United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.D., Appellant

and

U.S. POSTAL SERVICE, WILMETTE POST 

OFFICE, Wilmette, IL, Employer

__________________________________________

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Docket No. 23-0411

Issued: September 11, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

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 January 31, 2023appellantfiled a timely appeal from an October 6, 2022 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.

ISSUE

The issue is whether appellant has met his burden of proof to establish a medical condition 

causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On September 9, 2020 appellant, then a 30-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging neck, back, and neurological conditions due to factors of his 

federal employment. He indicated that long hours, physically demanding and repetitive job duties

1

5 U.S.C. § 8101 et seq.
2

caused his medical conditions. Appellant noted that he first became aware of his conditions and 

their relation to his federal employment on December 12, 2019. 

A work status note dated December 13, 2019 and signed by Daniel J. Sweeney, a

chiropractic physician, indicated that appellant was being treated for low back and neck conditions 

and was experiencing daily pain. Appellant was allowed to return to full duty on 

December 14, 2019.

Appellant submitted a narrative statement dated August 31, 2020 as a supplement to his 

Form CA-2. He indicated that he had experienced neck and back pain since December 12, 2019. 

Appellant reiterated that 10 years of repetitive lifting, bending, carrying, stooping, twisting, and 

walking are the work duties that caused his conditions. He also indicated that he had no prior 

history of similar physical conditions. 

In a letter dated September 9, 2020, the employing establishment controverted appellant’s 

claim, contending that he had worked less than 10 years on the job and that the maximum weight 

he lifted was 70 pounds.

In a development letter dated September 11, 2020, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence needed to 

establish the claim and provided a questionnaire for his completion. OWCP afforded appellant 30 

days to respond.

In a completed development questionnaire dated October 6, 2020, appellant reiterated his 

work duties of lifting mail and packages and his alleged history of neck and back conditions. 

By decision dated November 9, 2020, OWCP denied appellant’s occupational disease 

claim, finding that the evidence of record was insufficient to establish a diagnosed medical 

condition in connection with the accepted employment factors. It concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA. 

On October 28, 2021 appellant, through then-counsel, requested reconsideration. In 

support of his reconsideration request, appellant submitted a treatment note from Dr. David 

Barnes, a family medicine osteopathic specialist, dated October 21, 2021. Dr. Barnes diagnosed 

cervical degenerative disc disease, cervical radiculopathy, cervical spondylosis with myelopathy,

lumbar spondylosis, lumbar radiculopathy, bilateral sciatica, and aggravation of fibromyalgia. 

Dr. Barnes later included spasm of cervical paraspinous muscle in his list of diagnosed conditions. 

Dr. Barnes opined that appellant’s repetitive and physically demanding work duties caused his 

conditions.

Dr. Barnes explained that the cervical degenerative disc disease was accelerated by

appellant’s repetitive and physically demanding duties placing extreme pressure on his spine, as 

this pressure caused the cervical disc to collapse and the resulting herniated disc to impinge on his 

spinal canal and surrounding nerves. The subsequent compression on appellant’s nerve root led 

to cervical radiculopathy with the pain radiating in his upper extremities. Dr. Barnes noted that, 

while degenerative changes were natural over time, the level of damage to appellant’s cervical 

spine was more than expected for appellant’s age, weight, and height. He opined that appellant’s 
3

cervical degenerative disc disease and resulting cervical radiculopathy were caused by workrelated duties.

Further, Dr. Barnes indicated that appellant’s cervical spondyloisis with myelopathy, 

which causes degenerative changes in the cervical spine, worsened with excessive pressure on 

appellant’s cervical spine from the aforementioned work duties and led to additional damage to 

the hard and soft tissue of his spine. He again noted that the extent of damage to appellant’s 

cervical spine from the compression and his symptomology are more than expected for someone 

of appellant’s age, weight, and height. Dr. Barnes opined that appellant’s cervical spondylosis 

with myelopathy was caused by the compression on his cervical spinal cord as a result of his work 

duties.

Regarding the lumbar spondylosis and subsequent development of lumbar radiculopathy,

Dr. Barnes reiterated his explanation that appellant’s repetitive and physically demanding work 

duties accelerated his conditions. The extreme pressure on his spine caused his lumbar disc to 

collapse and impinge on his spinal canal and surrounding nerves. The subsequent compression on 

his nerve root led to lumbar radiculopathy with the pain radiating in appellant’s lower extremities. 

