United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.D., Appellant

and

U.S. POSTAL SERVICE, BEAVERCREEK 

POST OFFICE, Beavercreek, OH, Employer

__________________________________________

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Docket No. 19-1439

Issued: January 9, 2020

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 24, 2019 appellant, through counsel, filed a timely appeal from a May 23, 2019 

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 his burden of proof to establish the conditions of 

bilateral ulnar nerve entrapment at the elbows or chronic left radiculopathy stemming from C5, 

C6, or C7 as a consequence of his accepted March 12, 1999 employment injury.

FACTUAL HISTORY

On March 13, 1999 appellant, then a 51-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on March 12, 1999 he sustained injury to his neck, shoulders, and 

upper back due to loading mail into his postal vehicle while in the performance of duty. OWCP 

accepted his claim for cervical, thoracic, and left shoulder strains. It later expanded the accepted 

conditions to include herniated discs at C4, C5, and C6.3

On May 20, 1999 appellant underwent OWCP-authorized anterior cervical discectomy and 

disc fusion surgery at C4-5 and C5-6 with surgical hardware.

In a March 8, 2002 report, Dr. Gary E. Kraus, a Board-certified neurosurgeon, indicated 

that appellant was working with restrictions against lifting more than 25 pounds and engaging in 

pushing or pulling. He noted that his physical examination revealed that appellant had excellent 

strength without focal deficits and that he felt his strength was intact. Dr. Krauss advised that 

appellant could continue working with a restriction from lifting or carrying more than about 35 

pounds. 

In an October 21, 2011 report, Dr. Lynn J. Robbins, an attending Board-certified 

neurosurgeon, indicated that appellant reported doing well with respect to cervical symptoms until 

recently when he began to have symptoms in his neck and especially in both arms. He 

recommended that appellant undergo diagnostic testing.4 

The findings of an October 25, 2011 magnetic resonance imaging (MRI) scan of the 

cervical spine contained an impression of postoperative changes of discectomy and anterior fusion 

from C4 through C6 with no significant residual disc or central spur with neural foraminal 

narrowing, as well as posterior disc complex at C3-4 and C6-7 resulting in central canal and neural 

foraminal narrowing. 

In a November 4, 2011 report, Dr. Robbins reported physical examination findings and 

noted that diagnostic testing showed cord compression at C3-4 and C6-7 as well as foraminal 

narrowing. He indicated that appellant needed surgery at both those levels which most likely 

would require removing the old plates.

Counsel provided Dr. Robbins with a document which contained various questions 

regarding appellant’s medical condition and he completed it on November 2, 2012. He noted that, 

 

3 Appellant stopped work on May 20, 1999 and returned to modified work without wage loss on August 16, 1999. 

He began working as a modified city letter carrier on December 10, 2000 and a modified mail carrier on April 8, 2006. 

4 The Board notes that the case record contains limited medical evidence between 2002 and 2011.
3

when he examined appellant on November 4, 2011, his subjective complaints consisted of neck 

pain, numbness, and tingling of the bilateral arms. Physical examination at that time revealed 

limited range of motion, neck pain, and weakness, and resulted in a diagnosis of compression at 

C3-4 and C6-7 with foraminal narrowing. In response to the question regarding whether the disc 

problems at C3-4 and C6-7 developed from the March 12, 1999 employment injury or May 20, 

1999 surgery, Dr. Robbins indicated, “Unknown -- patient has n[o]t been seen in the office since 

[November 4, 2011].”

In a May 2, 2016 letter, counsel requested that OWCP accept that appellant sustained 

bilateral ulnar nerve entrapment at the elbows and chronic left radiculopathy stemming from C5, 

C6, and C7 as a consequence of his accepted March 12, 1999 employment injury.

Appellant submitted a March 17, 2016 MRI scan of the cervical spine which showed 

multilevel degenerative changes of the cervical spine, most severe at the C3-4 level (with severe 

neuro-foraminal narrowing), and redemonstration of C4-5 anterior cervical discectomy and fusion 

surgery with osseous fusion of the vertebral bodies and facets.

In a May 4, 2016 development letter, OWCP requested that appellant submit additional 

evidence in support of his consequential condition claim, including a physician’s opinion 

supported by a medical explanation as to how the claimed consequential conditions were causally

related to the accepted March 12, 1999 employment injury. 

Appellant submitted an October 13, 2015 report from Dr. Sally Niles, Board-certified in 

physical medicine and rehabilitation, who discussed the treatment for his complaints of neck and 

bilateral upper extremity pain. The findings of March 17, 2016 electromyogram and nerve 

conduction velocity (EMG/NCV) testing of the upper extremities revealed chronic left cervical 

radiculopathy affecting C5-6 and possibly C7, as well as moderate bilateral ulnar entrapment at

the elbows.

