United States Department of Labor

Employees’ Compensation Appeals Board

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R.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Ontario, CA, Employer

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Docket No. 19-0543

Issued: December 23, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 January 2, 2019 appellant filed a timely appeal from an August 8, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has

elapsed from OWCP’slast merit decision, dated May 11, 2017, to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of this case.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On March 1, 2017 appellant, then a 52-year-old rural route carrier, filed an occupational 

disease claim (Form CA-2) for a bilateral hip condition that appellant attributed to factors of his 

 

1 5 U.S.C. § 8101 et seq.
2

federal employment including repetitive walking, standing, twisting, turning, pushing, pulling, and 

getting in and out of his long-life vehicle (LLV). He indicated that he first became aware of his 

condition and realized that it resulted from his federal employment on January 16, 2017. On the 

reverse side of the claim form, the employing establishment contended that appellant had been off 

work since August 10, 2016 due to a prior work-related injury.

2

 OWCP assigned the claim File 

No. xxxxxx637.

In an accompanying statement, appellant explained that, over the past several years, he 

experienced sharp and aching pain in his hips. He asserted that the walking, standing, twisting, 

turning, driving, and getting in and out of his LLV caused his hip and thigh pain. 

In a March 3, 2017 letter, D.B., an employing establishment customer services supervisor,

alleged that appellant submitted a false statement and requested that his claim be denied. He noted 

that appellant had not sat upright driving an LLV for the past year and a half since he began 

working a modified-duty job assignment that did not require driving an LLV. D.B. also asserted 

that appellant did not have the opportunity to aggravate his injury for over nine months since he 

had been placed off work beginning August 10, 2016 due to surgery under OWCP File No. 

xxxxxx064. 

In a March 8, 2017 letter, the employing establishment controverted appellant’s claim. 

In a development letter dated March 16, 2017, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence needed and 

provided a questionnaire for his completion. OWCP afforded appellant 30 days to provide the 

necessary evidence.

Dr. Edward Mittleman, a family physician, related in a February 23, 2017 report that 

appellant had worked as a rural letter carrier since 1989 and that he had two previous work-related 

injuries for his knees and for an umbilical hernia. He noted that appellant had undergone hernia 

surgery in August 2016 and had not worked since the surgery. Dr. Mittleman indicated that,

although appellant was not currently performing mail delivery, he had been delivering his regular 

mail route for over 20 years without any limitations. He provided a detailed, chronological

discussion of appellant’s duties from when he arrived at the employing establishment until he 

returned from his mail delivery route. Dr. Mittleman noted that appellant was continuously 

standing and repetitively bending, twisting, reaching, and grabbing while casing mail. He also 

noted that appellant was required to lift up to 70 pounds on a regular basis when sorting and loading 

parcels into hampers or cages. Dr. Mittleman further reported that performing business deliveries 

required appellant to frequently mount and dismount his vehicle and that apartment delivery 

required walking and ascending and descending stairs. He also related that appellant complained 

of bilateral hip pain for approximately the past one and a half years. 

 

2 Under File No. xxxxxx064, OWCP accepted appellant’s prior occupational disease claim for bilateral hernias, 

which arose on or about October 9, 2014. Additionally, under OWCP File No. xxxxxx667, appellant has an accepted 

occupational disease claim for bilateral sprains of the knees and legs, which arose on or about July 7, 2013. OWCP 

has administratively combined File Nos. xxxxxx064 and xxxxxx667, with the latter serving as the master file. 

However, it has not combined those files with the current one, File No. xxxxxx637. 
3

Upon examination of appellant’s hips, Dr. Mittleman observed that toe and heel gait were

performed in a slight swaying motion. He indicated that lateral pressure to both hips and passive 

rotation of the hips produced greater pain on the left, than on the right. Dr. Mittleman reviewed 

appellant’s history and noted that a January 17, 2017 right hip magnetic resonance imaging (MRI) 

scan revealed femoroacetabular impingement (FAI) syndrome with superimposed osteoarthritis. 

He diagnosed left hip labral tear, right hip labral tear, and acceleration of left and right hip 

osteoarthritis. Dr. Mittleman explained that the hip is a “ball and socket joint” where the femur 

meets the pelvis. He noted that appellant had FAI; a condition in which the bones of the hip have 

developed abnormally. Dr. Mittleman related that because the ball (proximal head of the femur) 

and the socket (pelvis) of the hip do not fit together perfectly, the “out of round” conflict of the 

hip can cause damage to the hip joint, which had developed in appellant’s right hip. He indicated 

that this round-on-round joint allowed for movement forwards and backward, side-to-side, and 

internal/external rotation, all of which were activities that appellant performed as a rural route 

carrier. Dr. Mittleman further explained that in a healthy hip, the femoral head (ball) fit perfectly 

into the acetabulum (socket), but in FAI, there is an abnormal amount of bone off the acetabulum, 

femoral head, or both. He reported that this conflict “can cause labral tears of the hip.”

