H.H. and Department of Homeland Security, Customs & Border Patrol, Casa Grande, AZ (Board decision, May 3, 2010)

ECAB final decision. The Board affirmed OWCP’s denial of H.H.’s occupational disease claim. 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

H.H., a border patrol agent, claimed that a lung condition arose from his work and reported symptoms including cough, fever and shortness of breath. OWCP asked him to identify the exposure and provide a medical explanation linking it to his work. His physician’s notes addressed time off work but did not give a work-related cause, and a physician assistant’s note was not competent physician evidence under FECA. The Board affirmed the claim denial for lack of medical causation evidence.

Decision snapshot

• Authority: FECA definition of physician, 5 U.S.C. § 8101(2).
• Outcome: August 10, 2009 claim denial affirmed.
• Key point: Treatment notes and time-off instructions did not establish that the lung condition was caused by work.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
H.H., Appellant
)
)
and ) Docket No. 09-2197
) Issued: May 3, 2010
DEPARTMENT OF HOMELAND SECURITY,
)
CUSTOMS & BORDER PATROL,
)
Casa Grande, AZ, 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 August 31, 2009 appellant filed a timely appeal from an Office of Workers’ Compensation Programs’ decision dated August 10, 2009. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUE

The issue is whether appellant sustained a lung condition in the performance of duty.

FACTUAL HISTORY

Appellant, a 35-year-old border patrol agent, filed a Form CA-2 claim for benefits on April 16, 2009, alleging that he developed a lung condition causally related to employment factors in approximately March 2009. He stated on the form that he developed chills, fever, night sweats, headaches, cough and chest pain, in addition to shortness of breath. Appellant indicated that his physicians believed that he had a fungus in his lungs.
Appellant submitted an April 7, 2009 treatment note from Dr. Rajeesh Punnakkattu, a family practitioner, who indicated that appellant was not able to return to work as of April 21, 2009. He also submitted an April 7, 2009 treatment note from a physician’s assistant who stated that he would be off work until he was released by a specialist due to possible valley fever.

On May 21, 2009 the Office advised appellant that it required factual and medical evidence to determine whether he was eligible for compensation benefits. It asked appellant to provide additional information concerning his claim, including a detailed description of the employment-related exposure which he believed contributed to his illness; the location(s) where he was exposed; the potentially harmful substances to which he was exposed and the manner in which the exposure occurred. The Office asked appellant to submit a comprehensive report from his treating physician describing his symptoms and the medical reasons for his condition, an opinion as to whether his claimed condition was causally related to his federal employment.

In an April 21, 2009 treatment note, Dr. Punnakkattu released appellant to return to full duty as of April 22, 2009.

By decision dated August 10, 2009, the Office denied appellant’s claim, finding that he failed to submit medical evidence sufficient to establish that he sustained a lung condition in the performance of duty.

LEGAL PRECEDENT

An employee seeking benefits under the Federal Employees’ Compensation Act1 has the burden of establishing that 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 the Act, that the claim was timely filed within the applicable time limitation period of the Act, that an injury was sustained in the performance of duty as alleged, and that any disability and/or specific condition for which compensation is claimed are causally related to the employment injury.2 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.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, stated differently, medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the claimant.

1
5 U.S.C. §§ 8101-8193.
2
Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).
3
Victor J. Woodhams, 41 ECAB 345 (1989).

2
The medical evidence required to establish causal relationship is usually rationalized medical evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s rationalized opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated employment factors. The opinion of the physician must be based on a complete factual and medical background of the claimant, 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.4

Appellant has the burden of establishing by the weight of the substantial, reliable and probative evidence, a causal relationship between his claimed right shoulder condition and his federal employment. This burden includes providing medical evidence from a physician who concludes that the disabling condition is causally related to employment factors and supports that conclusion with sound medical reasoning.5

ANALYSIS

In the instant case, appellant has failed to submit any medical opinion containing a rationalized, probative report which relates his claimed lung condition to factors of his employment. For this reason, he has not discharged his burden of proof to establish his claim that this condition was sustained in the performance of duty.

Appellant submitted two treatment notes from Dr. Punnakkattu which indicated that appellant was placed on disability during April 2009 but did not relate this disability to a work- related condition. The April 7, 2009 treatment from a physician’s assistant does not constitute medical evidence pursuant to section 8101(2). Appellant did not provide a probative, rationalized medical opinion that the claimed condition or disability was causally related to employment factors.6 The weight of medical opinion is determined by the opportunity for and thoroughness of examination, the accuracy and completeness of physician’s knowledge of the facts of the case, the medical history provided the care of analysis manifested and the medical rationale expressed in support of stated conclusions.7 Appellant did not submit a medical opinion which described his job duties or explained the medical process through which such duties would have been competent to cause the claimed condition.

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor, the belief that her condition was caused, precipitated or aggravated by his employment is

4
Id.
5
See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).
6
William C. Thomas, 45 ECAB 591 (1994).
7
See Anna C. Leanza, 48 ECAB 115 (1996).

3 sufficient to establish causal relationship.8 Causal relationship must be established by rationalized medical opinion evidence and appellant failed to submit such evidence.

The Office advised appellant of the evidence required to establish his claim; however, appellant failed to submit such evidence. Consequently, appellant has not met his burden of proof in establishing that his claimed lung condition was causally related to his employment.

CONCLUSION

The Board finds that appellant has failed to meet his burden of proof to establish that his claimed lung condition was sustained in the performance of duty.

ORDER

IT IS HEREBY ORDERED THAT the August 10, 2009 decision of the Office of Workers’ Compensation Programs be affirmed.

Issued: May 3, 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

8
Id.

4