L.M. and Department of Agriculture, Food Safety & Inspection Service, Natchitoches, LA (Board decision, March 23, 2010)

ECAB final decision. The Board affirmed OWCP’s March 27, 2009 and September 10, 2008 decisions denying L.M.’s claim for wage loss from February 3 through 26, 2008. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board specifies another period. A party may petition the Board for reconsideration within 30 days unless this decision 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

L.M., a food safety inspector, developed hand dermatitis from wearing latex gloves at work. OWCP accepted the condition and paid wage loss for part of her absence, but denied compensation for February 3 through 26, 2008. Her doctor excused her from work and described the dermatitis, along with other medical conditions. The Board found that the reports did not identify the specific claimed period as disability caused by the accepted hand condition or explain that connection. It affirmed OWCP’s denial for those earlier dates.

Decision snapshot

• Authority: Wage loss claims under the Federal Employees’ Compensation Act, 5 U.S.C. §§ 8101-8193.
• Outcome: OWCP’s March 27, 2009 and September 10, 2008 denials of wage loss for February 3 through 26, 2008 affirmed.
• Key point: Acceptance of the hand condition did not establish wage loss on each claimed date without medical evidence addressing the period and its cause.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.M., Appellant
)
)
and ) Docket No. 09-1810
) Issued: March 23, 2010
DEPARTMENT OF AGRICULTURE, FOOD
)
SAFETY & INSPECTION SERVICE,
)
Natchitoches, LA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On July 9, 2009 appellant filed a timely appeal of a March 27, 2009 decision of the Office of Workers’ Compensation Programs denying modification of a September 10, 2008 decision denying her claim for compensation between February 3 and 26, 2008.

ISSUE

The issue is whether appellant had a period of disability between February 3 and 26, 2008 causally related to his accepted employment-related injury.

FACTUAL HISTORY

On February 7, 2008 appellant, then a 57-year-old inspector, filed an occupational disease claim alleging that she developed an allergic reaction on both hands from wearing latex gloves at work. She stopped work on February 4, 2008.

In a February 27, 2008 attending physician’s report, Dr. Jeffrey Evans, a general practitioner, diagnosed dermatitis of both hands due to a latex allergy that was work related. He indicated that appellant’s work consisted of inspecting chickens while wearing gloves on both hands. Dr. Evans indicated that there was partial disability since December 10, 2007. He noted the period of disability was unknown but that appellant was unable to return to work.

On February 7, 2008 appellant filed a claim for disability compensation from February 3 to March 1, 2008. An undated attending physician’s report from Dr. Evans reiterated his diagnosis of work-related dermatitis of both hands. He indicated partial disability beginning December 10, 2007 but noted it was unknown when appellant’s disability would end or when she could return to work. In a March 4, 2008 duty status report, Dr. Evans noted that appellant could not return to work until “her hands cleared up,” then she could return to full-time regular work and would need nonlatex gloves. On April 8, 2008 he noted first treating appellant on December 10, 2007 when her hands were swollen and peeling with mild drainage. Dr. Evans found that she had a severe case of dermatitis due to latex gloves. He advised that appellant could return to work on April 14, 2008. In an undated work status report, Dr. Evans diagnosed hand dermatitis. He also noted that appellant “should be able to return to work by April 14, 2008.”

Appellant returned to work on April 14, 2008.

On April 25, 2008 the Office accepted the claim for bilateral contact dermatitis. It advised appellant to submit a claim for compensation if her injury caused lost time from work. On May 2, 2008 appellant filed a claim for disability compensation from February 4 to April 12, 2008.

On May 28, 2008 the Office advised appellant that additional medical evidence was needed to establish her disability claim between February 3 and 26, 2008. It allowed her 30 days to submit such evidence.1

Appellant submitted an undated report from Dr. Evans who diagnosed bilateral hand dermatitis of unknown etiology, traumatic right shoulder rotator cuff tendinitis related to a fall at work, insulin-dependent diabetes mellitus, hypertension, hyperlipidemia and prior peripheral vascular disease on the right. Dr. Evans found that appellant’s hand dermatitis was already resolving but that she had a high chance of exacerbation. He also noted that there was no permanent care for this condition. Regarding appellant’s rotator cuff condition, Dr. Evans anticipated that appellant could return to work in six to eight weeks.

In a September 10, 2008 decision, the Office denied appellant’s claim for compensation between February 3 and 26, 2008 finding that the medical evidence did not establish that she was disabled from work due to an accepted injury.

On November 12, 2008 appellant requested reconsideration. She also submitted reports from Dr. Evans dated between January 14 and July 17, 2008 treating her for hand dermatitis, diabetes and rotator cuff conditions. In particular, in a February 4, 2008 treatment record, Dr. Evans noted that appellant “thinks the rash is job related.” He found mild edema of the right leg, episodes of dizziness and blurred vision. Dr. Evans also advised that appellant would be

1
The Office paid appellant appropriate wage-loss compensation for the period February 27 to April 11, 2008.

2 excused from work “for now.” A March 10, 2008 treatment record noted appellant’s status and indicated that she would try to return to work on April 14, 2008. On August 22, 2008 Dr. Evans reiterated that he treated appellant for bilateral hand dermatitis and other conditions including traumatic rotator cuff tendinitis, diabetes, hypertension, hyperlipidemia and prior right peripheral vascular disease.

