United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

Chelsea, MA, Employer

__________________________________________

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Docket No. 20-0109

Issued: June 25, 2020

Appearances: Case Submitted on the Record

John L. DeGeneres, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 16, 2019 appellant, through counsel, filed a timely appeal from an April 25,

2019 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 a right hip condition 

causally related to the accepted factors of his federal employment. 

FACTUAL HISTORY

On August 16, 2016 appellant, then a 48-year-old federal air marshal, filed an occupational 

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

federal employment. He noted that he first became aware of his condition and realized its 

relationship to his federal employment on June 6, 2016. On the reverse side of the claim form, the 

employing establishment indicated that appellant continued to perform his normal work duties.

In an attached statement, appellant related that he had worked for the employing 

establishment since June 2002. He indicated that his training involved routine running, 

calisthenics, aerobics training, sprints and shuttle runs, pushups, sit-ups, and various free-weight 

and machine-oriented exercises. Appellant also described the defensive tactics and firearms 

training that he frequently underwent and explained that these techniques placed a remarkable 

amount of stress on his knees, shoulders, and hips. He related that he walked at least four to six 

miles per day through airports, while carrying over 50 pounds of luggage and gear; walked up and 

down stairs and down narrow aircraft aisles; sat, stood, and twisted repeatedly from airline 

passenger seats. Appellant reported that he first noticed his right hip pain in October 2014 while 

deployed for work in Paris, France and that subsequent diagnostic testing revealed arthritis in his 

right hip. He alleged that sitting for long periods of time in the airline seats, twisting, and walking 

down the aisle and from terminal to terminal worsened his hip pain.

In a May 13, 2015 surgical consultation note, Dr. Eugene E. Berg, a Board-certified 

orthopedic surgeon, indicated that appellant had a history of right groin pain for the prior eight or 

nine months. He indicated that a right hip x-ray examination report demonstrated evidence of

osteoarthritis and diagnosed right hip osteoarthritis. Dr. Berg also completed an employing 

establishment physical restriction form dated August 26, 2016. 

In a May 29, 2015 examination note, Harry Morse, a certified nurse anesthetist, recounted 

appellant’s complaints of chronic right hip and low back pain. He reviewed appellant’s history, 

conducted an examination, and diagnosed sacral iliac joint dysfunction and chronic low back pain.

In a June 3, 2015 report, Dr. Thomas Marks, a Board-certified orthopedic surgeon, 

recounted appellant’s complaints of right hip and left heel pain. Upon examination of appellant’s 

right hip, he observed tenderness to palpation over the abductor and greater trochanteric bursa and 

limited range of motion due to secondary pain. Dr. Marks diagnosed left plantar fasciitis and right 

hip osteoarthritis.

Appellant also submitted a July 26, 2015 letter by Dr. Justin W. Kung, a Board-certified 

diagnostic radiologist, who indicated that x-ray examination reports of appellant’s bilateral knees 

and right hip taken on March 26 and May 21, 2015, respectively, demonstrated findings of 

degenerative change with osteophyte formation, subchondral sclerosis and cystic change. OWCP 

also received the March 26 and May 21, 2015 x-ray examination reports.
3

In a June 9, 2016 narrative report, Dr. David C. Morley, Jr., a Board-certified orthopedic 

surgeon, recounted that he examined appellant for injuries sustained during the course of his career 

working as a federal air marshal. He indicated that appellant’s job and maintenance of his skills 

involved routine running, calisthenics and aerobics training, lower extremity repetitive impact 

loading activities, tactical training, joint manipulation, full contact fighting with protective gear, 

and significant standing and walking for many miles daily. Upon physical examination,

Dr. Morley observed positive Trendelenburg sign and markedly positive Stinchfield sign on the 

right side. Range of motion testing of the right hip revealed flexion to 95 degrees, extension to 0 

degrees, internal rotation to 5 degrees, external rotation to 10 degrees, adduction to 10 degrees, 

and abduction to 15 degrees. Dr. Morley described appellant’s employment duties and opined that 

these heavy, physical, and repetitive impact loading lower extremity activities caused and 

worsened, at the very least, his degenerative right hip condition. He explained that the repetitive 

heavy physical demands placed on appellant’s hip over a period of years, as described above, 

resulted in increased stresses through his right hip contributing to his arthritic condition.

