United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Buffalo, NY, Employer

__________________________________________

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Docket No. 18-1585

Issued: March 22, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 14, 2018 appellant, through counsel, filed a timely appeal from a July 24, 2018 

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.

 

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

ISSUE

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

polyneuropathy was causally related to, or aggravated by, the accepted factors of his federal 

employment.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On May 4, 2015 appellant, then a 58-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he experienced pain and difficulty when walking as a result of 

repetitively standing, climbing, driving, and walking a minimum of eight hours a day while in the 

performance of duty. He noted that he first became aware of his claimed condition on October 8, 

2013 and realized it resulted from his federal employment duties on April 23, 2015. Appellant did 

not stop work.

Appellant received medical treatment from Dr. David E. Hoffman, a Board-certified 

neurologist. In an October 8, 2013 report, Dr. Hoffman indicated that he was treating appellant 

for paresthesia in both feet. He noted that appellant worked as a mail carrier and reported abnormal 

neurological examination of appellant’s bilateral lower extremities. Dr. Hoffman diagnosed 

peripheral polyneuropathy and opined that it was aggravated by being on his feet virtually eight

hours a day, five days a week.” He further reported that walking had been an aggravating factor 

regarding the symptomatic polyneuropathy.

Dr. Hoffman continued to treat appellant. In reports dated October 13, 2014 to July 7, 

2015, he noted that electrodiagnostic testing had confirmed that appellant had a length-dependent, 

predominantly axonal, sensorimotor polyneuropathy.4 Dr. Hoffman clarified that appellant’s 

polyneuropathy was not caused by his employment, but his work duties significantly aggravated 

symptoms related to this preexisting condition.

In a June 18, 2015 development letter, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence necessary to establish his claim and provided a questionnaire for his completion. OWCP 

afforded appellant 30 days to submit the requested information.

Appellant subsequently submitted a copy of the October 8, 2013 EMG/NCV study referred 

to by Dr. Hoffman, a July 7, 2015 letter from Dr. Hoffman, and a copy of Dr. Hoffman’s 

October 13, 2014 report. 

 

3 Docket No. 17-0091 (issued July 25, 2017).

4 An October 8, 2013 electromyography (EMG) and nerve conductive velocity (NCV) study showed abnormal 

findings and demonstrated evidence of a length-dependent, predominantly axonal sensorimotor polyneuropathy.
3

By decision dated August 5, 2015, OWCP denied appellant’s claim. It accepted as factual 

his duties as a letter carrier and a diagnosis of peripheral neuropathy, but denied his claim because 

the medical evidence of record was insufficient to establish that appellant’s medical condition had 

been caused or aggravated by factors of his federal employment.

On September 29, 2015 appellant requested reconsideration and submitted additional 

medical evidence. In a September 9, 2015 letter, Dr. Hoffman reiterated that walking had not 

caused appellant’s neurological condition, but that prolonged walking was more painful due to his 

neurological condition. By decision dated December 23, 2015, OWCP denied modification of its 

August 5, 2015 decision.

On May 23, 2016 appellant, through counsel, requested reconsideration.

Appellant subsequently submitted a January 26, 2016 letter, wherein Dr. Hoffman related 

that appellant’s disability from his neuropathy was significantly contributed to by the imperative 

of having to be on his feet several hours a day delivering mail. Dr. Hoffman again reiterated, in a 

June 27, 2016 letter, that the repetitive walking by appellant on his postal route aggravated his 

preexisting condition, from a symptomatic point of view only.

By decision dated August 19, 2016, OWCP denied modification of its December 23, 2015 

decision.

Appellant appealed to the Board. By decision dated July 25, 2017, the Board affirmed the 

August 19, 2016 decision. The Board held that the medical evidence then of record was 

insufficient to establish that appellant’s federal employment duties had caused or contributed to 

his diagnosed peripheral polyneuropathy. The Board noted that Dr. Hoffman’s reports lacked 

medical rationale sufficient to explain how appellant’s employment duties physiologically caused 

or contributed to his polyneuropathy condition.

On May 8, 2018 appellant, through counsel, requested reconsideration.

In an April 24, 2018 report, Dr. Neil Allen, Board-certified in internal medicine and 

neurology, indicated that he reviewed appellant’s medical records and contacted him for a 

statement to determine whether causal relationship existed between appellant’s bilateral foot 

injuries and his work-related trauma. He described that appellant worked as a letter carrier and 

related appellant’s complaints of gradually worsening pain, numbness, and tingling in both his 

feet. Dr. Allen noted that an October 8, 2013 EMG study of the bilateral lower extremity revealed 

evidence of sensorimotor polyneuropathy. He opined that appellant’s bilateral foot condition had 

been directly aggravated by the physical demands of his position. Dr. Allen explained that, as a 

letter carrier, appellant was required to stand and walk for eight or more hours per day and operate 

a vehicle daily. He referenced The Merck Manual (13th Edition, p. 1385), which related that direct 

pressure and cold temperatures were an “exacerbating [aggravating] factor in polyneuropathy.”

Dr. Allen explained “that touching an area affected by polyneuropathy with the force equal to 

one’s body weight, hundreds if not thousands of times per day, to walk the route of letter carrier 

would, logically, aggravate the symptoms related to a polyneuropathy.” He opined that appellant’s

accepted duties in the position of a letter carrier required him to place pressure on his lower 

extremity thousands of times per day in, at times, frigid conditions and that these exposures led to 
4

the aggravation of his polyneuropathy. Dr. Allen concluded that the daily prolonged standing and 

walking required on a day-to-day basis by appellant’s letter carrier position led to the aggravation 

of polyneuropathy.

