United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.K., Appellant

and

U.S. POSTAL SERVICE, ELKINS POST 

OFFICE, Elkins Park, PA, Employer

__________________________________________

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Docket No. 18-0836

Issued: February 1, 2019

Appearances: Case Submitted on the Record

Paul J. Bartolomeo, Jr., 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 March 13, 2018 appellant, through counsel, filed a timely appeal from a September 14, 

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 to consider the merits of this case.

ISSUE

The issue is whether appellant has met her burden of proof to establish an injury causally

related to the accepted February 21, 2012 employment incident.

 

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 as set forth 

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

follows. 

On February 25, 2012 appellant, then a 52-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that, on February 21, 2012, she sustained a severe pinched nerve which 

affected her neck, right shoulder, and arm when she worked with a skid of circulars/advertisements

while in the performance of duty. 

By decision dated April 13, 2012, OWCP denied appellant’s claim, finding that the medical 

evidence submitted was insufficient to establish that the diagnosed conditions were causally 

related to the accepted February 21, 2012 employment incident. 

By letter dated April 18, 2012, appellant requested a telephonic hearing before an OWCP 

hearing representative. By decision dated September 26, 2012, OWCP’s hearing representative 

affirmed the April 13, 2012 decision denying her claim. 

On March 11, 2013 appellant, through counsel, appealed to the Board. By decision dated 

September 20, 2013, the Board affirmed OWCP’s hearing representative’s September 26, 2012 

decision, finding that the medical evidence of record was insufficient to establish that she sustained 

neck, right shoulder, and arm conditions causally related to the accepted February 21, 2012 

employment incident.

4

Appellant, through counsel, subsequently requested reconsideration and submitted 

additional medical evidence. By decision dated June 13, 2014, OWCP denied modification,

finding that the medical evidence of record was insufficient to establish causal relationship 

between the diagnosed conditions and the accepted February 21, 2012 employment incident. 

On December 9, 2014 appellant, through counsel, appealed to the Board. By decision 

dated May 7, 2015, the Board affirmed OWCP’s June 13, 2014 decision, finding that the evidence 

submitted was insufficient to establish causal relationship between the diagnosed conditions and 

the accepted February 21, 2012 employment incident.

5

On May 6, 2016 appellant, through counsel, requested reconsideration and submitted 

additional evidence. 

In a May 4, 2016 report, Dr. Norman B. Stempler, an osteopath specializing in orthopedic 

surgery, noted that appellant was first seen on January 30, 2013 for an employment injury. He

reported that, on February 21, 2012, she sustained an injury while pulling multiple skids that were 

estimated to weigh over 200 pounds per skid. Physical examination findings included right upper 

extremity numbness and weakness, evidence of right grip weakness, and Spurling’s maneuver. 

 

3 Docket No. 13-0930 (issued September 13, 2013). Docket No. 15-0384 (issued May 7, 2015). 

4

Id.

5 Supra note 3.
3

Dr. Stempler opined there was a direct relationship between appellant’s current condition and 

symptoms and the accepted February 21, 2012 incident. He reported that appellant had no history 

of cervical or right upper extremity conditions prior to the accepted February 21, 2012 incident. 

By decision dated August 4, 2016, OWCP denied modification. It found Dr. Stempler’s 

report insufficient to establish appellant’s claim as he failed to explain the mechanism whereby 

the accepted February 21, 2012 incident caused or aggravated the diagnosed conditions. 

On January 23, 2017 appellant requested reconsideration and submitted a December 2, 

2016 report from Dr. Randall Smith, a Board-certified orthopedic surgeon, and a January 17, 2017 

report from Dr. Stempler. 

In a December 2, 2016 report, Dr. Smith diagnosed C5-6 herniated disc, chronic pain, and 

adhesive capsulitis. He reviewed medical records and diagnostic studies, and provided a 

description of the accepted February 21, 2012 incident. Prior to the accepted February 21, 2012 

incident, Dr. Smith reported that appellant had no musculoskeletal problems. However, following 

the incident, appellant developed neck, shoulder, right arm, lower back, and leg problems. 

Dr. Smith reported that appellant underwent surgery, but unfortunately she developed significant 

postoperative complications from her anterior cervical discectomy and had been totally disabled 

since the surgery. He concurred with Dr. Stempler in attributing appellant’s cervical condition to 

the accepted February 21, 2012 employment incident. Dr. Smith explained that as a result of 

pulling the skid appellant had herniated her cervical disc as result of the increased pressure placed 

on her neck and shoulder. He noted that appellant appeared to have asympomatic preexisting 

cervical degenerative changes. According to Dr. Smith the herniated disc aggravated her 

preexisting cervical degenerative condition resulting in radiculopathy, right shoulder pain, and 

myelopathy. In addition, he opined that appellant’s right shoulder adhesive condition had also 

been caused by the employment incident. Dr. Smith explained that appellant was protective of her 

right shoulder, due to a prior injury, and neck strain from the injury led to shoulder pain. He related 

that adhesive capsulitis developed when the shoulder was held still as a method of protection. 

Dr. Smith further opined that the strain from the accepted February 21, 2012 work incident was 

the cause of the cervical disc herniation, shoulder pain, and resulting surgery.

Dr. Stempler, in the January 17, 2017 report, described how the February 21, 2012 

accepted employment incident had occurred. He noted that in attempting to pull the heavy skid,

her cervical spine and upper body strength and musculature were involved. Dr. Stempler opined 

that the accepted February 21, 2012 work incident caused appellant’s C5-6 disc herniation and 

aggravated her preexisting degenerative disc disease. 

