United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.U., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Grants Pass, OR, Employer 

__________________________________________ 

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Docket No. 14-1837 

Issued: August 27, 2015 

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 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 18, 2014 appellant filed a timely appeal from two July 14, 2014 merit 

decisions 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. 

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish that his left hip 

arthroplasty was causally related to his accepted employment-related injury; and (2) whether 

appellant met his burden of proof to establish total disability for the periods June 26 to 

September 4, 2012 and April 4 to May 30, 2014 due to his federal employment. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 25, 2013 appellant, then a 58-year-old city mail carrier, filed an occupational 

disease claim alleging that he suffered from right hip deterioration as a result of years of 

delivering mail and walking routes. On July 31, 2013 he filed a claim alleging that his years of 

delivering mail also caused left hip deterioration. 

In a May 31, 2012 office visit report, Dr. James R. Van Horne, a Board-certified 

orthopedic surgeon, noted that he saw appellant for counseling with regard to an upcoming right 

total hip replacement. He diagnosed appellant with degenerative joint disease of the hip and 

ordered further x-rays. Dr. Van Horne noted a family history of hip replacement. He opined that 

appellant was an excellent surgical candidate. Dr. Van Horne performed a direct anterior 

approach right total hip replacement with excision of heterotropic bone on June 26, 2012. 

Appellant also submitted the hospital and operative notes detailing his hospital course from 

June 26 to 28, 2012. 

In progress notes dated from May 7, 2012 through June 13, 2013, Dr. Jon Edwin Lloyd 

Ermshar, a Board-certified family practitioner, assessed appellant with degenerative joint disease 

in right ankle and hip; lumbosacral intervertebral disc; rotator cuff sprain; chronic pain 

syndrome, osteoarthrosis; gastroesophageal reflux stable; stable dyslipidemia; hyperglycemia; 

essential hypertension; and insomnia. 

The record also contains numerous reports by Dr. Ermshar’s physician assistant, Michael 

Swartz, dated from November 7, 2012 through April 24, 2013, as well as notes by nurse 

practitioners Patricia L. Mecum and Deborah Rossell. In addition, appellant underwent 

intermittent periods of physical therapy from June 8, 2012 through July 17, 2014, and the record 

contains reports by his physical therapists. 

In an April 16, 2013 statement, appellant indicated that he had been a city carrier for 141⁄2 

years and a rural carrier prior to that for 21⁄2 years. He detailed his job duties, discussed how 

these duties placed strain on his hips, noted that his hips began to hurt at the end of his route, and 

stated that it was his belief that his work duties contributed greatly to his hip condition. 

Appellant noted that he was currently working normal hours and the employing establishment 

was providing accommodations while he recovered. 

On September 19, 2013 OWCP accepted appellant’s claim for temporary aggravation of 

bilateral preexisting primary localized osteoarthritis of the hips. 

In a January 9, 2014 progress note, Dr. Ermshar noted work-related acceleration of 

pathology and disability in the left hip. He also assessed appellant with left bilateral 

osteoarthrosis, localized, pelvic region and thigh. Dr. Ermshar noted that the right hip is now 

stable, but the left was now worsening and was intolerable for activities of daily living and work. 

In a January 9, 2014 report, an OWCP medical adviser noted that appellant had 

undergone a right total hip replacement for degenerative arthritis on June 26, 2012. He opined 

that a review of the record did not reveal any significant objective evidence of disease of the left 

hip that is of sufficient severity to warrant hip replacement, and indicated that he would deny the 
3

request for authorization on the grounds of insufficient evidence of disease. In a January 23, 

2014 report, the medical adviser found that the prior right hip surgery was justified, but found no 

relationship between the total hip arthroplasty of June 26, 2012 and appellant’s employment or 

any employment-related injury, either by direct cause or aggravation. On January 22, 2014 

appellant filed a claim (Form CA-7) for leave buyback for the period June 26 through 

September 4, 2012. 

In a February 12, 2014 progress note, Dr. Ermshar assessed appellant with chronic left 

bilateral osteoarthrosis, localized, primary, pelvic region and thigh worsening. He listed 

appellant’s employment as a mail carrier walking up to 10 miles a day and carrying 50-pound 

bags of mail for eight hours a day five days a week. Dr. Ermshar noted that retrospective 

considerations over the past several months to one year brought him and appellant to the 

conclusion that his right hip osteoarthritis and now his left hip osteoarthritis are causally and 

directly related to his employment over the past two decades and have been responsible to a 

degree greater than 51 percent for his worsening and disabling osteoarthritis. 

