United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Deptford, NJ, Employer

__________________________________________

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Docket No. 20-0064

Issued: September 4, 2020

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 8, 2019 appellant, through counsel, filed a timely appeal from a May 16, 2019 

merit decision of the Office of Workers’ Compensation Programs (OWCP).1 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 May 25, 2016 appellant, then a 56-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that the physical demands of his position, over a long period of time, 

aggravated the wear and tear on his body. He indicated that he first became aware of his claimed 

condition on May 23, 2016, and first realized its relation to factors of his federal employment on 

May 23, 2016. Appellant stopped work on May 23, 2016. 

In a January 27, 2017 report, Dr. Adam Zucconi, Board-certified in family practice and 

sports medicine, noted that appellant reported approximately six months of right hip pain 

exacerbated by his occupation as a mail carrier, where he reported that he could have to walk up 

to 10 miles per day. He indicated that appellant denied any specific injury which started his pain,

rather, appellant experienced a gradual onset over several months. Dr. Zucconi diagnosed 

symptomatic right hip osteoarthritis and indicated that appellant’s treatment included intraarticular corticosteroid injections. He opined that appellant’s osteoarthritis was “exacerbated and 

the degeneration of the joint accelerated by his occupation.”

In a February 24, 2017 development letter, OWCP advised appellant of the deficiencies in 

his claim and requested that he submit additional factual and medical evidence in support of his 

claim. It afforded him 30 days to submit the requested information.

In a March 13, 2017 statement, appellant explained that he had worked as a letter carrier 

since 1984 and that he walked 8 to 10 miles per day, in all types of weather, on concrete. He

alleged that the walking required by his work duties caused damage to his right hip.

By decision dated May 4, 2017, OWCP denied appellant’s claim finding that he had not 

met his burden of proof to establish that his right hip osteoarthritis was causally related to the 

accepted factors of his federal employment.

On May 11, 2017 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on August 17, 2017. 

On June 2, 2017 OWCP received a March 31, 2017 report from Dr. Eddie Wu, an osteopath

Board-certified in orthopedic surgery, who diagnosed symptomatic right hip osteoarthritis, 

confirmed by x-rays of appellant’s right hip. Dr. Wu recounted that appellant continued to perform 

his usual duties, including prolonged ambulation for 10 miles daily, working six days per week. 

He explained that there was no inciting injury and opined that “the daily wear and tear of his 

occupation has directly aggravated and worsened his preexisting right hip osteoarthritis.”

In a May 19, 2016 x-ray report, Dr. Jamil Mohsin, a diagnostic radiologist, found no 

fracture or misalignment of the right hip and moderate degenerative joint disease.
3

In a May 23, 2016 report, Dr. Wu diagnosed right hip pain and osteoarthritis. He indicated 

in an August 8, 2017 report that appellant had preexisting severe degenerative joint disease which 

was aggravated by his current job duties. Dr. Wu noted that appellant ambulated up to 10 miles 

per day, five to six days per week, walked on concrete pavement and ascended and descended 

steps, which could increase the joint reaction forces in the hip, leading to increased inflammation, 

effusion, synovitis, and pain. He opined that it was “within a reasonable degree of medical 

certainty that increased ‘wear and tear’ on a daily basis can potentially accelerate the progression 

of his degenerative joint disease.” Dr. Wufurther opined that appellant’s symptoms were 

“obviously being exacerbated by his daily work duties.”

By decision dated October 23, 2017, OWCP’s hearing representative vacated the May 4, 

2017 decision. He found that the medical evidence of record was sufficient to warrant further 

medical development.3

In a letter dated February 7, 2018, OWCP referred appellant for a second opinion 

examination with Dr. Andrew Newman, a Board-certified orthopedic surgeon, scheduled for 

February 22, 2018.