In an October 19, 2016 development letter, OWCP informed appellant that the evidence of 

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

evidence necessary to support his claim and provide a questionnaire for his completion. OWCP 

afforded appellant 30 days to submit the requested information. A similar letter of even date 

requested additional information from the employing establishment. 

The employing establishment submitted an administrative medical review report dated 

November 9, 2016 by Dr. Mary Nadratowki, a Board-certified internist, who outlined a history of 

medical treatment that appellant had received from its health unit from 1990 to 2016. 

Dr. Nadratowki noted that appellant’s most recent diagnosis was right hip avascular necrosis 

(AVN) and suggested that it was likely he had a subtle organic femoral head misalignment. She 

opined that the exact etiology of his AVN was unknown. 

By decision dated November 18, 2016, OWCP denied appellant’s occupational disease 

claim. It accepted his duties as a federal air marshal as described and diagnosis of a right hip 

condition, but denied his claim finding that the medical evidence of record failed to establish that 

his medical condition was causally related to the accepted employment factors. 

OWCP subsequently received a letter dated November 17, 2016, wherein counsel indicated 

that he was submitting additional medical records that were not acknowledged as received by 

OWCP in its October 19, 2016 development letter. Counsel also asserted that Dr. Morley’s June 9, 

2016 medical report constituted sufficient documentation that appellant sustained a right hip injury 

due to his federal employment. 

Appellant submitted his completed questionnaire dated November 17, 2016. He explained 

that his hobbies of trap shooting and fishing were seasonal and occurred approximately once or 

twice a month during the period of time. Appellant also noted that he participated in road cycling 

from approximately 2011 through 2014 on average of 12 times per year. He related that he stopped 

these activities because of his hip pain. Appellant listed the medical reports that he had submitted 

and explained that he did not seek medical treatment for his right hip until March 2015 so he did 

not have medical reports dated from 2014 or prior. He also provided an official position 

description.
4

On December 8, 2016 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on March 22, 2017. 

OWCP received a March 13, 2017 memorandum by counsel who asserted that OWCP 

would not have denied appellant’s claim had it received his completed questionnaire, which he 

had completed on November 17, 2016. Counsel also clarified that appellant was not alleging a 

direct causation, but that his employment contributed to and worsened his preexisting right hip 

osteoarthritis.

In a December 1, 2016 supplemental report, Dr. Morley indicated that he had reviewed 

additional medical documentation since his June 9, 2016 report and opined that appellant’s 

ongoing right hip osteoarthritis symptoms continued to be hastened by the physical demands of 

his federal employment. He explained that the repetitive, high impact loading activities of 

appellant’s job had placed significant loads on his lower extremities and that such activities on a 

regular basis resulted in articular cartilage damage to the hip joint, which progressively culminated 

in osteoarthritis.

By decision dated June 6, 2017, OWCP’s hearing representative set aside the 

November 18, 2016 decision and remanded the case for further medical development noting that 

OWCP should compose a statement of facts (SOAF) and refer appellant to a second opinion 

physician.

In a June 12, 2017 letter, counsel informed OWCP that he was enclosing the additional 

medical records that were originally filed in response to the development letter. Appellant 

submitted VA medical center progress notes dated May 13, 2015 to November 1, 2016, which 

indicated that appellant was treated for complaints of right groin pain, right hip arthritis, neck and 

knee problems, and lower back and neck degenerative joint disease. The progress notes reported 

diagnoses of advanced right hip osteoarthritis, femoroacetabular impingement (FAI), and right hip 

AVN. In an October 6, 2016 report, Dr. Samuel H. Poon, a Board-certified internist and 

rheumatologist, related that appellant’s right hip osteoarthritis was “most likely due” to appellant’s 

diagnosis of FAI.

OWCP also received additional diagnostic testing reports. A September 23, 2016 right hip 

diagnostic testing report revealed normal bone mineral content. An October 5, 2016 diagnostic 

report of the pelvis was suggestive of either septic arthritis or avascular necrosis. An October 5, 

2016 cervical magnetic resonance imaging (MRI) scan report revealed degenerative disc disease 

of C5-7 with left bony neural foramen, narrowing C6-7, and mild reversal of the usual cervical 

lordosis. An October 5, 2016 right hip MRI scan report demonstrated significant interval 

worsening of the right hip. 