A February 18, 2014 progress note by Dr. James Dowd, a Board-certified orthopedic 

surgeon, revealed that appellant has had progressive worsening of the left hip pain for the past 

two years. Dr. Dowd noted that appellant had a successful right anterior approach total hip 

arthoplasty in June 2012. He assessed appellant with hip pain and hip arthritis. 

In an April 13, 2014 attending physician’s report, Dr. Ermshar stated that appellant had 

degenerative arthritis of the hip. He checked a box indicating that he believed this was caused or 

aggravated by employment activities. 

On April 2, 2014 OWCP referred appellant to Dr. Mark Weston, a Board-certified 

orthopedic surgeon, for a second opinion. In an April 30, 2014 opinion, Dr. Weston concluded 

that appellant had left-sided, left hip osteoarthritis. He noted objective signs of disease are 

anklylosis of the left hip, limited range of motion and pain, a limp, and x-ray that showed 

osteoarthritis. With regard to whether this condition was causally related to appellant’s 

employment, Dr. Weston stated that medical science suggests that arthritis severity and incidents 

are independently associated with age and race alone, and not with increased activities. He 

opined that there was nothing in appellant’s case that would lead him to believe that his left hip 

condition was not genetic osteoarthritis, which is likely an inborn cartilage resilience problem as 

evinced by the family history of hip arthritis in his mother. Dr. Weston also noted that appellant 

was at an average age for the appearance of symptoms. He noted that appellant did have 

physical signs of hip stiffness and pain with a positive extension and pain with internal rotation. 

Dr. Weston concluded that, based on basic science literature and clinical experience, 

osteoarthritis symptoms are worsened with activities but not caused by activity. He did opine 

that appellant would continue to feel pain as long as he continued to walk on painful hips. 

Dr. Weston concluded that appellant’s right hip surgery was not performed under workers’ 

compensation coverage, and that he saw no reason to include it retroactively or to include 

surgery to his left side in OWCP’s system. 

In a June 23, 2014 supplemental opinion, Dr. Weston responded to OWCP’s request for 

clarification. He opined that appellant’s left total hip arthroplasty was not necessitated by his 

work activities. Dr. Weston noted that appellant’s left hip has not been treated, and that his right 
4

hip had been treated and is at maximum medical improvement. He noted that appellant’s left hip 

continues to have degenerative joint disease. Dr. Weston opined that the proximate cause of 

appellant’s left hip degenerative joint disease is a genetic cartilage resilience problem. He noted 

that molecular change within the cartilage causes increased fluid attraction, causing cartilage 

softening, which causes cartilage wear and inflammation, which is the cause of the arthritis of 

degenerative joint disease. Dr. Weston noted that this would occur with or without his work 

activities and did in fact occur without work activities in his mother who had early hip 

degenerative joint disease and hip replacement. He stated that to his knowledge, work activities, 

aside from trauma, have never been shown to be the cause of cartilage problem which is the 

cause of appellant’s symptoms. Dr. Weston did recommend the left hip replacement. 

On January 22, 2014 appellant filed a claim for leave buyback from June 26 through 

September 4, 2012.2

 This leave was requested for recovery from his right hip replacement on 

June 26, 2013. On April 16, 2014 appellant filed a claim for compensation for the period April 4 

to 18, 2014.3

 Subsequent claims were filed for compensation for the period April 19 through 

May 30, 2014. These requests were for periods prior to his total left hip arthroplasty of June 11, 

2014, and included requests for time off due to physician’s restrictions. 

By decision dated July 14, 2014, OWCP denied appellant’s claim for disability for leave 

buyback for the period June 26 to September 4, 2012, as the evidence failed to support 

employment-related disability. In another decision, also dated July 14, 2014, OWCP denied 

appellant’s claim for a left hip arthroplasty and compensation for disability for the period April 4 

to May 30, 2014. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8103(a) of FECA provides that the United States shall furnish to an employee 

who is injured while in the performance of duty the services, appliances and supplies prescribed 

or recommended by a qualified physician that the Secretary of Labor considers likely to cure, 

give relief, reduce the degree or the period of any disability or aid in lessening the amount of any 

monthly compensation.4

 While OWCP is obligated to pay for treatment of employment-related 

conditions, appellant has the burden of establishing that the expenditure is incurred for treatment 

of the effects of an employment-related injury or condition.5

 

                                                             2

 Appellant noted that he took eight hours of sick leave on June 27, 28, 29, and 30, 2012; July 2, 5, 6, 7, 9, 10, 11, 

13, 14, 17, 18, 19, 20, 23, 24, 25, 26, 27, 28, and 31; and August 1, 2, 3, 4, 6, 8, 9, 10, 11, 13, 14, 16, 17, 18, 20, 21, 

22, 24, 25, 27, 28, and 29, 2012. 

