United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Portsmouth, NH, Employer

__________________________________________

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Docket No. 20-0147

Issued: September 20, 2021

Appearances: Case Submitted on the Record

John L. DeGeneres, Jr., Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 24, 2019 appellant, through counsel, filed a timely appeal from a May 15, 2019 

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

 

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. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules 

of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s 

oral argument request, she asserted that oral argument should be granted to present arguments regarding her allegation 

that OWCP’s Branch of Hearings and Review routinely denies requests for subpoenas and fails to remand cases to 

OWCP where a conflict in medical opinion exists. The Board, in exercising its discretion, denies appellant’s request 

for oral argument because the arguments on appeal can adequately be addressed in a decision based on a review of 

the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve a useful 

purpose. As such, the oral argument request is denied and this decision is based on the case record as submitted to 

the Board.
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish right hip and 

knee osteoarthritis causally related to her accepted factors of her federal employment; and 

(2) whether a representative of OWCP’s Branch of Hearings and Review properly denied her 

request for the issuance of a subpoena.

FACTUAL HISTORY

On August 24, 2015 appellant, then a 66-year-old retired letter carrier, filed an 

occupational disease claim (Form CA-2) alleging that her right hip and right knee osteoarthritis 

was accelerated due to factors of her federal employment, including excessive standing, walking, 

climbing stairs, lifting, twisting, pivoting, and dismounting vehicles over the years. She indicated 

that she first became aware of her condition and its relation to her federal employment on 

January 16, 2015. On the reverse side of the claim form, appellant’s supervisor indicated that she 

stopped work on October 31, 2014 and was now retired.

In support of her claim, appellant submitted medical evidence. On December 3, 2012

Dr. Rebecca S. Lee, a Board-certified family practitioner, examined appellant and noted that she 

had overextended her right knee with residual swelling. On September 10, 2013 Dr. Ellen 

Bernard, an osteopath, diagnosed leg and hip pain. Appellant underwent right hip and knee x-rays 

on September 10, 2013, which demonstrated degenerative joint disease of the right knee and 

degenerative osteoarthritis of the right hip joint. 

On November 11 and December 13, 2013 Dr. Kenneth C. Spengler, a Board-certified 

orthopedic surgeon, diagnosed right hip osteoarthritis. He opined that appellant’s symptoms were 

“definitely aggravated” by her job as a letter carrier, which included prolonged standing. On 

January 9, 2014 Dr. Thomas F. McGovern, a Board-certified orthopedic surgeon, noted that 

appellant had advanced osteoarthritis in her hip, which caused pain with activity. He 

recommended hip replacement surgery. On February 18, 2014 appellant underwent a total right 

hip arthroplasty.

In a report dated June 2, 2015, Dr. David C. Morley, a Board-certified orthopedic surgeon, 

noted that appellant had right hip and right knee problems related to the accumulative stress of her 

job duties. He described appellant’s history of injury noting that in the of summer 2012 appellant 

lost her balance walking down steps and overextended her right knee while in the performance of 

duty. Appellant reported acute pain. Her right knee and right hip symptoms were worsened by 

weight bearing. In September 2013 appellant’s route required increased climbing of stairs which 

worsened her right hip pain. Dr. Morley noted that appellant’s position also required prolonged 

standing and walking as well as climbing stairs and that her right knee pain continued following 

her February 18, 2014 right hip replacement. He reviewed appellant’s knee x-rays and found 

chondrocalcinosis with advanced degenerative joint disease and medial joint space narrowing. 

 

3

5 U.S.C. § 8101 et seq.
3

Dr. Morley opined that as a result of the physical demands of her job and the accumulative impact 

loading, appellant developed advanced right hip arthritis and advanced right knee arthritis. He 

further opined that appellant’s job duties aggravated, exacerbated, hastened, or accelerated the 

degeneration of her right hip and right knee. Dr. Morley explained that impact loading resulting 

from repetitive local stresses accelerated the progression of arthritis through a process of chronic 

inflammation. He indicated that appellant’s job as a letter carrier required constant and repetitive 

walking, squatting, stooping, climbing, bending, lifting, carrying, stair climbing, and twisting 

activities. Dr. Morley explained that these activities caused a loss of proteoglycan initiated by 

activation of degradative enzymes associated with the inflammation, and that the loss of 

proteoglycans resulted in a stiffer cartilage that was more easily damaged by wear and tear. He 

further explained that as the articular cartilage deteriorated due to mechanical stresses breakdown 

products from the cartilage were released into the synovial space, then new bone outgrowths were 

formed on the margins of joints, known as spurs or osteophytes, which were a characteristic of a 

progression of osteoarthritis. Dr. Morley concluded that the aggravation of appellant’s 

osteoarthritis by her employment activities was permanent due to loss of joint surface. He 

referenced a series of recent studies that supported his conclusion.

