United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Dedham, MA, Employer

__________________________________________

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Docket No. 18-1793

Issued: April 24, 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 September 24, 2018 appellant, through counsel, filed a timely appeal from an 

August 28, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

 

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 Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.

§ 501.5(b). By order dated March 12, 2019, the Board exercised its discretion and denied the request as appellant’s

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the

record. Order Denying Request for Oral Argument, Docket No. 18-1793 (issued March 12, 2019).
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.4

ISSUE

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

knee conditions causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On May 29, 2018 appellant, then a 60-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) for bilateral hip and left knee injuries resulting from the performance of his 

federal duties. He claimed that he first became aware of his conditions and their relationship to 

his federal employment on July 20, 2017. In an accompanying narrative statement dated June 1, 

2017, appellant described his work duties, noting in detail the walking, climbing, lifting, carrying, 

squatting, reaching, stooping, twisting, foot pivoting, pushing, and pulling he had to perform while 

casing and delivering hundreds of pounds and mail and parcels on a daily basis. He also related 

that he slipped and fell 372 times or more while on his route. Appellant noted that he performed 

very little vigorous physical activity outside of work.

On the reverse side of the claim form appellant’s postmaster controverted the claim,

contending that appellant had told him many times that he was a marathon runner, but this was not 

mentioned in a medical evaluation. He further contended that it had been 10 months since 

appellant became aware of the alleged correlation, yet he never reported it to anyone and continued 

to perform the duties that allegedly caused his conditions.

In support of his claim, appellant submitted a medical report dated November 6, 2014 from

Dr. Louis A. Maggio, a Board-certified internist, who diagnosed mild soreness versus early 

bursitis and epicondylitis.

Appellant also submitted bilateral hip and left knee x-ray reports dated August 25, 2016 

from Dr. Robert L. Gore, a Board-certified diagnostic radiologist. In the bilateral hip x-ray report,

Dr. Gore provided an impression that degenerative changes were present in both hips. He also 

provided an impression of no acute fracture or dislocation of the right or left hip. In the left knee 

x-ray, Dr. Gore provided an impression that degenerative changes were present. He also provided 

an impression of no acute fracture or dislocation.

A letter dated September 5, 2016 by Dr. Justin W. Kung, a Board-certified diagnostic 

radiologist, indicated that he had reviewed the August 25, 2016 bilateral knee and hip x-ray 

reports. Dr. Kung found that overall there was mild degenerative change in the medial 

 

 

3 5 U.S.C. § 8101 et seq.

4 Following the issuance of OWCP’s August 28, 2018 decision, appellant submitted new evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
3

compartment of the right knee and mild degenerative change in the right and left femoroacetabular 

compartments.

In a report dated May 5, 2018, Dr. George P. Whitelaw, an attending Board-certified 

orthopedic surgeon, noted that he examined appellant on July 20, 2017. He also noted that he had 

reviewed medical records and appellant’s statement describing in detail his letter carrier work 

activities. Dr. Whitelaw indicated that appellant worked as a letter carrier at the employing 

establishment for 31 years. Appellant’s work duties included walking, lifting, carrying, standing, 

bending, squatting, reaching, stooping, twisting, foot pivoting, reaching, pushing, and pulling 

while casing and delivering 200 pounds of mail and parcels. During the winter months, he slipped, 

tripped, stumbled, and fell at least a dozen times. Appellant performed very little other vigorous 

physical activity outside of work. 

Dr. Whitelaw reviewed an American Academy of Orthopaedic Surgeons (AAOS) 

inventory form and Dr. King’s September 5, 2016 bilateral knee and hip x-rays. He noted

appellant’s medical history and diagnosed bilateral hip and left knee degenerative arthritis. 

Dr. Whitelaw opined that appellant had reached maximum medical improvement (MMI) as of the 

date of his examination. He further opined that his lower extremity osteoarthritis was causally 

related to the cumulative work stresses “given the very lenient contribution standard for causal 

relationship used by the Department of Labor (DOL), especially the definition of acceleration.”