3

 Appellant noted that he took eight hours of sick leave on April 4, 5, 7, 8, 9, and 10, 2014, and eight hours of 

leave without pay on April 14, 15, 16, 17 and 18, 2014. He requested leave for eight hours a day on April 14, 15, 

16, 17, and 18, 2014. Appellant also requested compensation for part days in May 2014 as follows: May 19 for 

4.75 hours, May 20 for 5.78 hours, May 21 for 6.25 hours, May 22 for 5.75 hours, May 27 for 1.14 hours. 

4

 5 U.S.C. § 8103(a). 

5 See Kennett O. Collins, Jr., 55 ECAB 648 (2004); Debra S. King, 44 ECAB 203, 209 (1992). J.B., Docket No. 

10-1073 (issued February 24, 2011). 
5

Proof of causal relationship in a case such as this must include supporting rationalized 

medical evidence.6 Therefore, in order to prove that the surgical procedure was warranted, 

appellant must submit evidence to show that the procedure was for a condition causally related to 

the employment injury and that the surgery was medically warranted. Both of these criteria must 

be met in order for OWCP to authorize payment.7

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s claim for temporary aggravation of preexisting primary 

localized osteoarthritis of bilateral hips. Appellant underwent a right hip replacement on 

June 26, 2012, prior to his filing a claim. He later claimed compensation and medical benefits 

for surgery to his left hip. 

The Board finds that appellant has not established that the proposed left hip arthroplasty 

was causally related to his accepted medical condition or to the duties of his federal employment. 

Dr. Ermshar opined that appellant’s bilateral osteoarthritis was causally related to his 

employment. However, he failed to provide a well-rationalized medical opinion explaining how 

the proposed left hip surgery was necessitated due to his federal employment. An OWCP 

medical adviser noted no connection between appellant’s hip surgeries and his federal 

employment. 

OWCP referred appellant to Dr. Weston for a second opinion. Dr. Weston opined that 

appellant’s bilateral hip osteoarthritis was not related to his employment. He observed that 

arthritis was associated with age and race and not increased activities. Dr. Weston opined that 

there was nothing in appellant’s case that would lead him to believe that appellant’s hip 

conditions were not generic osteoarthritis which was likely an inborn cartilage resilience problem 

as evinced by his family history of hip arthritis in his mother. He also noted that appellant was at 

an average age for the appearance of symptoms. Dr. Weston concluded that appellant’s right hip 

surgery was not covered under workers’ compensation, and that he did not believe that surgery to 

his left side should be covered. 

The Board finds that appellant did not establish that surgery to his left hip was 

necessitated as a result of his accepted employment-related condition of temporary aggravation 

of preexisting primary localized osteoarthritis of the bilateral hips. Appellant’s claim was only 

accepted for this condition. The weight of the medical evidence, as represented by Dr. Weston, 

established that appellant’s progressive arthritis was unrelated to appellant’s accepted 

employment injury and that the bilateral hip surgeries were not employment related. 

Accordingly, appellant has not met his burden of proof. 

                                                             6 K.H., Docket No. 15-148 (issued February 24, 2015); see also M.B., 58 ECAB 588 (2007); Bertha L. Arnold, 38 

ECAB 282 (1986). 

7 See R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331, 333 (2000). 
6

LEGAL PRECEDENT -- ISSUE 2 

Under FECA the term disability is defined as incapacity, because of employment injury, 

to earn the wages that the employee was receiving at the time of injury.8

 Disability is thus not 

synonymous with physical impairment which may or may not result in an incapacity to earn the 

wages. An employee who has a physical impairment causally related to a federal employment 

injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of 

injury has no disability as the term is used in FECA.9

 The test of disability under FECA is 

whether an employment-related impairment prevents the employee from engaging in the kind of 

work he was doing when injured.10 Whether a particular injury causes an employee to be 

disabled for work and the duration of the disability, are medical issues that must be proved by a 

preponderance of the reliable, probative, and substantial medical evidence.11

The Board will not require OWCP to pay compensation for disability in the absence of 

any medical evidence directly addressing the specific dates for disability for which compensation 

is claimed. To do so would essentially allow employees to self-certify their disability and 

entitlement to compensation.12 Causal relationship is a medical issue. 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.13

ANALYSIS -- ISSUE 2 

The Board finds that appellant has not established disability from June 26 to 

September 4, 2012 and April 4 to May 30, 2014 causally related to the accepted condition of 

temporary aggravation of localized bilateral osteoarthritis of appellant’s hips. The evidence 

indicates that appellant may have experienced some periods of disability during these time 

periods that were related to his bilateral hip replacement surgeries, however, the surgeries 

themselves were related to a condition which was never accepted as employment related. 

