United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.M., Appellant

and

U.S. POSTAL SERVICE, MILWAUKEE 

PROCESSING & DISTRIBUTION CENTER, 

Milwaukee, WI, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 22-0504

Issued: February 9, 2023

Appearances: Case Submitted on the Record

Peter A. Stanford, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 17, 2022 appellant, through counsel, filed a timely appeal from an October 27, 

2021 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 a cervical condition 

causally related to the accepted factors of her federal employment.

FACTUAL HISTORY

On March 13, 2020 appellant, then a 44-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that she sustained a herniated cervical disc due to factors of 

her federal employment. She noted that she first became aware of her condition and realized its 

relation to her federal employment on August 20, 2014. No evidence was submitted in support of 

appellant’s claim.

In a development letter dated March 19, 2020, OWCP informed appellant of the 

deficiencies of her claim. It advised her of the type of factual and medical evidence required and 

provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the 

necessary evidence. No response was received.

By decision dated April 27, 2020, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the injury and/or event(s) had occurred, as 

alleged.

On August 21, 2020 Dr. James Cain, Jr., a Board-certified orthopedic surgeon, completed

a medical questionnaire. He diagnosed herniated nucleus pulposus, degenerative cervical disc 

disease C5-C6 and C6-C7 levels, neck pain and cervical radiculitis, which he indicated was 

supported by magnetic resonance imaging (MRI) scan results, physical examination features and 

subjective complaints. Dr. Cain opined that appellant sustained an aggravation of preexisting 

degenerative disc disease at C5-C6 and C6-C7 levels due to repetitive, awkward lifting at work 

and that the March 26, 2019 two-level fusion was medically necessary to treat her complaints. He 

explained that cervical musculature was recruited during lifting activity and could serve to 

aggravate a cervical degenerative disc. 

On October 16, 2020 appellant requested reconsideration. 

By decision dated December 2, 2020, OWCP denied modification of its April 27, 2020 

decision. 

On February 26, 2021 appellant, through counsel, requested reconsideration. She provided 

a copy of the mail handler position description and a March 16, 2021 statement. In the March 16, 

2021 statement, appellant described her job duties and the equipment used to perform her job 

duties. She alleged that she performed repetitive lifting and carrying up to 70 pounds and repetitive 

duties including walking and carrying mail and packages.

By decision dated May 3, 2021, OWCP modified its prior decision to find that appellant

had established that the employment factors occurred as described. However, the claim remained 

denied as the medical evidence of record was insufficient to establish causal relationship between 

the diagnosed conditions and the accepted work factors. 
3

On July 23, 2021 appellant, through counsel, requested reconsideration. She submitted a 

July 8, 2021 report wherein Corina Welch, a certified physician assistant, related that appellant 

was now two years out from a two-level anterior cervical discectomy and fusion. Appellant further 

related that she had sustained an injury in 2014 performing her regular work duties.

By decision dated July 29, 2021, OWCP denied modification of its May 3, 2021 decision. 

On August 9 and 11, 2021 appellant requested reconsideration. No additional evidence 

was received.

By decision dated September 2, 2021, OWCP denied appellant’s request for 

reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a). 

On September 8, 2021 appellant, through counsel, again requested reconsideration.

In an August 27, 2021 report, Dr. Lawrence Maciolek, a Board-certified orthopedic 

surgeon, provided the status of appellant’s back condition two years’ status post anterior cervical 

discectomy and fusion (ACDF) surgery from C5 to C7. He reported that appellant’s condition was 

related to a work injury that occurred in 2014 at the employing establishment. Dr. Maciolek noted 

that appellant denied having experienced any pain or issues with her neck or left shoulder prior to 

her work injury. He noted that the injury occurred while she was performing her usual job duties,

and that she experienced left neck and shoulder pain which persists to this day. Dr. Maciolek 

opined that the disk extrusions at C5-C6 and C6-C7 suggested an acute injury rather than a 

preexisting degenerative condition that led to appellant’s surgery.

By decision dated October 27, 2021, OWCP denied modification of its July 29, 2021 

decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including that the individual is an employee of the United 

States within the meaning FECA, that the claim was timely filed within the applicable time 

3

Id.
4

limitation period of FECA,4that 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.5 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.6

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

disease claim, a claimant 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 identified employment factors.7

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.8 The opinion of the physician must be based on a complete factual 

and medical background of the claimant, must be one of reasonable medical 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 claimant.9

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, 

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

of the work-related injury or disease and the preexisting condition.10

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a cervical

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

In an August 4, 2020 medical questionnaire, Dr. Cain opined that appellant sustained an 

aggravation of preexisting degenerative disc disease at C5-C6 and C6-C7 levels due to repetitive, 

awkward lifting at work and that the March 26, 2019 two-level fusion was medically necessary to 

4 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. 

