K.L. and Department of Veterans Affairs, Veterans Administration Medical Center, Baltimore, MD (Board decision, September 8, 2010)

ECAB final decision. The Board affirmed OWCP's November 12, 2009 denial of K.L.'s traumatic injury claim. 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

K.L., a medical center housekeeping aid, claimed neck and low back injuries after a coworker grabbed his neck at work. OWCP accepted the June 5, 2009 incident but denied the claim because the medical evidence did not establish that it caused an injury. An emergency physician recorded K.L.'s history of chronic neck and back pain and diagnosed an exacerbation of low back pain. The Board found that the physician appeared to repeat K.L.'s account without giving a reasoned opinion linking the condition to the incident. It affirmed the denial because no other medical report established that link.

Decision snapshot

• Authority: 5 U.S.C. § 8101, the Federal Employees' Compensation Act.
• Outcome: OWCP's November 12, 2009 denial affirmed; traumatic injury claim not established.
• Key point: An accepted workplace incident still requires reasoned medical evidence connecting it to the claimed condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.L., Appellant
)
)
and ) Docket No. 10-416
) Issued: September 8, 2010
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Baltimore, MD, 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 December 2, 2009 appellant filed a timely appeal from the Office of Workers’ Compensation Programs’ merit decision dated November 12, 2009 which denied appellant’s claim for a traumatic injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.

ISSUE

The issue is whether appellant has met his burden of proof in establishing that he sustained a neck and low back injury in the performance of duty.

FACTUAL HISTORY

On September 14, 2009 appellant, then a 50-year-old housekeeping aid, filed a traumatic injury claim, alleging that he sustained an injury to his neck and back on June 5, 2009 after a coworker playfully grabbed him at work.1 He stated that, after this incident, he had pain in his neck running down to his lower back. Appellant did not stop work at that time.

By letter dated October 7, 2009, the Office requested additional factual and medical information from appellant stating that the initial information submitted was insufficient to establish the claimed injury.

In an undated statement, appellant indicated that after his injury he immediately filed an accident report with the employing establishment. He asserted that he filed a complaint against his supervisor and management and was reassigned because he could not get along with management. In an October 15, 2009 statement, appellant noted that he reported his injury to the employing establishment and subsequently experienced pain radiating into his back. He reported a history of neck surgery prior to this incident.

Appellant submitted notes from the Veterans Administration dated June 5, 2009 where he was treated by Dr. David A. Jerrard, Board-certified in emergency medicine, for low back pain. He reported a history of chronic neck and back pain which was exacerbated after an incident at work where a coworker grabbed him by the neck. Dr. Jerrard noted findings upon examination of mild tenderness to palpation across the back of the neck and tenderness to palpation along the spinal column in the lumbar region. He diagnosed exacerbation of chronic low back pain and recommended ibuprofen for pain.

In a decision dated November 12, 2009, the Office denied appellant’s claim on the grounds that the medical evidence was not sufficient to establish that appellant’s condition was caused by the accepted work incident.

LEGAL PRECEDENT

An employee seeking benefits under the Federal Employees’ Compensation Act2 has the burden of establishing 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 filed within the applicable time limitation 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. These are the essential elements of each and every compensation claim regardless of whether the claim is predicated upon a traumatic injury or occupational disease.3

In order to determine whether an employee actually sustained an injury in the performance of duty, the Office 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

1
The employing establishment controverted appellant’s claim and noted that appellant failed to report his injury within 30 days. The employer further asserted that appellant filed the current claim because he was dissatisfied with his job reassignment and his Equal Employment Opportunity (EEO) complaint was unsuccessful. 2 5 U.S.C. §§ 8101-8193.
3
Gary J. Watling, 52 ECAB 357 (2001).

2 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.4 The second component is whether the employment incident caused a personal injury and generally can be established only by medical evidence. 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.5

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.6 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.7

ANALYSIS

Appellant alleged that he sustained a neck and low back injury when his coworker playfully grabbed his neck while at work. The Board notes that the evidence supports that the incident occurred on June 5, 2009 as alleged. The Board finds, however, that the medical evidence is insufficient to establish that appellant sustained a neck or low back injury causally related to the June 5, 2009 work incident.

On October 7, 2009 the Office advised appellant of the type of medical evidence needed to establish his claim. Appellant did not submit a rationalized medical report from an attending physician in which the physician explains why the June 5, 2009 work incident caused or aggravated his claimed condition.

Appellant submitted notes from the Veterans Administration dated June 5, 2009 where he was treated by Dr. Jerrard, who noted findings of mild tenderness to palpation across the back of the neck and tenderness to palpation along the spinal column in the lumbar region. He reported a history of chronic neck and back pain which was exacerbated after an incident at work where a coworker grabbed him by the neck. Dr. Jerrard diagnosed exacerbation of chronic low back pain. However, he appears merely to be repeating the history of injury as reported by appellant without providing his own opinion regarding whether appellant’s condition was work related. To the extent that Dr. Jerrard is providing his own opinion, he failed to provide a rationalized

4
Michael E. Smith, 50 ECAB 313 (1999).
5
Id.
6
Leslie C. Moore, 52 ECAB 132 (2000).
7
Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are entitled to little probative value).

3 opinion explaining why any diagnosed conditions were caused or aggravated by particular factors of employment.8 Consequently this report is of little probative value and does not establish appellant’s traumatic injury claim.

No other medical evidence was submitted by appellant which provides a physician’s opinion on the causal relationship between appellant’s work factors on June 5, 2009 and a diagnosed medical 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 his condition was caused, precipitated or aggravated by his employment is sufficient to establish causal relationship.9 Causal relationship must be established by rationalized medical opinion evidence. Appellant failed to submit such evidence, and the Office therefore properly denied appellant’s claim for compensation.

CONCLUSION

The Board finds that appellant failed to meet his burden of proof to establish that he sustained a neck or low back injury causally related to his June 5, 2009 employment incident.

8
See id.
9
See Dennis M. Mascarenas, 49 ECAB 215 (1997).

4
 ORDER

IT IS HEREBY ORDERED THAT the November 12, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: September 8, 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

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