United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Keyport, NJ, Employer

__________________________________________

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Docket No. 19-0219

Issued: July 26, 2019

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 7, 2018 appellant, through counsel, filed a timely appeal from a July 3, 2018 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

 

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

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

ISSUE

The issue is whether appellant has met her burden of proof to establish a back condition 

causally related to the accepted August 9, 2013 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

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

follows.

On August 12, 2013 appellant, then a 46-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on August 9, 2013 she injured her back bending over to lift a tray 

of mail at the employing establishment while in the performance of duty. She noted that she felt 

something move in her back. 

On April 4, 2018 appellant, through counsel, requested reconsideration from OWCP’s 

May 27, 2016 decision and submitted additional medical evidence.5 In a note dated May 10, 2017,

Dr. Mark Filippone, a Board-certified physiatrist, opined that forward flexion motions in her 

employment duties had caused herniation and bulging of her lumbosacral discs as well as causing 

physical compression of the adjacent nerve roots. Specifically, he explained “[appellant’s] work 

caused herniation and bulging of those lumbosacral discs causing histamine release from the borne 

out herniations as well as causing [a] physical compression of adjacent nerve roots as the result of 

repetitive overloading of the lumbar spine and blowing out and bulging of the lumbosacral discs 

consistent with her history, my physical presentation and subsequent anatomic [magnetic 

resonance imaging] (MRI) scans and my abnormal EMG [electromyograph] [and] NC[V] [nerve 

conduction velocity] studies, which I myself performed.” Dr. Filippone noted that these diagnoses 

were the result of repetitive overloading of the lumbar spine. 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the July 3, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for 

the first time on appeal. Id.

4 Docket No. 16-1724 (issued April 20, 2017) (the Board affirmed a May 27, 2016 OWCP decision finding that 

appellant had not met her burden of proof to establish a traumatic injury causally related to the accepted August 9, 

2013 employment incident); Order Dismissing Appeal, Docket No. 15-1059 (issued July 31, 2015) (by order the 

Board dismissed appellant’s appeal in response to a request by counsel); Docket No. 14-1673 (issued 

November 14, 2014) (the Board found that appellant had not met her burden of proof to establish a truamic injury as 

she had not provided a medical opinion based upon a proper background).

5 Appellant testified at an OWCP hearing on February 19, 2014, and explained, “I was going to lift up the tray of 

DPS, and I bent down, extending my arms out, and I felt something move in by back.” 
3

On March 22, 2018 Dr. Filippone opined that appellant’s back was injured solely and 

directly as the result of her accepted August 9, 2013 employment incident. He described the 

employment incident relating that she bent over to lift a tray of mail from inside a mail cage. 

Dr. Filippone noted that this activity was similar to lifting a heavy object while it was inside a 

playpen. He opined that to lift in this way placed an enormous amount of stress on appellant’s 

lower back which was required to move from a bent position to an erect position in order to lift 

the object over the barrier. Dr. Filippone reported that an intervertebral disc could move out of 

alignment with the spinal column when impacted by great stress. He noted appellant’s report of 

movement in her lower back at the time of the incident and concluded that a shifting of the 

intervertebral disc occurred due to the traumatic stress of the incident while lifting at work. 

Dr. Filippone also opined that an annular tear at L3-4 was incidental to the back stress from lifting 

at work resulting in a break in the outer layer of the disc when it expanded beyond its normal 

composition. He noted that when the components of the spine move there is a danger that contact 

can be made with a nerve. Dr. Filippone reported that a compressed nerve could cause radiculitis 

and radicular pain with weakness of the extremities. He concluded that the exaggerated bending 

and lifting caused ligaments in the spine to expand beyond their normal length and that they

become compromised resulting in a lumbar sprain. Dr. Filippone reviewed appellant’s MRI scans, 

dated August 13, 2008 and October 22, 2013, and found that the disc herniation at L3-4 was the 

direct result of her accepted August 9, 2013 employment incident as this herniation was not present 

on prior studies. He further opined that the August 9, 2013 lifting incident exacerbated appellant’s 

preexisting disc conditions at L4-5 and L5-S1.

