United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Yukon, OK, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-0831

Issued: November 7, 2017

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 6, 2017 appellant, through counsel, filed a timely appeal from an October 13, 

2016 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.

ISSUE

The issue is whether appellant met his burden of proof to establish bilateral knee injuries 

in the performance of duty, causally related to factors of his federal employment.

 

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

On appeal counsel alleges that there is no dispute of record regarding appellant’s federal 

work duties and that he has established his claim. 

FACTUAL HISTORY

On February 10, 2016 appellant, then a 57-year-old city carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained cumulative trauma to both of his knees

resulting in development/acceleration of osteoarthritis and degenerative joint disease. He 

initially became aware of his condition and of its relationship to his employment on 

February 2, 2015. Appellant explained that he waited a year to file his claim because he thought 

it was just a sore knee. He did not stop work. A supervisor noted that appellant had a previous 

claim for a knee injury.

In a report dated February 3, 2016, Dr. Joseph Arden Blough, a family practitioner,

diagnosed cumulative trauma to both knees resulting in development/acceleration of 

osteoarthritis and degenerative joint disease. He noted that appellant had been employed by the 

employing establishment for the past 16 years, walking between 8 and 13 miles per day. 

Dr. Blough stated that, over time, the repetitive walking and climbing on hard concrete surfaces, 

uneven terrain, and stairs, had placed excess strain on the knees. He noted that appellant had 

previously undergone left leg surgery to the veins, and that appellant’s radiographs demonstrated 

that his knees were “bone on bone.” Dr. Blough stated, “It is the opinion of the undersigned that 

[appellant] has sustained cumulative trauma injuries to his ... knees as the result of occupational 

disease resulting from his cumulative work-related activities. In my opinion, these injuries arose 

out of, and are causally connected to the above-described occupational trauma within a 

reasonable degree of medical certainty.” He explained at length the biomechanical development 

of osteoarthritis of the knee through cumulative trauma and expressed his opinion that appellant 

had undergone such cumulative trauma while performing his work duties, leading to his 

condition.

By letter dated February 16, 2016, OWCP advised appellant of the evidence needed to 

establish his claim. It advised him that he had not submitted sufficient evidence to establish his 

claim, and asked him to respond to its inquiries regarding the employment activities alleged to 

have caused his condition. OWCP afforded appellant 30 days to submit additional evidence and 

to respond to its inquiries. On the same date, it requested information from the employing 

establishment regarding the duties of his federal employment. Neither appellant nor the 

employing establishment responded to OWCP’s queries within the allotted time.

By decision dated March 17, 2016, OWCP denied appellant’s claim. It found that he had 

not established the factual component of fact of injury, because he had failed to respond to the 

questions in OWCP’s development letter of February 16, 2016.

On April 13, 2016 appellant requested a review of the written record before an OWCP 

hearing representative. He described the physical requirements of his position as a letter carrier 

of lifting, sitting, standing, walking, climbing, kneeling, bending/stooping, twisting, 

pushing/pulling, simple grasping, fine manipulation, reaction above the shoulder, and driving a 

vehicle. Appellant noted that he had three different routes over the last three years, some of 

which included walking routes, some driving, and some a mix of both. He stated, “I believe this 
3

is a direct result of being a letter carrier for 15 years. My job consists of grossly walking, 

driving, sorting mail, flexion extending arms and legs on a continuous basis.”

In a diagnostic report dated October 8, 2013, Dr. Clinton Williamson, a Board-certified 

diagnostic radiologist, examined x-rays of appellant’s bilateral knees. He stated his impression 

of bilateral medial compartment predominant osteoarthritis.

On December 23, 2015 Dr. Carlan Yates, a Board-certified orthopedic surgeon, 

diagnosed near end-stage degenerative joint disease of the right knee. He noted that appellant’s 

job involved entering and exiting trucks as well as ambulation throughout the day.

In a letter dated December 29, 2015, Dr. Yates noted that appellant had significant 

bilateral knee arthritis. She treated his right knee with an injection.