OWCP subsequently referred appellant’s claim, along with a SOAF and a copy of the 

record, to Dr. Kenneth Polivy, a Board-certified orthopedic surgeon, for a second opinion 

examination to determine whether appellant sustained a diagnosed medical condition caused, 

aggravated, or accelerated by the factors of his federal employment. In an April 18, 2018 report,

Dr. Polivy recounted that appellant had worked as a federal air marshal for 15 years and indicated 

that he had reviewed appellant’s job description. He related appellant’s current complaints of 

numbness and occasional pain in the right hip. Upon physical examination, Dr. Polivy observed 
5

that appellant could stand with level hips and shoulders and was able to heel walk and toe walk 

without difficulty. Examination of appellant’s right hip revealed normal range of motion and 

decrease in sensation in the right lateral trochanteric region. Dr. Polivy opined that appellant’s 

right hip AVN and subsequent osteoarthritis were not medically connected to the factors of 

employment as described in the SOAF. He explained that there were no peer reviewed studies to 

support an increased incidence of AVN or osteoarthritis in individuals who were active in 

employment activities. Dr. Polivy reported that appellant’s activities, either through his work 

schedule, reported lifting activities, or exercise activities, did not cause the development of his 

osteoarthritis.

OWCP determined that a conflict in the medical evidence existed between Dr. Morley, 

appellant’s treating physician, and Dr. Polivy, OWCP’s second opinion physician, regarding 

whether appellant’s diagnosed right hip condition was caused, aggravated, or precipitated by 

factors of his federal employment. It referred appellant to Dr. Robert Pennell, a Board-certified 

orthopedic surgeon, for an impartial medical examination to resolve the conflict.

In a July 9, 2018 letter, counsel noted his objection to the appointment of Dr. Pennell as a 

referee physician. First, he asserted that Dr. Pennell had a documented bias against injured federal 

workers. Second, counsel argued that OWCP failed to adhere to its rotating selection procedures

and pointed out that Dr. Pennell’s office was located more than 52 miles from appellant’s 

residence. He submitted eight pages from a deposition of Dr. Pennell from an altogether different 

legal proceeding. Counsel also provided a print-out of driving directions from appellant’s 

residence to Dr. Pennell’s office.

In a July 10, 2018 report, Dr. Pennell indicated that he had reviewed the SOAF and the 

entire case file. He noted that appellant had worked for the employing establishment from 

May 2002 until September 6, 2017 when he was terminated from employment due to an inability

to perform his duties. Dr. Pennell discussed appellant’s right hip x-rays on May 13 and 15, 2015 

and August 23, 2016 and explained that the diagnostic imaging did not show evidence of AVN. 

He recounted that appellant currently complained of continuing symptoms and limitations in his 

right hip and right groin pain, numbness, and paresthesias.

Upon physical examination, Dr. Pennell observed normal gait with a very slight crouch. 

He reported that range of motion of appellant’s right hip demonstrated 100 degrees flexion, 30 

degrees abduction, 10 degrees adduction, 30 degrees internal rotation, and 25 degrees external 

rotation. Dr. Pennell also observed tenderness in the center of the right groin directly over the hip 

joint. He diagnosed primary osteoarthritis of the right hip joint and status post right total hip 

replacement with persistent right hip joint pain and tenderness. Dr. Pennell noted his disagreement 

with Dr. Morley’s opinion that appellant’s right hip osteoarthritis was causally related to his 

employment. He explained that Dr. Morley’s opinion “would be contradicted by the fact that 

[appellant] had a completely normal left hip joint.” Dr. Pennell referenced medical literature and 

noted that it reported that there was overall insufficient evidence to assign evidence of causation 

to any employment. He asserted that “there was no scientific evidence that strenuous work, such 

as that performed by [appellant] would cause or aggravate osteoarthritis of the hip joint or cause 

or aggravate avascular necrosis of the head of the femur.”
6

OWCP received a September 13, 2017 letter, which indicated that appellant was terminated 

from employment due to medical inability to perform the essential functions of his position. 

In a September 7, 2018 de novo decision, OWCP again denied appellant’s occupational 

disease claim finding that was insufficient medical evidence to establish that his right hip condition 

was causally related to the accepted factors of employment. It found that the special weight of the 

medical evidence rested with the July 10, 2018 report of Dr. Pennell, OWCP’s impartial medical 

examiner.

