R.F. and Department of Veterans Affairs, Veterans Administration Medical Center, Milwaukee, WI (Board decision, October 7, 2010)

ECAB final decision. The Board affirmed OWCP's October 30, 2009 denial of the right hand injury claim. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. 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).

Plain-English summary

R.F., a food service worker at a veterans medical center, claimed that repetitive movement caused right hand tendinitis. OWCP asked her to describe the work activity and clarify whether the condition arose during one shift or over a longer period. She submitted medical reports but did not identify the work factors to OWCP before its decision. She described five years of squeezing and serving food only on appeal. The Board could not consider that new account and affirmed the denial because the work factors had not been established in the record before OWCP.

Decision snapshot

• Authority: Injury and occupational disease definitions under 20 C.F.R. § 10.5(ee), (q); appeal record limit under 20 C.F.R. § 501.2(c).
• Outcome: October 30, 2009 right hand claim denial affirmed.
• Key point: The claimant had to identify the alleged work factors to OWCP; a description first supplied on appeal could not be considered.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.F., Appellant
)
)
and ) Docket No. 10-741
) Issued: October 7, 2010
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Milwaukee, WI, 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 January 25, 2010 appellant filed a timely appeal from an October 30, 2009 merit decision of the Office of Workers’ Compensation Programs denying her injury 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 has established that she sustained an employment-related right-hand condition.

FACTUAL HISTORY

On September 26, 2009 appellant, then a 46-year-old food service worker, filed a traumatic-injury claim alleging that on August 11, 2009 she sustained tendinitis of the right hand due to repetitive movement. She did not stop work.

By letter dated September 29, 2009, the Office requested that, within 30 days, appellant provide a detailed description of the employment activities that she believed caused or aggravated her condition. It further asked that she clarify whether her condition was the result of activities performed on a single day or over multiple days. Additionally, the Office instructed appellant to submit a detailed medical report from her attending physician addressing the cause of any right-hand condition and its relationship to her federal employment.

In an August 13, 2009 report, Dr. Kristine D. Bruno, a Board-certified internist, diagnosed employment-related right thumb tendinitis. She listed work restrictions. In a chart note dated September 16, 2009, Dr. Robert Sean Churchill, a Board-certified orthopedic surgeon, diagnosed right trigger thumb and recommended a surgical release. On October 5, 2009 he found that appellant could resume her usual employment on October 12, 2009.

By decision dated October 30, 2009, the Office denied appellant’s claim after finding that she had not established the occurrence of the claimed work event. It noted that she had not submitted an explanation of how her injury occurred.

On appeal, appellant alleges that squeezing and serving food for five years in the course of her federal employment caused a right-hand condition.

LEGAL PRECEDENT

An employee seeking benefits under the Federal Employees’ Compensation Act1 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 while 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 an occupational disease.2

ANALYSIS

On September 26, 2009 appellant filed a traumatic-injury claim alleging that on August 11, 2009 she sustained right hand tendinitis due to repetitive movement. She did not identify any particular work incident as causing her condition or describe the job duties that she believed caused or aggravated her condition. On September 29, 2009 the Office requested that she clarify whether she was claiming a traumatic injury or occupational disease.3 It further instructed appellant to submit a statement describing in detail the occurrence of the alleged work incident. In response, she provided medical evidence, but did not submit a factual statement 1 5 U.S.C. §§ 8101-8193.
2
A.D., 58 ECAB 149 (2006); Calvin E. King, 51 ECAB 394 (2000).
3
A traumatic injury is defined as a “condition of the body caused by a specific event or incident or series of events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).

2 either specifying whether she claimed a traumatic injury or occupational disease or describing the work factors to which she attributed her condition.

Appellant’s burden of proof includes the submission of a detailed description of the employment factors or conditions that she believes caused or adversely affected the condition or conditions for which compensation is claimed.4 Despite the fact that the Office advised her of the type of factual and medical evidence needed to support her claim, she failed to provide any evidence identifying the specific employment factors alleged to have caused or contributed to her right-hand condition. The Board thus finds that appellant has not established that she sustained a right-hand condition caused or aggravated by employment.5

On appeal, appellant attributed her condition to her employment duties of squeezing and serving food with her right hand for five years. The Board, however, has no jurisdiction to review evidence that was not before the Office at the time of its final decision.6

CONCLUSION

The Board finds that appellant has not established that she sustained an employment- related right-hand condition.

4
Penelope C. Owens, 54 ECAB 684 (2003).
5
As appellant has not factually established the work factors alleged to have caused her claimed injury, it is not necessary to consider the medical evidence regarding causal relationship. See S.P., 59 ECAB ___ (Docket No. 07- 1584, issued November 15, 2007); Bonnie Contreras, 57 ECAB 364 (2006). 6 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005). The record contains additional evidence submitted after the Office’s October 30, 2009 decision. Appellant can submit her factual statement and the additional evidence to the Office and request reconsideration under 5 U.S.C. § 8128.

3
 ORDER

IT IS HEREBY ORDERED THAT the October 30, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: October 7, 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

4