In a September 8, 2015 development letter, OWCP advised appellant of the deficiencies of 

her claim. It requested additional factual and medical evidence, and provided a questionnaire for 

her completion. OWCP afforded appellant 30 days to respond.

On April 19, 2016 OWCP referred appellant, a statement of accepted facts (SOAF) and a 

list of specific questions for a second opinion evaluation with Dr. Lawrence M. Leonard, a Boardcertified orthopedic surgeon.

In his May 10, 2016 report, Dr. Leonard reviewed the SOAF and medical records. He 

diagnosed status post right hip total arthroplasty with excellent result and arthritis right knee, 

questionable chondrocalcinosis etiology, and obesity. Dr. Leonard opined that appellant’s 

diagnosed arthritic conditions were not caused, aggravated, or accelerated by her employment 

duties. He attributed appellant’s right knee arthritis to her 1985 right knee arthroscopic surgery. 

Dr. Leonard noted that there was a correlation between heavy work and osteoarthritis, but not 

necessarily causation. He further noted that while appellant’s work did not cause her diagnosed 

hip and knee conditions, prolonged walking and stair climbing would aggravate these conditions.

Dr. Leonard concluded that he did not believe that appellant’s conditions were aggravated or 

caused by her employment activities, unless there was temporary aggravation.

By decision dated June 7, 2018, OWCP denied appellant’s occupational disease claim 

finding that she had not established that her diagnosed medical condition was causally related to 

the accepted factors of her federal employment. On June 30, 2016 appellant, through counsel, 

requested an oral hearing from a representative of OWCP’s Branch of Hearings and Review.

At the hearing held on October 27, 2016, counsel contended that Dr. Leonard’s report, in 

part, supported appellant’s occupational disease claim for aggravation of an underlying condition.

By decision dated January 11, 2017, OWCP’s hearing representative remanded the case 

for a supplemental report from Dr. Leonard explaining whether appellant’s work caused or 
4

contributed to aggravation of the underlying osteoarthritis of the hips either temporarily or 

permanently.

On November 1, 2017 OWCP requested a supplemental report from Dr. Leonard 

addressing whether appellant’s preexisting conditions were in some way aggravated or accelerated

by her accepted employment duties.

In a January 2, 2018, report, Dr. Leonard reviewed appellant’s history of injury and her 

employment duties. He opined that based on the medical literature, the epidemiological evidence 

did not establish that appellant’s work activities caused or aggravated his arthritis. Dr. Leonard 

noted that the wear and tear paradigm for osteoarthritis was no longer considered probable, instead 

it was considered to be an inflammatory disease with a critical role played by adiopokines 

producing joint injury. He found that appellant’s work activity did not appear to reach the level 

of activity which would constitute a risk of producing either knee or hip osteoarthritis. 4 

Dr. Leonard provided an extensive review of the medical literature.

By decision dated September 13, 2018, OWCP denied appellant’s occupational disease 

claim finding that the medical evidence did not demonstrate that the claimed condition was 

causally related to the accepted employment factors. On September 20, 2018 appellant, through 

counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and 

Review.

On October 10, 2018 counsel requested a subpoena for Dr. Leonard. He noted that

Dr. Leonard’s office was within the appropriate distance and that testimony and questioning was 

the only way to obtain a full and complete picture of Dr. Leonard’s understanding of the definitions 

of causation.

On February 19 2019 OWCP’s hearing representative denied appellant’s request for the 

issuance of a subpoena under 20 C.F.R. § 10.619. She found that he had not established that the 

only means to obtain information from Dr. Leonard was through a subpoena rather than other 

methods, such as a written reports, affidavits, or statements. The hearing representative advised 

that appellant could appeal the denial of the subpoena request after the issuance of her decision if 

it was not favorable.

On February 28, 2019 counsel appeared at the oral hearing and contended that

Dr. Leonard’s report was insufficient to resolve the issues of appellant’s claim.

By decision dated May 15, 2019, OWCP’s hearing representative reviewed counsel’s 

contentions regarding Dr. Leonard’s report and OWCP’s definitions of causal relationship. She 

denied appellant’s request for a subpoena, and affirmed OWCP’s September 13, 2018 decision 

finding that Dr. Leonard’s report constituted the weight of the medical opinion evidence.

 

4 Dr. Leonard indicated that he had retired from performing hip surgeries, but not from the practice of medicine.
5

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee 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 employee.9

Rationalized medical opinion evidence is required to establish causal relationship.10 The 

opinion of the physician must be based on a complete factual and medical background, 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 incident. 11 

Neither the mere fact that a disease or condition manifests itself during a period of employment, 

nor the belief that the disease or condition was caused or aggravated by employment factors or 

incidents is sufficient to establish causal relationship.12

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 

 

5

Supra note 2.

