M.A. and Department of Veterans Affairs, Fire Department, Tuskegee, AL (Board decision, September 9, 2010)

ECAB final decision. The Board affirmed OWCP's July 15, 2009 rescission of its acceptance of a recurrence of disability and wage-loss compensation beginning May 31, 2000. OWCP's acceptance of the April 2000 lumbar sprain was not rescinded in this decision. The Board's decision binds OWCP and is generally not subject to court review under 5 U.S.C. § 8128(b). 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.A., a Veterans Affairs firefighter, had an accepted lumbar sprain after lifting a patient in April 2000. OWCP later stated that it accepted a recurrence and that he was entitled to wage-loss compensation from his May 2000 retirement, then rescinded that acceptance. The Board found that the medical reports did not give a reliable, reasoned explanation linking disability on or after May 31, 2000 to the accepted sprain. It held that OWCP had adequately explained the error in its earlier acceptance and affirmed the rescission.

Decision snapshot

• Authority: 5 U.S.C. § 8128 permits OWCP to review an award, subject to its burden to justify rescission.
• Outcome: July 15, 2009 rescission affirmed; the recurrence and related wage-loss entitlement were withdrawn.
• Key point: The record lacked probative medical evidence connecting the claimed later disability to the accepted injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.A., Appellant
)
)
and ) Docket No. 10-172
) Issued: September 9, 2010
DEPARTMENT OF VETERANS AFFAIRS,
)
FIRE DEPARTMENT, Tuskegee, AL, 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
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On October 26, 2009 appellant filed a timely appeal from a July 15, 2009 merit decision of the Office of Workers’ Compensation Programs. Pursuant to 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The issue is whether the Office properly rescinded an acceptance of a recurrence of disability and denied compensation commencing May 31, 2000.

FACTUAL HISTORY

The case was before the Board on a prior appeal. By order dated June 26, 2009, the Board remanded the case on the grounds that a June 20, 2008 Office decision failed to make adequate findings. Since the Board did not discuss the medical evidence in its order, a complete factual history will be provided in the current appeal.

Appellant, then a 46-year-old fireman, filed a traumatic injury claim on April 10, 2000 alleging he sustained a back injury in the performance of duty on April 6, 2000 when he was moving a patient from a bed to a stretcher.1 An April 12, 2000 employing establishment health unit note stated that appellant was “much improved and denies any problems. Dismissed and return to duty.”

The record indicates that appellant retired from federal employment on May 31, 2000.
On December 11, 2001 appellant filed a notice of recurrence of disability, Form CA-2a. He did not provide a date of the recurrence of disability.

With respect to medical evidence, appellant submitted a May 30, 2001 report from Dr. Richard Hanson, a neurologist, who indicated that appellant had back pain for a year and noted a history of an April 2000 back injury when appellant helped carry a patient. He also reported appellant had a “one-month history of severe lower back pain and moderate neck pain,” indicating appellant had bent to lift a box. Dr. Hanson noted a May 9, 2001 magnetic resonance imaging scan showed mild canal stenosis at L2-5, with no evidence of disc herniation or protrusion. Appellant continued to receive physical therapy treatment.

On March 26, 2002 the Office accepted the claim for a lumbar sprain. On March 3, 2003 appellant submitted a claim for compensation (Form CA-7) dated January 9, 2003, without identifying the period claimed. By letter dated April 7, 2003, appellant requested that his payments be changed from Office of Personnel Management to compensation benefits as of May 1, 2003.

In a report dated February 25, 2002, Dr. Dragos Sabau, a neurologist, indicated appellant had two years of severe back pain, most likely due to facet disease. By report dated November 15, 2002, Dr. Gabriel Nazareno, an internist, provided a history that in April 2000 appellant was supporting a heavy patient when he fell and the patient fell on top of him. She provided results on examination and diagnosed chronic back pain most likely secondary to spinal stenosis.

In a report dated June 6, 2003, Dr. J. Rajamannar, a rehabilitation medicine specialist, referred to a 1999 incident where appellant tried to prevent a patient from falling from a stretcher. Dr. Rajamannar stated that appellant reported he did not have problems before the incident and, “Considering his history it appears that the causative incident for the current pain is/was the stretcher incident in 1999.”

As the Board noted in its prior order, by letter dated August 10, 2006, the Office advised appellant that his “recurrence of [June 11, 2006] had been accepted.” No additional explanation was provided. By letter dated February 5, 2007, the Office advised appellant that he was entitled to compensation commencing May 31, 2000. By decision dated June 20, 2008, the Office stated that appellant’s claim for compensation was denied.

