United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Burlington, VT, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1491

Issued: December 17, 2018

Appearances: Case Submitted on the Record

Benjamin Zimmermann, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On June 26, 2017 appellant, through counsel, filed a timely appeal from an April 5, 2017

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.3

 

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.

3 Appellant filed a timely request for oral argument in this case. By order dated March 14, 2018, the Board exercised 

its discretion and denied appellant’s request as oral argument would further delay issuance of a Board decision and 

not serve a useful purpose. Order Denying Request for Oral Argument, Docket No. 17-1491 (issued March 14, 2018).
2

ISSUE

The issue is whether appellant has met his burden of proof to establish that acceleration of 

osteoarthritis in his left knee is causally related to the accepted factors of his federal employment. 

FACTUAL HISTORY

On March 27, 2015 appellant, then a 67-year-old retired letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained acceleration of osteoarthritis of the left knee 

as a result of factors of his federal employment. He noted that he first became aware of his claimed 

condition and of its relationship to his federal employment on February 12, 2015. Appellant

retired from federal service, effective January 16, 2015.

In support of his claim appellant submitted a series of medical reports. In a diagnostic 

report dated December 14, 2000, Dr. Steven Nudo, a Board-certified orthopedic radiologist, 

examined the results of an x-ray of appellant’s left knee to rule out a fracture due to a fall. He

observed that the bones and soft tissue were within normal limits and no fracture was identified.

In a report dated July 9, 2003, Dr. Kristen Destigter, a Board-certified diagnostic 

radiologist, examined the results of an x-ray of appellant’s left knee. She noted mild narrowing of 

the lateral compartment with bony proliferation, as well as narrowing and bony proliferation of 

the patellofemoral joint.

On December 14, 2004 Dr. Robert Johnson examined appellant and expressed uncertainty 

as to the cause of appellant’s symptoms. He noted that a magnetic resonance imaging (MRI) scan 

had been performed and that it demonstrated a lateral meniscus extended from the joint in a 

dramatic fashion. Dr. Johnson noted that it was possible that appellant continued to crush his 

lateral meniscus and deformed it further, causing impingement. He recommended that appellant 

keep a diary of issues with his joint and return in four to six weeks for further evaluation.

In a report dated January 13, 2005, Dr. Johnson noted that appellant had continued lateral 

knee pain postarthroscopic debridement of his left lateral meniscus. At the time of this procedure, 

it was noted that appellant had several grade 1 and grade 2 lesions on his lateral tibial plateau and 

a grade 4 lesion that underwent microfracture in 2003. Dr. Johnson noted that it was likely that 

appellant would continue to have pain with his arthritis, and that his examination was consistent 

with some decreased joint space on the left side, as appellant opened up with a valgus stress.

On February 15, 2005 Dr. Stephen Incavo, a Board-certified orthopedic surgeon, 

diagnosed lateral component arthritis of the left knee. He reiterated this diagnosis on May 20 and 

27, 2005.

In a report dated June 7, 2005, Dr. Scott Luria, a Board-certified internist, diagnosed knee 

arthritis and performed an injection.

In a diagnostic report dated February 3, 2010, an unnamed physician examined the results 

of x-rays of appellant’s knees. The physician noted mild stable degenerative changes in the right 

knee and moderate stable degenerative changes in the left knee.
3

In a diagnostic report dated March 16, 2011, Dr. David Halsey, a Board-certified 

orthopedic surgeon, examined the results of an x-ray of appellant’s knees. He noted impressions 

of the left knee of a small joint effusion, moderate degenerative changes in the lateral foraminal 

compartment, as well as enthesopathic changes to the inferior pole of the patella intimate with the 

proximal insertion of the patellar tendon.

On April 13, 2011 Dr. Halsey diagnosed degenerative joint disease of the left knee. He 

performed a corticosteroid injection.

Appellant submitted several reports signed by nurse practitioners to the case file, including 

a report dated September 29, 2011.

In a diagnostic report dated May 23, 2012, Dr. Halsey examined the results of an x-ray of 

appellant’s knees. With regard to the left knee, he observed a small amount of fluid in the 

suprapatellar process, moderate-to-severe degenerative changes in the lateral femerotibial 

compartment, moderate degenerative changes on the patellofemoral compartment, and mild 

degenerative changes on the medial femorotibial compartment. Dr. Halsey further noted minimal 

spurring of the tibial spines.

