United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Anaheim, CA, Employer

__________________________________________

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Docket No. 18-1310

Issued: April 16, 2019

Appearances: Case Submitted on the Record

Kevin Card, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 18, 2018 appellant, through her representative, filed a timely appeal from a 

January 24, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

 

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 On the application for review (Form AB-1), appellant’s representative timely requested an oral argument pursuant 

to 20 C.F.R. § 501.5(b). By order dated March 1, 2019, the Board exercised its discretion and denied appellant’s 

request finding that the appeal could be adequately addressed in a decision based on a review of the case record. Order 

Denying Request for Oral Argument, Docket No. 18-1310 (issued March 1, 2019).
2

Pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.4

ISSUE

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

causally related to the accepted factors of her federal employment.

FACTUAL HISTORY

On March 8, 2016 appellant, then a 57-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) for a neck condition that she attributed to “years of repetitive motion at work.” 

She noted that she first became aware of her condition in May 2014, and related to factors of her 

federal employment on November 18, 2015.5 On the reverse side of the claim form, the employing 

establishment reported that appellant had not been at work.

In a statement dated November 18, 2015, appellant indicated that she worked for the 

employing establishment for the past 271⁄2 years and had several bilateral upper extremity 

conditions that were accepted by OWCP. She related that she had experienced neck soreness while 

at work, but the pain in her arms overshadowed her neck discomfort until May 2014 when the neck 

pain became excruciating. Appellant reported that the duties of a letter carrier required repetitive 

use of her fingers, hands, wrists, arms, torso, shoulders, neck, and back for 8 to 10 hours a day.

In a September 25, 2014 report, Dr. Roy J. Caputo, a Board-certified orthopedic surgeon, 

provided examination findings, related appellant’s complaints of left shoulder pain, and diagnosed 

left shoulder impingement syndrome, left shoulder rotator cuff tear, and multilevel cervical 

degenerative disc disease -- “symptomatic nonindustrial.” He reported a May 14, 2011 date of 

injury. Because appellant was planning to undergo cervical fusion, Dr. Caputo deferred treatment 

of her left shoulder.

In a March 11, 2016 development letter, OWCP informed appellant that the evidence of 

record was insufficient to establish her claim.6 It advised her of the type of factual and medical 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that following the January 24, 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 

additional evidence for the first time on appeal. Id.

5 The present claim was assigned OWCP File No. xxxxxx558. Under OWCP File No. xxxxxx313, appellant has 

an accepted occupational disease claim for right shoulder calcifying tendinitis, right shoulder sprain, right biceps 

tendon rupture, and bilateral lateral epicondylitis, which arose on or about August 18, 2007. Under File No. 

xxxxxx967, OWCP accepted left shoulder rotator cuff sprain, which arose on or about May 14, 2011. 

6 OWCP referenced appellant’s prior upper extremity claims and noted that under File No. xxxxxx313 she had 

worked modified duties from 2008 onward and under File No. xxxxxx967 appellant had been off work entirely since 

June 2015.
3

evidence necessary to establish her claim and provided a questionnaire for completion. OWCP 

afforded appellant 30 days to respond.

In a March 24, 2016 response to the development letter, appellant listed the dates when she 

sought medical treatment for her neck, along with the names and addresses of her physicians. She 

also described the activities she performed outside of her federal employment.

A June 4, 2014 cervical spine magnetic resonance imaging (MRI) scan showed severe 

multilevel cervical spondylosis, a significant amount of soft tissue pannus formation around the 

dens, a widening of the pre-dental space with anterior subluxation of C1 in relation to C2, and mild 

basilar invagination. An October 28, 2014 cervical spine x-ray showed postoperative changes of 

removal of portions of the spinal process at C3 and C4. A December 18, 2015 cervical spine 

computerized tomography (CT) scan showed moderately severe degenerative changes and disc 

disease at C2-3, C3-4, C4-5, C5-6, and C6-7 and prominence of the atlantoaxial joint anteriorly. 