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); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

9

J.P., Docket No. 19-0303 (issued August 13, 2019); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish,

46 ECAB 276, 279 (1994).

10 20 C.F.R. § 10.110(a); M.M., Docket No. 18-1366 (issued February 27, 2019); John M. Tornello, 35 ECAB 

234 (1983).

11 S.S.,Docket No. 18-1488 (issued March 11, 2019).

12 S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).
6

make an examination.13 This is called a referee examination and OWCP will select a physician 

who is qualified in the appropriate specialty and who has no prior connection with the case. 14 

When there exists opposing medical reports of virtually equal weight and 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.15

ANALYSIS

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

Appellant’s attending physician, Dr. Morley, completed a June 2, 2015 report and provided 

a detailed history of injury, an opinion on causal relationship, and detailed medical reasoning 

explaining why he believed that appellant’s right knee and hip osteoarthritis was aggravated and 

accelerated by her accepted employment activities.

By contrast OWCP’s second opinion physician, Dr. Leonard, in his January 2, 2018 report, 

also based on a proper factual background, determined that appellant’s osteoarthritis in her right 

hip and knee were neither accelerated nor aggravated by her accepted employment duties.

Both Drs. Morley and Leonard provided a description of appellant’s employment duties, 

and provided rationale for their respective opinions based on their review of the medical evidence 

and physical findings. The Board, therefore, finds that a conflict in medical opinion exists 

regarding the causal relationship between appellant’s diagnosed osteoarthritis and her accepted 

employment duties.16

OWCP’s regulations provide that, if a conflict exists between the medical opinion of the 

employee’s physician and the medical opinion of a second opinion physician, OWCP shall appoint 

a third physician to make an examination.17 The Board will thus remand the case to OWCP for 

referral to an impartial medical specialist regarding whether appellant has met her burden of proof 

to establish that her underlying osteoarthritis of the right hip and right knee were aggravated or 

accelerated by her accepted employment duties. Following this and any such further development 

as may be deemed necessary, OWCP shall issue a de novo decision.

 

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

May 4, 2009).

14 20 C.F.R. § 10.321.

15 M.W., Docket No. 19-1347 (issued December 5, 2019); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. 

Godfrey, 52 ECAB 486 (2001).

16 A.T., Docket No. 19-0294 (issued May 29, 2019); W.B., Docket No. 17-1994 (issued June8, 2018).

17 5 U.S.C. § 8123(a); G.K., Docket No. 16-1119 (issued March 16, 2018).
7

LEGAL PRECEDENT -- ISSUE 2

In requesting a subpoena, a claimant must explain why the testimony is relevant to the 

issues in the case and why a subpoena is the best method or opportunity to obtain such evidence 

because there is no other means by which the testimony could have been obtained.18 The 

representative of OWCP’s Branch of Hearings and Review has discretion to approve or deny a 

subpoena request.19 Abuse of discretion is generally shown through proof of manifest error, a 

clearly unreasonable exercise of judgment, or actions taken which are clearly contrary to logic and 

probable deductions from established facts.20 

ANALYSIS -- ISSUE 2

The Board finds that OWCP’s hearing representative properly denied appellant’s request 

for the issuance of a subpoena.

Counsel for appellant requested that OWCP’s hearing representative issue a subpoena to 

obtain testimony from Dr. Leonard. She denied counsel’s request, noting that he had not 

demonstrated that the evidence from Dr. Leonard could not be obtained through other methods, 

including the submission of a written statement. Appellant, through counsel, has insufficiently 

explained why a subpoena was the best method to obtain this evidence or shown that there was no 

other method to obtain the information. The Board finds that OWCP’s hearing representative 

properly denied the subpoena request.21

CONCLUSION

The Board finds that this case is not in posture for a decision as to whether appellant has 

met her burden of proof to establish right hip and knee osteoarthritis causally related to the 

accepted factors of her federal employment as a conflict in medical opinion exists. The Board 

further finds that OWCP’s hearing representative did not abuse her discretion in denying 

appellant’s request for the issuance of a subpoena.

 

18 20 C.F.R. § 10.619; P.F., Docket No. 19-0547 (issued December 20, 2019); E.C., Docket No. 18-1808 (issued 

May 16, 2019).

19 Id.

20 P.F., supra note 18; B.M.,Docket No. 17-1157 (issued May 22, 2018).

21 E.C., supra note 18; L.M.,Docket No. 17-0159 (issued September 27, 2017).
8

IT IS HEREBY ORDERED THAT the May 15, 2019 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part and the case is remanded for 

further proceedings consistent with this decision of the Board.

Issued: September 20, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board