By decision dated July 3, 2018, OWCP denied modification of its April 20, 2017 decision. 

It found that Dr. Filippone’s May 10, 2017 report did not contain the necessary medical rationale 

to establish causal relationship between appellant’s diagnosed condition and her accepted 

employment incident.

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,6that 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.7 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.8 

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. There 

 

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

153 (1989).

7

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

ECAB 312 (1988).

8 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).
4

are two components involved in establishing fact of injury. First, the employee must submit 

sufficient evidence to establish that he or she actually experienced the employment incident at the 

time, place, and in the manner alleged. Second, the employee must submit medical evidence to 

establish that the employment incident caused a personal injury.9

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

opinion evidence sufficient to establish such causal relationship.10 Rationalized medical opinion 

evidence is required to establish causal relationship. The opinion of the physician must be based 

on a complete factual and medical background, 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.11

ANALYSIS

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

In its April 20, 2017 decision, the Board reviewed all evidence submitted prior to OWCP’s 

May 27, 2016 decision. The Board’s review of the previously submitted medical evidence of 

record is res judicata absent any further review by OWCP under section 8128(a) and, therefore, 

the prior evidence need not be addressed again in this decision.12

Following the most recent Board decision, appellant requested reconsideration and 

submitted two reports from her attending physician, Dr. Filippone. In his May 10, 2017 report,

Dr. Filippone opined that the forward flexion activities that she did in her work caused her 

diagnosed back condition. Specifically, he explained that “[appellant’s] work caused herniation 

and bulging of those lumbosacral discs causing histamine release from the borne out herniations 

as well as causing [a] physical compression of adjacent nerve roots as the result of repetitive 

overloading of the lumbar spine and blowing out and bulging of the lumbosacral discs consistent 

with her history, my physical presentation, and subsequent anatomic MRI [scan] studies and my 

abnormal electrophysiologic EMG/NCS studies, which I myself performed.” 

In addition, on March 22, 2018 Dr. Filippone attributed appellant’s diagnosed back 

condition directly to her accepted August 9, 2013 employment incident and provided additional 

rationale. He opined that to lift a heavy object like a tray of mail while it was inside a container

placed an enormous amount of stress on her lower back which was required to move from a bent 

position to an erect position in order to lift the object over the barrier.

 

9 A.D., supra note 4; T.H., 59 ECAB 388 (2008).

10 T.H., Docket No. 18-1736 (issued March 13, 2019).

11 A.D., supra note 4; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

12 N.M., Docket No. 18-1244 (issued March 4, 2019); E.C., Docket No. 17-1765 (issued January 24, 2018); E.L.,

Docket No. 16-0635 (issued November 7, 2016). See A.T., Docket No. 16-0738 (issued May 19, 2016).
5

The Board finds that the medical rationale provided by Dr. Filippone is consistent with 

appellant’s description of the mechanism of injury about which she testified at the hearing on 

February 19, 2014. At that hearing appellant explained, “I was going to lift up the tray of DPS, 

and I bent down, extending my arms out, and I felt something move in by back.” The Board further 

finds that her testimony is consistent with her Form CA-1.

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter.13 

The Board finds that while Dr. Filippone’s May 10, 2017 and March 22, 2018 reports are 

insufficient to meet appellant’s burden of proof, however, they raise an uncontroverted inference 

of causal relationship between her diagnosed condition and the accepted August 9, 2013 

employment incident. Further, development of appellant’s claim is therefore required.14

On remand, OWCP shall prepare a statement of accepted facts and refer appellant to an 

appropriate Board-certified specialist for a second opinion examination and an evaluation 

regarding whether she sustained a low back condition due to the accepted August 9, 2013 

employment incident. Following any necessary further development, it shall issue a de novo

decision.

CONCLUSION

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

 

13 See B.B., Docket No. 18-1321 (issued April 5, 2019).

14 See C.M., Docket No. 17-1977 (issued January 29, 2019); John J. Carlone, 41 ECAB 354 (1989). 
6

ORDER

IT IS HEREBY ORDERED THAT the July 3, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this decision of the Board.

Issued: July 26, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board