Dr. Mittleman related that once the labrum is torn, the protective effectiveness of the labrum to the 

articular cartilage is decreased, and over time, the breakdown of articular cartilage leads to hip 

arthritis. He described that as appellant performed each of his employment duties, he was placing 

significant force and excessive compressive forces upon his hips. Dr. Mittleman concluded that 

the long-term repetitive pressure to appellant’s hips accelerated the FAI in both of his hips. He 

reported that it was medically reasonable to infer a direct causal relationship between the daily 

activities that appellant performed as a rural route carrier and the occupational disease in both his 

hips. Dr. Mittleman authorized appellant to modified-duty work.

A February 23, 2017 right hip MRI scan revealed osteoarthritis and a complex tear of the 

superolateral labrum with an adjacent small- to moderate-sized paralabral cyst. 

On April 3, 2017 OWCP received appellant’s response to its development letter. Appellant

reported that he performed the following activities on a daily basis since he began working for the 

employing establishment in September 1989: standing and walking for 51⁄2 to 6 hours, twisting for 

2 to 3 hours, turning for 2+ hours, pushing for 30 to 60 minutes, pulling for 30 plus minutes, and 

getting in and out of his postal vehicle for 3 to 4 hours. He noted that he last drove an LLV on 

August 8, 2016. 

By decision dated May 11, 2017, OWCP denied appellant’s occupational disease claim

finding that the medical evidence submitted was insufficient to establish that his diagnosed 

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

On June 29, 2017 appellant requested reconsideration. 

In a June 12, 2017 letter, Dr. Mittleman related that although FAI syndrome does have 

early orthopedic changes, it was important to note that daily weight bearing activities appellant 

performed as a carrier accelerated the degeneration in his hips. He pointed out that appellant’s 

daily activities for the employing establishment placed him in a weight bearing, rather than a 

sedentary position. Dr. Mittleman reported: “it would be consistent to consider a 25 [percent]

association of [appellant’s] work activities in relationship to his bilateral hip pathology.” He 
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requested that OWCP accept appellant’s claim for bilateral hip labral tears and acceleration of left 

and right hip osteoarthritis. 

By decision dated September 19, 2017, OWCP denied appellant’s request for 

reconsideration of the merits his claim under 5 U.S.C. § 8128(a). 

On May 10, 2018 appellant again requested reconsideration. 

Appellant submitted a March 7, 2017 report by Dr. Charles Herring, a Board-certified 

orthopedic surgeon. Dr. Herring related appellant’s complaints of an occupational injury to his 

hips due to the performance of his duties as a letter carrier. He indicated that appellant attributed 

his injury to daily repetitive activities, including casing, carrying and delivering mail, lifting up to 

70 pounds for the majority of his career, and pushing/pulling heavy gurneys. Dr. Herring also 

related that walking, standing, twisting and turning repetitively, and “hopping” in and out of 

appellant’s postal vehicle significantly increased the pain in both hips. Upon physical 

examination, he observed that appellant ambulated with a slight bilateral antalgic gait. Dr. Herring

noted limited range of motion with flexion, internal rotation, and external rotation of both hips. 

He indicated that a review of radiographs revealed a history of severe arthritis of the bilateral hips 

and complex superolateral labral tears. Dr. Herring diagnosed bilateral hip osteoarthritis, bilateral 

hip labral tears, and bilateral FAI syndrome. He explained that appellant’s work required frequent 

entering and exiting of the postal vehicle, walking, stooping, and lifting. Dr. Herring opined that 

these activities “superimposed upon the existing [FAI] impingement caused labral tears and 

hastened the development of the osteoarthritic changes within the hip joint.”

In an October 19, 2017 letter, Dr. Mittleman expressed his disagreement with OWCP’s 

September 19, 2017 decision. He asserted that appellant’s hip condition was accelerated by his 

continuous weight bearing at work and that it was medically reasonable that appellant’s job duties 

as a letter carrier caused permanent aggravation of his osteoarthritis. Dr. Mittleman noted that 

appellant had not experience bilateral hip pain prior to January 2017 and that he also had labral 

tears. He further contended that it was not medically reasonable to dismiss all the work activities 

that appellant had performed as a letter carrier. Dr. Mittleman explained that appellant had 

completed his mail delivery route for 20 years without physical limitations until his July 23, 2013 

knee injury. He described the physical requirements of appellant’s various employment duties. 

Dr. Mittleman claimed that OWCP’s denial was based purely on the fact that appellant had FAI. 