In a February 22, 2018 report, Dr. Newman noted appellant’s history of injury and medical 

treatment. He diagnosed moderate to somewhat severe degenerative joint disease of the right hip 

due to osteoarthritis. In response to the question as to whether appellant’s employment factors

during his 32-year career with the employing establishment aggravated his right hip degenerative 

condition, Dr. Newman opined, “No.” He explained that there was “nothing in the literature that 

in any way connected normal wear and tear and what we are calling osteoarthritis as anything to 

do with the amount of walking that somebody carries out. Osteoarthritis is commonly seen in all 

age groups, particularly above 50, as to the hip. People who are almost totally stationary develop 

this as well as people who do a lot of walking and running, etc.” Dr. Newman also responded to

Dr. Wu’s opinion that “[w]ear and tear on a daily basis can potentially accelerate the progression 

of degenerative joint disease.” He opined “[t]here is nothing that supports this. The fact that 

anything ‘can’ is the point that Dr. Wu is making but certainly with reasonable medical certainty 

there is no evidence whatsoever that the degenerative joint disease is any way related to 

[appellant’s] walking job.” Dr. Newman advised no further medical treatment was warranted and 

opined with reasonable medical certainty that appellant’s right hip osteoarthritis was not related to 

the walking he completed at work.

By decision dated March 21, 2018, OWCP denied the claim. It found that the medical 

evidence did not demonstrate that the claimed medical condition was related to established workrelated events.

On March 26, 2018 counsel for appellant requested a hearing before an OWCP hearing 

representative, which was held on July 10, 2018.

 

3 The hearing representative incorrectly identified the August 8, 2017 report as that of Dr. Zucconi; however, this 

report was signed by Dr. Wu. 
4

By decision dated August 13, 2018, OWCP’s hearing representative affirmed the 

March 21, 2018 decision.

On October 15, 2018 counsel for appellant requested reconsideration and submitted 

additional medical evidence.

In a September 7, 2018 report, Dr. Wu provided a response to Dr. Newman’s second 

opinion. He explained that there was no question that appellant’s right hip osteoarthritis was a 

preexisting condition and concluded that appellant’s employment activities “exacerbated” his 

current condition. Dr. Wu explained that appellant’s increased hip/groin pain from his 

osteoarthritis was due to increased frictional forces throughout the joint. He noted that appellant’s 

job duties included walking up to 10 miles per day on concrete floors and going up and down steps 

which certainly increased friction and joint reaction forces more than two to four times his body 

weight. Dr. Wu explained that, “[i]ncreased irritation of the synovium and joint reaction forces, 

as well as increased friction secondary to degenerative joint disease increases the release of proinflammatory markers which directly causes and increases [appellant’s] pain.”

On January 2, 2019 OWCP determined that a conflict in medical evidence had arisen 

between Dr. Wu and Dr. Newman regarding whether appellant’s preexisting degenerative joint 

disease was aggravated by appellant’s employment duties. It referred appellant to Dr. Roy B. 

Friedenthal, a Board-certified orthopedic surgeon, to resolve the conflict.

In a March 18, 2019 report, Dr. Friedenthal noted appellant’s history of injury and medical 

treatment. He advised that diagnostic images, including x-rays of the pelvis and no status of the 

left hip, were not submitted for review, and that he did not have the benefit of prior medical 

records. Dr. Friedenthal explained that in considering the etiology of appellant’s right hip 

condition, based on the history provided, appellant had no trauma related to work; however, he 

noted that he did not have the benefit of prior medical records, and the possibility of remote trauma 

could not be excluded. He noted that review of any additional records that became available would 

be appropriate to confirm the history as provided. Dr. Friedenthal examined appellant and 

diagnosed osteoarthritis of the hip, status post right total hip replacement, and osteoarthritis of the 

left hand. He indicated that degenerative arthritis of the hip could develop without specific 

traumatic etiology and there might be multiple contributory factors to the development of hip 

osteoarthritis. Dr. Friedenthal advised that degeneration could follow specific developmental or 

acquired conditions, such as Perthes disease or undiagnosable mild congenital hip dysplasia. 

Regarding wear and tear related to work activities, he explained that it was “estimated with good 

support of clinical evidence, that symptomatic osteoarthritis of the hip was present in nearly 10 

percent of individuals over the age of 45 with radiographic appearance of osteoarthritis present in 

28 percent of individuals.” Dr. Friedenthal noted that he did not have specific statistics, but there 

were excellent studies of the association between various levels of activity and the incidence of 

osteoarthritis. He advised that, while there was an association with certain heavy labor, there was 

no association with sitting or walking on the job. Dr. Friedenthal opined that the workload outlined 

in the record did not suggest significant workplace exposure. He further noted that appellant’s 

work activities required similar usage of both lower extremities and the development of 

osteoarthritis in one hip with no involvement in the other hip “would speak against this being the 

routine wear and tear of his work activities.” Dr. Friedenthal concluded that based on the history 

and accepted medical literature, there was no relationship between the development of 
5

osteoarthritis of the right hip and appellant’s work activities. He also advised that on a statistical 

basis, right hip replacement was not causally related to employment in this case. Dr. Friedenthal

indicated that personal review of diagnostic studies was requested, if confirmation of his opinion 

was required.

