United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.L., Appellant

and

U.S. POSTAL SERVICE, WESTPORT POST 

OFFICE, Westport, CT, Employer

__________________________________________

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Docket No. 19-0636

Issued: October 8, 2020

Appearances: Case Submitted on the Record

Daniel B. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 28, 2019 appellant, through counsel, filed a timely appeal from an August 3, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

Federal Employees’ Compensation Act3(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 Appellant timely requested oral argument before the Board. By order dated July 15, 2020, the Board exercised 

its discretion and denied the request as the matter could be adequately addressed based on a review of the case record. 

Order Denying Request for Oral Argument, Docket No. 19-0636 (issued July 15, 2020).

3 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a bilateral knee 

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

FACTUAL HISTORY

On May 16, 2017 appellant, then a 57-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained bilateral knee osteoarthritis as a result of factors of 

her federal employment. She indicated that she first became aware of her condition and its 

relationship to her federal employment on October 19, 2016. Appellant explained that she was 

unaware of her condition until her medical examination by Dr. Michael A. Luchini, an attending 

Board-certified orthopedic surgeon, on October 19, 2016. She did not stop work. 

In an accompanying statement dated October 1, 2016, appellant reported that she began 

working for the employing establishment in May 1986. She described the various positions she 

had held and the requisite employment duties, which included standing, lifting, carrying, bending, 

stooping, twisting, pushing, pulling, squatting, walking, pivoting, entering and exiting a postal 

vehicle, and ascending and descending stairs.

In support of her claim, appellant submitted an April 22, 2011 medical report, Dr. Henry A. 

Backe, an attending Board-certified orthopedic surgeon, noted a history that appellant had 

osteoarthritis of both knees and that she was a mail carrier who had a truck route and prior to that 

a walking route. Dr. Backe discussed findings on physical and x-ray examination and diagnosed 

bilateral knee osteoarthritis.

In a June 3, 2011 report, Dr. Patrick W. Kwok, a Board-certified orthopedic surgeon, noted 

that appellant had no new falls or injuries. He also noted that she was a postal employee and was 

on her feet most of the day. Dr. Kwok reported findings on physical examination and reviewed 

the results of bilateral knee x-rays performed in April 2011. He provided an assessment of bilateral 

knee osteoarthritis.

In a subsequent report dated September 24, 2012, Dr. Backe indicated that appellant’s

knees were acting up again and that she denied any injury in the interval period. He provided 

physical examination findings and reviewed bilateral knee x-ray results. Dr. Backe diagnosed 

bilateral knee degenerative joint disease.

Dr. Kwok, in a report dated January 23, 2014, noted that appellant’s knees had been acting 

up over the past several weeks without an acute mechanism of injury. He reported findings on 

physical and x-ray examination. Dr. Kowk diagnosed bilateral knee degenerative joint disease.

Dr. Backe, in a September 5, 2014 report, indicated that appellant was three-months status 

post-bilateral total knee replacement and she was working light duty.4 He discussed findings on 

physical and x-ray examination. Dr. Backe diagnosed bilateral total knee replacement. He 

 

4 On May 28, 2014 appellant underwent bilateral total knee replacement surgery which was performed by

Dr. Backe. 
3

provided an impression that appellant was doing excellent post-surgery. In an April 6, 2015 report,

Dr. Backe noted that over the prior two weeks appellant had noticed anterior knee pain, sharp in 

nature without acute mechanism of injury. He again conducted a physical examination and 

reported bilateral knee x-ray results. Dr. Backe diagnosed status post bilateral total knee 

replacement and left patellar tendinitis.

In an October 19, 2016 letter, Dr. Luchini reviewed appellant’s medical records and 

statement of her work duties. He noted a history that appellant began having knee pain when she 

was approximately 51 years old and that by April 22, 2011, appellant had developed end-stage 

patellofemoral arthritis and medial narrowing and degenerative changes in the left knee and early 

degenerative changes in the right knee. Dr. Luchini conducted a physical examination and 

provided an impression that she had developed bilateral knee degenerative arthritis secondary to

repeated heavy lifting, carrying heavy loads, climbing up and down steps, and getting in and out

of trucks particularly with heavy loads. He opined that, based on appellant’s history of extensive 

work activities, her activities as a letter carrier indeed led to the development of progressive

aggravation and acceleration of her bilateral knee arthritis resulting in bilateral total knee 

replacement. Dr. Luchini explained that her statement indicated that over the years she repeatedly 

walked miles in her job on a day-to-day basis carrying various amounts of weight resulting in what 

was known as “high impact loading activities.” He noted that medical research established that 

this type of activity resulted in a biological and chemical process which damaged and changed the 

cartilage in the loaded joints leading to inflammation. The internal inflammation triggered

chemical responses and accelerated the loss of cartilage in the affected areas. Over time, the 

cartilage became less resilient and more susceptible to degradation which permanently accelerated

and aggravated the arthritic process. Dr. Luchini maintained that appellant’s medical record 

reflected that this degradation was a continued process during the time she was engaged in the 

activities of walking with weights up and down steps, climbing in and out of trucks, and bending 

and stooping on a repeated basis. In addition, she had fallen multiple times on her knees through 

the course of her work. Dr. Luchini noted that it was also accepted that multiple contusions to the 

articular cartilage caused necrosis to the articular cartilage and subsequent degenerative arthritis. 

