D.L. and U.S. Postal Service, Post Office, Edison, NJ (Board decision, June 3, 2014)

ECAB final decision and order. The Board affirmed OWCP’s August 22, 2013 denial of D.L.’s bilateral hip occupational disease claim. It found no adequately reasoned medical opinion linking her diagnosed condition to her postal duties. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.L., a postal mail processing clerk, attributed hip conditions to years of standing, walking, bending, lifting, and moving mail. She had undergone surgery to replace both hips. Her treating surgeon diagnosed avascular necrosis and connected it to her work, but the Board found that he did not explain how those duties caused or aggravated the disease. His opinion also relied partly on a reported 1991 parking lot fall that the record did not establish as an accepted work injury. The Board affirmed the denial because the medical evidence did not sufficiently explain causation.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Bilateral hip occupational disease claim denial affirmed.
• Key point: The surgeon’s general work attribution did not explain the medical link between duties and avascular necrosis.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.L., Appellant
)
)
and ) Docket No. 14-442
) Issued: June 3, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Edison, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On December 18, 2013 appellant, through her attorney, filed a timely appeal from an August 22, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

ISSUE

The issue is whether appellant met her burden of proof to establish that she sustained a bilateral hip condition in the performance of duty causally related to her federal employment.

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the issuance of the August 22, 2013 OWCP decision, appellant submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). On appeal, counsel contends that the evidence of record, including a November 29, 2012 report from appellant’s attending physician, is sufficient to establish the causal relationship between his duties of repetitive bending, standing and lifting and her bilateral hip condition.

FACTUAL HISTORY

On March 22, 2012 appellant, then a 56-year-old mail processing clerk, filed an occupational disease claim (Form CA-2) alleging that she sustained a bilateral hip condition due to factors of her federal employment, including constant walking, bending and standing. She worked at the employing establishment for 31 years and had a left hip replacement in 2008 and a right hip replacement in 2011.

In a March 19, 2012 statement, appellant noted that she was very active in doing extensive repetitive work at her job. She worked on her feet all day and sometimes stood in one position for an extreme amount of time on a hard surface. At other times, appellant was required to do a lot of bending and walking. She indicated that sometimes equipment would get caught in the trucks and this could cause strain on her hips.

In an April 3, 2012 letter, OWCP notified appellant of the deficiencies of her claim. It afforded her 30 days to submit additional evidence and respond to its inquiries.

Appellant submitted a narrative statement dated April 12, 2012 reiterating the duties of her federal employment.

By decision dated June 13, 2012, OWCP denied appellant’s claim. It found that the medical evidence failed to establish causal relationship.

On June 19, 2012 appellant, through her attorney, requested an oral hearing before an OWCP hearing representative.

A telephonic hearing was held before an OWCP hearing representative on October 9, 2012. Appellant provided testimony and the hearing representative held the case record open for 30 days for the submission of additional evidence.

Appellant submitted a November 29, 2012 report from Dr. Juluru Rao, a Board-certified orthopedic surgeon, who diagnosed avascular necrosis of both hips. Dr. Rao noted that appellant was postbilateral total hip replacement arthroplasty. Appellant was initially seen on April 25, 2007 with complaints of pain in both hips for long duration. She worked for the employing establishment at the time and had a history of a fall in its parking lot in 1991. Dr. Rao indicated that appellant’s work involved constant bending, standing, lifting, placing mail onto a skid, unloading trucks and pushing skids to the trucks. His examination on April 25, 2007 revealed that she was walking with a Trendelenburg’s gait and her range of motion in both hips was restricted in flexion, abduction, internal and external rotation. After her hip replacements, appellant was advised to avoid bending, kneeling and squatting. Dr. Rao opined that her bilateral hip condition and the resulting surgical procedures were the direct result of her occupation, which involved repeated bending, standing, lifting, pushing and pulling and the fall she sustained in 1991.

