United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.M., Appellant

and

U.S. POSTAL SERVICE, MOUNT 

GREENWOOD POST OFFICE, Chicago, IL, 

Employer

__________________________________________

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Docket No. 19-0105

Issued: May 15, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 October 11, 2018 appellant filed a timely appeal from an April 17, 2018 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s April 17, 2018 decision was October 14, 2018. Since 

using October 18, 2018, the date the appeal was received by the Clerk of the Appellate Boards would result in the loss 

of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark 

is October 11, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a pinched nerve in 

her back and/or degenerative disc disease causally related to the accepted factors of her federal 

employment.

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 are incorporated herein by reference. The relevant facts 

are as follows.

On February 4, 2013 appellant, then a 55-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that she began experiencing pain in her lower back while loading a 

truck during the performance of her federal duties intermittently for the period December 26, 2012, 

when she returned to work, until February 29, 2013.4 She explained that the pain increased while 

walking and carrying a satchel weighing up to 35 pounds on her shoulder. Appellant alleged that, 

by the end of the workday, her right leg and knee were weak and her feet ached. She listed the 

nature of her disease as “pinched nerve in the back/degenerative disc disease.” The employing 

establishment controverted appellant’s claim.5

In a statement dated March 5, 2013, appellant indicated that she had returned to work after 

being off work in excess of 11 years due to a prior accepted claim, and she noted that this 

circumstance presented challenges. She alleged that she had a medical history of lumbar 

radiculopathy (pinched nerve in her back) which was produced in the work environment and also 

had degenerative disc disease which was aggravated in the work environment. Appellant noted 

that, during her absence from work, she worked as a substitute teacher and that, while performing 

that work she never experienced any of the severe symptoms that were now revisiting her as a 

result of returning to work in a physically demanding environment. She described her work 

activities as lifting parcels, standing on a concrete floor, loading trucks, bending, stooping, 

twisting, climbing stairs to deliver mail, and carrying a satchel weighing up to 35 pounds on her 

shoulder while walking as many as six to seven miles per day. Appellant also noted that she had 

to perform heavy lifting and bending to load trucks. 

In support of her claim, appellant submitted reports from Dr. Samuel J. Chmell, an 

attending Board-certified orthopedic surgeon. In a February 21, 2013 office note, Dr. Chmell 

 

3 Docket No. 15-0275 (issued September 17, 2015).

4 OWCP assigned the present claim OWCP File No. xxxxxx009.

5 Under a separate case file, OWCP File No. xxxxxx487, OWCP accepted in 2000 that appellant sustained an 

occupational injury in the form of a lumbar radiculopathy radiating to her right leg. Under OWCP File Nos. 

xxxxxx070 and xxxxxx108, OWCP accepted in 2000 that she sustained the occupational injuries of tendinitis and 

strains of the bilateral feet/ankles, right sided tarsal tunnel syndrome, and a Morton’s neuroma of the right foot. Under 

OWCP File No. xxxxxx496, OWCP accepted in 2003 that appellant sustained the occupational injury of herniated 

disc at L5-S1. It administratively combined OWCP File Nos. xxxxxx009, xxxxxx487, xxxxxx070, xxxxxx108, and 

xxxxxx496, and it designated OWCP File No. xxxxxx487 as the master file. 
3

diagnosed lumbar disc derangement with radiculopathy/pinched nerve, bilateral ankle and foot 

derangement, tendinitis of the upper extremities/carpal tunnel syndrome, cervical derangement,

right knee derangement, and left shoulder derangement. In a March 25, 2013 report, he opined 

that appellant’s underlying lumbar condition was aggravated by her work duties.

By decision dated July 12, 2013, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish that the claimed medical conditions were causally 

related to the established employment factors. 

On August 9, 2013 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review. By decision dated January 24, 2014, OWCP’s 

hearing representative affirmed the July 12, 2013 decision. 

On July 10, 2014 appellant requested reconsideration. She submitted a June 26, 2014 

report in which Dr. Chmell indicated that she had nerve compression at L5-S1 and bulging and 

herniated lumbar discs which were caused by her work duties.

By decision dated October 1, 2014, OWCP denied modification of its January 24, 2014 

decision, finding that the medical evidence submitted was insufficient to establish that appellant’s 

employment duties resulted in a new employment injury or caused a permanent aggravation of her

preexisting back condition. 