Following the remand of the case by the Board, the Office issued a July 15, 2009 decision that rescinded acceptance of a recurrence of disability. It indicated that no medical evidence had

1
The history provided to the employing establishment health unit on April 6, 2000 was that he was helping lift a patient from a bed to an ambulance stretcher when he felt a pop in his lower back.

2 been cited in accepting a recurrence and there was no medical evidence establishing a recurrence of disability on or after May 31, 2000 causally related to the April 6, 2000 employment injury.

LEGAL PRECEDENT

Section 8128 of the Federal Employees’ Compensation Act provides that the Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application.2 The Board has upheld the Office’s authority to reopen a claim at any time on its own motion under section 8128 of the Act and, where supported by the evidence, set aside or modify a prior decision and issue a new decision.3 The Board has noted, however, that the power to annul an award is not an arbitrary one and that an award for compensation can only be set aside in the manner provided by the compensation statute.4

Workers’ compensation authorities generally recognize that compensation awards may be corrected, in the discretion of the compensation agency and in conformity with statutory provision, where there is good cause for so doing, such as mistake or fraud. It is well established that, once the Office accepts a claim, it has the burden of justifying the termination or modification of compensation benefits. This holds true where the Office later decides that it erroneously accepted a claim. In establishing that its prior acceptance was erroneous, the Office is required to provide a clear explanation of the rationale for rescission.5

ANALYSIS

In this case, appellant had sustained a lumbar sprain on April 6, 2000 when he was lifting a patient from a bed to an ambulance stretcher. He was cleared to return to regular duty on April 12, 2000 and he retired on May 31, 2000. Appellant filed a recurrence of disability claim, as well as CA-7 claims for compensation, although he did not specifically indicate the period claimed. The Office did accept that appellant was entitled to compensation for wage loss as of May 31, 2000 and, therefore, it is their burden to rescind acceptance and the Office must provide a clear explanation of the rationale for the rescission.

The Office explained that the medical evidence did not support a recurrence of disability on or after May 31, 2000. To establish a recurrence of disability, there must be probative medical evidence.6 In this case, the Board concurs with the Office that the medical evidence is not of sufficient probative value on the issue presented.

2
5 U.S.C. § 8128.
3
Eli Jacobs, 32 ECAB 1147 (1981).
4
Doris J. Wright, 49 ECAB 230 (1997); Shelby J. Rycroft, 44 ECAB 795 (1993).
5
R.M., 60 ECAB (Docket No. 07-1066, issued February 6, 2009); John W. Graves, 52 ECAB 160 (2000).
6
To establish a recurrence of disability, there must be substantial, reliable and probative evidence that the disability for which appellant claims compensation is causally related to the accepted injury. Probative medical evidence is evidence from a physician who, on the basis of a complete and accurate factual and medical history, concludes that the disabling condition is causally related to the employment injury and supports that conclusion with sound medical reasoning. Robert H. St. Onge, 43 ECAB 1169 (1992); Dennis J. Lasanen, 43 ECAB 549 (1992).

3
 While there are many medical reports of record, none of these reports provide a complete and accurate history, or a rationalized medical opinion on disability causally related to the April 6, 2000 employment injury. There are no contemporaneous medical reports as of May 31, 2000. A May 30, 2001 report from Dr. Hanson noted an incident one month earlier and he provided no opinion as to a condition causally related to the employment injury. Dr. Nazareno provided an inaccurate history of a patient falling on appellant and offered no medical opinion on causal relationship with employment. Dr. Rajamannar did provide an opinion that the employment injury was the “causative incident” for back pain in June 2003, but this opinion is of diminished probative value. Dr. Rajamannar did not provide a complete and accurate history; he indicated, for example, the incident occurred in 1999, rather than April 2000. The opinion on causal relationship appeared to be based on the lack of symptoms prior to the employment injury, which is not sufficient, without supporting rationale, to establish causal relationship.7 In addition, Dr. Rajamannar did not provide a clear diagnosis or discuss disability for work.

The Board finds that the Office properly explained that there was no probative medical evidence establishing a recurrence of disability on or after May 31, 2000 causally related to the accepted lumbar sprain on April 6, 2000. The Office therefore met is burden to justify rescission in this case.

CONCLUSION

The Board finds the Office properly rescinded acceptance of a recurrence of disability commencing May 31, 2000.

7
See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (because the employee is symptomatic after an injury is not sufficient to establish causal relationship without supporting rationale).

4
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated July 15, 2009 is affirmed.

Issued: September 9, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5