2
 By decision dated May 17, 2013, an OWCP hearing representative affirmed the June 13, 2012 decision. She found that appellant submitted insufficient medical evidence to support her claim.

On May 28, 2013 appellant, through her attorney, requested reconsideration and resubmitted the November 29, 2012 report from Dr. Rao.

By decision dated August 22, 2013, OWCP denied the claim on the basis that the medical evidence failed to establish the causal relationship between appellant’s bilateral hip condition and factors of her federal employment.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of establishing 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 and that an injury4 was sustained in the performance of duty. These are the essential elements of each compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5

To establish that an injury was sustained in the performance of duty in a claim for an occupational disease, an employee 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 employment factors identified by the employee.6

Causal relationship is a medical issue and the medical evidence generally required to establish causal relationship is rationalized medical evidence. 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 the specific employment factors identified by the employee.7

3
5 U.S.C. §§ 8101-8193.
4
OWCP regulations define an occupational disease or illness as a condition produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). 5 See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).
6
See D.R., Docket No. 09-1723 (issued May 20, 2010). 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). 7 See O.W., supra note 5.

3
 ANALYSIS

The Board finds that appellant did not meet her burden of proof to establish that her federal employment caused or aggravated her bilateral hip condition. Appellant submitted a statement in which she identified the factors of employment that she believed caused her claimed condition, including walking, bending, standing, lifting, pushing and pulling. In order to establish a claim that she sustained an employment-related injury, she must also submit rationalized medical evidence which explains how her medical condition was caused or aggravated by the implicated employment factors.8

In a November 29, 2012 report, Dr. Rao diagnosed avascular necrosis of both hips and noted appellant as status postbilateral total hip replacement arthroplasty. Appellant was initially seen on April 25, 2007 with complaint of pain in both hips for long duration. She worked at the employing establishment and had a history of a fall in its parking lot in 1991. Dr. Rao stated generally that appellant’s work involved constant bending, standing, lifting, placing mail onto a skid, unloading trucks and pushing skids to the trucks. His examination on April 25, 2007 revealed that she was walking with a Trendelenburg’s gait and her range of motion in both hips was restricted in flexion, abduction, internal and external rotation. Dr. Rao opined that appellant’s bilateral hip condition and the resulting surgical procedures were the direct result of her occupation, which involved repeated bending, standing, lifting, pushing and pulling and the fall she sustained in 1991. The Board finds that Dr. Rao failed to provide a fully-rationalized opinion explaining how factors of appellant’s federal employment, such as walking, bending, standing, lifting, pushing and pulling, caused or aggravated her bilateral hip condition. Dr. Rao noted that appellant’s condition occurred while she was at work, but such a generalized statement does not establish causal relationship because it repeats appellant’s allegations and is unsupported by adequate medical rationale explaining how her physical activity at work caused or aggravated the diagnosed conditions.9 Further, there is no evidence of record that OWCP accepted an employment-related injury in 1991. This diminishes the probative value of the opinion of Dr. Rao as it is not based on an accurate history. The Board finds that the report from Dr. Rao is insufficient to establish that appellant’s bilateral hip condition was caused or aggravated by factors of her federal employment.

Appellant has not submitted sufficient medical evidence to support her claim that her bilateral hip condition is causally related to the implicated employment factors. She failed to meet her burden of proof to establish her claim.

On appeal, counsel contends that the evidence from Dr. Rao is sufficient to establish a causal relationship between appellant’s duties of repetitive bending, standing and lifting and her bilateral hip condition. For the reasons stated, the Board finds the report of Dr. Rao is of diminished probative value.

8
See A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C. Moore, 52 ECAB 132 (2000). 9 See K.W., Docket No. 10-98 (issued September 10, 2010).

4
 Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish that she sustained a bilateral hip condition in the performance of duty causally related to factors of her federal employment.

ORDER

IT IS HEREBY ORDERED THAT the August 22, 2013 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: June 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

5