United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.M., Appellant

and

DEPARTMENT OF THE ARMY, 

WATERVLIET ARSENAL, Watervliet, NY, 

Employer

__________________________________________

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Docket No. 19-0258

Issued: May 8, 2020

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 15, 2018 appellant, through counsel, filed a timely appeal from a July 19, 

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 to consider 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 a medical condition 

causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

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

are as follows. 

On November 4, 2014 appellant then a 57-year-old machinist, filed an occupational disease 

claim (Form CA-2) alleging that he developed a large osteophyte formation about the proximal

left femoral epiphysis and osteoarthritis as a result of performing repetitive, strenuous activities 

while in the performance of duty. He noted that he first became aware of his condition and realized 

its relation to his federal employment on October 14, 2014. Appellant stopped work on 

October 14, 2014. 

Appellant submitted a statement dated December 22, 2014 and noted that from 2003 to 

2008 he was responsible for cleaning gun tubes which required pushing a ram rod with a ball of 

rags through the length of the gun tube up to 15 times a day on four to six guns for a total of 

approximately 2,500 gun tubes. He noted that, during this time, he noticed worsening pain in his 

hips. Appellant advised that, from 2011 to 2014, his duties included making adjustments to a 

reciprocating grinder by stepping off a platform repeatedly, manually turning a vertical turret lathe 

weighing about 2,000 pounds, and manually turning a malfunctioning tool changer in a milling 

machine which required repetitive stair climbing. 

In a January 14, 2015 e-mail, appellant’s immediate supervisor noted appellant’s 

description regarding his duties was inaccurate. He advised that appellant produced four parts a 

month on the surface grinder and appellant would be required to step up and down 10 times per 

part. The supervisor noted that the vertical turret lathe functioned as designed and other employees 

did not have any issue jogging the machine. With regard to the milling machines, he noted that 

they functioned as designed, but advised that there were occasions when a tool would need to be 

manually loaded approximately 10 times a day. In a January 14, 2015 statement, the chief of 

manufacturing for the employing establishment indicated that most of the tube cleaning description 

provided by appellant was accurate except that only 1,500 tubes were put through this process. 

The chief of manufacturing noted that the average number of times rods were pushed per tube was 

4 or 5, and the maximum number of times was 15. With regard to the milling machines, there 

were intermittent periods of time where an employee had to change the tools manually. 

Appellant was treated by Dr. John Juliano, a Board-certified orthopedic surgeon, who 

completed a certification of health care provider form on October 23, 2014 and found that appellant 

had bilateral hip osteoarthritis and low back pain. He opined that repetitive activities at work

“contribute to this process” and he recommended light-duty work. In a December 14, 2014 report,

 

3 Docket No. 16-0403 (issued June 6, 2016), petition for recon. denied, Docket No. 16-0403 (issued 

November 9, 2016).
3

Dr. Juliano diagnosed bilateral hip osteoarthritis and noted that appellant continued to be off work 

due to employment activity which exacerbated the preexisting osteoarthritis of his hips. 

By decision dated February 11, 2015, OWCP denied appellant’s occupational disease

claim, finding that the evidence of record was insufficient to establish that the alleged employment 

factors occurred as described. It concluded therefore that the requirements had not been met to 

establish an injury as defined by FECA. 

On August 25, 2015 appellant requested reconsideration of the February 11, 2015 decision

and submitted additional evidence. 

Appellant submitted January 6, March 2, and April 23, 2015 reports from Dr. Michael 

Cushner, a Board-certified orthopedic surgeon, who diagnosed bilateral hip osteoarthritis and 

lumbar radiculopathy. 

In a February 16, 2015 report, Dr. Juliano diagnosed low back pain with exacerbation of 

bilateral hip osteoarthritis. He noted that appellant remained off work. 

In a June 4, 2015 report, Dr. Young Don Oh, a Board-certified orthopedic surgeon, 

diagnosed “chronic bilateral hip pain, left greater than right, from work activities, with underlying 

[degenerative joint disease.]” 