On September 4, 2013 Dr. Halsey reviewed x-rays of appellant’s left knee, demonstrating 

grade 3 Kellgren-Lawrence osteoarthritis with obliteration of the joint space and localized to the 

lateral compartment.

By letter dated November 25, 2014, appellant indicated that he began work as a letter 

carrier in 1984 and had no problems with his knee until he began to deliver a new route that 

involved going up and down many steep stairs, up to 10 hours per day and 6 days per week. He 

further noted that he had to enter and exit his postal vehicle numerous times to deliver mail and 

parcels, frequently crawling on his hands and knees in the back of the truck to retrieve deliverables. 

Appellant changed routes about in 2004, but still had to climb flights of stairs to deliver mail, as 

well as walking up and down steep hills. He stated that sorting mail involved bending and lifting 

boxes of mail, pivoting to case the mail, and transferring trays of mail weighing up to 50 pounds 

from large hampers into the backs of vehicles. Appellant used two bags to carry most of his mail 

up and down steep stairs and into the backs of vehicles, walking around six miles per day on the 

route in which he first experienced knee pain. He noted that he used to hike, bicycle, and lift 

weights a few times per week, but had to stop after his knee began to hurt in 2003. Appellant 

stated that he was not supposed to lift more than 50 pounds.

By letter dated February 12, 2015, Dr. David Morley, Jr., a Board-certified orthopedic 

surgeon, reviewed his treatment of appellant and diagnosed left knee arthritis. He noted that he 

examined appellant on that date for left knee problems including pain, swelling, loss of motion, 

and functional limitations, which occurred progressively over the course of appellant’s federal 

employment. Dr. Morley noted, “After a careful history, physical examination, and review of 

documentation provided -- including radiographic reports, it is my professional opinion, within a 

reasonable degree of medical certainty, that [appellant] sustained accumulative injuries to his left 

knee resulting in progressive deterioration of the left knee secondary to overuse arthritis.” He 

further noted that appellant’s left knee symptoms ultimately required a total knee replacement 

which led to his retirement. Dr. Morley explained that the etiology of degenerative arthritis, while 

not clearly delineated, was ultimately the failure of articular cartilage resulting in progressive loss 
4

of the cartilage along with inflammation associated with loss of motion, stiffness, rest and activityrelated pain, gait abnormality, and progressive deterioration of function. He noted that there was 

scientific evidence that factors contributing to osteoarthritis included heavy impact loading 

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

Dr. Morley noted that these were the kinds of physically demanding activities that appellant 

performed in his capacity as a letter carrier. He explained, “The repetitive heavy physical 

activities, as described above, have resulted in increased stresses through [appellant’s] left knee 

contributing to his left knee arthritis,” and reiterated his professional opinion that the most likely 

cause of his condition was degenerative and causally related to the physical duties of a letter 

carrier. Dr. Morley also reiterated his belief that there was a direct causal relationship between 

appellant’s arthritis and his work, noting that such a relationship of aggravation/acceleration due 

to such duties was well documented and a classic example of such a case. He clarified that the 

aggravation of the underlying arthritis process was permanent rather than temporary and that all 

opinions in this letter were provided within a reasonable degree of medical certainty.

On September 4, 2013 Dr. Halsey diagnosed left knee lateral compartment osteoarthritis. 

He noted that appellant informed him that he substituted for a lot of work at the employing 

establishment and that his symptoms were worsening, to the point that at the end of the day, they

were so severe that he wanted to lay around in bed. Dr. Halsey recommended a left total knee 

arthroplasty.

By letter dated April 9, 2015, appellant’s former counsel requested that appellant’s claim 

be submitted to a district medical adviser to determine the permanency and acceleration of 

osteoarthritis for appellant’s condition.

By development letter dated May 28, 2015, OWCP informed appellant that he had not 

submitted sufficient documentation to support his claim. It explained that Dr. Morley’s opinion 

was based, in part, on findings of diagnostic tests that had not been made available to OWCP. 