In a December 9, 2008 decision, the Office denied modification of its September 10, 2008 decision finding that the additional medical evidence did not establish total disability for the period claimed.

On January 5, 2009 appellant requested reconsideration. She submitted several reports from Dr. Evans, including an undated form report and treatment notes from February 4 and March 10, 2008 that were previously of record.

In a March 27, 2009 decision, the Office denied modification of its previous decision as the medical evidence was insufficient to establish disability between February 3 and 26, 2008.

LEGAL PRECEDENT

A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the burden of establishing the essential elements of his claim, including that any specific condition or disability for which he claims wage-loss compensation is causally related to the employment injury.3

For each period of disability claimed, appellant has the burden of proving by the preponderance of the reliable, probative and substantial evidence that he is disabled for work as a result of his employment injury. Whether a particular injury causes an employee to be disabled for employment and the duration of that disability are medical issues which must be proved by a preponderance of the reliable, probative and substantial medical evidence.4 Findings on examination are generally needed to support a physician’s opinion that an employee is disabled for work. When a physician’s statements regarding an employee’s ability to work consist only of repetition of the employee’s complaints that she hurt too much to work, without objective findings of disability being shown, the physician has not presented a medical opinion on the issue of disability or a basis for payment of compensation.5 The Board will not require the Office to pay compensation for disability in the absence of any medical evidence directly addressing the specific dates of disability for which compensation is claimed. To do so would essentially allow employees to self-certify their disability and entitlement to compensation.6

2
5 U.S.C. §§ 8101-8193.
3
Tammy Medley, 55 ECAB 182 (2003).
4
Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).
5
G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); see Huie Lee Goal, 1 ECAB 180, 182 (1948).
6
G.T., id.; Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

3
 Causal relationship is a medical issue and the medical evidence generally required to establish causal relationship is rationalized medical opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s rationalized opinion on whether there is a causal relationship between the employee’s diagnosed condition and the compensable employment factors. 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

ANALYSIS

The Office accepted that appellant sustained bilateral contact dermatitis in the performance of duty. Appellant claims that this injury caused her disability for employment between February 3 and 26, 2008. However, the medical evidence of record is insufficient to establish her claim.

The medical evidence most contemporaneous with the period of disability at issue is a February 4, 2008 report from Dr. Evans who found mild edema of the right leg, episodes of dizziness and blurred vision. Dr. Evans noted appellant’s belief that her rash was job related. He also excused appellant from work “for now.” However, Dr. Evans does not specify whether appellant’s disability from work is due to her dermatitis condition. This distinction is particularly important as the physician has diagnosed other conditions not accepted as work related. Moreover, he does not specify the duration of appellant’s disability.

Dr. Evans’ undated report provided inconsistent findings as he indicated that appellant’s partial disability began on December 10, 2007 while also indicating that appellant could not work. The Board has found that the opinion of a physician supporting causal relationship must be one of reasonable medical certainty that the condition for which compensation is claimed is causally related to federal employment and such relationship must be supported with affirmative evidence, explained by medical rationale and be based upon a complete and accurate medical and factual background of the claimant.8 Similarly, on April 8, 2008 Dr. Evans advised that appellant could return to work on April 14, 2008. However, he did not address whether appellant was disabled for work during the period at issue. As Dr. Evans failed to address whether appellant sustained a period of total disability between February 2 and 26, 2008 causally related to her accepted condition, these reports are of little probative value.

On February 27, 2008 Dr. Evans diagnosed dermatitis and stated that he did not know the duration of appellant’s disability or when she could return to work. However, his opinion is vague as it provided no specific dates of disability and did not specifically address whether appellant’s dermatitis attributed to the claimed period of disability. Likewise, on March 4, 2008 Dr. Evans broadly noted that appellant could return to work “after her hands cleared up.” However, he did not indicate when the period of disability began or ended and he provided no

7
I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
8
Patricia J. Glenn, 53 ECAB 159 (2001).

4 opinion on causal relationship.9 Dr. Evans March 10, 2008 treatment note also did not specifically address the cause of any disability during the claimed period at issue.

None of the other medical reports of record are contemporaneous with the period of disability at issue or address whether appellant had any employment-related disability from February 3 to 26, 2008. Consequently, the medical evidence does not establish that appellant was disabled for work between February 3 and 26, 2008 due to her accepted bilateral hand condition.

On appeal, appellant asserts that she is entitled to disability compensation as she was disabled from work between February 4 and April 14, 2008. As noted, appellant has the burden of proof to submit rationalized medical evidence establishing total disability from work due to an accepted employment injury. However, the medical evidence of record insufficiently meets this burden as none of the reports identify a specific period of disability from work supported by an opinion on how that period of disability is causally related to bilateral dermatitis.10

CONCLUSION

The Board finds that appellant did not sustain a period of disability between February 3 and 26, 2008 causally related to his accepted employment-related injury.

9
S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship). 10 The Board notes that there is no indication that appellant claims to have incurred wage-loss incidental to undergoing authorized medical treatment on any of the claimed dates of disability. See Daniel Hollars, 51 ECAB 355 (2000) (an employee is entitled to disability compensation for loss of wages incidental to treatment for an employment injury).

5
 ORDER

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation Programs dated March 27, 2009 and September 10, 2008 are affirmed.

Issued: March 23, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6