Appellant appealed the October 1, 2014 decision to the Board and, by decision dated 

September 17, 2015,6the Board set aside OWCP’s October 1, 2014 decision, finding that

Dr. Chmell’s reports were sufficient to require further development of the medical evidence 

regarding whether she sustained a pinched nerve in her back and/or degenerative disc disease 

causally related to the accepted factors of her federal employment. The Board remanded the case 

to OWCP for further development, to include a second opinion examination and opinion on this 

matter. 

On remand, OWCP referred appellant to Dr. Allan Brecher, a Board-certified orthopedic 

surgeon, for a second opinion examination. It requested that he provide an opinion regarding 

whether she sustained an employment-related pinched nerve in her back and/or degenerative disc 

disease.7 

In a March 29, 2016 report, Dr. Brecher discussed appellant’s factual and medical history 

and reported the findings of the physical examination he conducted on that date. He noted that, 

upon examination, she was nontender throughout her back and there was no spasm in her lumbar 

spine. Dr. Brecher indicated that appellant had 5/5 strength and intact sensibility in her lower 

extremities. He concluded that there was no objective evidence that she suffered an employmentrelated aggravation of her preexisting lumbar degenerative disc disease. Dr. Brecher opined that 

 

6 Supra note 3.

7 Dr. Chmell continued to treat appellant for her multiple medical conditions. In an October 15, 2015 report, he

opined that she continued to have employment-related lumbar disc derangement with radiculopathy/pinched nerve. 
4

appellant’s subjective back complaints were related to the normal progression of her preexisting 

condition. 

OWCP determined that there was a conflict in the medical opinion evidence between

Dr. Chmell and Dr. Brecher regarding the issue of whether appellant sustained an employmentrelated pinched nerve in her back and/or degenerative disc disease. It referred appellant to Dr. Julie 

Wehner, a Board-certified orthopedic surgeon, for an impartial medical examination and opinion 

on the matter. 

In a July 1, 2016 report, Dr. Wehner discussed appellant’s factual and medical history, 

including a history of her numerous diagnostic tests. She reported the findings of the physical 

examination she performed on July 1, 2016, noting that appellant did not exhibit any objective 

clinical findings of a pinched nerve such as positive straight leg raise test or diminished motor 

strength. Appellant exhibited no atrophy or abnormal reflexes in her lower extremities. 

Dr. Wehner indicated that appellant’s subjective complaints upon examination needed to be 

verified by clinical or radiographic correlation. She indicated that the radiographic findings 

showed some mild-to-moderate degenerative changes at L5-S1 that were entirely age-appropriate,

but not clinically significant. Dr. Wehner advised that disc bulges were not supported in the 

medical literature as being a specific finding that causes pain or disability in the back. Appellant’s 

magnetic resonance imaging (MRI) scan findings revealed a normal aging process and had no 

traumatic etiology. Dr. Wehner opined that there was no medical basis to support the fact that a 

bulging disc caused appellant’s ongoing pain or disability.

Dr. Wehner indicated that Dr. Chmell’s discussion of how appellant’s work activities 

caused additional shock to her spine was not supported by the medical literature. She noted that, 

during the present examination, appellant did not complain of any pain radiating down her right 

leg. Moreover, appellant exhibited normal reflexes, had a normal straight leg raise test, and did 

not exhibit atrophy. Therefore, there was no clinical evidence to verify that she had any type of 

radicular pain complaints and her subjective complaints were not verified by any specific clinical 

or radiographic finding. Dr. Wehner concluded that appellant had not sustained an aggravation or 

acceleration of her preexisting lumbar degenerative condition due to her work duties performed 

from December 26, 2012 to February 29, 2013. She found that appellant’s continuing back and 

lower extremity complaints were related to the nonwork-related progression of appellant’s

preexisting degenerative condition. Dr. Wehner further opined that there was no medical reason 

to provide limitations for appellant’s job as a letter carrier. 

By decision dated August 3, 2016, OWCP found that appellant had not established that she 

sustained a pinched nerve in her back and/or degenerative disc disease causally related to the 

accepted factors of her federal employment. It determined that the special weight of the medical 

evidence with respect to this matter rested with the well-rationalized opinion of Dr. Wehner. 

On August 2, 2017 appellant requested reconsideration of her claim. In an accompanying 

statement, she argued that the reports of Dr. Chmell established her claim. 

Appellant submitted a September 30, 2016 report from Dr. Chmell who reported the 

findings of his physical examination on September 22, 2016. Dr. Chmell opined that she had an 

employment-related disc herniation at L5-S1 and right leg radiculopathy. 
5

By decision dated April 17, 2018, OWCP denied modification of its August 3, 2016 

decision. It determined the special weight of the medical evidence continued to rest with the wellrationalized opinion of Dr. Wehner.