Dr. Barnes noted that, while degenerative changes were natural over time, the level of damage to 

appellant’s cervical spine was more than expected for appellant’s age, weight, and height. He 

opined that appellant’s repetitive and physically demanding work duties caused the lumbar 

spondylosis and lumbar radiculopathy. Further, Dr. Barnes noted that lumbar spondylosis is a 

common cause of sciatica, indicating that appellant’s symptoms of pain radiating down his legs 

and tingling in his feet is consistent with bilateral sciatica. He believed that this was also a result 

of appellant’s work duties.

Lastly, Dr. Barnes explained that fibromyalgia, which causes soft tissue pain or myofascial 

pain, can result after a physical trauma and can be aggravated by physical or psychological stress.

He believed that appellant’s repetitive and physically demanding duties led to physical stress, 

which worsened his preexisting symptoms of musculoskeletal pain, fatigue, migraines, and 

cognitive issues. Dr. Barnes indicated that appellant’s work duties caused the fibromyalgia over 

time. He indicated later in the report that the fibromyalgia was a preexisting condition aggravated 

by appellant’s work duties.

On November 2, 2021 OWCP referred appellant, the medical record, a statement of 

accepted facts (SOAF), and a series of questions to Dr. Hythem P. Shadid, a Board-certified 

orthopedic surgeon, serving as second opinion physician, regarding the extent and nature of 

appellant’s conditions. 

In a January 23, 2022 report, Dr. Shadid reviewed the SOAF, appellant’s history of injury, 

and medical course. He noted that appellant related pain from head to toe but could not localize 

the pain or provide a descriptive response. Dr. Shadid related that appellant sought care from a 

chiropractor which had not helped, butthat appellant was not cooperative in providing more details 

regarding the nature of his injury, the origin of the symptoms, and what aggravated or relieved the 

pain. Dr. Shadid noted that appellant had been off work for two years. He also reviewed x-ray 

reports of even date of the cervical spine and lumbar spine. The cervical spine report showed a 

small anterior osteophyte off the interior endplate of C5.
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Dr. Shadid answered the questions submitted by OWCP. He indicated that he was unable 

to identify any causally-connected diagnoses to appellant’s job duties. Dr. Shadid explained that, 

while the x-rays and previous magnetic resonance imaging (MRI) scan of the cervical spine 

revealed degenerative changes in appellant’s cervical spine, the lumbar spine was “relatively”

unremarkable. Further, Dr. Shadid noted that degenerative changes were not causally connected 

to appellant’s job duties, rather to age and genetics. There was also no evidence of any acute 

injuries or aggravations of these conditions.

Dr. Shadid noted that appellant’s physical examination was unreliable due to his lack of 

cooperation. He found degenerative changes in both lumbar and cervical spines, but otherwise did 

not have any objective findings and noted the “subjective” nature of appellant’s condition. 

Dr. Shadid indicated that, based on the objective findings or lack thereof, there was no need for 

further treatment. He further indicated that appellant was not physically disabled as of 

September 1, 2020 and found no evidence of a disabling neurological or musculoskeletal condition 

that would keep him from performing his duties.

OWCP additionally received a completed work capacity evaluation (Form OWCP-5c)

dated January 17, 2022, wherein Dr. Shadid indicated that appellant was capable of working his 

usual job without restrictions.

On January 28, 2022 OWCP found that a conflict existed in the medical opinion evidence 

and referred appellant, the medical record, a SOAF, and a series of questions to Dr. Avi Bernstein, 

a Board-certified orthopedic surgeon, serving as an impartial medical examiner (IME), for 

resolution of the conflict in the medical opinion evidence. 

In an April 25, 2022 report, Dr. Bernsteinreviewed the SOAF, appellant’s history of injury, 

and the medical evidence of record. He noted that appellant related his injury and treatment history 

and noted an injection in his cervical spine which did not bring improvement. Appellant’s physical 

examination was indicated as normal, but appellant related low back pain and soreness throughout.