The report also noted that appellant was postlaminectomy from C2 through C6, with evidence of 

fixation hardware at C2-3. A December 18, 2015 cervical spine x-ray showed a 4 mm anterior 

subluxation of C2 and multilevel severe disc degeneration at C3-7.

In a narrative report dated January 8, 2016, Dr. Edward Mittleman, a family practitioner, 

related that appellant had worked as a letter carrier for the employing establishment for the past 27 

years. He noted that appellant worked a combination of duties throughout her career. 

Dr. Mittleman described in detail appellant’s letter carrier duties, including casing mail,7 pushing 

the loaded hamper to her long life vehicle (LLV), and loading her vehicle with the sorted mail. He 

also outlined the physical requirements of various delivery routes, including mounted delivery, 

dismount delivery, apartment delivery, Express Mail, and the “collection run.” Dr. Mittleman 

noted that appellant worked 8 hours, and sometimes 10 hours per day. 

Dr. Mittleman described appellant’s medical history. He related that appellant started to 

experience cervical pain more consistently in May 2014 and later underwent cervical spine fusion 

surgery and laminectomy on October 18, 2014. Upon examination of appellant’s cervical spine,

Dr. Mittleman observed tenderness and muscle spasm on the right upon palpation of the bilateral 

posterior paravertebral cervical tissues and trapezii. He related range of motion findings of rotation 

to the left 60/80 and to the right of 30/80. Dr. Mittleman diagnosed cervical spondylosis, cervical 

degenerative disc disease, and status post cervical surgery. 

Under a section in his report noted as “Causation,” Dr. Mittleman described that casing 

mail required appellant to “rotate her head from side-to-side as well as upward and downward, 

placing rotation, flexion, and extension forces upon the cervical spine.” He related that appellant 

then loaded the full trays of mail, weighing 10 to 20 pounds, in her gurneys and pushed the gurneys 

to her LLV. Dr. Mittleman explained that pushing the gurneys required “greater force being 

transferred into the cervical tissues ... the forces are through the trapezii at the shoulder level that 

intertwined with the cervical tissues and connect with the nuchal ridge of the skull.” He reported 

that unloading the mail and parcels from the gurneys required forward flexion of the cervical spine 

 

7 Dr. Mittleman reported that since appellant became an “unassigned regular” in 2008 she no longer cased mail. 

He also explained that appellant’s daily assignment and delivery route changed depending on the needs of 

management. 
4

and then extension as she returned to an upright position. Dr. Mittleman noted that lifting the 

parcels, weighing up to 70 pounds, also placed significant forces into the cervical axial skeletal 

system and excessive contraction forces upon the cervical tissue. He further explained that when 

driving her LLV, appellant had to rotate her neck from side to side in order to observe traffic 

behind her and through the side-view mirrors, which can produce excessive cervical tissue 

stretching forces. Dr. Mittleman related that extracting mail from the LLV involved repetitive 

lifting of the arms, which can cause a repetitive stress injury of the neck.

Dr. Mittleman opined that it was the repetitive movement of the cervical spine that 

produced the development of degenerative changes in appellant’s cervical axial skeletal system. 

He explained that with flexion, there is a discs disengagement of the facets, which then adds to 

irritation of these bony joints as well as changing the physiologic position of the cervical vertebrae 

and other tissues directly connected to the cervical axial skeletal system. Dr. Mittleman also 

reported that appellant had developed severe bilateral facet arthropathy in her cervical spine, which 

was secondary to the repetitive motions that were required in the activities that he described. He 

further explained: “with this movement, pressures are placed upon the intervertebral discs, which 

then protrude beyond their normal physiologic position. The combination of this protrusion and 

the development of degenerative changes (osteophytes) there becomes a narrowing of the canals 

within which the spinal nerves traverse. There then becomes pressure upon the nerves producing 

pain, numbness, and tingling. In addition, with the bulging of the discs ... there is pressure upon 

the nerves that are in the covering of the discs.”