By decision dated July 24, 2018, OWCP denied modification.5 It found that Dr. Allen’s 

April 24, 2018 report did not contain a well-rationalized medical opinion explaining how 

appellant’s federal employment aggravated his bilateral lower extremity condition.

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,6that 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.7 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.8 

In an occupational disease claim, appellant’s burden of proof requires submission of the 

following: (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.9

Causal relationship is a medical issue and the medical evidence required to establish causal 

relationship is rationalized medical opinion evidence.10 The opinion of the physician must be 

based on a complete factual and medical background of the employee, must be one of reasonable 

medical certainty, and must be supported by medical rationale explaining the nature of the 

 

5 Although the July 24, 2018 OWCP decision denied modification of the Board’s July 25, 2017 decision, OWCP is 

not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject matter 

appealed, and such decisions and orders are not subject to review, except by the Board. 20 C.F.R. § 501.6(d). 

Although the July 25, 2017 Board decision was the last merit decision, OWCP’s August 19, 2016 decision is the 

appropriate subject of possible modification by OWCP

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

153 (1989).

7

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

ECAB 312 (1988).

8 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).

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

10 I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).
5

relationship between the diagnosed condition and the specific employment factors identified by 

the employee.11

ANALYSIS

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

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s August 19, 2016 decision because the Board 

has already considered this evidence in its July 25, 2017 decision. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.12

In support of his May 8, 2018 reconsideration request appellant subsequently submitted an 

April 24, 2018 report by Dr. Allen who opined that the daily prolonged standing and walking 

required by the accepted duties, on a day-to-day basis, by appellant’s letter carrier position led to 

the aggravation of polyneuropathy. Dr. Allen noted that his report was prepared to provide a 

rationalized medical opinion in order to establish whether causal relationship exists between 

appellant’s bilateral foot injuries and work-related trauma sustained on and prior to 

October 8, 2013. In preparation of the report, he reviewed appellant’s medical records and 

contacted him for a statement regarding his employment duties. Dr. Allen reviewed appellant’s 

medical records and noted that his treating physicians had diagnosed bilateral polyneuropathy, 

which had been confirmed by electrodiagnostic studies he had also reviewed. He also noted that 

appellant’s medical records were consistent with his physical complaints at the time he prepared 

his report and that his treating physician, Dr. Hoffman, had also noted that he related that cold 

temperatures and excessive walking caused an increase in symptomatology. Dr. Allen opined that

touching an area affected by polyneuropathy with the force equal to one’s body weight, hundreds 

if not thousands of times per day, to walk the route of letter carrier would aggravate the symptoms 

related to a polyneuropathy. He explained that appellant’s accepted duties in the position of a 

letter carrier required him to place pressure on his lower extremity thousands of times per day in, 

at times, frigid conditions and that these exposures led to the aggravation of his polyneuropathy. 

While the April 24, 2018 report from Dr. Allen is not completely rationalized, it is 

consistent in finding that appellant’s accepted duties of a letter carrier, which included prolonged 

standing and walking, often in frigid conditions, were sufficient to have aggravated his preexisting 

condition of polyneuropathy and now provides an explanation of the process by which the accepted 

employment duties can aggravate the condition of polyneuropathy. The Board thus finds that the 

medical opinion of Dr. Allen is based upon a complete factual history and medical background of 

appellant, is provided with reasonable medical certainty, and provides a sufficient level of medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

accepted employment factors.

13

 The Board further finds that the medical opinion of Dr. Allen is 

 

11 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

12 See K.K., Docket No. 17-1061 (issued July 25, 2018). The Board will, therefore, not review the evidence 

addressed in the prior appeal.

13 See E.C., Docket No. 17-1765 (issued January 24, 2018).
6

accurately premised upon the physical examinations conducted by Dr. Hoffman and that, under 

the facts as set forth in this case, a physical examination is unnecessary for the limited purpose of 

providing a physiologic explanation of whether the accepted employment factors were sufficient 

to have aggravated appellant’s diagnosed medical condition.14 Finally, the evidence of record is

supportive of causal relationship and is not contradicted by any substantial medical or factual 

evidence of record. 

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.15 Thus, while

Dr. Allen’s report is insufficient to meet appellant’s burden of proof to establish this claim, it raises 

an inference of causal relationship between the accepted factors of employment and the diagnosed 

condition and is sufficient to require further development of the medical record.16 

On remand OWCP shall develop the claim by referring appellant and the medical evidence 

of record to an appropriate specialist to obtain a rationalized opinion regarding whether his 

condition of polyneuropathy has been aggravated by the accepted factors of his federal 

employment.17 After such further development as OWCP deems necessary, it shall issue a de novo

decision.

CONCLUSION

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

 

14 See W.C., Docket No. 18-1386 (issued January 22, 2019); Sherry Shreiber, Docket No. 04-1966 (issued 

January 24, 2005); Melvina Jackson, 38 ECAB 443, 447-52 (1987) (finding that in a situation where the diagnosis is 

clearly established and the issue is whether factors of employment caused or aggravated the diagnosed condition, a 

physical examination would add little probative value to a medical opinion on causal relationship.)

15 See Phillip L. Barnes, 55 ECAB 426 (2004); Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002).

16 See W.W., Docket No. 15-1130 (issued August 7, 2015); Phillip L. Barnes, 55 ECAB 426 (2004); John J. 

Carlone, 41 ECAB 354 (1989).

17 M.K., Docket No. 17-1140 (issued October 18, 2017).
7

ORDER

IT IS HEREBY ORDERED THAT the July 24, 2018 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: March 22, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board