United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Melville, NY, Employer

__________________________________________

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Docket No. 18-1187

Issued: March 10, 2020

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 19, 2018 appellant, through her representative, filed a timely appeal from a 

February 13, 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.3

 

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.

3 The Board notes that appellant submitted additional evidence on appeal. 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 evidence for the first time 

on appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish cervical and lumbar 

conditions causally related to the accepted factors of her federal employment.

FACTUAL HISTORY

On March 3, 2016 appellant then a 59-year-old mail processing clerk, filed an occupational 

disease claim (Form CA-2) alleging that she aggravated her neck and back conditions due to 

factors of her federal employment including lifting magazines. She first became aware of her

condition and realized it was causally related to her employment on November 11, 2015. 

Appellant did not stop work, but continued in a limited-duty assignment related to a separate workrelated injury.

Appellant was treated by Dr. Edward Firouztale, an osteopath Board-certified in 

neurology, on November 11, 2015, for intermittent radiating back pain. She reported having 

difficulty lifting heavy magazines at work. Dr. Firouztale noted diagnostic testing which included 

a magnetic resonance imaging (MRI) scan of the lumbar spine, dated January 3, 2009, that revealed 

minimal disc bulging at L2-3 and a small degenerative disc bulge and annular tear at L4-5 as well 

as a cervical spine MRI scan, dated December 20, 2011, that revealed interval progression from 

the prior study of cervical spondylosis most notably at C5-6, C6-7, impingement upon left C7 

nerve root, central stenosis, and straightening of the cervical lordosis. Findings on examination 

revealed back and neck pain. Dr. Firouztale diagnosed radiculopathy of the lumbar region and 

spinal stenosis. He recommended further examination with a spine specialist, pain management, 

an electromyogram (EMG), and a reduction in appellant’s work schedule to three days a week 

limited duty. A duty status report (Form CA-17) from Dr. Firouztale dated November 12, 2015 

noted a diagnosis of cervical and lumbar radiculopathy and returned appellant to work on 

November 12, 2015 for three days per week of limited duty.

A March 2, 2016 Form CA-17 from a nurse practitioner noted a diagnosis of cervical and 

lumbar radiation and returned appellant to work three days per week with restrictions.

In an April 6, 2016 claim development letter, OWCP requested that appellant submit 

additional factual and medical information in support of her claim and provided a questionnaire to 

substantiate the factual elements of her claim. It also requested that she clarify whether she was 

claiming an occupational disease or a traumatic injury. OWCP afforded appellant 30 days to 

submit the requested information.

In a statement dated May 10, 2016, appellant indicated that in 1994 she sustained a cervical 

and lumbar injury when she slipped on ice while delivering mail, OWCP File No. xxxxxx716.4 

She reported that her back and neck conditions worsened and Dr. Firouztale reduced her work

hours on November 11, 2015. Appellant indicated that her ongoing work duties aggravated her

preexisting condition over a period of time. She noted that on October 17, 2011 her work 

 

4 OWCP assigned OWCP File No. xxxxxx716 and accepted the claim for cervical strain, lumbosacral strain, and 

lumbosacral neuritis/radiculitis. On October 17, 2013 appellant filed a traumatic injury claim alleging that on July 25, 

2009 she had exacerbated her cervical and lumbar conditions while performing work outside of her restrictions. 

OWCP assigned File No. xxxxxx021 and denied the claim.
3

assignment involved “rips and tears” in which she lifted and carried buckets half filled with 

magazines, flats, catalogues, and newspapers weighing 10 to 15 pounds. Appellant indicated that

repetitively lifting and carrying the buckets aggravated her back and created sciatica. She reported 

performing these duties five days per week until her physician reduced her work schedule to three 

days per week on November 11, 2015. 

By decision dated June 10, 2016, OWCP denied appellant’s claim finding that she had not

established that her claimed medical condition was causally related to the established work-related 

events.

On June 20, 2016 appellant requested an oral hearing before a representative of OWCP’s

Branch of Hearings and Review. The hearing was held on February 16, 2017.

In a Form CA-17 dated October 5, 2016, Dr. Firouztale diagnosed cervical and lumbar 

radiculopathy. He returned appellant to work three days per week with restrictions.

On February 13, 2017 Dr. Deborah Eisen, Board-certified in family medicine, noted that 

appellant had previously been injured in 1994 when she fell on ice at work and sustained lumbar 

and cervical sprains. She reviewed appellant’s prior diagnostic testing and performed a physical 

examination. Dr. Eisen opined that her job duties of lifting and carrying approximately 700 

magazines and catalogues out of buckets for eight hours per day, five days per week would result 

in lumbar radiculopathy. She explained that lifting and carrying heavy packages put pressure 

across the discs causing them to bulge or herniate. Dr. Eisen noted that when a disc bulges or 

herniates, as noted on the MRI scan of November 19, 2015, it presses on spinal nerves creating 

stenosis at L4-5, and symptoms of pain, weakness, numbness, and radiculopathy. She opined that 

the cervical spine musculature was overworked and in a weakened state due to appellant’s prior 

conditions and became strained. Dr. Eisen further opined, within a reasonable degree of medical 

certainty, that appellant’s conditions were causally related to her employment duties, noting that

lifting and carrying heavy packages caused bulging lumbar discs leading to stenosis of the nerves, 

L4-5 lumbar radiculopathy, and cervical spine sprain.

In letters dated March 17 and 27, 2017, the employing establishment indicated that 

appellant was restricted from lifting more than 15 pounds and her duties required lifting less than 

this amount. It indicated that the buckets weighed three pounds “when empty” and her estimate 

of lifting 700 magazines was a “very high estimate.” The employing establishment also noted that 

she could ask for assistance for heavier job duties.