By decision dated July 28, 2016, OWCP denied appellant’s occupational disease claim. It 

accepted her duties as a letter carrier and that a medical condition had been diagnosed, but denied 

her claim because the medical evidence of record failed to establish that her diagnosed cervical 

conditions were causally related to the accepted employment factors.

On January 5, 2017 appellant requested reconsideration and submitted additional medical 

evidence.

In a December 23, 2016 letter, Dr. Mittleman again described appellant’s employment 

duties and their effect on her cervical spine. He explained that degeneration of the intervertebral 

discs narrow the space between the vertebrae and nerves, which is a process known as cervical 

degenerative disc disease. Dr. Mittleman related that once the intervertebral discs degenerate and 

wear down, the disc is not as effective in resisting motion of the spine, which is a condition termed 

“micromotion” instability and often caused neck pain and stiffness, which appellant had 

experienced. He reported that appellant’s bending, lifting, twisting, and turning had adversely 

affected appellant’s neck.

By decision dated January 19, 2017, OWCP denied modification of the July 28, 2016 

decision.8

 

8 OWCP noted that Dr. Caputo had indicated in a September 25, 2014 report that appellant’s cervical condition was 

“nonindustrial.” It determined that Dr. Mittleman’s opinion did not address the difference of medical opinions nor 

adequately explain how appellant’s degenerative cervical condition resulted from appellant’s employment. 
5

On July 10, 2017 appellant requested reconsideration and submitted additional medical 

evidence.

In a letter dated June 28, 2017, Dr. Mittleman referenced various medical studies and 

research which found a correlation between high levels of repetitive movement of the shoulder, 

hand, and wrist and neck musculoskeletal disorders. He opined: “the repetitive stress activities 

that a city letter carrier performs on a daily basis for the [employing establishment] place 

significant forces upon the various tissues of their body.... This is consistent with the pathology 

that [appellant] has in her cervical spine.” Dr. Mittleman recommended that appellant’s claim be 

accepted for cervical degenerative disc disease and cervical spondylosis.

In a February 23, 2017 report, Dr. Caputo explained that his use of the phrase 

“symptomatic nonindustrial” in his previous report meant that appellant’s cervical spine surgery 

was being handled by her private insurance. He noted that the statement was not a reflection of 

his opinion regarding causation as he was not evaluating appellant to determine the cause of her 

neck injury. Dr. Caputo added that he had “no opinion” as to the causation of appellant’s cervical 

spine injury.

OWCP also received an October 28, 2014 operative report, which indicated that appellant 

underwent posterior cervical fusion of C1-2 and decompressive laminectomy at C3 through C7.

An operative report dated May 10, 2017 further demonstrated that appellant underwent a 

second cervical surgery for cervical degenerative disc disease and kyphosis with postlaminectomy 

syndrome.

By decision dated September 27, 2017, OWCP denied modification of the January 19, 

2017 decision. 

On October 26, 2017 appellant requested reconsideration and submitted additional 

evidence. 

In a letter dated October 19, 2017, Dr. Basimah Khulusi, Board-certified in physical 

medicine and rehabilitation, indicated that she reviewed OWCP’s September 27, 2017 decision 

and would address how appellant’s neck condition resulted from her job. She referenced that 

medical reports from 1998 showed that appellant tested positive for chronic degenerative joint 

disease/arthritis in her neck. Dr. Khulusi explained that the findings in the x-ray examination were 

not to be expected for a then 38-year-old individual. She related that medical studies had shown 

that activities similar to the ones performed by appellant at her job caused acceleration of 

degeneration of the neck. Dr. Khulusi opined that as appellant continued to do the same activities 

on the job, her condition deteriorated with time and became aggravated to the point where she 

required two cervical surgeries. She requested that appellant’s claim be accepted for acceleration 

of cervical spondylosis, permanent aggravation of cervical degenerative disc disease, status post 

cervical surgery, and status post second cervical surgery.

