D.H. and U.S. Postal Service, North Metro Processing & Distribution Center, Duluth, GA (Board decision, October 5, 2010)

ECAB final decision. The Board affirmed OWCP's December 29, 2009 denial of wage-loss compensation for claimed disability from September through October 2009. 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

D.H., a postal clerk, sought wage-loss compensation for periods after an accepted fall caused wrist, knee, and back injuries. A physician attributed her current wrist arthritis to a chronic condition rather than the accepted injury. Another diagnosed back conditions but did not explain how the accepted lumbar sprain caused an inability to work on the claimed dates. The Board found no medical opinion linking the claimed disability to the accepted conditions and affirmed the wage-loss denial.

Decision snapshot

• Authority: FECA disability definition under 20 C.F.R. § 10.5(f).
• Outcome: December 29, 2009 denial of the claimed wage-loss compensation affirmed.
• Key point: Medical evidence needed to address both the accepted injury and the specific claimed period of disability.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.H., Appellant
)
) Docket No. 10-800
and ) Issued: October 5, 2010
)
U.S. POSTAL SERVICE, NORTH METRO
)
PROCESSING & DISTRIBUTION CENTER,
)
Duluth, GA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On January 29, 2010 appellant filed a timely appeal of a December 29, 2009 Office of Workers’ Compensation Programs’ merit decision denying her disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.

ISSUE

The issue is whether appellant had met her burden of proof to establish that she had intermittent periods of total disability from September 1 through October 13, 2009, causally related to her December 7, 2008 employment injury.

FACTUAL HISTORY

On December 7, 2008 appellant, then 50-year-old clerk, filed a traumatic injury claim alleging that she injured her right hand, knee and back when she tripped and fell in the performance of duty. The Office accepted her claim for right wrist sprain, contusion of the left knee and lumbar sprain. On May 19, 2009 the employing establishment found that appellant was absent without permission and suspended her from June 20 through July 3, 2009.

In a note dated October 7, 2009, Dr. Robert L. Howell, a Board-certified plastic surgeon, examined appellant for degenerative arthritis of the right wrist and noted that she had not worked since July 22, 2009. He examined x-rays and diagnosed osteoarthritis of the entire mid-carpal region. Dr. Howell stated that appellant’s chronic degenerative arthritis of the right wrist should be addressed under private insurance, as he did not believe that her employment injury caused this condition.

Dr. Plas T. James, a Board-certified orthopedic surgeon, examined appellant on October 13, 2009. He noted that she reported that her back pain returned on August 29, 2009 after she returned to work. Dr. James diagnosed L4-5 and L5-S1 degenerative disc disease and recommended a magnetic resonance imaging (MRI) scan.

Appellant filed a claim for compensation and requested loss of differential, night and Sunday premium pay on September 1 and from September 13 through October 13, 2009. She indicated that she used 8 hours of leave without pay on September 1, 2009 and 7.83 hours of leave without pay on September 4, 2009. Appellant used eight hours of annual leave a day from September 5 through 13, 2009. She used eight hours of leave without pay per day from September 14 through October 13, 2009.

On November 17, 2009 Dr. James reviewed the MRI scan testing and advised that appellant had evidence of L4-5 moderate degenerative disc disease, spinal stenosis and Grade 1 spondylolisthesis. He also found a herniated disc and degenerative disc disease at L5-S1.

In a letter dated November 24, 2009, the Office informed appellant that the medical evidence did not establish her total disability due to the accepted employment injury. It requested additional medical information and allowed 30 days for a response. On December 2, 2009 appellant stated that she was working, but contended that the employing establishment withdrew her positions.

By decision dated December 29, 2009, the Office denied appellant’s claim finding that she failed to submit sufficient medical evidence to support her disability for work.

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 that any disability or specific condition for which compensation is claimed is causally related to the employment injury.2 The term disability is defined as the incapacity because of an employment injury to earn

1
5 U.S.C. §§ 8101-8193.
2
G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Kathryn Haggerty, 45 ECAB 383 (1994);
Elaine Pendleton, 40 ECAB 1143 (1989).

2 the wages the employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning capacity.3

Whether a particular injury causes an employee to be disabled for employment and the duration of that disability are medical issues, which must be proved by a preponderance of the reliable, probative and substantial medical evidence.4 Findings on examination are generally needed to support a physician’s opinion that an employee is disabled for work. When a physician’s statements regarding an employee’s ability to work consist only of repetition of the employee’s complaints that she hurt too much to work, without objective findings of disability being shown, the physician has not presented a medical opinion on the issue of disability or a basis for payment of compensation. The Board will not require the Office to pay compensation for disability in the absence of any medical evidence directly addressing the specific dates of disability for which compensation is claimed. To do so would essentially allow employees to self-certify their disability and entitlement to compensation.

Causal relationship is a medical issue and the medical evidence required to establish causal relationship is rationalized medical evidence.5 Rationalized medical evidence is medical evidence, which includes a physician’s rationalized medical 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 Neither the fact that a disease or condition manifests itself during a period of employment nor the belief that the disease or condition was caused or aggravated by employment factors or incidents is sufficient to establish causal relationship.7

ANALYSIS

The Office accepted appellant’s claim for right wrist sprain, contusion of the left knee and lumbar sprain. She filed a claim for intermittent wage-loss compensation from September 1 through October 14, 2009. On October 7, 2009 Dr. Howell, a Board-certified plastic surgeon, diagnosed degenerative arthritis of the right wrist. He determined that appellant’s chronic degenerative arthritis of the right wrist was not due to her employment injury of December 7, 2008. Dr. Howell advised that it was a chronic condition. This report does not support appellant’s claim for disability due to her accepted employment injury. Dr. Howell negated a causal relationship between appellant’s current right wrist condition and her employment. Moreover, he did not address disability for the period claimed. Dr. Howell’s

3
20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no loss of wage-earning capacity).
4
See Fereidoon Kharabi, 52 ECAB 291 (2001).
5
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
6
Leslie C. Moore, 52 ECAB 132 (2000).
7
Dennis M. Mascarenas, 49 ECAB 215 (1997).

3 report does not establish that appellant disability as of September 1, 2009 due to her accepted condition.

Appellant submitted reports from Dr. James, a Board-certified orthopedic surgeon, dated October 13 and November 17, 2009 addressing her current back condition. He diagnosed L4-5 degenerative disc disease, spinal stenosis and Grade 1 spondylolisthesis and a herniated disc and degenerative disc disease at L5-S1. Dr. James did not attribute appellant’s lumbar condition to her December 7, 2008 employment injury. While he indicated that appellant experienced back pain after her return to work, he did not address how her work as a clerk caused or contributed to any disability for work as of September 1, 2009. Dr. James did not provide an opinion on the causal relationship between appellant’s accepted lumbar sprain and her claim of disability. Without a medical opinion attributing appellant’s current back condition and any resulting disability to her accepted conditions, appellant did not submit sufficient medical evidence to support her claim that she became disabled as of September 1, 2009 due to residuals of her accepted injury.

CONCLUSION

The Board finds that appellant did not submit sufficient medical opinion to support that she was disabled as of September 1, 2009 due to the injury of December 7, 2008.

ORDER

IT IS HEREBY ORDERED THAT the December 29, 2009 decision of Office of Workers’ Compensation Programs is affirmed.

Issued: October 5, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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

4