United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JESSE BROWN MEDICAL CENTER,

Chicago, IL, Employer

__________________________________________

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Docket No. 19-0389

Issued: July 16, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 December 12, 2018 appellant, through counsel, filed a timely appeal from an 

October 18, 2018 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.

 

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

ISSUE

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

related to the accepted factor of her federal employment. 

FACTUAL HISTORY

This case has previously been before the Board. The facts and circumstances of the case 

as set forth in the prior Board decision are incorporated herein by reference.3 The relevant facts 

are as follows.

On April 1, 2015 appellant, then a 60-year-old addiction specialist, filed an occupational 

disease claim (Form CA-2) alleging that on December 17, 2014 she first realized that her carpal 

tunnel condition, as well as her neck, shoulder, and elbow pain were due to the removal of voice 

recognition software on her computer, which had occurred at work on March 30, 2014. She 

explained that the software had been removed because it was no longer compatible with her 

computer system. Following removal of the software, appellant gradually developed pain in her 

shoulders, neck, elbow, wrists, and hands.4

OWCP received medical reports from appellant’s treating physicians, Dr. John 

Sonnenberg, a Board-certified orthopedic surgeon, and Dr. Robert Strugala, a Board-certified 

internist. 

By decision dated June 29, 2015, OWCP denied appellant’s claim finding that she had not

met her burden of proof to establish that the diagnosed conditions had been caused or aggravated 

by the accepted employment factor.

On July 31, 2015 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative, which was held on March 16, 2016.

By decision dated May 31, 2016, OWCP’s hearing representative affirmed the June 29, 

2015 decision finding that the medical evidence of record was insufficient to establish causal 

relationship between the diagnosed condition and the employment factor of typing.

On July 19, 2016 appellant, through counsel, appealed to the Board. By decision dated 

August 1, 2017,5the Board affirmed OWCP’s May 31, 2016 decision, finding that the medical 

evidence of record was insufficient to establish that her carpal tunnel condition and neck, shoulder, 

and elbow pain had been caused or aggravated by increased typing due to the removal of voice 

activation software on her computer on March 30, 2014.

 

3 Docket No. 16-1517 (issued August 1, 2017).

4 The record reflects that appellant has an accepted January 21, 2003 claim for carpal tunnel syndrome, which is 

open for medical treatment under OWCP File No. xxxxxx778.

5 Supra note 3.
3

On July 19, 2018 appellant, through counsel, requested reconsideration. She submitted a 

July 17, 2018 report from Dr. Neil Allen, a Board-certified internist and neurologist.

In the July 17, 2018 report, Dr. Allen indicated that he reviewed appellant’s medical record 

and contacted her to obtain a description of her employment duties, to determine whether there 

was a causal relationship between her cervical spine and upper limb injuries and work-related 

exposure. He reported appellant’s 2014 x-ray interpretations showed C4-5, C5-6, and C6-7 

degenerative disc disease. Dr. Allen described her employment duties as an addiction specialist 

and related appellant’s complaints of worsening neck and bilateral upper limb pain following the 

removal of voice recognition software on March 30, 2014. He opined that appellant’s claim should 

be accepted for cervical sprain/strain and aggravation of cervical degenerative disc disease. 

Dr. Allen explained that sitting for prolonged periods of time with improper ergonomic positioning 

resulted in postural muscle fatigue, a compromised cervical spine, and unsupported position, which

in turn led to anterior head carriage and loss of normal cervical lordosis and increased stress on 

facet joints, cervical discs, and muscle strain. He noted the condition of upper cross syndrome was 

known to be caused by employment requiring prolonged periods of sedentary work. According to

Dr. Allen, upper cross syndrome contributed to cervical degenerative disc disease 

symptomatology, as seen in appellant. He concluded that appellant’s cervical spine conditions 

were aggravated by and became symptomatic as a direct result of her employment duties.

By decision dated October 18, 2018, OWCP denied modification. It found that Dr. Allen 

had not provided adequate medical rationale explaining how the accepted employment factor had 

caused or aggravated the diagnosed medical conditions.

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 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;

9

(2) a factual 

 

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

1153 (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).

9 C.B., Docket No. 19-1075 (issued May 8, 2019); Michael R. Shaffer, 55 ECAB 386 (2004).
4

statement identifying employment factors alleged to have caused or contributed to the presence or 

occurrence of the disease or condition;10 and (3) medical evidence establishing that the 

employment factors identified by the claimant were the proximate cause of the condition for which 

compensation is claimed or, stated differently, medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the claimant.11

The medical evidence required to establish causal relationship is rationalized medical 

opinion evidence. The opinion of the physician must be based on a complete factual and medical 

background of the employee, must be one of reasonable 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 employee.12

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish an injury 

causally related to the accepted factor of her federal employment. 

Preliminarily, it is unnecessary for the Board to reconsider the evidence appellant 

submitted prior to the issuance of OWCP’s May 31, 2016 decision because the Board evaluated

that evidence in its August 1, 2017 decision and found that it was insufficient to establish her 

claim. Findings made in prior Board decisions are res judicata absent any further review by 

OWCP under section 8128 of FECA.13

In support of her claim on reconsideration before OWCP, appellant submitted a July 17, 

2018 report of Dr. Allen who indicated that he had reviewed appellant’s medical record and her 

statement in order to establish whether a causal relationship existed between her cervical spine 

condition and occupational exposure on and after March 30, 2014. Dr. Allen opined that her claim 

should be accepted for cervical sprain/strain and aggravation of cervical degenerative disc disease 

because sitting for prolonged periods of time was known to cause the condition of upper cross 

syndrome, which contributed to cervical degenerative disc disease. He concluded that appellant’s 

cervical spine conditions were aggravated by and became symptomatic as a direct result of her 

sedentary job duties. 

The Board finds that Dr. Allen’s report fails to provide a rationalized opinion explaining 

how the accepted factor of employment, excessive typing caused by the removal of voice 

recognition software, caused or aggravated appellant’s cervical degenerative disc disease.

14

 

Dr. Allen did not otherwise sufficiently explain why he had concluded that appellant’s removal of 

voice activation software caused or contributed to the diagnosed conditions. A rationalized 

 

10 C.B., id.; Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

11 C.B., id.; Beverly A. Spencer, 55 ECAB 501 (2004).

12 See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

13 See L.E., Docket No. 18-1138 (issued February 1, 2019); B.R., Docket No. 17-0294 (issued May 11, 2018).

14 See R.L., Docket No. 18-1316 (issued March 15, 2019); K.W., Docket No. 10-0098 (issued September 10, 2010).
5

medical opinion is especially necessary in light of appellant’s apparent preexisting degenerative 

cervical condition.15 Thus, the Board finds that the report from Dr. Allen is insufficient to establish 

that appellant sustained an employment-related injury.

On appeal counsel contends that OWCP failed to adjudicate appellant’s claim in 

accordance with the proper standard of causation and requests that the Board make its own 

independent review of the relevant facts after de novo review. However, as discussed above,

Dr. Allen did not provide a rationalized opinion sufficient to establish that appellant’s diagnosed 

cervical conditions were caused or aggravated by the accepted factor 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 an injury 

causally related to the accepted factor of her federal employment.

ORDER

IT IS HEREBY ORDERED THAT the October 18, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 16, 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

 

15 See K.W., Docket No. 17-1861 (issued March 28, 2018).