The Board has taken the additional steps of reviewing the medical record. The evidence 

on file is not sufficient to establish a causal relationship between the surgeries and appellant’s 

employment. Appellant claimed a period of disability from June 26 to September 4, 2012 related 

to his right hip replacement surgery of June 26, 2012. However, Dr. Van Horne, who performed 

the June 26, 2012 right hip replacement, did not address the cause of appellant’s joint disease and 

resulting surgery. Dr. Dowd also did not discuss the cause of appellant’s total arthroplasty in 

                                                             8 See Prince E. Wallace, 52 ECAB 357 (2001). 

9 Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995). 

10 V.C., Docket No. 14-1252 (issued March 11, 2015); Corlisia Sims, 46 ECAB 963 (1995). 

11 Tammy L. Medley, 55 ECAB 182 (2003). 

12 G.T., 59 ECAB 447 (2008); see also L.S., Docket No. 14-1888 (issued February 10, 2015). 

13 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 
7

June 2012, or the cause of his bilateral hip pain and arthritis. OWCP medical adviser noted no 

connection between appellant’s hip surgeries and his federal employment. Dr. Ermshar did 

discuss appellant’s employment duties of walking 10 hours a day, and carrying 50-pound bags. 

He opined that appellant’s right and left hip osteoarthritis was directly related to his employment. 

However, Dr. Ermshar did not provide any rationale to support his claim. Further, he did not 

note the impact of a family history of early osteoarthritis, appellant’s age or other contributors to 

appellant’s hip condition. It is well established that medical conclusions unsupported by 

rationale are of diminished value.14 

The record also contains reports by Mr. Swartz, a physician assistant, and several nurse 

practitioners and physical therapists. However, physician assistants, nurse practitioners, and 

physical therapists are not considered physicians as defined under FECA.15 Therefore, this 

evidence is insufficient to establish that appellant was disabled from June 26 to 

September 4, 2012. 

Appellant’s claim for disability for the period April 4 to May 30, 2014 related to his 

federal employment. As discussed supra, Dr. Ermshar’s opinion that appellant’s osteoarthritis in 

his hips was causally related to his federal employment is not supported by a rationalized 

medical opinion. Dr. Weston opined that, although he did recommend that appellant have a left 

hip replacement, the proximate cause of appellant’s hip degenerative joint disease was a genetic 

cartilage resilience problem. Accordingly, appellant has not established that he was disabled 

from April 4 to May 30, 2014 causally related to his federal employment. 

No physician provided a well-rationalized medical opinion linking appellant’s disability 

during the aforementioned time periods to his federal employment. An award of compensation 

may not be based on surmise, conjecture or speculation. Neither the fact that appellant’s claimed 

condition became apparent during a period of employment nor his belief that the condition was 

caused by is employment is sufficient to establish causal relationship.16 

The Board finds that appellant has not submitted sufficient medical evidence to establish 

his claim. The medical evidence of record does not establish that the claimed disability from 

June 26 to September 4, 2012 and April 4 to May 30, 2014 was related to his accepted 

employment injury.17 As noted, causal relationship is a medical question that must be 

established by a probative medical opinion from a physician.18 The physician must accurately 

describe appellant’s work duties and medically explain the pathophysiological process by which 

                                                             14 Jacqueline L. Oliver, 48 ECAB 232 (1996). 

15 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 

16 D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965). 

17 M.M., Docket No. 07-1986 (issued February 4, 2008). 

18 W.P., Docket No. 14-1076 (issued September 18, 2014). 
8

this incident would have caused or aggravated his condition.19 Because appellant has not 

provided such medical opinion evidence in this case, he has failed to meet 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 OWCP properly denied medical expenses associated with 

appellant’s claim for left hip arthroplasty. The Board further finds that appellant did not meet his 

burden of proof to establish total disability for the periods June 26 to September 4, 2012 and 

April 4 to May 30, 2014 due to his federal employment. 

ORDER 

IT IS HEREBY ORDERED THAT the July 14, 2014 decisions of the Office of 

Workers’ Compensation Programs are affirmed. 

Issued: August 27, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             19 Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors 

identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No. 

11-237 (issued September 9, 2011).