On September 24, 2018 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on February 12, 2019. 

OWCP subsequently received a February 12, 2019 memorandum by counsel. Counsel

again asserted that appellant was not claiming direct causation between his right hip osteoarthritis 

and his employment, but that his work duties contributed to the “substantial and significant 

increase in the osteoarthritic disease.” He alleged that Dr. Pennell did not provide sufficient 

medical rationale to support his conclusion that appellant’s employment did not contribute to or 

aggravate appellant’s right hip condition. 

Appellant also provided progress notes dated November 22, 2016 to June 22, 2017 by

Dr. Ricardo A. Gonzales, a Board-certified orthopedic surgeon, who recounted appellant’s 

complaints of right hip pain with an onset of symptoms in 2014 without incident or trauma. 

Dr. Gonzales conducted an examination of appellant’s right hip and diagnosed osteonecrosis of 

the right hip. He indicated that he had informed appellant that in approximately 60 percent of 

patients who developed osteonecrosis, they were not able to identify a causative factor.

By decision dated April 25, 2019, an OWCP hearing representative affirmed the 

September 7, 2018 decision. She found that the special weight of the medical evidence continued 

to rest with the July 10, 2018 impartial medical report of Dr. Pennell who opined that appellant’s 

federal employment did not cause or contribute to appellant’s right hip osteoarthritis.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including 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 of FECA,4that 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 

 

3

Id.

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

153 (1989). 
7

employment injury.5 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.6

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant 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 claimant.7 

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

relationship is rationalized medical opinion evidence.8 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 relationship 

between the diagnosed condition and specific employment factors identified by the employee.9

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.10

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical specialist) who shall 

make an examination.11 This is called an impartial medical examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.12 For a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal 

weight and rationale.”

13

 When there exists opposing medical reports of virtually equal weight and 

 

5

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

ECAB 312 (1988).

6 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).

7 S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

8 A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 

238 (1996).

9 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 

345, 352 (1989).

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

11 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

12 20 C.F.R. § 10.321.

13 J.K., Docket No. 19-1009 (issued October 22, 2019); Darlene R. Kennedy, 57 ECAB 414, 416 (2006).
8

rationale and the case is referred to an impartial medical specialist for the purpose of resolving the 

conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.14 Where the case is referred to an impartial 

medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if 

sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.15

ANALYSIS

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

OWCP improperly determined that a conflict in medical opinion evidence existed between

Dr. Morley, appellant’s treating physician, and Dr. Polivy, OWCP’s second opinion examiner, 

regarding whether appellant’s right hip condition was causally related to or aggravated by the 

accepted employment factors. In reports dated June 9 and December 1, 2016, Dr. Morley opined 

that the lower extremity repetitive impact loading activities of appellant’s employment caused and 

worsened, at the very least, his degenerative right hip condition. In an April 18, 2018 report,

Dr. Polivy noted his disagreement with Dr. Morley’s opinion regarding causal relationship. He 

explained that there were no scientific studies to support an increased incidence of AVN or 

osteoarthritis in individuals who were active in employment activities. 

The Board finds that Dr. Polivy’s April 18, 2018 report lacks sufficient medical rationale 

and is not of equal weight to Dr. Morley’s reports as OWCP had determined. In determining the 

probative value of medical evidence, the Board considers such factors as the opportunity for and 

thoroughness of examination performed by the physician, the accuracy and completeness of the 

physician’s knowledge of the facts and medical history, the care of analysis manifested and the 

medical rationale expressed in support of the physician’s opinion.16 In this case, Dr. Polivy merely 

referenced some medical literature and provided a general conclusion regarding causal 

relationship. The Board has held that medical evidence that states a condition but does not offer a 

rationalized medical explanation regarding the cause of an employee’s condition is of limited 

probative value on the issue of causal relationship.17 The Board thus finds that this report is 

insufficient to create a conflict in medical opinion with Dr. Morley.

18

 As there was no conflict in 

 

14 Id.; Gloria J. Godfrey, 52 ECAB 486 (2001).

15 K.S., Docket No. 19-0082 (issued July 19, 2019); V.G., 59 ECAB 635 (2008); Gary R. Sieber, 57 ECAB 414, 

416 (2006).