Based on his professional background, he indicated that he was very familiar with the causal

relationship in appellant’s development of progressive arthritis. Dr. Luchini noted that this was 

also a matter of common sense to anyone in the musculoskeletal field who had studied articular 

cartilage anatomy and pathology. Additionally, it was well known that arthroscopic surgeries with 

removal of meniscal tissue in spite of it giving some temporary relief and correction of the locking 

and mechanical pain, led to progression of articular cartilage destruction. 

In an undated statement and letters dated May 23, 2017, the employing establishment 

controverted appellant’s claim contending that she grossly over-exaggerated the performance 

estimate of her work duties and never reported an accident or injury due to slips, trips, or falls. 

OWCP, in a development letter dated July 7, 2017, informed appellant that the evidence 

submitted was insufficient to establish her claim. It noted that she had not submitted evidence 

sufficient to establish that she actually experienced the employment factors alleged to have caused 

her injury or a medical condition related to the claimed employment activity. OWCP advised 

appellant of the type of medical and factual evidence necessary to establish her claim. It attached 

a questionnaire requesting that she provide all medical records for the treatment of both knees, 

including, but not limited to the medical records before June 8, 2011. OWCP also requested that 
4

appellant submit a narrative medical report from her physician explaining how factors of her 

federal employment caused, contributed to, or aggravated her medical condition. In a separate 

development letter of even date, it requested that the employing establishment provide a copy of 

her position descriptions and physical requirements of her positions. OWCP afforded both parties 

30 days to respond.

In an August 2, 2017 response to OWCP’s questionnaire, appellant reported that she had 

not engaged in any walking, jogging, running, hobbies, other employment, or volunteer or 

recreational activities outside of her federal employment.

In an August 8, 2017 memorandum, OWCP’s Regional Director indicated that, in 

accordance with Chapter 2.800.9 of the FECA Procedure Manual,5the claim for acceleration of 

osteoarthritis was being converted into an extended occupational disease claim as it required full 

scale development as to the nature of exposure, or the relationship of the condition to the exposure 

was not obvious. He noted that the claim was being converted to allow for tracking as an extended 

occupational disease claim as the medical evidence of record did not meet all of OWCP’s 

requirements for adjudication, but established a prima facie case. The Regional Director instructed 

the claims examiner to prepare a statement of accepted facts (SOAF) and questions for the 

physician. The instructions provided that the claims examiner could then write directly to the 

attending physician (if of the appropriate specialty), or refer appellant for examination by a 

qualified specialist. 

Appellant subsequently submitted medical evidence dated from April 22, 2011 to

August 20, 2014 which addressed her bilateral knee osteoarthritis and medical treatment.

OWCP, by decision dated November 6, 2017, denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish that her bilateral knee osteoarthritis was 

causally related to the accepted factors of her federal employment. It noted that it had requested 

that she provide copies of all medical records prior to June 2011 for treatment received of her 

bilateral knee condition, specifically noting the April 22, 2011, September 24, 2012, and 

January 23, 2014 x-ray reports. However, appellant failed to provide these medical records as 

requested. Additionally, OWCP found that Dr. Luchini’s October 19, 2016 report was not based 

on a complete factual and medical background. It concluded, therefore, that the requirements had 

not been met to establish an injury as defined by FECA. 

On November 15, 2017 appellant, through counsel, requested an oral hearing before a

representative of OWCP’s Branch of Hearings and Review.

In a May 17, 2018 letter, counsel requested a review of the written record in lieu of an oral 

hearing and submitted additional medical evidence that predated her occupational disease claim 

and addressed her bilateral knee osteoarthritis.

 

5 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.9 

(June 2011).
5

In a May 2, 2018 statement, appellant further responded to OWCP’s development 

questionnaire. She reported that she began treating her knee condition in 2011. Appellant noted

Dr. Backe’s April 22, 2011 bilateral knee x-ray results and his diagnosis of bilateral knee 

osteoarthritis. She acknowledged that she had numerous slips and trips that were not documented 

as not every injury was reported or required medical treatment beyond over-the-counter pain 

medication, ice, heat, and rest. Appellant maintained that, if she recorded every minor stumble, it 

would detract from the meritorious claim that she had filed for her bilateral knee condition.

