United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Boston, MA, Employer

__________________________________________

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Docket No. 18-1511

Issued: April 25, 2019

Appearances: Case Submitted on the Record

Daniel B. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 2, 2018 appellant, through counsel, filed for review of a February 6, 2018 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal 

Employees’ Compensation Act3(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 Appellant filed a timely request for oral argument in this case. By order dated December 6, 2018, the Board 

denied appellant’s request for oral argument as it would further delay issuance of a Board decision and not serve a 

useful purpose. Order Denying Request for Oral Argument, Docket No. 18-1511 (issued December 6, 2018).

3 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish bilateral hip 

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

FACTUAL HISTORY

On December 20, 2016 appellant, then a 56-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed bilateral hip osteoarthritis as a result of his

repetitive employment duties. He first became aware of his condition and of its relationship to his 

federal employment on September 13, 2016.

In an accompanying narrative statement, appellant described his employment duties for the 

employing establishment over the course of 22 years. He reported that he began working as a 

letter sorter in 1994 and then worked as a flat sorter beginning in 1997. Appellant explained that 

in 2000 he became a letter carrier, which since that time has remained his full-time position. He

described his duties, which entailed sorting and delivering mail and packages and required 

repetitive bending, squatting, walking, stooping, twisting, pivoting, loading, unloading, lifting, 

standing, pushing, pulling, and carrying. Appellant reported spending approximately two to three 

hours daily casing mail, and seven hours delivering mail. He indicated that his mail routes included 

many hills, sidewalks, and stairs. Appellant stated that on his various routes he would have 400

to 600 deliveries, and he would walk six to eight miles per day while carrying his satchel and 

parcels, and climb and descend an average of at least 1,000 stairs per day. He noted a prior right 

hip replacement in 2013.

In an April 29, 2016 medical note, Dr. Justin W. Kung, a Board-certified diagnostic 

radiologist, reported that a March 24, 2016 left hip radiograph demonstrated overall findings 

consistent with moderate degenerative changes of the left femoroacetabular joint.

In a December 13, 2016 report, Dr. Byron V. Hartunian, a Board-certified orthopedic 

surgeon, noted examining appellant on September 13, 2016 for bilateral hip arthritis. He discussed 

appellant’s medical history, reviewed diagnostic testing, and provided findings on physical 

examination. Dr. Hartunian described appellant’s employment duties for the employing 

establishment since 1994 and noted no major injuries to the lower extremities during the course of 

his work as a letter carrier. A January 7, 2013 magnetic resonance imaging (MRI) scan of the right 

hip demonstrated advanced bilateral degenerative changes involving the hips, more noticeable on 

the right, and on April 2, 2013 appellant underwent a right total hip replacement with noncemented 

bipolar prosthesis. Dr. Hartunian reported that postoperatively, appellant was released to 

modified-duty work on July 2, 2013 and full-duty work approximately one month later. He noted 

that there was no specific trauma to his left hip and, while performing his employment duties in 

2014 and 2015, appellant experienced increasing left hip pain, stiffness, and restricted mobility. 

X-rays of the left hip were taken on June 18, 2015, which revealed moderate-to-severe narrowing 

of the femoral acetabular space with osteophytes. Appellant elected not to undergo left total hip 

arthroplasty and continued to work as a letter carrier with his symptoms. A subsequent March 24, 

2016 left hip x-ray revealed moderate degenerative changes of the left femoroacetabular joint. 

Dr. Hartunian diagnosed status post right total hip replacement for end-stage degenerative arthritis 

and left hip arthritis at the femoral acetabular joint. He opined that appellant’s right hip condition 
3

had stabilized and reached maximum medical improvement (MMI) on June 26, 2013, the date his 

physician released him to full-duty work, based on his right hip x-ray, which showed good position 

of his total hip replacement. Dr. Hartunian opined that appellant’s left hip arthritis had stabilized 

and reached MMI on March 24, 2016, the date of his most recent radiograph. 

Dr. Hartunian opined that appellant’s work as a letter carrier aggravated and accelerated

his bilateral hip osteoarthritis. He discussed appellant’s repetitive work activity of ascending 

stairs, which placed loads on the lower extremity joints approximately three times the body weight

and that descending stairs placed loads on the lower extremity joints approximately six times the 

body weight. Dr. Hartunian noted that ascending stairs with a full mail satchel added 

approximately 100 pounds to the effective body weight and descending stairs added approximately 

200 pounds to the effective body weight, which placed repeated stresses on appellant’s lower 

extremities. He noted that appellant’s job required constant and repetitive walking, standing, 

squatting, stooping, climbing, bending, lifting, carrying, and twisting. These impact loading 

activities exerted repeated local stresses to his lower extremities.