By decision dated November 12, 2015, OWCP denied modification of the 

February 11, 2015 decision. 

Appellant appealed to the Board. By decision dated June 6, 2016,4the Board affirmed

OWCP’s November 12, 2015 decision, as modified to reflect that he had established that the work 

activities of cleaning gun tubes, and operating surface grinders, lathes, and milling machines

occurred as described.

5

 However, the Board further found that appellant did not submit sufficient 

medical evidence to establish a medical condition causally related to the accepted employment 

factors.

On May 29, 2017 appellant, through counsel, requested reconsideration of his claim and 

submitted additional medical evidence. 

In an April 10, 2017 report, Dr. Juliano indicated in the “history of present illness” portion 

of the report that he was treating appellant for follow-up of bilateral hip pain (left greater than the 

right) “with work-related injury.” He noted that appellant reported “overuse over time” which 

included using a ramrod to clean gun bores/tubes with his left leg supporting his body weight. 

Appellant reported using increased force to push the rod through the gun bore and that his left leg 

shortened over time. Dr. Juliano further noted that appellant indicated that he began working at 

 

4

Id.

5 Supra note 3. The Board noted the evidence of record established that, since 2003, appellant had cleaned a total 

of 1,500 gun tubes, with each tube requiring pushing a rod four to five times, and that the lathe he manually turned 

weighed approximately 2,000 pounds. Moreover, operating the grinder required stepping off a platform repeatedly

and operating the milling machine required repetitive stair climbing.
4

the arsenal in 2003 with symptoms starting in 2009, that in 2014 it was determined that appellant

could no longer perform his duties as a machinist and in 2015 he was placed on disability. He 

indicated, “Causal relationship of hip arthritis with repetitive use activities understood.”

Dr. Juliano noted findings on examination of tenderness of both hips at the greater trochanter, 

tenderness with log rolls of the left hip greater than the right hip, and intact sensory examination 

to light touch in the lower extremities. He diagnosed primary bilateral hip osteoarthritis, left 

greater than right symptoms, “causal relationship with work reviewed above.” 

In an addendum report dated May 5, 2017, Dr. Juliano noted that a magnetic resonance 

imaging scan in 2014 revealed osteoarthritis of both hips. He advised that appellant reported that 

his duties at the arsenal included cleaning a large gun tube with a ramrod, pivoting on his left leg, 

and using his body weight to push the ramrod. Dr. Juliano noted, “This repetitive activity over the 

consecutive years contributed to [appellant’s] left and right hip osteoarthritis.” He opined that the 

findings on the x-ray and clinical examination were consistent with bilateral hip osteoarthritis 

causally related to the repetitive activity required by appellant’s machinist position. 

By decision dated August 24, 2017, OWCP denied modification of its prior decisions, 

finding that appellant had not met his burden of proof to establish a medical condition causally 

related to the accepted factors of his federal employment. 

On July 18, 2018 appellant, through counsel, requested reconsideration of the August 24, 

2017 decision.

Appellant submitted a November 28, 2017 report from Dr. Juliano, who noted that 

appellant reported symptoms of left hip pain with activities of daily living and reported not 

working secondary to left hip pain. Findings on examination revealed an antalgic gait and leg 

length discrepancy with the left leg shorter than the right. Dr. Juliano diagnosed osteoarthritis of 

the left hip, with symptoms causally related to repetitive activities at work which required axial 

loading of the left leg. 

By decision dated July 19, 2018, OWCP denied modification of its August 24, 2017 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA6 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, that 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 

 

6 Supra note 2.
5

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

regardless of whether the claim is predicated upon 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) 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 identified employment factors.9

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.10 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.11 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s

specific employment factor(s).12

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a medical 

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

Preliminarily, the Board notes that findings made in prior Board decisions are res judicata

absent any further review by OWCP under section 8128 of FECA.13 It is therefore unnecessary 

for the Board to consider the evidence appellant submitted prior to the issuance of OWCP’s 

November 12, 2015 decision because the Board considered that evidence in its June 6, 2016 

decision.