LEGAL PRECEDENT

An employee seeking benefits under FECA8 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,9that 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.10 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.11

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.12

The medical evidence required to establish causal relationship generally is rationalized

medical opinion evidence.13 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.14

Section 8123(a) of FECA provides in pertinent part: “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.”

15

 In situations where 

 

8 Supra note 2.

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

153 (1989).

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

ECAB 312 (1988).

11 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).

12 E.V., Docket No. 18-1617 (issued February 26, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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

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

15 5 U.S.C. § 8123(a).
6

there exist opposing medical reports of virtually equal weight and rationale and the case is referred 

to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such 

specialist, if sufficiently well rationalized and based upon a proper factual background, must be 

given special weight.16

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a pinched nerve 

in her back and/or degenerative disc disease causally related to the accepted factors of her federal 

employment.

OWCP properly determined that there was a conflict in the medical opinion evidence 

between Dr. Chmell, an attending physician, and Dr. Brecher, an OWCP referral physician, on the 

issue of whether appellant sustained a pinched nerve in her back and/or degenerative disc disease 

that had been caused or aggravated by the accepted factors of her federal employment. In order to 

resolve the conflict, OWCP properly referred appellant, pursuant to section 8123(a) of FECA, to

Dr. Wehner for an impartial medical examination and an opinion on the matter.17

The Board finds that the special weight of the medical evidence is represented by the 

thorough, well-rationalized opinion of Dr. Wehner, the impartial medical specialist selected to 

resolve the conflict in the medical opinion.18 The report of Dr. Wehner establishes that appellant 

did not sustain a pinched nerve in her back and/or degenerative disc disease that was caused or 

aggravated by the accepted factors of appellant’s federal employment.

In her July 1, 2016 report, Dr. Wehner noted that, upon physical examination, appellant 

did not exhibit any objective clinical findings of a pinched nerve such as positive straight leg raise 

test or diminished motor strength. She indicated that appellant’s subjective complaints upon 

examination needed to be verified by clinical or radiographic correlation. Appellant’sradiographic 

findings showed some mild-to-moderate degenerative changes at L5-S1 that were entirely ageappropriate, but not clinically significant. Dr. Wehner noted that appellant’s MRI scan findings 

revealed a normal aging process and had no traumatic etiology. She emphasized that there was no 

clinical evidence to verify that appellant had any type of radicular pain complaints and her 

subjective complaints were not verified by any specific clinical or diagnostic test finding. 

Dr. Wehner concluded that appellant did not sustain any aggravation or acceleration of her 

preexisting lumbar degenerative condition due to her work duties performed from December 26, 

2012 to February 29, 2013.

The Board has carefully reviewed the opinion of Dr. Wehner and finds that it has reliability, 

probative value, and convincing quality with respect to its conclusions regarding the relevant issue 

of the present case. Dr. Wehner provided a thorough factual and medical history and accurately 

summarized the relevant medical evidence. She provided medical rationale for her opinion by 

 

16 D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 

1010 (1980).

17 See supra note 15.

18 See supra note 16.
7

explaining that appellant did not exhibit objective findings, on physical examination or diagnostic 

testing, of an employment-related pinched nerve or degenerative disc disease. Dr. Wehner also 

explained that appellant’s continuing back and lower extremity complaints were related to the 

nonwork-related progression of her preexisting degenerative condition.19

After Dr. Wehner produced her July 1, 2016 report, appellant submitted a September 30, 

2015 report in which Dr. Chmell opined that appellant had an employment-related disc herniation 

at L5-S1 and right leg radiculopathy. However, as Dr. Chmell was on one side of the conflict in 

this case, his additional report is essentially duplicative of his prior opinion and is insufficient to 

give rise to a new conflict.20

Therefore, the Board finds that appellant has not met her burden of proof to establish a 

pinched nerve in her back and/or degenerative disc disease causally related to the accepted factors 

of her federal employment.

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 a pinched nerve 

in her back and/or degenerative disc disease causally related to the accepted factors of her federal 

employment.

 

19 See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987) (regarding the 

importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical 

history, and the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion). 

20 See S.I., Docket No. 13-1880 (issued April 18, 2014); Richard O’Brien, 53 ECAB 234 (2001).
8

ORDER

IT IS HEREBY ORDERED THAT the April 17, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 15, 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