Dr. Whitelaw maintained that these work stresses occurred over a period of years, resulting in the 

breakdown of the weight-bearing articular cartilage in the lower extremities, which left appellant 

in his current state. He noted the definition of arthritis and related that the condition was caused 

by repetitive microtraumas associated with heavy impact loading activities of the kind and type 

described by appellant’s statement describing his regular job responsibilities. Dr. Whitelaw

related that there was voluminous scientific evidence that factors contributing to progressive 

degenerative changes within weight-bearing joints of the lower extremities included heavy impact 

loading activities such as standing, walking, kneeling, stooping, bending, and twisting. He

specifically indicated medical science and biomechanics determined that climbing stairs loaded

the lower body joints three times the body weight and descending stairs loaded the lower body 

joints six times the body weight. Dr. Whitelaw concluded, therefore, that a 35-pound mail satchel 

of the type that appellant regularly carried would add 105 pounds of effective weight when 

appellant ascended stairs and 210 pounds of effective weight when he descended stairs. He

indicated that medical science and biomechanics had also determined that greater weight caused 

greater stresses on the lower extremity joints, thus, increasing inflammation and contributing to 

the process that deteriorated articular cartilage, i.e., contributed to osteoarthritis. Dr. Whitelaw

maintained that there was no medical dispute that a letter carrier job over a long career aggravated 

and accelerated arthritis due to continuous walking, stopping, squatting, stair climbing/descending, 

and the like, which appellant experienced during his extensive career as a letter carrier. He 

indicated that appellant was required to perform various impact loading activities on a regular basis 

over a series of decades. Dr. Whitelaw related that, while his repetitive high-impact loading work 

activities did not necessarily cause the arthritis in the first instance, there was no doubt that they 

contributed to the development, aggravation, exacerbation, acceleration, and progression of his 

lower extremity arthritis. He opined that, based on what medical science knows about arthritis and 

appellant’s medical history and job activities, the accumulative stresses of his work activities, at a 

bare minimum, contributed to his arthritis and, thus, medical causation was established by DOL’s

own standards. Dr. Whitelaw advised that, by the very nature of arthritis, this progression, 
4

aggravation, and acceleration was permanent in nature as cartilage never regrows or goes back to 

its prior state after impact loading activities destroy it. While the symptoms of arthritis of the 

lower extremities (pain, swelling, stiffness, aching, and loss of motion) may change from day to 

day, the loss of the articular surface was permanent and irreversible. 

Dr. Whitelaw related that, even after appellant stopped working, his work activities still 

had a permanent effect as his arthritic condition would not cease simply because he had stopped 

working since he would never regain the cartilage he had lost. He determined that appellant had 

14 percent permanent impairment of the left lower extremity in accordance with the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5

In a development letter dated June 26, 2018, OWCP requested that the employing 

establishment respond to appellant’s allegations and provide a copy of his position description.

On July 9, 2018 OWCP received the employing establishment’s response to its June 26, 

2018 development letter. In an undated letter, the postmaster again controverted the claim arguing 

that appellant’s participation in marathons “may have” contributed to his claimed work-related 

condition, that he failed to timely report his injury, and that he continued to participate in the 

employment duties that allegedly caused his injury. He submitted an official description of 

appellant’s carrier (city) position.

In a development letter dated July 26, 2018, OWCP notified appellant of the factual and 

medical deficiencies of his claim. It provided a factual questionnaire for his completion. OWCP 

also requested additional medical evidence, including a narrative medical report from his 

physician, which contained a detailed description of findings and diagnoses, explaining how his 

work activities caused, contributed to, or aggravated his medical condition. It explained that 

appellant’s physician should rule out other causes for his condition such as age, weight, preexisting 

medical conditions, or other injuries outside of his federal employment. OWCP also explained 

that his physician should explain whether running in marathons caused or aggravated appellant’s 

conditions. It afforded appellant 30 days to submit the requested evidence.

On August 13, 2018 appellant responded to OWCP’s questionnaire. He related that he first 

treated with Dr. Maggio in 2014 regarding his right hip condition and in 2016 regarding his left 

hip and left knee conditions. Appellant had no prior injuries or conditions to his hips and left knee. 

He listed his strenuous or repetitive activities outside his federal employment, which included 

running in the San Diego marathon in 1999 and Boston marathon from 2000 to 2004. Appellant

had not run in a marathon since 2004. He noted that he did not work for periods of time due to his 

nonwork-related heart and back conditions. Appellant did not report his dozens of slips and 

stumbles over the years because he often treated them with over-the-counter pain medication, ice, 

and rest.