Cameron, 41 ECAB 153 (1989).

5 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

6 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

Delores C. Ellyett, 41 ECAB 992 (1990).

7 See T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J. 

Woodhams, 41 ECAB 345, 352 (1989).

8

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9 A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

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

M.B., Docket No. 20-1275 (issued January 29, 2021); R.D., Docket No. 18-1551 (issued March 1, 2019).
5

treat her complaints. He explained that each musculature is recruited during lifting activity and 

can serve to aggravate a cervical degenerative disc. While Dr. Cain identified preexisting 

degenerative conditions in appellant’s cervical spine that could worsen partially due to lifting 

activity, he did not distinguish the effects of the aggravation due to age or natural progression from 

the aggravation, if any, due to her federal employment. As noted above, in cases involving a

preexisting condition, the Board has placed special emphasis on the need for a complete medical 

rationale with a physiological explanation that distinguishes the effects of the natural progression

of the preexisting condition, any effects caused by aging or nonwork-related injuries, and the 

employment factors.11 This report is, therefore, insufficient to establish causal relationship 

between appellant’s cervical degenerative conditions and the accepted employment injury.12

Dr. Maciolek, in his August 27, 2021 report, opined that the disc extrusions at C5-C6 and 

C6-C7 suggested an acute injury rather than a preexisting degenerative condition that led to 

appellant’s surgery. He reported that her condition was related to a work injury, noting that she 

was asymptomatic prior to the work injury. The Board finds that Dr. Maciolek’s opinion that 

appellant’s condition is work related is conclusory in nature and of diminished probative value. 

The Board has held that a report is conclusory and of limited probative value regarding causal 

relationship if it does not contain medical rationale.13 Dr. Maciolek failed to note or provide a 

well-rationalized medical discussion of how the work factors appellant identified in her claim

physiologically caused or aggravated appellant’s diagnosed acute injury at C5-C6 and C6-C7 

levels. Additionally, his opinion of an acute injury is in variance from Dr. Cain’s report, which 

indicated that the diagnosed conditions of herniated nucleus pulposus, degenerative cervical disc 

disease C5-C6 and C6-C7 levels, neck pain and cervical radiculitis was supported by MRI scan 

findings.

14

 Furthermore, while Dr. Maciolek noted that appellant was asymptomatic prior to the 

work injury, the Board has held that an opinion that a condition is causally related because the 

employee was asymptomatic before the injury is insufficient, without adequate rationale, to 

establish causal relationship.15 For these reasons, Dr. Maciolek’s report is insufficient to meet 

appellant’s burden of proof. 

Appellant also submitted a July 7, 2021 report from a certified physician’s assistant. 

However, certain healthcare providers such as physician assistants, nurse practitioners, physical 

11 Id.; see also S.H., Docket No. 19-0631 (issued September 5, 2019); D.F., Docket No. 19-0067 (issued 

May 3, 2019).

12 See P.M., Docket No. 20-0114 (issued December 23, 2020).

13 See R.W., Docket No. 19-1733 (issued April 13, 2021); D.W., Docket No. 18-1139 (issued May 21, 2019); Y.D., 

Docket No. 16-1896 (issued February 10, 2017).

14 The Board notes that the record does not contain a copy of the MRI scan.

15 See J.I., Docket No. 20-1374 (issued March 3, 2021); D.M., Docket No. 20-0266 (issued January 8, 2021); H.A., 

Docket No. 18-1466 (issued August 23, 2019); R.V., Docket No. 18-1037 (issued March 26, 2019).
6

therapists, and social workers are not considered “physician[s]” as defined under FECA.16 

Consequently, this report does not constitute competent medical evidence.17

As the record lacks rationalized medical evidence establishing causal relationship between 

appellant’s diagnosed cervical conditions and the accepted August 20, 2014 employment factors, 

the Board finds that appellant has not met her 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 her burden of proof to establish a cervical

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

16 Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3a(1) (January 2013); H.S., Docket No. 20-0939 (issued February 12, 2021); (David P. 

Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists 

are not competent to render a medical opinion under FECA).

17 H.S., id.; D.S., Docket No. 17-1566 (issued December 31, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the October 27, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 9, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board