By decision dated October 13, 2016, a hearing representative affirmed OWCP’s 

March 17, 2016 decision. She found that, because appellant had not provided OWCP with a 

detailed description of the routes he has held over the years, including how long he performed 

each of them and the amount of time spent walking on each route, he had not submitted 

sufficient evidence to establish fact of injury and as such, opinions from physicians predicated on 

cumulative trauma could only be speculative.

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 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.3 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or occupational disease.4

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

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence 

or occurrence of the disease or condition; and (3) medical evidence establishing that the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

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

With respect to the first component of fact of injury, the employee has the burden of 

proof to establish the occurrence of an injury at the time, place, and in the manner alleged, by a 

 

3 Gary J. Watling, 52 ECAB 278-79 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4 Michael E. Smith, 50 ECAB 313, 315 (1999).

5 R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).
4

preponderance of the reliable, probative, and substantial evidence.6 An injury does not have to 

be confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury 

in the performance of duty, but the employee’s statements must be consistent with the 

surrounding facts and circumstances and his or her subsequent course of action.7 An employee 

has not met his or her burden of proof to establish the occurrence of an injury when there are 

such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.8 

Such circumstances as late notification of injury, lack of confirmation of injury, continuing to 

work without apparent difficulty following the alleged injury and failure to obtain medical 

treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in 

determining whether a prima facie case has been established.9 However, an employee’s 

statement alleging that an injury occurred at a given time and in a given manner is of great 

probative value and will stand unless refuted by strong or persuasive evidence.10

ANALYSIS

The Board finds that appellant has met his burden of proof to provide a factual statement 

identifying employment factors alleged to have caused or contributed to his claimed knee 

conditions. 

Appellant did not initially provide a detailed description of the work factors alleged to 

have caused or aggravated his claimed bilateral knee conditions in response to OWCP’s inquiries 

contained in the February 16, 2016 development letter. However, when requesting a review of 

the written record before an OWCP hearing representative, appellant provided a sufficiently 

detailed account, identifying the particular employment factors alleged to have caused or 

contributed to his knee conditions. He noted the physical requirements of his position as a letter 

carrier of lifting, sitting, standing, walking, climbing, kneeling, bending/stooping, twisting, 

pushing/pulling, simple grasping, fine manipulation, reaction above the shoulder, and driving a 

vehicle. Appellant stated that he had three different routes over the last three years, some of 

which included walking routes, some driving, and some a mix of both. He stated, “I believe this 

is a direct result of being a letter carrier for 15 years. My job consists of grossly walking, 

driving, sorting mail, flexion extending arms and legs on a continuous basis.”

As noted above, an employee’s statement alleging that an injury occurred at a given time 

and in a given manner is of great probative value and will stand unless refuted by strong or 

persuasive evidence.11 As such, the Board finds that appellant’s account of the work factors 

alleged to have caused his knee conditions retains its great probative value and is sufficient to 

establish that he actually experienced the work factors identified. Appellant explained that he 

 

6 William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

7 Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

8

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

9

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

10 D.B., 58 ECAB 464, 466-67 (2007); Robert A. Gregory, 40 ECAB 478, 483 (1989).

11 Id.
5

worked as a letter carrier for 15 years which required a mix of standing, walking, and driving a 

postal vehicle. 

As appellant’s employment factors have been established, the Board finds that the first 

component of fact of injury has been met. The question becomes whether the implicated factors 

of his federal employment caused an injury to his knees. As OWCP found that appellant did not 

establish fact of injury, it did not analyze or develop the medical evidence. Thus, the Board will 

set aside OWCP’s October 13, 2016 decision and remand the case for further action. After such 

further development of the case record as it deems necessary, OWCP shall issue a de novo

decision on appellant’s occupational disease claim. 

CONCLUSION

The Board finds that the evidence of record establishes appellant’s implicated factors of 

his federal employment. However, this case is not in posture for decision with regard to whether 

the medical evidence establishes an employment-related injury. On remand, OWCP will 

consider the medical evidence and issue a de novo decision on the issue.

ORDER

IT IS HEREBY ORDERED THAT the October 13, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to further action consistent 

with this decision.

Issued: November 7, 2017

Washington, DC

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board