In a letter dated August 15, 2018, appellant’s prior counsel also responded to OWCP’s 

development letter. She contended that Dr. Whitelaw’s May 5, 2018 report was sufficient to 

 

5 A.M.A., Guides (6th ed. 2009).
5

establish that appellant’s repetitive and extensive impact loading activities during the course of his 

federal employment caused his bilateral hip and left knee arthritis.

An October 1, 2013 report by Dr. Maggio was received. Dr. Maggio examined appellant, 

recommended stretches to prevent plantar fasciitis, and offered a podiatry evaluation if 

bothersome.

A partial copy of an undated lower limb questionnaire completed by appellant indicated 

that, during the past week, his lower limb was moderately stiff and mildly swollen. Appellant

noted that it was mildly painful for him to walk on flat surfaces and lie in bed at night. It was 

moderately painful for him to go up or down stairs. Appellant did not need support or assistance 

at all. He had a little bit of difficulty with putting on or taking off socks/stockings during the past 

week.

By decision dated August 28, 2018, OWCP denied appellant’s occupational disease claim

finding that the medical evidence of record was insufficient to establish that his diagnosed bilateral 

hip and left knee conditions were causally related to the accepted employment factors. It found 

that Dr. Whitelaw’s May 5, 2018 report was not based on a complete and accurate factual history 

as he did not mention appellant’s marathon activities. OWCP further found that appellant failed 

to submit all the medical reports regarding the treatment of his bilateral hip and left knee 

conditions.

LEGAL PRECEDENT

An employee seeking benefits under FECA6 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 

and/or specific condition for which compensation is claimed are causally related to the 

employment injury.7 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8

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;9(2) a factual 

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

occurrence of the disease or condition;10 and (3) medical evidence establishing that the 

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

 

6 Supra note 3.

 

7 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

 

8 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

9 Michael R. Shaffer, 55 ECAB 386 (2004).

10 Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).
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compensation is claimed or, stated differently, medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the claimant.11 

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.12

ANALYSIS

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

In support of his claim, appellant submitted a May 5, 2018 report from his attending 

physician, Dr. Whitelaw. Dr. Whitelaw noted that he had examined appellant and provided a 

detailed description of appellant’s work duties. He diagnosed bilateral hip and left knee 

degenerative arthritis. Dr. Whitelaw opined that the diagnosed conditions were caused, 

contributed to, and aggravated by appellant’s work duties, including walking, lifting, carrying, 

standing, bending, squatting, reaching, stooping, twisting, foot pivoting, reaching, pushing, and 

pulling while casing and delivering mail and parcels weighing 200 pounds on a daily basis. He 

also provided medical rationale explaining how and why the diagnosed conditions were caused by 

the accepted employment factors. `

While Dr. Whitelaw’s opinion is an uncontroverted affirmative opinion on causal

relationship.

The Board thus finds that the medical evidence of record is sufficient to require further 

development of the case record.13 It is well established that proceedings under FECA are not 

adversarial in nature and, while the claimant has the burden of proof to establish entitlement to 

compensation, OWCP shares responsibility in the development of the evidence to see that justice 

is done.14

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

remand OWCP should prepare a statement of accepted facts which includes all preexisting 

conditions as well as the accepted conditions and refer appellant to an appropriate Board-certified 

physician to obtain a rationalized opinion as to whether his bilateral hip and left knee conditions 

are causally related to his federal employment duties, directly or through aggravation, 

 

11 Beverly A. Spencer, 55 ECAB 501 (2004).

12 See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

13 S.T., Docket No. 18-1119 (issued March 6, 2019).

14 Phillip L. Barnes, 55 ECAB 426 (2004); William J. Cantrell, 34 ECAB 1233 (1993); see also Virginia Richard, 

claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell, 36 ECAB 

699 (1985).
7

precipitation, or acceleration.15 Following this and any other further development deemed 

necessary, OWCP shall issue a de novo decision on his occupational disease claim. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 28, 2018 decision of the Office of 

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

consistent with this decision.

Issued: April 24, 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

 

15 S.T., supra note 13; P.A., Docket No. 09-0319 (issued November 23, 2009).