Dr. Bernstein noted symptom magnification and exaggeration. He opined that, if the MRI scan 

findings were in keeping with the summary noted in the medical records, appellant did not suffer 

any injury “whatsoever” to his cervical spine as a result of work duties and that there would be no 

medical reason why appellant could not perform his duties without restriction. Dr. Bernstein

further indicated that the findings described on the MRI scan could not explain appellant’s 

subjective complaints. An addendum to the report dated April 28, 2022 from Dr. Bernstein 

indicated that appellant returned with imaging of his cervical and lumbar spine. The MRI scan 

dated September 2, 2020 of the lumbar spine was unremarkable. The MRI scan dated July 24, 

2020 indicated degenerative changes, especially at the C5-6 level, and slight degenerative disc

bulging from C3-6. Dr. Bernstein noted that the degenerative disc changes in the cervical spine 

were without any support for cervical myelopathy or cervical radiculopathy. He reiterated his 

opinion that appellant could work at full duty with no restriction and that he did not believe 

appellant had suffered an acute injury or repetitive use injury to his spine. Dr. Bernstein indicated 

that appellant was at maximum medical improvement (MMI) and had not suffered any permanent 

injuries.

OWCP additionally received a completed Form OWCP-5c dated April 28, 2022, wherein

Dr. Bernstein indicated that appellant was capable of working his usual job without restriction. 
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By decision dated May 25, 2022, OWCP modified its November 9, 2020 decision to find 

that appellant had established diagnosed medical conditions in connection with the accepted 

employment factors. The claim remained denied, however, as the medical evidence of record was 

insufficient to establish causal relationship between the diagnosed conditions and the accepted 

employment factors. It accorded the special weight of the medical evidence to Dr. Bernstein’s 

impartial medical opinion. 

On August 22, 2022 appellant, through then-counsel, requested reconsideration. In support 

of his reconsideration request, appellant submitted an addendum to Dr. Barnes’ report dated 

August 11, 2022. Dr. Barnes noted that he had been asked to comment on Dr. Shadid’s and

Dr. Bernstein’s examination reports. He disagreed with their assessments and reiterated his belief 

that appellant’s work duties, including the lifting of over 70 pounds and the repetitive sorting, 

bending, carrying, stooping, twisting, and walking over the course of 10 to 12 hours placed 

significant additional pressure on appellant’s lumbar and cervical spine beyond normal wear and 

tear. Dr. Barnes indicated that the compression on appellant’s cervical discs and pinching of the 

nerves, noted in the MRI scan as stenosis, also cause radicular pain, numbness, tingling, and 

weakness. He opined that appellant’s subjective complaints were consistent with the diagnoses

and objective findings. Dr. Barnesfurther disagreed with regard to appellant’s work status, finding 

that he could not return to full duty.

By decision dated October 6, 2022, OWCP denied modification of its May 25, 2022 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA2 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 of FECA, that the claim was timely filed within the applicab le time 

limitation of FECA, 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.3 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.4

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

disease claim, a claimant must submit: (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 

2

Id.

3

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

ECAB 312 (1988).

4 B.H., Docket No. 20-0777 (issued October 21, 2020); 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).
6

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

causally related to the identified employment factors by the claimant. 5

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.6 The opinion of the physician must be based on a complete factual 

and medical background, 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.7 Neither the mere fact that a disease or condition manifests itself 

during a period of employment, nor the belief that the disease or condition was caused or 

aggravated by employment factors or incidents is sufficient to establish causal relationship. 8

Section 8123(a) of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.9 The implementing regulation 

states that, if a conflict exists between the medical opinion of the employee’s physician and the 

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination. This is called a referee examination and OWCP 

will select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.

10

 In situations where there are opposing medical reports of virtually equal weight 

and rationale and the case is referred to an IME for the purpose of resolving the conflict, the opinion 

of such specialist, if sufficiently well rationalized and based upon a proper factual and medical 

background, must be given special weight.

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ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a medical

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

OWCP found a conflict in the medical opinion evidence between Dr. Barnes, appellant’s 

treating physician, who opined that the factors of appellant’s employment caused cervical 

degenerative disc disease, cervical radiculopathy, cervical spondylosis with myelopathy, lumbar 

5

S.H., Docket No. 22-0391 (issued June29, 2022); T.W., Docket No. 20-0767 (issued January 13, 2021); L.D., 

Docket No. 19-1301 (issued January 29, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019).

