K.C. and Department of Homeland Security, Transportation Security Administration, Egg Harbor Township, NJ (Board decision, August 20, 2010)

ECAB final decision. The Board affirmed OWCP's October 8, 2009 denial of the traumatic injury claim. The record established the work incident but lacked a reasoned medical opinion connecting it to a definite diagnosis. 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.C., a federal air marshal, fell during a running exercise while carrying equipment and reported left shoulder pain. OWCP accepted that the fall occurred during work but denied his injury claim. The Board found that the radiologist's report described only a suspected partial tear and did not explain how the fall caused a diagnosed condition. The doctor's account of the fall and pain, without a reasoned causation opinion, did not satisfy the medical proof required for compensation. The Board affirmed the denial.

Decision snapshot

• Authority: Federal Employees' Compensation Act traumatic injury causation standard.
• Outcome: October 8, 2009 claim denial affirmed.
• Key point: An accepted work incident and a suspected diagnosis did not establish a compensable injury without reasoned medical evidence of causation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.C., Appellant
)
)
and
)
) Docket No. 10-425
DEPARTMENT OF HOMELAND SECURITY, ) Issued: August 20, 2010
TRANSPORTATION SECURITY
)
ADMINISTRATION, Egg Harbor Township, NJ,
)
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 4, 2009 appellant filed a timely appeal from an October 8, 2009 decision of the Office of Workers’ Compensation Programs that denied his claim. 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 appellant established he sustained an injury in the performance of duty on July 28, 2009 causally related to his employment.

FACTUAL HISTORY

On August 20, 2009 appellant, a 44-year-old federal air marshal, filed a traumatic injury claim (Form CA-1) for a “sharp and dulling pain running from [his] left shoulder down the back of [his] left tricep.” Appellant attributed his condition to a July 28, 2009 incident when, while engaging in a running exercise, during which he was carrying an “additional 35 pounds of equipment, I fell to the ground … useing my left elbow, causeing pain in my left shoulder.”

By letter dated August 24, 2009, the Office notified appellant that the evidence of record was insufficient to support his claim and that he needed to submit additional evidence. The Office provided guidance concerning the type and form of evidence required.

Appellant submitted a September 9, 2009 report in which Dr. Raj Desai, a radiologist, reported findings following x-rays of appellant’s left shoulder and diagnosed a “very small partial thickness tear suspected in the deep fibers of [the] anterior supraspinatus with small joint effusion.” Dr. Desai noted that appellant “[f]ell back on shoulder and having constant pain.”

By decision dated October 8, 2009, the Office denied the claim because the evidence of record did not demonstrate an employment incident caused a medically-diagnosed condition.1

LEGAL PRECEDENT

An employee seeking benefits under the Federal Employees’ Compensation Act2 has the burden of proof to establish the essential elements of his claim by the weight of the evidence,3 including that he sustained an injury in the performance of duty and that any specific condition or disability for work for which he claims compensation is causally related to that employment injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence based on a complete factual and medical background showing causal relationship.5 The weight of medical evidence is determined by its reliability, its probative value, its convincing quality, the care of the analysis manifested and the medical rationale expressed in support of the physician’s opinion.6

To determine whether a federal employee has sustained a traumatic injury in the performance of duty, it first must be determined whether the fact of injury has been established. There are two components involved in establishing the fact of injury. First, the employee must submit sufficient evidence to establish that he or she actually experienced the employment incident at the time, place and in the manner alleged.7 Second, the employee must submit 1 Appellant submitted additional evidence on appeal. The Board may not consider evidence for the first time on appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final decision). 2 5 U.S.C. §§ 8101-8193.
3
J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
4
G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
5
Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).
6
Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).
7
Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

2 evidence, in the form of medical evidence, to establish that the employment incident caused a personal injury.8

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.9

ANALYSIS

Appellant attributed his condition to a July 28, 2009 incident when, while engaging in a running exercise, during which he was carrying an “additional 35 pounds of equipment” he fell “to the ground … using [his] left elbow, causing pain in [his] left shoulder.” The Office has accepted appellant’s assertion that this incident occurred in the performance of duty as alleged. Appellant’s burden is to demonstrate that the established employment incident caused a medically-diagnosed condition. This is a medical issue that can only be proven by probative medical opinion evidence. Appellant has not submitted sufficient medical opinion evidence supporting his claim and, accordingly, the Board finds that appellant has not established he sustained an injury in the performance of duty on July 28, 2009 causally related to his employment.

The only medical opinion evidence of record consists of Dr. Desai’s September 9, 2009 10 report, but his report has little probative value on the issue of causal relationship because it lacks an opinion explaining how the established employment incident caused the condition he diagnosed. While Dr. Desai noted that appellant “[f]ell back on shoulder and having constant pain,” this is not sufficient to establish the required causal relationship because he does not explain how this fall caused appellant’s condition and pain is a symptom, not a compensable medical diagnosis.11 Further, Dr. Desai is merely repeating appellant’s allegations concerning his injury and provides no probative medical reasoning. Finally, Dr. Desai diagnosed “very small partial thickness tear suspected in the deep fibers of [the] anterior supraspinatus with small joint effusion.” Use of the word “suspected” indicates that Dr. Desai’s opinion is speculative and has little probative value.12

8
T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 356- 57 (1989).
9
I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10
See supra note 1.
11
Robert Broome, 55 ECAB 339, 342, (2004).
12
Ricky S. Storms, 52 ECAB 349 (2001); Leslie C. Moore, 52 ECAB 132 (2000).

3
 An award of compensation may not be based on surmise, conjecture or speculation.13 Neither the fact that appellant’s claimed condition became apparent during a period of employment nor his belief that his condition was aggravated by his employment is sufficient to establish causal relationship.14 The fact that a condition manifests itself or worsens during a period of employment15 or that work activities produce symptoms revelatory of an underlying condition16 does not raise an inference of causal relationship between a claimed condition and an employment incident.

Because appellant has not submitted competent medical opinion evidence containing a reasoned discussion of causal relationship, one that soundly explains how the established employment incident caused or aggravated a firmly diagnosed medical condition, the Board finds that appellant has not established the essential element of causal relationship.

CONCLUSION

The Board finds that appellant has not established he sustained an injury in the performance of duty on July 28, 2009 causally related to his employment.

13
Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature). 14 D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).
15
E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).
16
D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4
 ORDER

IT IS HEREBY ORDERED THAT the October 8, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: August 20, 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