K.U. and U.S. Postal Service, Post Office, Cape May, NJ (Board decision, August 26, 2016)

ECAB final decision. The Board affirmed OWCP’s decision. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

K.U., a postal letter carrier, claimed that years of work aggravated or accelerated arthritis in both knees. The Board found that his physician relied on general medical publications without adequately explaining how the specific work duties caused his condition. It affirmed OWCP’s denial of the occupational disease claim.

Decision snapshot

• Authority: 5 U.S.C. § 8101.
• Outcome: February 11, 2015 bilateral knee claim denial affirmed.
• Key point: General research did not supply the case-specific medical reasoning needed for causation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.U., Appellant
)
)
and ) Docket No. 15-0771
) Issued: August 26, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
Cape May, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On February 19, 2015 appellant, through counsel, filed a timely appeal of a February 11, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.

ISSUE

The issue is whether appellant has met his burden of proof to establish an aggravation or acceleration of his bilateral knee arthritis causally related to factors of his employment.

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.
 On appeal counsel argues that appellant had submitted the necessary medical opinion evidence to establish his claim and that OWCP erred in requiring additional medical evidence establishing “how” the aggravation occurred. In the alternative, he argued that the medical evidence was sufficient to require additional development by OWCP.

FACTUAL HISTORY

On June 9, 2014 appellant, then a 56-year-old letter carrier, filed an occupational disease claim (Form CA-2) alleging that he developed severe bilateral degenerative joint disease in his knees due to his employment duties of standing, excessive walking, pushing cages on steep ramps, as well as entering and exiting his postal vehicle.

In a letter dated June 30, 2014, OWCP requested that appellant provide additional factual and medical evidence in support of his claim. Appellant provided a narrative statement noting that he had worked as a letter carrier since 1986. He noted that on January 2001 he felt pain in his left knee at work and was diagnosed with a torn meniscus. Appellant underwent arthroscopic surgery on his left knee on February 13, 2001.

Appellant described his duties of pushing cages of mail up and down concrete ramps for 22 years. He noted that his first route was a walkout route with many businesses. This route required appellant to drop off relay bags in designated place and then walk his route refilling his mail bag at the relay spots. Appellant walked six to seven hours a day carrying a satchel weighing up to 35 pounds for the 10 years that he was assigned this route. His current route required less walking. Appellant noted that he had two park and loops with the balance of the route as dismounts, where he parked and exited and reentered his vehicle at each location. He reported 3½ hours of mounted delivery, 1 part and loop, 2.25 hours of dismount delivery and a 100 unit assisted living facility. Appellant noted that he developed aches and pains in his legs and knees. He underwent arthroscopic surgery on his right knee on January 10, 2014 due to a torn meniscus. Appellant underwent bilateral knee replacement surgeries on June 9, 2014 due to bilateral degenerative joint disease.

By decision dated August 25, 2014, OWCP denied appellant’s claim finding that he had not submitted sufficient medical evidence to establish a diagnosed condition as a result of his implicated employment duties.

Dr. David Anapolle, a Board-certified orthopedic surgeon, examined appellant on November 6, 2013 due to right knee pain. He noted that the onset of appellant’s symptoms was gradual and worsening. Dr. Anapolle reported that appellant had mild left knee symptoms at that time. He diagnosed degenerative joint disease in both knees and injected appellant’s right knee. On December 2, 2013 Dr. Anapolle noted that appellant had worsening bilateral knee pain with severe difficulty with stairs. He noted that appellant’s occupation was a letter carrier. Dr. Anapolle reviewed appellant’s knee x-rays and diagnosed moderate left and mild right knee degenerative joint disease with medial cartilage space narrowing. On December 16, 2013 he examined appellant and a December 5, 2013 magnetic resonance imaging (MRI) scan which demonstrated a medial meniscal tear on the right with mild-to-moderate degenerative joint disease. Dr. Anapolle performed a right knee arthroscopy on January 10, 2014.

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 Dr. Alvin Ong, a Board-certified orthopedic surgeon, examined appellant on March 25, 2014 due to bilateral knee pain and noted his position as a letter carrier. He diagnosed bilateral knee degenerative joint disease end-stage with varus malalignment. Dr. Ong recommended bilateral knee replacement surgery.

Dr. Robert F. Hahn, III, an osteopath, completed a report on June 12, 2014 and noted that appellant had led an active lifestyle and had developed increasing pain in both knees diagnosed as end-stage degenerative joint disease. Appellant underwent bilateral total knee replacements on June 9, 2014. He was admitted for rehabilitation at the Bacharach Institute for Rehabilitation following his surgery and remained there until June 19, 2014.

