M.B. and U.S. Postal Service, Post Office, Washington, DC (Board decision, September 8, 2016)

ECAB final decision. The Board affirmed OWCP’s January 6, 2016 denial of M.B.’s bilateral hip osteoarthritis claim. 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

M.B., a postal letter carrier, attributed bilateral hip osteoarthritis to years of walking and standing at work. His physician said the work likely aggravated the condition but did not explain the medical basis for that conclusion or distinguish natural progression of preexisting arthritis. The Board found the opinion speculative and insufficiently tied to his specific duties. It affirmed OWCP’s denial.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: January 6, 2016 hip osteoarthritis claim denial affirmed.
• Key point: The physician did not adequately explain how work caused or aggravated the preexisting condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.B., Appellant
)
)
and ) Docket No. 16-0884
) Issued: September 8, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
Washington, DC, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 23, 2016 appellant filed a timely appeal from a January 6, 2016 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 his burden of proof to establish bilateral hip osteoarthritis as a result of factors of his federal employment.

1
5 U.S.C. § 8101 et seq.
2
The Board notes that appellant submitted additional evidence after OWCP rendered its January 6, 2016 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2). FACTUAL HISTORY

On April 27, 2015 appellant, then a 62-year-old letter carrier, filed an occupational disease claim (Form CA-2) alleging that he developed bilateral hip arthritis as a result of his federal employment duties. He reported that he was a letter carrier for 36 years and worked in extreme cold, snow, rain, and heat reaching above 100 degrees for 10 to 12 hours a day, 6 days a week. Appellant stopped work on February 14, 2015.

In a July 25, 2014 medical report, Dr. Kelly A. Martens, a Board-certified orthopedic surgeon, performed a right hip fluoroscopic-guided injection.

In an August 22, 2014 medical report, Dr. Thorsten Sundberg, a Board-certified diagnostic radiologist, performed a right hip fluoroscopic-guided injection.

In a March 11, 2015 operative report, Dr. Craig R. Faulks, a Board-certified orthopedic surgeon, performed right hip total arthroplasty. He noted that an x-ray of the right hip showed severe arthritis.

By letter dated May 13, 2015, OWCP informed appellant that the evidence of record was insufficient to support his claim for bilateral hip arthritis. Appellant was advised of the medical and factual evidence needed and was afforded 30 days to submit additional evidence. In another letter of that same date, OWCP requested that the employing establishment provide further information pertaining to appellant’s occupational disease claim.

In a May 11, 2015 disability certificate, Dr. Faulks reported that appellant was totally incapacitated from May 11 through August 11, 2015.

In a May 26, 2015 report, Dr. Faulks reported that appellant presented after right hip total arthroplasty on March 11, 2015. He noted left hip arthritis as well as intermittent symptoms pertaining to the right knee. Dr. Faulks provided findings on physical examination and diagnosed severe bilateral hip osteoarthritis and status post right hip total arthroplasty. He also diagnosed partial right knee tear anterior cruciate ligament. Dr. Faulks reported that appellant’s bilateral hip arthritis was likely aggravated by his work as a letter carrier for the employing establishment. He noted that this could be considered an on-the-job injury or at least an aggravation. Dr. Faulks concluded that appellant would eventually need a left hip total arthroplasty and to follow up in two to three months.

By decision dated June 16, 2015, OWCP denied appellant’s claim finding that the evidence of record failed to establish that the occupational exposure occurred as alleged. It noted that appellant had failed to establish fact of injury because he did not respond to the questionnaire provided in its May 13, 2015 development letter.

On July 13, 2015 appellant requested an oral hearing before an OWCP hearing representative. In support of his claim, he resubmitted medical evidence previously of record.

A hearing was held on October 21, 2015 where appellant testified in support of his claim.
Appellant stated that his letter carrier duties required him to be on his feet 10 to 12 hours per day, lift up to 70 pounds, carry up to 35 pounds, and step in and out of his truck. He explained that

2 his hip condition would improve when he was off work and worsen when returning to work. The record was held open for 30 days.

In a November 17, 2015 medical report, Dr. Faulks reported that appellant underwent right hip total arthroplasty on March 11, 2015 and returned with improvement, but continued to experience pain in the left hip. He reported that appellant worked as a letter carrier since 1979. Dr. Faulks diagnosed bilateral hip arthritis and noted that appellant would likely need left total arthroplasty explaining that he did well after his right hip arthroplasty. He opined that his bilateral hip arthritis was caused by his occupation which involved quite a bit of activity, walking, and standing. Dr. Faulks concluded with a reasonable degree of medical certainty that appellant’s condition was job related.

By decision dated January 6, 2016, OWCP’s hearing representative affirmed the June 16, 2015 decision, as modified, finding that appellant had established that the occupational exposure occurred as alleged, but that the medical evidence failed to establish that his diagnosed condition was causally related to his accepted federal employment duties.

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 filed within the applicable time limitation, that 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 the employment injury.3 These are the essential elements of every compensation claim regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

In order to determine whether an employee actually sustained an injury in the performance of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of injury consists of two components which must be considered in conjunction with one another. The first component to be established is that the employee actually experienced the employment incident which is alleged to have occurred.5 The second component is whether the employment incident caused a personal injury and generally can be established only by medical evidence.

