United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 14-320 

Issued: November 21, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 26, 2013 appellant filed a timely appeal from an August 5, 2013 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 met her burden of proof to establish a leg, back and hip 

injury causally related to factors of her federal employment. 

FACTUAL HISTORY 

On September 21, 2011 appellant, then a 59-year-old teller, filed an occupational disease 

claim (Form CA-2) alleging that she developed a hip and leg injury as a result of her federal 

 1

 5 U.S.C. § 8101 et seq.
2

employment duties which involved repetitive motion, walking back and forth over 100 times a 

day between the teller window and rear office and standing for four to six hours a day. 

By letter dated October 14, 2011, OWCP informed appellant that the evidence of record 

was insufficient to support her claim. Appellant was advised of the medical and factual evidence 

needed and was directed to submit it within 30 days. 

In support of her claim, appellant submitted medical reports and diagnostic studies dated 

July 30, 2009 to May 12, 2011. The reports provided findings regarding appellant’s right hip 

and leg condition. 

By decision dated December 2, 2011, OWCP denied appellant’s claim finding that the 

medical evidence of record failed to establish that her diagnosed conditions were causally related 

to the established factors of federal employment. 

On December 27, 2011 appellant requested review of the written record before the 

Branch of Hearings and Review. 

In support of her claim, appellant submitted a March 22, 2012 medical report from 

Dr. Hosea Brown, Board-certified in internal medicine. In his report, Dr. Brown reported that 

appellant worked for the Veterans Administration (VA) as a cashier/clerk which required 

prolonged standing and walking for approximately four to six hours a day, five days a week for 

the majority of her 10-year employment. Appellant complained of right hip, lower back and 

right leg pain from prolonged standing and walking due to her employment duties. Dr. Brown 

provided a detailed medical history and review of diagnostic reports. Upon physical 

examination, he diagnosed degenerative joint disease of the right hip, right hip dysplasia, 

degenerative joint disease of the lumbosacral spine, lumbar disc herniations and lumbar 

radiculopathy. 

Dr. Brown opined that appellant’s medical injuries arose as a result of her employment 

duties of prolonged standing and walking for four to six hours a day, five days a week for the 

past 10 years. He noted that, while she was standing at the window, she would place more 

weight on her right side when transferring various articles across the window because a computer 

was located to her left. Consequently, this employment-related activity of prolonged standing 

and walking for four to six hours a day and ambulation placed an increased biomechanical load 

preferentially on appellant’s right hip as well as on her lumbosacral spine, thereby causing 

cumulative trauma in the form of progressive desiccation, deterioration, and destruction of the 

structures in both the lumbar spine and right hip. This caused the acceleration as well as 

aggravation of the degenerative processes in these areas thereby leading to severe degenerative 

joint disease of the right hip and lumbosacral spine. Dr. Brown further stated that appellant had 

a history of dysplasia of the right hip which was aggravated and accelerated as a direct result of 

appellant’s federal employment duties which involved prolonged standing. 

Dr. Brown stated that the employment-related induced cumulative trauma was clearly 

documented on all of the radiological studies. Specifically, appellant’s plain x-rays of both the 

right hip and lumbosacral spine revealed severe degenerative changes which were documented to 

have increased radiologically by x-rays. Additionally, the most recent MRI scan study of the 
3

right hip and lumbosacral spine revealed persistent severe degenerative changes. The fact that 

appellant’s condition had worsened while she had been performing work-related duties of 

prolonged standing was clearly indicative of a work-related etiology of her medical conditions. 

Dr. Brown stated that appellant had severe lumbosacral radiculopathy and severe 

degenerative and neurological damage to her right hip and low back respectively as a direct 

result of the performance of duties of her occupation. He concluded that she sustained a severe 

cumulative trauma as a direct result of performance of duties of her occupation as a cashier/clerk, 

which have involved both, prolonged walking and standing. These processes caused a 

progressive inflammation, deterioration, desiccation, and degeneration in the lumbosacral spine 

leading to eventual encroachment and irritation of the spinal nerves as they leave the spine in the 

lumbar area. This encroachment is commonly referred to as a radiculopathy with involvement of 

the spinal nerves, thereby causing a severe radicular-type pain and weakness in her right lower 

extremity which was documented on the physical examination, the nerve conduction velocity 

study and the MRI scan study. Therefore, Dr. Brown concluded that appellant’s injuries were 

caused by her performance of duties as a cashier/clerk for the Department of Veterans Affairs 

throughout her 10-year employment history. 