14

 After OWCP issued its November 12, 2015 decision, appellant submitted an April 10, 

2017 report from Dr. Juliano who indicated that appellant reported “overuse over time” which 

included using a ramrod to clean gun tubes with his left leg supporting his body weight. Dr. Juliano 

indicated, “[c]ausal relationship of hip arthritis with repetitive use activities understood.” He 

 

7 K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn 

Haggerty, 45 ECAB 383, 388 (1994).

8 K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

9 R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. 

Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

10 T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

11 M.V., Docket No. 18-0884 (issued December 28, 2018).

12 Id.; Victor J. Woodhams, supra note 9.

13 J T., Docket No. 18-1757 (issued April 19, 2019); S.S., Docket No. 17-1106 (issued June 5, 2018); H.G., Docket 

No. 16-1191 (issued November 25, 2016).

14 Supra note 3.
6

diagnosed primary bilateral hip osteoarthritis, left greater than right symptoms, “causal 

relationship with work reviewed above.” In an addendum report dated May 5, 2017, Dr. Juliano 

noted that appellant reported that cleaning gun tubes with a ramrod required pivoting on his left 

leg and using his body weight to push the ramrod. He indicated, “This repetitive activity over the 

consecutive years contributed to [appellant’s] left and right hip osteoarthritis.” Dr. Juliano opined 

that the findings on the x-ray and clinical examination were consistent with bilateral hip 

osteoarthritis causally related to the repetitive activity required by appellant’s machinist position. 

The Board finds that, although Dr. Juliano noted that appellant was injured at work, his reports are 

of limited probative value because they do not include medical rationale explaining the basis of 

his conclusory opinion regarding the causal relationship between appellant’s hip condition and the 

accepted factors of employment.15 Specifically, Dr. Juliano did not adequately discuss the 

mechanism of how appellant’s employment duties resulted in an injury. The Board has held that 

a report is of limited probative value regarding causal relationship if it does not contain medical 

rationale explaining how an employment activity could have caused or aggravated a medical 

condition.16 Therefore, these reports are insufficient to meet appellant’s burden of proof.

In a November 28, 2017 report, Dr. Juliano diagnosed progressive osteoarthritis of the left 

hip causally related to repetitive activities at work which required axial loading of the left leg. 

Although he found work-related causal relationship, this report is also of limited probative value 

because it does not include sufficient medical rationale explaining the basis of his opinion 

regarding the causal relationship between appellant’s diagnosed condition and his repetitive work 

duties.17 Dr. Juliano opined that appellant’s work duties involved axial loading of the left leg, but

did not provide medical rationale explaining the medical mechanics of how such axial loading 

would be competent to cause or aggravate the diagnosed condition. Such medical rationale is 

especially necessary in the present case, in light of the preexisting degenerative changes to 

appellant’s hips.

18

 Dr. Juliano noted that appellant had symptoms during a period of work, but the 

Board has held the fact that a condition manifests itself during a period of employment does not 

raise an inference that there is a causal relationship between the two.

19

 Therefore, this evidence 

also is insufficient to meet appellant’s burden of proof.

On appeal counsel asserts that OWCP improperly denied the claim and that the submitted 

medical evidence is sufficient to establish that appellant developed a medical condition as a result 

of performing repetitive duties at work. As noted above, the medical evidence does not establish 

that he had a diagnosed condition causally related to his accepted employment factors. Appellant 

has not submitted a sufficiently rationalized physician’s report which explains how his work 

activities caused or aggravated a medical condition. 

 

15 L.G., Docket No. 19-0142 (issued August 8, 2019). 

16 T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

17 See G.R., Docket No. 19-0940 (issued December 20, 2019).

18 See J.H., Docket No. 19-0838 (issued October 1, 2019); D.M., Docket No. 19-0389 (issued July 16, 2019).

19 See L.D., Docket No. 09-1503 (issued April 15, 2010). 
7

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a medical 

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

ORDER

IT IS HEREBY ORDERED THAT the July 19, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 8, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board