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

3
Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).
4
Michael E. Smith, 50 ECAB 313 (1999).
5
Elaine Pendleton, supra note 3.

3 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

To establish a causal relationship between the condition, as well as any attendant disability claimed and the employment event or incident, the employee must submit rationalized medical opinion evidence based on a complete factual and medical background, supporting such a causal relationship.7 The opinion of the physician 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. This medical opinion must include an accurate history of the employee’s employment injury and must explain how the condition is related to the injury. The weight of medical evidence is determined by its reliability, its probative value, its convincing quality, the care of analysis manifested, and the medical rationale expressed in support of the physician’s opinion.8

ANALYSIS

OWCP accepted that appellant engaged in repetitive activities in his employment duties as a letter carrier. It denied his claim, however, as the evidence failed to establish a causal relationship between those activities and his bilateral hip osteoarthritis. The Board finds that the medical evidence currently of record is insufficient to establish that appellant developed bilateral hip osteoarthritis causally related to factors of his federal employment as a letter carrier.

In the medical report dated May 26, 2015, Dr. Faulks reported that appellant underwent right hip total arthroplasty on March 11, 2015. In this report, he diagnosed severe bilateral hip osteoarthritis and status post right hip total arthroplasty. Dr. Faulks opined that appellant’s bilateral hip osteoarthritis was likely aggravated by his work as a letter carrier and could be considered an on-the-job injury, or at least an aggravation.

In his November 17, 2015 report, Dr. Faulks opined that appellant’s bilateral hip osteoarthritis was caused by his work as a letter carrier since 1979, which involved quite a bit of activity, walking, and standing. He concluded with a reasonable degree of medical certainty that his condition was job related.

The Board finds that although Dr. Faulks supported causal relationship noting that appellant’s employment duties likely aggravated his bilateral hip arthritis, he did not provide medical rationale explaining the basis of his opinion.9 While Dr. Faulks noted that appellant’s bilateral hip osteoarthritis was likely aggravated by his work as a letter carrier, he failed to discuss whether his preexisting condition had progressed beyond what might be expected from

6
See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).
7
See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).
8
James Mack, 43 ECAB 321 (1991).
9
See T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report is of limited probative value on the issue of causal relationship if it contains a solution which is unsupported by medical rationale).

4 the natural progression of that condition.10 A well-rationalized opinion is particularly warranted when there is a history of preexisting condition.11 Dr. Faulks’ opinion on causation is deficient as he failed to explain why appellant’s current bilateral hip condition was not caused by a preexisting degenerative arthritic condition.12

Dr. Faulks also explained in his notes that appellant’s employment as a letter carrier since 1979 involved quite a bit of activity, walking, and standing which caused his bilateral hip osteoarthritis.13 Again, his medical opinion report is deficient as he only generally described appellant’s work duties without a clear understanding of the number of hours per day spent performing each task and the frequency of other physical movements which appellant attributes to his injury. Without explaining how the movements involved in appellant’s employment duties caused or contributed to his diagnosed condition, his opinion on causal relationship is deficient as he failed to specifically address whether appellant’s employment activities had caused or aggravated a medical condition.

Moreover, the medical opinion of Dr. Faulks is deficient as it is speculative and equivocal,14 as he qualified his medical opinion by noting that this “could be” an on-the-job injury and described an aggravations of injury as “likely.” As Dr. Faulks failed to provide a definite and well-rationalized opinion that appellant’s bilateral hip osteoarthritis was caused or aggravated by his occupational employment duties, his medical reports fail to establish that appellant’s injuries are a result of a work-related occupational exposure.15

The remaining medical evidence is also insufficient to establish appellant’s claim. The reports of Dr. Sundberg and Dr. Martens only note administering a right hip fluoroscopic guided injection with no opinion on the cause of his injury or discussion of his federal employment duties. The Board has held that medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value.16 Thus, the reports of Dr. Sundberg and Dr. Martens are insufficient to establish appellant’s occupational exposure claim.

In the instant case, the record lacks rationalized medical evidence establishing a causal relationship between appellant’s federal employment duties as a letter carrier and his diagnosed bilateral hip osteoarthritis. Thus, appellant has failed to meet his burden of proof.17

10
R.E., Docket No. 14-868 (issued September 24, 2014).
11
Supra note 9; Michael S. Mina, 57 ECAB 379 (2006).
12
P.O., Docket No. 14-1675 (issued December 3, 2015).
13
See Lee R. Haywood, 48 ECAB 145 (1996).
14
T.V., Docket No. 16-0656 (issued July 27, 2016) (medical opinions which are speculative or equivocal in nature have little probative value).
15
S.R., Docket No. 12-1098 (issued September 19, 2012).
16
S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).
17
R.M., Docket No. 11-1921 (issued April 10, 2012).

5
 CONCLUSION

The Board finds that appellant did not meet his burden of proof to establish bilateral hip osteoarthritis causally related to factors of his federal employment.

ORDER

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ decision dated January 6, 2016 is affirmed.

Issued: September 8, 2016
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

6