By decision dated May 11, 2012, the Branch of Hearings and Review set aside and 

remanded OWCP’s December 2, 2011 decision finding that Dr. Brown’s report required further 

development of the medical evidence. On remand, OWCP was instructed to prepare a statement 

of accepted facts and refer appellant and the case file for a second opinion examination with a 

Board-certified orthopedist for an opinion regarding whether her medical conditions were 

casually related to her employment activities. 

On August 21, 2012 OWCP referred a statement of accepted facts, the case file and 

appellant to Dr. G.B. Ha’Eri, a Board-certified orthopedic surgeon, for an evaluation on 

September 19, 2012. 

In an October 1, 2012 medical report, Dr. Ha’Eri reported that he examined appellant on 

September 19, 2012. He noted the medical reports reviewed and provided findings on physical 

examination. Dr. Ha’Eri diagnosed appellant with lumbar degenerative disc disease/spondylosis, 

severe right hip osteoarthritis and severe bilateral knee patellofemoral compartment 

osteoarthritis. He opined that her diagnosed conditions were not medically connected to factors 

of her federal employment, noting that her conditions were of a preexisting degenerative nature 

and only the symptoms of the underlying conditions had been aggravated by her work duties and 

physical activities. Dr. Ha’Eri further noted that symptoms of the preexisting underlying 

condition of appellant’s lower back and right knee were aggravated by her work duties/physical 

activities. He found these were progressive degenerative conditions which would gradually 

worsen over the years. Dr. Ha’Eri concluded that appellant was not capable of performing her 

regular employment duties as a result of her conditions, but that these conditions were not work 

related. 

By decision dated November 29, 2012, OWCP denied appellant’s claim finding that she 

failed to establish that her diagnosed conditions were causally related to factors of her federal 

employment. It noted that the weight of the medical evidence rested with the report of 

Dr. Ha’Eri, the second opinion physician. 
4

On May 9, 2013 appellant requested reconsideration of OWCP’s decision. In support of 

her request, she submitted medical evidence previously of record as well as an April 25, 2013 

follow-up report from Dr. Brown. 

In his April 25, 2013 report, Dr. Brown stated that he reviewed Dr. Ha’Eri’s October 1, 

2012 medical report and disagreed with his assertion that appellant’s medical conditions were 

nonindustrial because they were preexisting and degenerative. He noted that Dr. Ha’Eri 

erroneously stated that she suffered from “symptoms” of the underlying conditions which were 

aggravated by her work duties and noted that a preexisting medical condition is considered work 

related under FECA when it has been aggravated by employment duties. Dr. Brown noted that 

Dr. Ha’Eri did admit that appellant was experiencing a severe aggravation of symptoms and 

clearly, there had been a dynamic change in her medical conditions. He further noted that not 

only did she have an increase in symptoms, but it was also obvious that her medical conditions of 

degenerative joint disease of the right hip, right hip dysplasia, degenerative joint disease of the 

lumbosacral spine, lumbar disc herniation and lumbosacral radiculopathy had been permanently 

aggravated by her work-related duties. Dr. Brown stated that Dr. Ha’Eri only listed Dr. Brown’s 

March 22, 2012 report without indicating whether it had been properly reviewed as Dr. Ha’Eri 

failed to address Dr. Brown’s opinion on causal relation. He went on to provide an explanation 

of causation regarding appellant’s work-related duties and medical conditions as previously 

noted in his prior report. 

By decision dated August 5, 2013, OWCP affirmed the November 29, 2012 decision 

finding that appellant failed to establish that her diagnosed medical conditions were caused by 

her work-related duties. It noted that the weight of the medical evidence rested with Dr. Ha’Eri, 

the second opinion physician. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of establishing 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 filed within the applicable time 

limitation; that an injury was sustained while in the performance of duty as alleged and that any 

disability or specific condition for which compensation is claimed is causally related to the 

employment injury.2

 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or occupational disease.3

In order to determine whether an employee actually sustained an injury in the 

performance of duty, OWCP begins with an analysis of whether fact of injury has been 

established. Generally, fact of injury consists of two components which must be considered in 

conjunction with one another. The first component to be established is that the employee 

actually experienced the employment incident which is alleged to have occurred.4 The second 

 2 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989). 