On April 13, 2017 appellant submitted an opinion and award dated November 30, 2015

relating to a grievance she had filed against the employing establishment. The opinion found that 

her limited-duty position, in relation to her prior accepted claim, had been improperly abolished

and she had therefore worked in an improper position. 

By decision dated May 1, 2017, an OWCP hearing representative affirmed the

June 10, 2016 decision. She found that appellant’s employment duties involved repairing 

damaged magazines/catalogs, handling an average of several hundred magazines a day, working 

three days a week since November 11, 2015, and lifting which did not exceed 15 pounds. The 

hearing representative further found that Dr. Eisen’s report was of diminished probative value as 

she based her opinion on an inaccurate and incomplete history of injury because her opinion was 
4

based upon appellant lifting about 700 magazines each night and lifting buckets weighing 

approximately 10 pounds per bucket. 

On November 21, 2017 appellant, through her representative, requested reconsideration. 

In support of the request, she submitted a report from Dr. Eisen dated November 17, 2017, who 

opined within a reasonable degree of medical certainty that appellant’s conditions, as described,

were causally related to her employment duties. Dr. Eisen opined that lifting and carrying 10-

pound buckets and lifting approximately 700 magazines per shift would cause bulging of the 

lumbar discs leading to stenosis of the nerves, L4-5 lumbar radiculopathy, and cervical spine sprain 

of the musculature.

By decision dated February 13, 2018, OWCP denied modification of the May 1, 2017 

decision.

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,5that 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.6 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.7

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

disease claim, an employee must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the employee.8

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment factors must be based on a 

 

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

153 (1989).

6

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

ECAB 312 (1988).

7 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).

8 R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. 

Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

9 T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).
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complete factual and medical background.10 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 factors.11

In a 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, the 

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

work-related injury or disease and the preexisting condition.12

ANALYSIS

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

OWCP accepted that appellant’s employment duties involved repairing damaged 

magazines/catalogs, handling an average of several hundred magazines per day, working three 

days per week since November 11, 2015, and lifting which did not exceed 15 pounds.

In support of her claim, appellant has submitted medical reports from Dr. Eisen who 

provided affirmative opinions on the issue of causal relationship. In her February 13, 2017 

report, Dr. Eisen acknowledged appellant’s preexisting, work-related lumbar and cervical spine 

conditions. She opined that appellant’s job duties of lifting and carrying approximately 700 

magazines and catalogues out of buckets for eight hours per day, five days per week would result 

in lumbar radiculopathy, explaining that lifting and carrying heavy packages put pressure across 

the discs causing them to bulge or herniate. Dr. Eisen further explained that when a disc bulges 

or herniates it presses on spinal nerves creating stenosis and symptoms of pain, weakness, 

numbness, and radiculopathy. As it relates to the preexisting conditions, she opined that the 

cervical spine musculature was overworked and in a weakened state due to appellant’s prior 

conditions and became strained. Dr. Eisen concluded that appellant’s cervical and lumbar

conditions were causally related to her employment duties, specifically noting that lifting and 

carrying heavy packages caused bulging lumbar discs leading to stenosis of the nerves, L4-5 

lumbar radiculopathy, and cervical spine sprain. 

In her November 17, 2017 report, Dr. Eisen reiterated her prior causation opinion and 

rationale and explained how the employment factors, as set forth by the hearing representative,

were sufficient to have resulted in appellant’s current cervical and lumbar spine conditions.

The Board finds that the reports of Dr. Eisen, when read together, are sufficient to require 

further development of the medical evidence to see that justice is done.13 Dr. Eisen is a Board-

 

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

11 Id.; Victor J. Woodhams, supra note 8.

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

R.D., Docket No. 18-1551 (issued March 1, 2019).

13 D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket 

No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).
6

certified physician who is qualified to render an opinion on the issue of causal relationship and 

she provided a comprehensive and convincing review of the medical record and case history. 

The Board further finds that she provided a pathophysiological explanation as to how the 

accepted employment factors were sufficient to cause the currently diagnosed conditions. The 

Board has long held that it is unnecessary that the evidence of record in a case be so conclusive 

as to suggest causal connection beyond all possible doubt. Rather, the evidence required is only 

that necessary to convince the adjudicator that the conclusion drawn is rational, sound, and 

logical.14 Following review of Dr. Eisen’s reports, it is found that her medical opinion is well 

rationalized and logical and is therefore sufficient to require further development of appellant’s 

claim.

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

appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.15 OWCP has an obligation to see that justice is 

done.16

On remand OWCP shall refer appellant to an appropriate specialist, along with the case 

record and a statement of accepted facts. Its referral physician shall provide a well-rationalized 

opinion as to whether appellant’s diagnosed conditions are causally related to the accepted 

factors of her federal employment. If the physician opines that the current conditions are not 

causally related to appellant’s employment duties, he or she must explain with rationale how or 

why the opinion differs from that of Dr. Eisen. After such further development of the case record 

as OWCP deems necessary, it shall issue a de novo decision.17

CONCLUSION

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

 

14 W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011); 

Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.

15 See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).

16 See B.C., Docket No. 15-1853 (issued January 19, 2016).

17 The Board notes that appellant’s prior claims, OWCP File Nos. xxxxxx716 and xxxxxx021, have not been 

administratively combined with the current case. Upon return of the case record, OWCP shall administratively 

combine appellant’s current claim with her prior claims as they relate to the same cervical and lumbar spine conditions.
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ORDER

IT IS HEREBY ORDERED THAT the February 13, 2018 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: March 10, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board