Counsel requested reconsideration on October 11, 2014 and submitted additional medical records and reports. On September 24, 2014 Dr. Ronald N. Rosenfeld, a Board-certified orthopedic surgeon and osteopath, reviewed appellant’s medical treatment and noted that he developed worsening of pain, swelling and stiffness in both knees due to his physical activities in the performance of his federal employment. He described appellant’s employment duties of pushing cages of mail up and down concrete ramps, long periods of standing to case mail, long periods of walking while carrying a 35-pound mailbag, and repetitively climbing in and out of his mail truck. Dr. Rosenfeld noted appellant’s knee surgeries. He noted that by 2013 the continuous standing, pushing carrying and walking at work caused appellant to have constant pain and swelling in his knees. Dr. Rosenfeld reported appellant’s diagnosis of bilateral knee arthritis as well as his bilateral knee replacement surgery on June 9, 2014. He reviewed appellant’s medical records and stated, “Although it is unlikely that [appellant’s] occupational activities were the primary cause of his bilateral knee arthritis, his work activities did aggravate and accelerate this condition.” Dr. Rosenfeld noted that appellant’s 2001 left knee injury was employment related and that medial meniscal tears were known to be an aggravating factor in the progressive development of medial compartment arthritis. He further listed appellant’s implicated employment duties from 1986 through 2013 and noted that these activities caused an acceleration of the degenerative arthritis of his knees and led to the bilateral knee replacement surgery. Dr. Rosenfeld stated, “[w]ork-related activities such as [those] performed by [appellant], including knee bending -- especially while lifting or carrying, stair climbing, kneeling, and squatting have all been implicated by multiple scientific studies as associated with the development of knee arthritis.” He provided citations to six publications. Dr. Rosenfeld concluded that appellant’s bilateral knee arthritis was aggravated and accelerated by his work- related activities.

By decision dated February 11, 2015, OWCP modified its prior decision to find that appellant had submitted sufficient medical evidence of a diagnosed condition, but continued to deny appellant’s claim as the medical evidence of record was not sufficiently well reasoned to establish a causal relationship between appellant’s diagnosed aggravation of his underlying degenerative joint disease in both knees and his implicated employment duties. It stated, “The medical evidence does not establish how your work duties aggravated and accelerated your preexisting condition.” (Emphasis in the original.)

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 LEGAL PRECEDENT

OWCP’s regulations define an occupational disease as “a condition produced by the work environment over a period longer than a single workday or shift.”3 To establish that an injury was sustained in the performance of duty in an occupational disease claim, a claimant must submit the following: (1) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; (2) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; and (3) medical evidence establishing that the employment factors identified by the claimant were the proximate cause of the condition for which compensation is claimed or, noted differently, medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the claimant. The evidence required to establish causal relationship is rationalized medical opinion evidence, based upon a complete factual and medical background, showing a causal relationship between the claimed condition and identified factors. The belief of a claimant that a condition was caused or aggravated by the employment is not sufficient to establish causal relation.4

ANALYSIS

The Board finds that appellant has failed to meet his burden of proof to establish an aggravation or acceleration of his bilateral knee arthritis causally related to his employment factors.

Appellant has submitted medical evidence of a diagnosed condition, degenerative joint disease of his knees bilaterally. He further provided a detailed statement of the employment duties that he felt caused or contributed to the aggravation and acceleration of his degenerative joint disease. Appellant also submitted medical evidence addressing the causal relationship between his diagnosed condition and his employment duties.

Drs. Anapolle, Ong, and Hahn provided medical reports which mentioned appellant’s federal employment as a letter carrier or his active lifestyle, and provided a diagnosis of degenerative joint disease of the knees bilaterally. However, these physicians did not offer a clear opinion that appellant’s degenerative joint disease was caused, aggravated or accelerated by his employment. For these reasons, these reports are not sufficient to establish appellant’s claim.

Dr. Rosenfeld’s September 24, 2014 report included a detailed listing of appellant’s implicated employment duties, a statement of his medical history and treatment and an opinion that appellant’s degenerative joint disease was aggravated and accelerated by his employment duties. He did not, however, provide sufficient explanation of the medical reasoning behind his opinion. Instead, Dr. Rosenfeld merely noted that work-related activities such as knee bending while lifting or carrying, stair climbing, kneeling and squatting had been implicated by multiple scientific studies as associated with the development of knee arthritis. He provided citations to six publications. The Board finds that Dr. Rosenfeld’s opinion does not include the necessary

3
20 C.F.R. § 10.5(q).
4
Lourdes Harris, 45 ECAB 545, 547 (1994).

4 medical rationale to establish appellant’s claim. Instead, he provided a conclusory opinion based on medical publications. These publications are of general application and not determinative regarding whether specific conditions are causally related to particular employment factors in a claim.5 Dr. Rosenfeld did not provide any additional medical reasoning rendering the medical publications specific to appellant’s claim.

On appeal counsel contends that appellant had submitted sufficient medical evidence to meet his burden of proof, or in the alternative that the medical evidence was sufficient to require further development of appellant’s claim, by OWCP. The Board has considered these arguments, but disagrees with counsel’s conclusions for the reasons offered above.

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 failed to meet his burden of proof to establish an aggravation or acceleration of his bilateral knee arthritis, causally related to factors of his federal employment.

ORDER

IT IS HEREBY ORDERED THAT the February 11, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.6

Issued: August 26, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5
See C.S., Docket No. 14-1994 (issued June 26, 2015); P.J., Docket No. 14-498 (issued May 19, 2014); and Gaetan F. Valenza, 35 ECAB 763 (1984).
6
James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the Board effective November 16, 2015.

5