He argued that OWCP ignored the fact that FECA does not require that employment factors prove 

a significant contribution to a condition for purposes of establishing causal relationship. 

Dr. Mittleman pointed out that if the medical evidence reveals that an employment factor 

contributed in any way to an employee’s condition, such condition should be considered 

employment related. He also cited to Occupational Safety and Health Administration’s (OSHA’s)

examination of scientific literature and epidemiological studies of the hip and knee 

musculoskeletal disorders regarding the relationship between long-term exposure to high levels of 

physical stresses and significant osteoarthritis disorders of the hip and the knee. Dr. Mittleman 

requested that appellant’s claim be accepted for bilateral hip labral tears and aggravation of 

bilateral hip osteoarthritis.

In a February 8, 2018 periodic workers’ compensation progress report, Dr. Mittleman 

indicated that appellant was examined for complaints of left hip sharpness, stiffness, aching, 
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burning, and stabbing sensations. He noted examination findings and diagnosed aggravation of 

bilateral hip osteoarthritis. Dr. Mittleman recommended that appellant return to modified-duty 

work. 

By decision dated August 8, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of his claim under 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.5

A timely request for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.6

When a timely request for reconsideration does not meet at least one of the above-noted 

requirements, OWCP will deny the request for reconsideration without reopening the case for a 

review on the merits.7

ANALYSIS

The Board finds that OWCP improperly denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a).8

The underlying issue in this case was whether appellant had established causal relationship 

between his diagnosed bilateral hip condition and the accepted factors of his federal employment. 

Along with his May 10, 2018 reconsideration, appellant submitted a March 7, 2017 report by

Dr. Herring. Dr. Herring noted that appellant’s daily employment activities had involved casing, 

 

3 This section provides in pertinent part: [t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

4 20 C.F.R. § 10.607.

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal 

Employees’ Compensation System. Id. at Chapter 2.1602.4b.

6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8 See S.C., Docket No. 19-0479 (issued August 8, 2019); C.F., Docket No. 18-0583 (issued October 16, 2018).
6

carrying, and delivering mail, lifting, pushing, and pulling heavy gurneys, and walking, standing, 

and twisting. He diagnosed bilateral hip osteoarthritis, bilateral hip labral tears, and bilateral FAI 

syndrome. Dr. Herring opined that these activities “superimposed upon the existing [FAI] 

impingement caused labral tears and hastened the development of the osteoarthritic changes within 

the hip joint.” Appellant also submitted an October 29, 2017 letter by Dr. Mittleman who noted 

his disagreement with OWCP’s denial decision. He argued that OWCP’s denial was based purely 

on the fact that appellant had an underlying FAI hip condition and pointed out that under FECA, 

a medical condition is considered employment related if the medical evidence reveals that an 

employment factor contributed in any way to the condition. Dr. Mittleman asserted that 

appellant’s hip condition was accelerated by continuous weight bearing at work and that it was 

medically reasonable that appellant’s job duties as a letter carrier caused permanent aggravation 

of his osteoarthritis. 

The Board finds that the reports of Dr. Herring and Dr. Mittleman constitute relevant and 

pertinent new evidence not previously considered by OWCP. In their new reports, Dr. Herring 

and Dr. Mittleman discussed the issue of causal relationship between appellant’s employment 

factors and his current bilateral hip symptoms, in light of appellant’s underlying FAI hip 

condition.9 

In support of a request for reconsideration, a claimant is not required to submit all evidence 

necessary to discharge his or her burden of proof.10 He or she needs only to submit relevant, 

pertinent evidence not previously considered by OWCP.11 As the current record includes relevant 

and pertinent new evidence not previously considered by OWCP in its May 11, 2017 merit 

decision, appellant has met the third above-noted requirement of 20 C.F.R. § 10.606(b)(3). 

Consequently, the Board finds that OWCP improperly denied merit review pursuant to 20 C.F.R. 

§ 10.608.12

The case will be remanded for OWCP to properly conduct a merit review of the claim. 

Following this and such other additional development as deemed necessary, it shall issue an 

appropriate merit decision.

CONCLUSION

The Board finds that OWCP improperly denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a).

 

9 See K.J., Docket No. 19-0146 (issued July 10, 2019); see also E.R., Docket No. 17-1055 (issued August 17, 2017).

10 T.G., Docket No. 18-1064 (issued April 26, 2019); M.C., Docket No. 17-1983 (issued August 17, 2018).

11 L.S., Docket No. 18-0811 (issued November 13, 2018); Mark H. Dever, 53 ECAB 710 (2002).

12 W.D., Docket No. 18-1530 (issued February 14, 2019); K.M., Docket No. 15-1290 (issued September 23, 2015).
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ORDER

IT IS HEREBY ORDERED THAT the August 8, 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: December 23, 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