Appellant submitted a May 17, 2018 letter by Dr Luchini who noted that appellant began 

working in 1986 and that she had been exposed to more than 30 years of impact loading activities 

while performing her job duties at the employing establishment. Dr. Luchini indicated that her 

statement revealed that she walked more than 19,000 miles over her career. He understood that 

most, if not all of this walking involved carrying some type of load in addition to her normal body 

weight. Dr. Luchini noted that OWCP’s definition of causation for acceleration of arthritis 

provided an example of persons who engage in substantial walking over a 15-year career. He 

reported that appellant had doubled that number. Dr. Luchini opined that the work activities she 

performed over 30 years at the employing establishment caused, contributed to, aggravated, and 

accelerated her bilateral knee osteoarthritis resulting in her total bilateral knee replacement. He

again noted that climbing stairs, particularly, and also carrying excess amounts of weight, 

accelerated wear and tear on the particular cartilage. Dr. Luchini reiterated that this activity was 

known as “high impact loading activities” and that medical research supported his opinion on 

causal relationship.

Appellant also submitted an October 9, 2014 report from a physical therapist addressing 

the treatment of her bilateral knee condition. 

By decision dated August 3, 2018, an OWCP hearing representative affirmed the 

November 6, 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 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 

period of FECA,7that 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 

 

6 Supra note 3.

7 S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).
6

the employment injury.8 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.9

In an occupational disease claim, appellant’s burden 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.10

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

relationship is rationalized medical opinion evidence.11 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 

In a 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.

13

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP shares 

responsibility to see that justice is done.14 The nonadversarial policy of proceedings under FECA 

is reflected in OWCP’s regulations at section 10.121.15

ANALYSIS

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

 

8 T.H., Docket No. 18-1736 (issued March 13, 2019); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 

312 (1988).

9 T.E., Docket No. 18-1595 (issued March 13, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

10 S.C., supra note 7; R.H., 59 ECAB 382 (2008).

11 A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

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

13 See A.T., Docket No. 19-1972 (issued June 25, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Causal Relationship, Chapter 2.805.3e (January 2013).

14 J.M., Docket No. 18-1543 (issued December 28, 2015); Jimmy A. Hammons, 51 ECAB 219 (1999).

15 20 C.F.R. § 10.121.
7

Following appellant’s response to OWCP’s questionnaire its Regional Director, in an 

August 8, 2017 memorandum, cited to Chapter 2.800.9 of the Federal (FECA) Procedure Manual 

in providing guidance to the district office to further develop appellant’s claim.16 This Chapter 

provides in pertinent part:

“9. Extended Development. Some initial claims require full-scale medical 

development because the nature of exposure is in question, the diagnosis is not 

clearly identified, or the relationship of the condition to the exposure is not 

obvious.”

***

“If the report submitted by the claimant does not meet all of OWCP’s requirements 

for adjudication but establishes a prima facie case, the [claims examiner] CE should 

prepare a detailed SOAF and questions for the physician. The CE then can write 

directly to the attending physician (if of the appropriate specialty) as outlined in 

paragraph 8(c) of this chapter or refer the claimant for examination by a qualified 

specialist.”

The Regional Director indicated that appellant’s claim was being converted to an extended 

occupational disease claim as although the medical evidence of record did not meet the 

requirements for adjudication, it established a prima facie case. He directed the claims examiner 

to prepare a SOAF and a list of questions and either directly contact the attending physician, if a 

specialist in the appropriate field of medicine, or to refer appellant for examination by a qualified 

specialist. However, OWCP did not conduct any further development as instructed by the 

Regional Director and denied appellant’s claim based on the status of the current record.

As noted above, it is well established that, proceedings under FECA are not adversarial in 

nature, and that while appellant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence. OWCP has an obligation to see 

that justice is done.17

Once OWCP undertook development of the medical evidence, i.e., the intervention of the 

Regional Director directing OWCP to develop the medical evidence, it had the responsibility to 

do so in a manner that would resolve the relevant issues in the case.

18

 The Board finds that OWCP 

did not resolve the relevant issues as it denied appellant’s claim without conducting any further 

medical development. The case will therefore be remanded to OWCP for referral to an appropriate 

medical specialist, in keeping with the Regional Director’s directive and Chapter 2.800.9 of its 

procedures, for an examination and opinion on the issue of whether appellant’s preexisting 

bilateral knee osteoarthritis was aggravated by the accepted factors of her federal employment and

 

16 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.9 

(June 2011).

17 S.C., Docket No. 19-0920 (issued September 25, 2019).

18 J.M., supra note 14; P.B., Docket No. 09-2222 (issued August 10, 2010); Melvin James, 55 ECAB 406 (2004). 
8

whether her May 28, 2014 bilateral total knee replacement surgery was due to an aggravation of 

an employment-related condition. After this and other such further development as OWCP deems 

necessary, it shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 3, 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: October 8, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board