWCP denied modification of the prior decision. 

Appellant appealed to the Board.

4

 By decision dated February 21, 2017, the Board affirmed the

June 7, 2016 decision finding that appellant did not meet her burden of proof to establish an

occupational disease causally related to accepted factors of her federal employment.

On March 15, 2017 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence. Dr. Eskander, in a February 9, 2017 report, sought to explain the 

physiological process of how repetitive duties could cause an aggravation of a cervical condition 

leading to stenosis and nerve root compression. He cited excerpts from the Academy of 

Orthopaedic Surgeons and North American Spine Society noting “additionally, spine injuries 

that result from trauma, repetitive movement or carrying excess weight can hasten a degenerative 

process or cause a spontaneous degeneration resulting in structural changes that alter the spine 

and further limiting the space within the neural foramen causing it to become narrower so that 

the space available for the exiting nerve roots is smaller and therefore causing more compression 

and pain down the nerve roots from the neck down into the arms.” Dr. Eskander indicated that 

this was physiologically how the process occurred and how repetitive duties could exacerbate a 

condition. He noted that “as a mail handler [appellant’s] job duties required repetitive lifting and 

carrying of packages frequently in excess of 70 pounds.” Dr. Eskander opined with a reasonable 

degree of medical probability that her assigned employment duties caused an aggravation of 

appellant’s condition. He further opined with a reasonable degree of medical certainty that the 

work injury appellant sustained led to the need for surgery and subsequent disability.

By decision dated June 13, 2017, OWCP denied modification of the June 7, 2016

decision. 

 

4

Id.
4

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the 

essential elements of his or her claim. When an employee claims an injury in the performance of 

duty, he or she must submit sufficient evidence to establish that a specific event, incident, or 

exposure occurred at the time, place, and in the manner alleged. The employee must also 

establish that such event, incident, or exposure caused an injury.6

Whether an employee actually sustained an injury in the performance of duty begins with 

an analysis of whether fact of injury has been established.7 To establish fact of injury in an 

occupational disease claim, an employee must submit: (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

The medical evidence required to establish causal relationship is generally rationalized 

medical opinion evidence. Rationalized medical opinion evidence is medical evidence which 

includes a physician’s rationalized opinion on the issue of whether there is 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.9

ANALYSIS

Appellant filed an occupational disease claim alleging that she developed right arm, hand, 

shoulder, and upper back pain and numbness due to repeatedly bending, reaching, pushing, and 

pulling 450-pound OTR containers at work.

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

It is undisputed that appellant’s duties as a mail handler included bending and reaching 

between OTR containers, pulling and moving OTR containers, loading and unloading packages 

from skids and conveyor belts, for eight hours a day, five to six days a week, and up to eight 

 

5 Supra note 2.

6 See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB 

243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40 

ECAB 1143 (1989). 

7 S.P., 59 ECAB 184, 188 (2007).

8 R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

9 Solomon Polen, 51 ECAB 341 (2000).
5

hours per day on the weekends. It is further undisputed that this work required her to lift up to 

70 pounds and maneuver OTR containers up to 450 pounds.

Appellant submitted various reports from Dr. Eskander in support of her occupational 

disease claim. In a report dated February 9, 2017, Dr. Eskander provided an explanation of the 

physiological process of how repetitive employment duties could cause an aggravation of a 

cervical condition leading to stenosis and nerve root compression. He noted appellant’s mail 

handler duties with specific detail in his prior reports and opined within a reasonable degree of 

medical probability that these duties caused an aggravation of her condition and led to the need 

for surgery and her subsequent disability. In support of his opinion, Dr. Eskander cited to 

excerpts from an Academy of Orthopaedic Surgeons and North American Spine Society text 

book including excerpts indicating that “spine injuries that result from trauma, repetitive 

movement, or carrying excess weight can hasten a degenerative process or cause a spontaneous 

degeneration resulting in structural changes that alter the spine and further limiting the space 

within the neural foramen causing it to become narrower so that the space available for the 

exiting nerve roots is smaller and therefore causing more compression and pain down the nerve 

roots from the neck down to the arms.” The Board concludes that although these reports do not 

provide sufficient medical rationale explaining how the undisputed employment duties caused or 

contributed to an exacerbation of appellant’s diagnosed medical conditions, when read together 

they strongly suggest and support such a relationship.10

The Board finds that, while Dr. Eskander’s reports are not completely rationalized, they 

are consistent in indicating that appellant sustained right arm, hand, shoulder, and upper back 

pain and numbness.11 Although the reports are insufficient to meet appellant’s burden of proof 

to establish her claim, they are sufficient to require OWCP to further develop the medical 

evidence.12

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

OWCP is not a disinterested arbiter.13 While the claimant has the burden to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence and to see that 

justice is done.14 Thus, the Board will remand the case to OWCP for further development to 

obtain a rationalized medical opinion as to whether appellant’s condition is causally related to 

the employment incident and issue a de novo decision on whether she developed an occupational 

disease due to the accepted employment factors of her federal employment, as alleged.

 

10 See L.F., Docket No. 14-1906 (issued August 13, 2015) (the Board determined that while reports by a claimant 

s treating physician were not completely rationalized to establish a work-related injury they strongly supported a 

relationship between the employment incident and diagnosed condition and remanded the case for OWCP to further 

develop the medical evidence)

11 See E.J., Docket No. 09-1481 (issued February 19, 2010).

12 Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone 41 ECAB 354 (1989).

13 See Vanessa Young, 56 ECAB 575 (2004).

14 Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. 

Cantrell, 34 ECAB 1233, 1237 (1983).
6

On appeal appellant, through counsel, disagrees with OWCP’s decision and asserts that 

she submitted sufficient evidence to establish her claim. As noted above, the reports submitted 

are sufficient to require additional development of her claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the June 13, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to OWCP for further 

action consistent with this decision of the Board.

Issued: March 6, 2018

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