OWCP specified missing reports dated February 3, 2010, March 16 and September 29, 2011,

May 23, 2012, and September 4, 2013. It further noted that appellant’s physician needed to 

provide a well-reasoned medical opinion explaining how work factors altered the natural course 

of his preexisting osteoarthritis of the left knee. OWCP afforded appellant 30 days to submit the 

necessary evidence.

On June 26, 2015 appellant’s former counsel provided OWCP with the reports dated 

February 3, 2010, March 16 and September 29, 2011, May 23, 2012, and September 4, 2013.

Counsel noted that OWCP had requested that appellant submit a statement of causal relationship 

in support of his claim, yet had also acknowledged receipt of Dr. Morley’s February 12, 2015 

report, which addressed causation in detail.

On July 1, 2016 OWCP referred appellant’s claim for a second opinion on the issue of 

whether he sustained an aggravation of his left knee osteoarthritis and whether his claimed injury 

was permanent or temporary.4

 

4 However, a letter informing appellant of the referral does not appear in the case record, nor does any further 

pursuit of a second opinion appointment by OWCP.
5

By decision dated August 26, 2016, OWCP denied appellant’s claim finding that he had 

not submitted sufficient evidence to establish causal relationship between his diagnosed condition 

and the accepted factors of his federal employment. It explained that it had not received the 

diagnostic reports requested in its development letter of May 28, 2015, and further noted that a 

report existed in the record of x-rays after a fall on December 14, 2000. OWCP noted that it did 

not receive medical reports leading up to these x-rays, or treatment received afterward, nor did it 

receive medical reports for treatment leading up to a January 20, 2003 surgery and any follow-up 

case from February through June 2003, nor medical reports for treatment received after a 

January 19, 2014 surgery. As such, OWCP denied appellant’s claim, finding that Dr. Morley’s 

February 12, 2015 report was not based on an accurate medical history.

On September 13, 2016 appellant’s formal counsel requested an oral hearing before an 

OWCP hearing representative. He attached a memorandum arguing that Dr. Morley’s report was, 

in fact, based on an accurate medical history and a thorough review of the medical and factual 

evidence. Counsel further noted that the records OWCP had found missing and determinative in 

this case were sporadic and random selections not required to support what is already established 

in medical records to which OWCP already had access.

In a supplemental report from Dr. Morley dated January 26, 2017, he reviewed medical 

records subsequent to his February 12, 2015 report. He explained that these records did not change 

his opinion that appellant’s left knee arthritis was aggravated by cumulative injuries to his left knee 

while performing duties of his federal employment. Dr. Morley noted that with respect to the 

January 16, 2014 left total knee replacement, the medical notes that he reviewed supported the 

proposition that because of persistent work-related factors, appellant underwent that procedure and 

was forced to retire.

Attached to the memorandum were medical reports dated between December 14, 2000 and 

February 3, 2010. Appellant submitted a note from a physician assistant dated December 14, 

2000, in which he told the physician assistant that he had fallen on ice onto his left knee cap. In a 

diagnostic report dated December 6, 2002, Dr. Candice Ortiz, a Board-certified diagnostic 

radiologist, examined the December 6, 2002 MRI scan of his left knee. She observed a complex 

tear involving the anterior horn and body of the lateral meniscus, a partial or full-thickness tear of 

the lateral collateral ligament, extensive body contusion with a small osteochondral defect of the 

lateral femoral condyle, joint effusion, and a Baker’s cyst.5 In a report dated November 27, 2002,

Dr. Michael Sargent, a Board-certified pediatrician specializing in pediatric sports medicine, 

examined appellant and diagnosed him with a probable degenerative lateral meniscal tear. 

On December 12, 2002 Dr. Johnson diagnosed appellant with an injury to his left knee that

resulted in moderate effusion and lack of motion, noting that the etiology was unclear as to whether 

it was from a lateral meniscus tear or an osteochondral defect. In a note dated February 13, 2003, 

he noted that appellant’s pain had increased, but that his swelling had gone down. On March 20, 

2003 Dr. Johnson noted that appellant’s symptoms had improved significantly. In a diagnostic 

report dated July 9, 2003, Dr. Destigter examined an x-ray of appellant’s left knee and observed 

mild narrowing of the lateral compartment with bony proliferation, as well as narrowing and bony 

 