On April 20, 2017 OWCP requested that Dr. Todd Fellars, an orthopedic surgeon serving 

as an OWCP district medical adviser (DMA), review the medical record and a statement of 

accepted facts and thereafter address whether there was causal relationship between the accepted 

February 21, 2012 employment incident and the diagnosed conditions. 

In a May 5, 2017 report, Dr. Fellars reviewed the medical evidence and the SOAF and 

wrote “no” in response to the question of “[d]oes the medical evidence establish a cause and effect 

relationship between accepted work activities and the diagnoses offered.” In narratively 

addressing the issue of causation, he concluded that the accepted February 21, 2012 employment 

incident was of sufficient force that her underlying degenerative condition had been aggravated 
4

and caused the onset of her cervical radicular symptoms. Dr. Fellars attributed the diagnosed 

dysphagia and dysphonia, which appeared to have resolved. 

By decision dated September 14, 2017, OWCP denied modification, finding that the weight 

of the evidence rested with the May 5, 2017 report of Dr. Fellars, the DMA. 

LEGAL PRECEDENT

An employee seeking benefits under FECA6 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 filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific conditions 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 on 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 must first be determined whether fact of injury has been established.9 First, 

the employee must submit sufficient evidence to establish that he actually experienced the 

employment incident at the time, place, and in the manner alleged.10 Second, the employee must 

submit sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.11

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.12 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.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 

 

6 5 U.S.C. § 8101 et seq.

7 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

8 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

9 B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 7.

10 D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

11 C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra

note 7.

12 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006).

13 J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).
5

must be supported by medical rationale explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the employee.14 

ANALYSIS

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

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s June 13, 2014 decision because the Board 

has already considered this evidence in its prior decisions. Findings made in prior Board decisions 

are res judicata absent further review by OWCP under section 8128 of FECA.15

Following the Board’s May 7, 2015 decision OWCP reviewed additional medical 

evidence. Dr. Stempler in a May 4, 2016 supplemental report related that, on February 21, 2012, 

appellant sustained an injury due to pulling multiple skids that were estimated to weight over 200 

pounds per skid. In a January 17, 2017 report, he indicated that appellant’s cervical spine and 

upper body musculature were involved in attempting to pull the heavy skid on February 21, 2012. 

Dr. Stempler concluded that this incident caused her C5-6 disc herniation and aggravated her 

preexisting degenerative disc disease. 

Dr. Smith, in a December 2, 2016 report, reviewed medical evidence, the injury history, 

and provided examination findings. He noted that, prior to the accepted 21, 2012 incident,

appellant had a preexisting cervical degenerative condition and had a prior right shoulder injury. 

Dr. Smith diagnosed C5-6 herniated disc, chronic pain, and adhesive capsulitis, which he attributed 

to the accepted February 21, 2012 incident. He opined that appellant’s herniated disc was caused 

by the increased pressure placed on appellant’s neck and shoulder from pulling the skid. Dr. Smith

further concluded that her preexisting cervical degenerative condition had been aggravated by the 

increased pressure on her neck which caused the cervical disc herniation and subsequent

radiculopathy, right shoulder pain and myelopathy. With respect to her shoulder condition, he

opined that appellant’s protectiveness of her shoulder from a prior injury and the joint pain caused 

by the neck injury caused her right shoulder adhesive capsulitis.

Based upon receipt of these new reports from Drs. Stempler and Smith, on April 20, 2017,

OWCP requested that its DMA, Dr. Fellars, review the record and the SOAF and thereafter address 

causal relationship between appellant’s accepted February 21, 2012 employment incident and the 

diagnosed conditions.

In the September 14, 2017 decision, OWCP found that Dr. Fellars’ May 5, 2016 report 

constituted the weight of the medical evidence. The Board finds, however, that Dr. Fellars’ report 

is internally inconsistent and, therefore, further development of the medical evidence is necessary 

to determine whether appellant’s diagnosed conditions were caused or aggravated by the 

February 21, 2012 accepted employment incident. 

 

14 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

15 See C.C., Docket No. 18-0719 (issued November 9, 2018). 
6

In his May 5, 2017 report, Dr. Fellars noted appellant’s history of injury and treatment 

along with the SOAF. He wrote “no” in response to the question as “[d]oes the medical evidence 

establish a cause and effect relationship between accepted work activity and the diagnoses 

offered.” However, while addressing the issue of causation, Dr. Fellars concluded that the force 

from the accepted February 21, 2012 incident was sufficient to have aggravated her underlying 

degenerative condition and was the cause her cervical radicular symptoms. Dr. Fellars did not 

offer rationale or an explanation for his conflicting opinions on the issue of causal relationship. 

Further, OWCP did not seek clarification of Dr. Fellars’ opinion. 

Once OWCP undertakes development of the record, it has the responsibility to obtain an 

evaluation which will resolve the issue involved in the case.16 Therefore, the Board finds that the 

case must be remanded for further development of the medical evidence and receipt of a reasoned 

opinion regarding whether appellant’s diagnosed medical conditions are causally related to the 

accepted employment incident.

The case is remanded to OWCP to refer appellant to Dr. Fellers or an alternate district 

medical adviser for a rationalized medical opinion on whether the accepted February 21, 2012

employment incident caused or aggravated appellant’s diagnosed conditions. Following such 

further development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

 

16 See C.N., Docket No. 17-1751 (issued May 3, 2018); R.A., Docket No. 14-1918 (issued March 3, 2015); Phillip L. 

Barnes, 55 ECAB 426 (2004).
7

ORDER

IT IS HEREBY ORDERED THAT the September 14, 2017 decision of the Office of 

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

consistent with this decision of the Board.

Issued: February 1, 2019

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