Dr. Hartunian defined arthritis as a failure and loss of articular cartilage surface, explaining 

that the progression of arthritis was accelerated through a biological/chemical process that occurs 

by which excessive impact loading and repeated local stresses caused mechanical stresses on the 

cartilage surface, resulting in chronic inflammation. This inflammation results in an accelerated 

loss of articular cartilage in the affected areas, in this case the lower extremities. Inflammation 

results in a chemical change within the cartilage as it activates degradative enzymes, which cause 

the loss of the proteoglycans. Dr. Hartunian explained that the loss of proteoglycans are significant 

because, among other reasons, proteoglycans are responsible for cartilage resilience. He reported 

that appellant’s arthritis was accelerated through this process of impact loading from repeated local 

stresses, causing chronic inflammation. Thus, Dr. Hartunian opined that loading and local stresses 

arising from repetitive motion activities such as knee bending, kneeling, lifting, climbing, 

stooping, twisting, squatting, and carrying contributed to the development and progression of 

appellant’s lower extremity arthritis.

Accompanying Dr. Hartunian’s December 13, 2016 medical report was a January 4, 2013 

right hip x-ray, a January 7, 2013 right hip MRI scan, a March 26, 2013 right hip x-ray, and an 

April 2, 2013 operative report for a right bipolar hip arthroplasty.

By development letter dated February 21, 2017, OWCP informed appellant that the 

evidence of record was insufficient to support his claim. It advised appellant of the factual and 

medical evidence needed and was provided a questionnaire for completion. OWCP afforded 

appellant 30 days to submit the necessary evidence. In a separate development letter dated 

February 21, 2017, it requested the employing establishment provide comments pertaining to 

appellant’s alleged occupational disease claim.

By letter dated March 10, 2017, counsel asserted that OWCP’s February 21, 2017 

development letter failed to acknowledge receipt of all of the documents submitted in support of 

his claim. He further argued that OWCP failed to consider Dr. Hartunian’s December 13, 2016 

report, which he claimed provided a comprehensive opinion that appellant’s bilateral hip 

osteoarthritis was causally related to his federal employment duties.
4

In support of his claim, appellant resubmitted medical reports previously of record, 

including Dr. Hartunian’s December 13, 2016 report. He also submitted a January 30, 2013 right 

hip arthrogram, a May 7, 2013 right hip x-ray, and progress notes dated April 22, 2013 through 

June 18, 2015 documenting treatment for hip osteoarthritis from Dr. Robert A. McGuirk, a Boardcertified orthopedic surgeon.

In a March 14, 2017 memorandum, OWCP’s Regional Director indicated that, in 

accordance with Chapter 2.800.9 of the FECA Procedure Manual,4the claim for acceleration of 

osteoarthritis was being converted into an extended occupational disease claim as it required full 

scale development as to the nature of exposure, or the relationship of the condition to the exposure 

was not obvious. He noted that the claim was being converted to allow for tracking as an extended 

occupational disease claim as the medical evidence of record did not meet all of OWCP’s 

requirements for adjudication, but established a prima facie case. The Regional Director instructed 

the claims examiner to prepare a statement of accepted facts (SOAF) and questions for the 

physician. The instructions provided that the claims examiner could then write directly to the 

attending physician (if of the appropriate specialty), or refer appellant for examination by a 

qualified specialist. Following the instructions from the Regional Director, no additional 

development of the claim is evident in the record.

By decision dated June 28, 2017, OWCP denied appellant’s claim, finding that the medical 

evidence of record failed to establish that his bilateral hip osteoarthritis was causally related to the 

established factors of his federal employment. It noted that it had requested that appellant provide 

copies of all prior medical reports for treatment received of his bilateral hip condition, specifically

noting all office visits, postoperative reports, and those medical reports that led to the January 4, 

2013 x-ray and January 7, 2013 MRI scan. However, appellant failed to provide these medical 

records as requested. OWCP found that, as a result of incomplete medical records, it was unable 

to determine the full nature of appellant’s condition because it did not have an accurate medical 

history.