6 D.S., Docket No. 21-1388 (issued May 12, 2022); I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 

ECAB 388 (2008); Robert G. Morris, 48 ECAB 238 (1996).

7 D.S. id.; D.J., Docket No. 19-1301 (issued January 29, 2020).

8 T.M., Docket No. 22-0220 (issued July 29, 2022); S.S., Docket No. 18-1488 (issued March 11, 2019); see also

J.L., Docket No. 18-1804 (issued April 12, 2019).

9

5 U.S.C. § 8123(a).

10 20 C.F.R. § 10.321.

11 M.M., Docket No. 22-0037 (issued October 12, 2022); C.E.,Docket No. 19-1923 (issued March 30, 2021);

L.L., Docket No. 19-0214 (issued May 23, 2019); D.M.,Docket No. 18-0746 (issued November 26, 2018); R.C., 58 

ECAB 238 (2006); David W. Pickett, 54 ECAB 272 (2002).
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spondylosis, lumbar radiculopathy, bilateral sciatica, and aggravation of fibromyalgia, Dr. Shadid,

OWCP’s second opinion physician, who opined that he was unable to identify any causally 

connected diagnoses to appellant’s job duties. Pursuant to section 8123(a) of FECA, OWCP

properly determined that a conflict existed between Dr. Barnes and Dr. Shadid regarding whether 

appellant’s conditions were causally related to his accepted employment factors. It referred 

appellant to Dr. Bernstein for an impartial medical examination.

In an April 25, 2022 report, Dr. Bernstein reviewed the SOAF, history of injury, and 

medical record. He related that appellant’s physical examination was normal, but appellant related 

low back pain and soreness throughout. Dr. Bernstein noted symptom magnification and 

exaggeration. In an addendum to the report dated April 28, 2022,he indicated that he had reviewed 

MRI scans of appellant’s cervical and lumbar spine. Dr. Bernstein noted that appellant’s MRI 

scans did not explain his subjective complaints. The MRI scan dated September 2, 2020 of 

appellant’s lumbar spine was unremarkable. The MRI scan dated July 24, 2020 indicated 

degenerative changes, especially at the C5-6 level, and slight degenerative disc bulging from C3-6. 

Dr. Bernstein noted that the degenerative disc changes in the cervical spine were without any 

support for cervical myelopathy or cervical radiculopathy. He reiterated his opinion that appellant 

could work at full duty with no restriction and that he did not believe appellant had suffered an 

acute injury or repetitive use injury to his spine. Dr. Bernstein indicated that appellant was at MMI

and had not suffered any permanent injuries.

The Board finds that Dr. Bernstein’s report represents the special weight of the medical 

evidence with regard to the issue of whether appellant’s diagnosed conditions were causally related 

to his accepted employment factors. The Board finds that Dr. Bernstein had full knowledge of the 

relevant facts and evaluated the course of his condition. Dr. Bernstein is a specialist in the 

appropriate field. His opinion is based on proper factual and medical history and his report 

contained a detailed summary of this history. Dr. Bernstein addressed the medical records and 

offered his own examination findings to reach a reasoned conclusion regarding appellant’s

diagnosed conditions. As the IME, his opinion regarding whether appellant’s diagnosed 

conditions were causally related to his accepted employment factors is entitled to special weight.

In an addendum dated August 11, 2022, Dr. Barnes disagreed with the assessments of

Dr. Shadid and Dr. Bernstein and reiterated his belief that appellant’s work duties placed 

significant additional pressure on appellant’s lumbar and cervical spine beyond normal wear and 

tear. He opined that appellant’s subjective complaints were consistent with the diagnoses and 

objective findings. Dr. Barnes further disagreed on appellant’s work status and noted he could not 

return at full duty. However, as he was on one side of the conflict, his subsequent report is 

insufficient to create a new conflict in medical opinion or to overcome the special weight properly 

accorded to the IME.12

As the medical evidence of record is insufficient to establish a medical condition causally 

related to the accepted factors of appellant’s employment, the Board finds that appellant has not 

met his burden of proof.

12 A.L, Docket No. 20-0658 (issued October 5, 2022). 
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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 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 a medical

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

ORDER

IT IS HEREBY ORDERED THAT the October 6, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 11, 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