3 Michael E. Smith, 50 ECAB 313 (1999). 

4 Elaine Pendleton, supra note 2. 
5

component is whether the employment incident caused a personal injury and generally can be 

established only by medical evidence. 

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee 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 compensation is claimed; and (3) medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the employee.5 

To establish a causal relationship between the condition, as well as any attendant 

disability claimed and the employment event or incident, the employee must submit rationalized 

medical opinion evidence based on a complete factual and medical background, supporting such 

a causal relationship.6 The opinion of the physician 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. This 

medical opinion must include an accurate history of the employee’s employment injury and must 

explain how the condition is related to the injury. The weight of medical evidence is determined 

by its reliability, its probative value, its convincing quality, the care of analysis manifested and 

the medical rationale expressed in support of the physician’s opinion.7

Section 8123(a) 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.8 The implementing regulations state 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.9

ANALYSIS 

The Board finds this case is not in posture for decision as to whether appellant sustained 

an injury in the performance of duty. 

An employee who claims benefits under FECA has the burden of establishing the 

essential elements of his or her claim. The claimant has the burden of establishing by the 

weight of reliable, probative and substantial evidence that the condition for which 

 5 See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994). 

6 See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983). 

7 James Mack, 43 ECAB 321 (1991). 

8

 5 U.S.C. § 8123(a). 

9

 20 C.F.R. § 10.321. 
6

compensation is sought is causally related to a specific employment incident or to specific 

conditions of the employment. As part of this burden, the claimant must present rationalized 

medical opinion evidence, based upon a complete and accurate factual and medical 

background, establishing causal relationship.10 However, it is well established that 

proceedings under FECA are not adversarial in nature and while the claimant has the burden 

of establishing entitlement to compensation, OWCP shares responsibility in the development 

of the evidence to see that justice is done.11 

In its August 5, 2013 decision, OWCP denied appellant’s claim for failing to establish 

that her medical conditions were causally related to her federal employment duties, noting that 

the weight of the medical evidence rested with Dr. Ha’Eri, the second opinion physician. The 

Board finds, however, that a conflict exists in the medical evidence with respect to whether 

appellant’s diagnosed conditions were caused or aggravated by her federal employment duties.12 

In a March 22, 2012 medical report, Dr. Brown provided detailed review of appellant’s 

medical history, diagnostic reports and physical examination and diagnosed degenerative joint 

disease of the right hip, right hip dysplasia, degenerative joint disease of the lumbosacral spine, 

lumbar disc herniations and lumbar radiculopathy. He opined that her medical injuries arose as a 

result of her employment duties of prolonged standing and walking for four to six hours a day, 

five days a week for the past 10 years. Dr. Brown noted that, while appellant was standing at the 

window, she placed more weight on her right side when transferring various articles across the 

window because a computer was located to her left. He stated that prolonged standing, 

ambulation and walking for four to six hours a day placed an increased biomechanical load 

preferentially on her right hip as well as on her lumbosacral spine, thereby causing cumulative 

trauma in the form of progressive desiccation, deterioration, and destruction of the structures in 

both the lumbar spine and right hip. This caused the acceleration as well as aggravation of the 

degenerative processes in these areas thereby leading to severe degenerative joint disease of the 

right hip and lumbosacral spine. Dr. Brown further stated that appellant had a history of 

dysplasia of the right hip which was aggravated and accelerated as a direct result of her federal 

employment duties which involved prolonged standing. He noted that appellant’s diagnostic 

tests revealed severe degenerative changes and concluded that she sustained a severe cumulative 

trauma as a direct result of performance of duties of her occupation as a cashier/clerk, which 

have involved both, prolonged walking, and standing. These processes caused a progressive 

inflammation, deterioration, desiccation, and degeneration in the lumbosacral spine leading to 

eventual encroachment and irritation of the spinal nerves as they leave the spine in the lumbar 

area. This encroachment is commonly referred to as a radiculopathy with involvement of the 

spinal nerves, thereby causing a severe radicular-type pain and weakness in her right lower 

extremity which was documented on the physical examination, the nerve conduction velocity 

study and the MRI scan study. 