16 C.D., Docket No. 17-1623 (issued February 20, 2018); James T. Johnson, 39 ECAB 1252, 1256 (1988).

17 D.H., Docket No. 17-1913 (issued December 13, 2018); J.F., Docket No. 09-1061 (issued November 17, 2009); 

A.D., 58 ECAB 149 (2006).

18 See supra note 11.
9

medical evidence between Dr. Morley and Dr. Polivy pursuant to 5 U.S.C. § 8123(a), the referral 

to Dr. Pennell was for second opinion examination.19

In a July 10, 2018 report, Dr. Pennell reviewed the medical evidence of record and provided 

examination findings related to appellant’s right hip. He noted his disagreement with Dr. Morley’s 

opinion that appellant’s right hip osteoarthritis was causally related to his employment. 

Dr. Pennell noted that appellant had a “completely normal left hip joint.” He also indicated that 

there was no scientific evidence that strenuous work, such as that performed by appellant would 

cause or aggravate osteoarthritis of the hip joint.

The Board finds that Dr. Pennell did not provide adequate medical rationale to explain the 

basis for his conclusion that appellant’s employment duties did not cause or aggravate appellant’s 

right hip osteoarthritis.20 Dr. Pennell simply noted that appellant’s left hip examination was 

normal and referenced scientific studies. He did not explain how appellant’s right hip 

osteoarthritic hip condition was solely due to nonoccupational factors.21 The Board has found that 

an employee is not required to prove a significant contribution of factors of employment to a 

condition for the purpose of establishing causal relationship.22 Any contribution to appellant’s 

condition by the accepted employment factors would render his condition compensable.23 

Accordingly, the Board finds that Dr. Pennell’s opinion is of insufficient probative value to carry 

the weight of the medical evidence, and the case must be remanded for further development.24

It is well established that proceedings under FECA are not adversarial in nature, and while 

appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in 

the development of the evidence.25 It has an obligation to see that justice is done.26 Once OWCP 

 

19 See S.M., Docket No. 19-0397 (issued August 7, 2019) (the Board found that at the time of the referral for an 

impartial medical examination there was no conflict in medical opinion evidence; therefore, the referral was for a 

second opinion examination); see also Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (the Board found that, as 

there was no conflict in medical opinion evidence, the report of the physician designated as the impartial medical 

examiner was not afforded the special weight of the evidence but was considered for its own intrinsic value as he was 

a second opinion specialist).

20 See T.S., Docket No. 18-1702 (issued October 4, 2019).

21 See F.K., Docket No. 19-1804 (issued April 27, 2020).

22 C.H., Docket No. 19-1315 (issued March 16, 2020); J.L., Docket No. 17-0782 (issued August 7, 2017); H.C., 

Docket No. 16-0740 (issued June 22, 2016).

23 See J.B., Docket No. 17-2021 (issued August 8, 2018); G.G., Docket No. 17-0504 (issued August 8, 2017); 

Beth C. Chaput, 37 ECAB 158 (1985) (it is not necessary to show a significant contribution of employment factors to 

a diagnosed condition to establish causal relationship).

24 Supra note 19.

25 See e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); 

Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB 

699, 707 (1985).

26 See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983); 

Gertrude E. Evans, 26 ECAB 195 (1974).
10

undertakes to develop the medical evidence further, it has the responsibility to do so in a manner 

that will resolve the relevant issues in the case.27 On remand it shall obtain a supplemental opinion 

from its second opinion physician, Dr. Pennell, which contains adequate medical rationale to 

resolve the issue of whether appellant sustained a right hip condition causally related to the 

accepted factors of his federal employment. If Dr. Pennell is unavailable or unwilling to provide 

a supplemental opinion, OWCP shall refer appellant, together with a SOAF and a list of specific 

questions, to a second opinion physician in the appropriate field of medicine to resolve the issue. 

Following this and any other further development as deemed necessary, OWCP shall issue a de 

novo decision on appellant’s occupational disease claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT April 25, 2019 decision of the Office of Workers’

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

this decision of the Board.

Issued: June 25, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

27 B.W., Docket No. 19-0965 (issued December 3, 2019); T.C., Docket No. 17-1906 (issued January 10, 2018).