OWCP received various hospital records dated May 13, 1998, which noted a past medical 

history of chronic degenerative joint disease/arthritis in the neck. A May 14, 1998 cervical x-ray 

showed degenerative disc changes at C4-5 and C5-6 with encroachment upon the neural foramina 

bilaterally.
6

By decision dated January 24, 2018, OWCP denied modification of the September 27, 

2017 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA9 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 of FECA,10 that 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.11 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.12

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit: (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.13 

Causal relationship is a medical question that generally requires rationalized medical 

opinion evidence to resolve the issue.14 A physician’s opinion on whether there is causal 

relationship between the diagnosed condition and the implicated employment factor(s) must be 

based on a complete factual and medical background.15 Additionally, the physician’s opinion must 

be expressed in terms of a reasonable degree of medical certainty, and must be supported by 

medical rationale, explaining the nature of the relationship between the diagnosed condition and 

appellant’s specific employment factor(s).16

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, 

 

9 Supra note 3.

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

153 (1989). 

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

ECAB 312 (1988).

12 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).

13 S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14 T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

15 M.V., Docket No. 18-0884 (issued December 28, 2018).

16 Id.
7

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.17

ANALYSIS

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

Appellant submitted various reports and letters by Dr. Mittleman dated January 8, 2016 

through June 28, 2017. In a January 8, 2016 narrative report, Dr. Mittleman reviewed appellant’s 

history and related that appellant’s employment duties required casing mail, placing trays of mail 

into a hamper, pushing the loaded hamper to her LLV, and loading her vehicle. He also described 

the physical duties required with various delivery routes, including mounted delivery, dismount 

delivery, apartment delivery, Express Mail, and the “collection run.” Dr. Mittleman provided 

examination findings and diagnosed cervical spondylosis, cervical degenerative disc disease, and 

status post cervical surgery. He opined that the repetitive movement of appellant’s cervical spine 

produced the degenerative changes in appellant’s cervical spine. Dr. Mittleman further described 

the process of how each of appellant’s employment duties placed significant external forces on 

appellant’s cervical spine, which accelerated the degeneration of her spine. 

Dr. Mittleman reasoned that with flexion, there was discs disengagement of the facets 

which added to irritation of these bony joints and changed the physiologic position of the cervical 

vertebrae and other tissues directly connected to the cervical skeletal systems. Regarding 

appellant’s facet arthropathy in her cervical spine, he noted that pressures were placed upon the 

intervertebral discs which then protruded beyond their normal physiologic position and that this 

protrusion and degenerative changes became a narrowing of the canals within which the spinal 

nerves traverse. In subsequent letters, Dr. Mittleman continued to recommend that appellant’s 

claim be accepted for cervical degenerative disc disease and cervical spondylosis as related to her 

employment. He addressed the deficiencies of his previous reports as outlined in OWCP’s 

decisions and again described the effect of appellant’s employment on her cervical spine. 

Dr. Mittleman has unequivocally stated that appellant’s degenerative cervical conditions 

were accelerated by appellant’s employment duties as a letter carrier. His opinion is also supported 

by Dr. Khulusi who opined in an October 19, 2017 letter that appellant’s employment caused an 

acceleration or aggravation of her cervical conditions. The Board finds that, although

Dr. Mittleman and Dr. Khulusi’s opinions were not sufficiently rationalized to meet appellant’s 

burden of proof to establish her claim, they are sufficient to require further development of the 

case by OWCP.18

 

17 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

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

Langhorne, 29 ECAB 820 (1978).
8

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

appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in 

the development of the evidence.19 OWCP has an obligation to see that justice is done.20 

Therefore, the Board finds that the case shall be remanded to OWCP. On remand, OWCP 

shall prepare a statement of accepted facts concerning appellant’s working conditions and refer the 

matter to an appropriate medical specialist, consistent with OWCP’s procedures, to determine 

whether appellant’s employment duties caused or aggravated her degenerative cervical conditions. 

Following this, and any other 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.

ORDER

IT IS HEREBY ORDERED THAT the January 24, 2018 decision of the Office of 

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

action consistent with this decision.

Issued: April 16, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

19 See e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978); 

William N. Saathoff, 8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).

20 William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).