Appellant also submitted medical reports of surgical procedures which were not authorized 

by OWCP. On April 10, 2017 he underwent left ulnar nerve anterior submuscular transposition. 

In reports dated April 18 and May 30, 2017, Dr. Nathan Enoki, a Board-certified orthopedic 

surgeon, described appellant’s follow-up care and diagnosed right ulnar entrapment at the elbow. 

On July 12, 2017 appellant underwent a C4 foraminotomy secondary to a C4 radiculopathy. On 

August 7, 2017 Dr. Enoki diagnosed cubital tunnel syndrome. 

By decision dated December 18, 2018, OWCP denied appellant’s claim for consequential 

conditions related to the accepted March 12, 1999 employment injury. It discussed the medical 

evidence he submitted and advised that the claim was denied for bilateral ulnar nerve entrapment 

and left cervical radiculopathy because “the medical evidence is insufficient to support that those 

conditions are a medical consequence of your accepted work injury.”

On December 26, 2018 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review. During the hearing held on March 26, 

2019 counsel argued that appellant sustained bilateral ulnar nerve entrapment at the elbows and 

chronic left radiculopathy stemming from C5, C6, and C7 as a consequence of his accepted 

March 12, 1999 employment injury. 
4

By decision dated May 23, 2019, OWCP’s hearing representative affirmed the 

December 18, 2018 decision.

LEGAL PRECEDENT

When an injury arises in the course of employment, every natural consequence that flows 

from that injury likewise arises out of the employment, unless it is the result of an independent 

intervening cause attributable to claimant’s own intentional misconduct.5 Thus, a subsequent 

injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it 

is the direct and natural result of a compensable primary injury.6 A claimant bears the burden of 

proof to establish a claim for a consequential injury. As part of this burden, he or she must present 

rationalized medical opinion evidence.7

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish the conditions 

of bilateral ulnar nerve entrapment at the elbows or chronic left radiculopathy stemming from C5, 

C6, or C7 as a consequence of his accepted March 12, 1999 employment injury.

Appellant submitted a document that counsel provided to Dr. Robbins, an attending 

physician, which contained various questions regarding appellant’s medical condition. 

Dr. Robbins completed the document on November 2, 2012 noting that, when he examined 

appellant on November 4, 2011, his subjective complaints consisted of neck pain, numbness, and 

tingling of the bilateral arms. Physical examination at that time resulted in a diagnosis of 

compression at C3-4 and C6-7 with foraminal narrowing. In response to the question regarding 

whether the disc problems at C3-4 and C6-7 developed from the March 12, 1999 employment 

injury or May 20, 1999 surgery, Dr. Robbins indicated, “Unknown -- patient has n[o]t been seen 

in the office since [November 4, 2011].” This report is of no probative value to support appellant’s 

consequential condition claim because it does not contain an opinion that he sustained bilateral 

ulnar nerve entrapment at the elbows or chronic left radiculopathy stemming from C5, C6, or C7 

as a consequence of his accepted March 12, 1999 employment injury. The Board has held that 

medical evidence that does not offer an opinion regarding the cause of an employee’s condition or 

disability is of no probative value on the issue of causal relationship.8 Therefore, this report is 

insufficient to establish appellant’s claim.9

Appellant also submitted medical reports of surgical procedures which were not authorized 

by OWCP. On April 10, 2017 he underwent left ulnar nerve anterior submuscular transposition. 

 

5 See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson 

& Lex K. Larson, Larson’s Workers’ Compensation Law 10-1 (2006).

6 A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB 

139 (2001).

7 See J.B., Docket No. 18-0522 (issued January 16, 2019); Charles W. Downey, 54 ECAB 421 (2003).

8 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

9

Id.
5

In reports dated April 18 and May 30, 2017, Dr. Enoki diagnosed right ulnar entrapment at the 

elbow. On July 12, 2017 appellant underwent a C4 foraminotomy secondary to C4 radiculopathy. 

The Board finds that these reports are of no probative value on the underlying issue of the present 

case because the reports do not contain an opinion regarding the cause of the diagnosed 

conditions.10 

As the medical evidence of record does not contain a rationalized opinion establishing causal 

relationship between appellant’s claimed consequential conditions and the accepted March 12, 1999 

employment injury, the Board finds that he has not met his burden of proof.

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 his burden of proof to establish the conditions 

of bilateral ulnar nerve entrapment at the elbows or chronic left radiculopathy stemming from C5, 

C6, or C7 as a consequence of his accepted March 12, 1999 employment injury.

 

10 See supra note 8. In an August 7, 2017 report, Dr. Enoki diagnosed cubital tunnel syndrome, but the report did 

not contain an opinion on the cause of the condition.
6

ORDER

IT IS HEREBY ORDERED THAT the May 23, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 9, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board