5 Dr. Ortiz’ report refers to the medial meniscus in a section of the report referring to her impressions, but refers to 

the lateral meniscus when discussing her interpretation of the MRI scan related to the complex tear involving the 

anterior horn and body of a meniscus.
6

proliferation of the patellofemoral joint. On July 1, 2003 Dr. Johnson noted that appellant reported 

that the pain inside his knee had resolved, but that he had developed pain along the lateral neck of 

his gastroc muscle, the muscle belly of his anterior tibial muscle, and the tendon of his biceps 

femoris. He recommended that appellant cut back on his work-out regimen. Dr. Luria noted that 

appellant’s knee surgery went well although the recovery has been prolonged. In a diagnostic 

report dated December 9, 2014, Dr. Michael Blankstein examined the results of an x-ray of 

appellant’s knees.6 He observed a left total knee arthroplasty, with mild degenerative changes in 

the patellofemoral compartment, with a small suprapatellar knee joint effusion and atherosclerotic 

arterial calcification. On December 10, 2014 Dr. Blankstein noted that appellant was in minimal 

pain and with minimal swelling, and able to work full time, including ascending and descending

stairs, with minimal discomfort. He noted that x-rays demonstrated components in good position 

with no complications.

A hearing was held on January 25, 2017. At the hearing, appellant’s former counsel noted 

that he had submitted the medical records requested by OWCP, which were principally of no 

material bearing on the causation analysis. He described several of these reports, but noted that

Dr. Morley’s February 12, 2015 report thoroughly explained how appellant’s duties contributed to 

his left knee arthritis. Counsel argued that Dr. Morley’s report should be sufficient to establish 

appellant’s claim. The hearing representative acknowledged that she had received the 

memorandum and medical records and kept the record open for 30 days for submission of 

additional evidence.

By decision dated April 5, 2017, the hearing representative affirmed OWCP’s August 26, 

2016 decision. She noted that receipt of the additional medical evidence, but she did not describe 

it. The hearing representative reviewed Dr. Morley’s January 26, 2017 report, in which he

reiterated his opinion on causation. She found that his report was insufficient to establish causal 

relationship because he did not explain, with adequate rationale, as to how appellant’s work 

activities aggravated his left knee arthritis. The hearing representative quoted a portion of

Dr. Morley’s February 12, 2015 report in which he noted that the most likely cause of his condition 

was degenerative and causally related to the physical duties of a letter carrier. She further 

concluded that Dr. Morley had not explained why appellant’s left knee osteoarthritis had been 

aggravated by a left knee arthroscopy on January 20, 2003.

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 

 

6 Dr. Blankstein’s Board-certification in a medical specialty could not be confirmed.
7

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

whether the claim is predicated on a traumatic injury or 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; (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. 

The claimant has the burden of proof to establish by the weight of reliable, probative, and 

substantial evidence that the condition for which compensation is sought is causally related to a 

specific employment incident or to specific conditions of employment.9 An award of 

compensation may not be based on appellant’s belief of causal relationship. Neither the mere fact 

that a disease or condition manifests itself during a period of employment, nor the belief that the 

disease or condition was caused or aggravated by employment factors or incidents is sufficient to 

establish causal relationship.10

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether 

there is causal relationship between the claimant’s diagnosed condition and the compensable 

employment factors. 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.12 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.13

ANALYSIS

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

 

7 Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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

9 Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

10 P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11 Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

12 Leslie C. Moore, 52 ECAB 132, 134 (2000).

13 Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).
8

The Board notes that OWCP began the process of referral to a second opinion specialist on 

July 1, 2016, but that the process was not completed, with no explanation as to why the process 

was not completed in the case record. The claims development process is nonadversarial in nature 

and once OWCP undertakes to develop the medical evidence further, it has the responsibility to 

do so in a proper manner.14 The Board finds that OWCP did not complete the development of the 

medical record by obtaining the opinion of a second opinion physician.

On remand, OWCP should refer appellant, the case record, and a statement of accepted 

facts to an appropriate specialist to determine whether the identified factors of federal employment 

caused or aggravated his diagnosed condition. After such further development of the case record 

as it deems necessary, a de novo decision shall be issued.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 5, 2017 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded to further action consistent with this 

decision.

Issued: December 17, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

14 K.S., Docket No. 18-0845 (issued October 26, 2018); Melvin James, 55 ECAB 406 (2004).