By letter received on July 11, 2017, appellant, through counsel, requested an oral hearing 

before an OWCP hearing representative.

A hearing was held on November 28, 2017 and appellant was represented by counsel. 

Counsel argued that Dr. Hartunian’s report provided an uncontroverted opinion supporting causal 

relationship and that the claim should be accepted or remanded for further development.

In support of the claim, medical reports dated January 16 through May 7, 2013 were 

submitted from Dr. McGuirk who documented treatment for appellant’s right hip osteoarthritis.

Appellant also submitted medical reports dated January 3 and 28, 2013 from Dr. Ronald F. 

Gomes, Board-certified in internal medicine, who documented treatment for generalized 

osteoarthritis, noting severe bilateral degenerative joint disease of the hips, right side worse than 

 

4 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Extended Development, 

Chapter 2.800.9 (June 2011).
5

left. Dr. Gomes’ medical reports dated September 29, 2016 through June 1, 2017 were also 

submitted documenting treatment for left knee osteoarthritis.

By decision dated February 6, 2018, OWCP’s hearing representative affirmed the June 28, 

2017 decision, finding that the evidence of record failed to establish that his bilateral hip 

osteoarthritis was causally related to the established factors of federal employment. She noted that

Dr. Hartunian’s December 13, 2016 report was insufficient to establish appellant’s claim because 

the record was devoid of any objective evidence demonstrating progression of bilateral hip 

osteoarthritis prior to January 2013 when appellant was found to have extensive bilateral 

degenerative joint disease of the hips. The hearing representative further noted that there was no 

medical evidence addressing causal relationship between the April 2, 2013 right hip arthroplasty 

and appellant’s employment duties.

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 timely filed within the applicable 

time limitation period of FECA,5that 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.6 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.7 

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.8

The medical evidence required to establish causal relationship is rationalized medical 

opinion evidence. The opinion of the physician must be based on a complete factual and medical 

background of the employee, must be one of reasonable 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 employee.9

 

5 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

6

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

ECAB 312 (1988).

7 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).

8 K.C., Docket No. 18-1330 (issued March 11, 2019); see Roy L. Humphrey, 57 ECAB 238, 241 (2005).

9

Id.
6

ANALYSIS

The Board finds that this case is not in posture for decision. 

After receiving OWCP’s February 21, 2017 development letter, appellant submitted 

numerous medical reports in support of his claim dating back to January 2013, as well as

Dr. Hartunian’s December 13, 2016 report. Following receipt of these medical reports and prior 

to the June 28, 2017 decision, the record reflects that the case file contained a March 14, 2017 

memorandum from OWCP’s Regional Director. In the memorandum, the Regional Director

indicated that, in accordance with Chapter 2.800.9 of the FECA Procedure Manual,10 the claim for 

acceleration of osteoarthritis was being converted into an extended occupational disease claim as 

it required full scale development as to the nature of exposure, or the relationship of the condition 

to the exposure was not obvious. It noted that the claim was being converted to allow for tracking 

as an extended occupational disease claim as the medical evidence in the file did not meet all of 

OWCP’s requirements for adjudication, but established a prima facie case. The Regional Director 

instructed the claims examiner to prepare a SOAF and questions for the attending physician. He 

then instructed the claims examiner to write directly to the attending physician (if of the 

appropriate specialty), or to refer appellant for examination by a qualified specialist. 

The Board notes that the claims examiner did not follow the instructions of OWCP’s

Regional Director as noted in the March 14, 2017 memorandum. The claims examiner did not 

prepare a SOAF or questions for appellant’s attending physician in an effort to further develop the 

claim, nor was appellant referred for examination by a qualified specialist. Despite having 

received medical reports documenting appellant’s condition since January 2013, along with

Dr. Hartunian’s comprehensive medical report, OWCP’s claims examiner took no further action 

on the claim. 

The Board will remand the case for further development of the medical evidence. On 

remand OWCP should follow the instructions provided by OWCP’s Regional Director in his 

March 14, 2017 memorandum. Following this and any other further development deemed 

necessary, OWCP shall issue a de novo merit decision on appellant’s occupational disease claim.

CONCLUSION

The Board finds that this case is not in posture for decision.

 

10 Supra note 4.
7

ORDER

IT IS HEREBY ORDERED THAT the February 6, 2018 decision of the Office of 

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

consistent with this decision.

Issued: April 25, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board