Dr. Friedenthal provided a supplemental report on May 6, 2019. He again noted that he 

had not received all of appellant’s diagnostic studies and prior medical records.

By decision dated May 16, 2019, OWCP denied modification of its prior decision. It found 

that Dr. Friedenthal’s opinion was sufficiently rationalized and constituted the special weight of 

the medical opinion evidence.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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,5that 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.6 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.7

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.8

Rationalized medical opinion evidence is required to establish causal relationship.9 A

physician’s opinion on whether there is causal relationship between the diagnosed condition and 

the implicated employment factors must be based on a complete factual and medical background.10 

 

4 Supra note 2.

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

153 (1989).

6 See G.B., Docket No. 19-1510 (issued February 12, 2020); K.V., Docket No. 18-0947 (issued March 4, 2019); 

M.E., Docket No. 18-1135 (issued January 4, 2019); James E. Chadden, Sr., 40 ECAB 312 (1988).

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

8 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).

9 L.G., Docket No. 20-0433 (issued August 6, 2020); J.L., Docket No. 18-1804 (issued April 12, 2019).

10 M.V., Docket No. 18-0884 (issued December 28, 2018).
6

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 factors.11

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.”

12

 In situations where 

there exist 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.13

ANALYSIS

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

OWCP properly determined that there was a conflict in the medical opinion evidence 

between Dr. Wu and Dr. Newman regarding whether appellant’s preexisting degenerative joint 

disease was aggravated by his accepted employment factors. In order to resolve the conflict,

OWCP properly referred appellant to Dr. Friedenthal for an impartial medical examination and an 

opinion on the matter, pursuant to 5 U.S.C. § 8123(a).

In his March 18 and May 6, 2019 reports, Dr. Friedenthal opined that based on the medical 

history of appellant’s injury that he was provided, there was no relationship between the 

development of appellant’s right hip osteoarthritis of the right hip and his work activities. 

However, he also noted that diagnostic images, including x-rays of the pelvis and no statue of the 

left hip, were not submitted for review, and that he did not have the benefit of appellant’s prior 

medical records. Dr. Friedenthal explained that if additional medical records became available it 

would be appropriate to confirm the history provided. He also advised that appellant’s diagnostic 

studies were requested, if confirmation of his opinion was required.

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

arbiter. The claimant has the burden of proof to establish entitlement to compensation. However, 

OWCP shares responsibility in the development of the evidence to see that justice is done.

14

 Once

it undertakes development of the record, it must do a complete job in procuring medical evidence 

that will resolve the relevant issues in the case.15 

 

11 Id.; Victor J. Woodhams, supra note 8.

12 5 U.S.C. § 8123(a).

13 Id.

14 See L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

15 Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).
7

In a situation where OWCP secures an opinion from an impartial medical examiner for the 

purpose of resolving a conflict in the medical evidence and the opinion from such examiner 

requires clarification or elaboration, it has the responsibility to secure a supplemental report from 

the examiner for the purpose of correcting the defect in the original opinion.16 

The Board finds that as Dr. Friedenthal clearly noted that appellant’s entire medical record, 

from which he could properly discern appellant’s history of injury -- including the accepted 

employment factors -- a was not provided for his review, OWCP should have referred the entire 

medical record to Dr. Friedenthal, once he noted this discrepancy. On remand OWCP shall refer 

appellant’s entire medical record to Dr. Friedenthal and request that he provide a supplemental 

opinion. After such further development as necessary, it shall issue a de novo decision.

CONCLUSION

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

 

16 G.B., supra note 6; S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 

232, 238 (1988).
8

ORDER

IT IS HEREBY ORDERED THAT the May 16, 2019 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: September 4, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board