 10 See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also 

Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985). 

11 Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, id.; Dorothy L. Sidwell, 36 ECAB 

699 (1985); William J. Cantrell, 34 ECAB 1233 (1993). 

12 F.B., Docket No. 13-2066 (issued March 11, 2014). 
7

OWCP referred appellant and the case file for a second opinion examination with 

Dr. Ha’Eri on September 19, 2012. In his October 1, 2012 report, Dr. Ha’Eri diagnosed lumbar 

degenerative disc disease/spondylosis, severe right hip osteoarthritis and severe bilateral knee 

patellofemoral compartment osteoarthriis. Contrary to the findings of Dr. Brown, Dr. Ha’Eri 

opined that appellant’s diagnosed conditions were not medically connected to factors of her 

federal employment, noting that her conditions were of a preexisting degenerative nature and 

only the symptoms of the underlying conditions had been aggravated by her work duties and 

physical activities. Dr. Ha’Eri found that appellant developed progressive degenerative 

conditions which would gradually worsen over the years. He concluded that she was not capable 

of performing her regular employment duties as a result of her conditions, but that these 

conditions were not work related. 

In an April 25, 2013 follow-up report, Dr. Brown disagreed with Dr. Ha’Eri’s assertion 

that appellant’s medical conditions were nonindustrial because they were preexisting and 

degenerative. He noted that Dr. Ha’Eri erroneously stated that she suffered from “symptoms” of 

the underlying conditions and noted that a medical condition is considered work related under 

FECA when it has been aggravated by employment duties. Dr. Brown noted that Dr. Ha’Eri did 

admit that appellant was experiencing a severe aggravation of symptoms and clearly, there had 

been a dynamic change in her medical conditions. He further noted that not only did appellant 

have an increase in symptoms, but it was also obvious that her medical conditions of 

degenerative joint disease of the right hip, right hip dysplasia, degenerative joint disease of the 

lumbosacral spine, lumbar disc herniation and lumbosacral radiculopathy had been permanently 

aggravated by her work-related duties. Dr. Brown stated that Dr. Ha’Eri only listed his 

March 22, 2012 report without indicating that it had been properly reviewed as he failed to 

ignore or address his opinion on causal relation. He went on to provide an explanation of 

causation regarding appellant’s work-related duties and medical conditions as previously noted 

in his prior report. 

The Board finds that the opinion of Dr. Brown is of equal weight to the opinion of 

Dr. Ha’Eri. The physicians reached an opposite conclusion regarding whether appellant’s 

diagnosed medical conditions were caused or aggravated by her federal employment duties. 

Dr. Ha’Eri opined that appellant’s symptoms were caused by her work-related duties but that her 

diagnosed conditions were preexisting. Dr. Brown opined that her diagnosed conditions were 

permanently aggravated by her work-related duties. When there is a conflict of opinion between 

the claimant’s attending physician and the physician performing an examination for the 

government, OWCP shall appoint a third physician to resolve the disagreement.13 The Board 

notes that where a person has a preexisting condition that is not disabling, but which becomes 

disabling because of aggravation causally related to the employment, then regardless of the 

degree of such aggravation, the resulting disability is compensable.14 The impartial medical 

specialist should review both Dr. Brown and Dr. Ha’Eri’s reports, along with the case record and 

statement of accepted facts, and provide a rationalized opinion as to whether appellant’s medical 

conditions are causally related to factors of her employment, either directly or through 

 13 5 U.S.C. § 8123(a). 

14 S.W., Docket No. 11-1678 (issued February 22, 2012); Arnold Gustafson, Docket No. 89-438 (issued 

October 30, 1989). 
8

aggravation, precipitation or acceleration. Following this and any other further development as 

deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s claim.15 

CONCLUSION 

The Board finds that the case is not in posture for decision as there is an unresolved 

conflict in the medical evidence. 

ORDER 

IT IS HEREBY ORDERED THAT the August 5, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision.16

Issued: November 21, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 15 J.K., Docket No. 13-327 (issued August 7, 2013). 

16 Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a 

member of the Board after May 16, 2014.