D.S. and Department of the Navy, Military Sealift Command, Virginia Beach, VA (Board decision, November 23, 2010)

ECAB final decision. The Board affirmed OWCP’s denial of D.S.’s claim for a recurrence of disability. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.S., a Navy seaman, returned to work after an accident that injured his right thumb and shoulder, among other accepted conditions. He later claimed that those conditions caused a new period of disability beginning June 23, 2008. His physicians described pain, arthritis, and possible reinjury after he returned to work, but the Board found that their reports did not adequately explain a causal link between the accepted 2007 injury and the claimed period of disability. One physician had released him to full duty after his thumb symptoms improved. The Board affirmed OWCP’s denial of the recurrence claim.

Decision snapshot

• Authority: Recurrence of disability under 20 C.F.R. § 10.5(x).
• Outcome: December 23, 2009 OWCP denial affirmed; recurrence compensation denied.
• Key point: The medical reports did not provide a reasoned connection between the accepted injury and the claimed new disability.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.S., Appellant
)
)
and ) Docket No. 10-815
) Issued: November 23, 2010
DEPARTMENT OF THE NAVY, MILITARY
)
SEALIFT COMMAND, Virginia Beach, VA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On February 1, 2010 appellant filed a timely appeal from an Office of Workers’ Compensation Programs’ merit decision dated December 23, 2009. Under 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 sustained a recurrence of disability on June 23, 2008 causally related to his accepted right thumb and right shoulder conditions.

FACTUAL HISTORY

On October 15, 2007, appellant, a 54-year-old seaman, was struck in the chest by a mooring line and knocked to the deck. The Office accepted a heart contusion, closed rib fracture and multiple contusions of both upper limbs. It subsequently accepted right rotator cuff sprain and a right radial collateral ligament thumb tear. Appellant received temporary total disability compensation and was placed on the periodic rolls. On January 8, 2008 Dr. Richard J. Choi, a surgeon, performed a procedure to repair the radial collateral ligament tear in appellant’s right thumb. On February 26, 2008 appellant was released to return to full duty without restrictions. He returned to work on March 29, 2008.

In a June 23, 2008 report, Dr. Choi advised that appellant had recently strained the metacarpal phalangeal (MP) joint on his right thumb. He stated that the thumb was sore and swollen. Dr. Choi asserted that the right MP joint was a little more swollen and showed slightly less motion than the left side, which was normal after surgery. He found no other sensory, motor or vascular problems, no gross instability and no infection. Dr. Choi instructed appellant to limit the use of his thumb for a month. He opined that resting the thumb for a month would greatly improve appellant’s condition.

In a report dated July 1, 2008, Dr. Stephen J. Andriola, an orthopedic surgeon, noted the history of injury and stated that appellant was currently out of work because he had been experiencing problems with his right thumb. Appellant noted that his right shoulder had improved because he had been resting it. On examination, his right thumb was still tight in external rotation but manifested no significant pain and he showed good radial pulse. Dr. Andriola advised that appellant had arthritis of the right shoulder which was currently stable but was aggravated by aggressive activity. He found that appellant could return to work when his right thumb condition improved, which could take a period of time to completely resolve.

In a July 23, 2008 report, Dr. Choi stated that appellant’s right thumb pain had resolved and that he wanted to return to full duty. He advised that the thumb showed good mobility and good strength. Dr. Choi released him to return to full duty.

In an August 11, 2008 report, Dr. Choi noted complaints of right hand pain which he attributed to some underlying arthritis which was probably aggravated. He advised that appellant had excellent range of motion in his right hand and opined that it was difficult to pinpoint his pain. An x-ray showed some underlying arthritis, especially in the basal joint, but showed the thumb in normal alignment and position. Dr. Choi concluded that appellant had resolving right hand pain with underlying arthritis; he recommended treatment with ice and Advil.

On February 5, 2009 appellant filed a (Form CA-2a) claim for benefits, alleging a recurrence of disability on August 25, 2008 causally related to his accepted right thumb and right shoulder conditions.

By letter dated April 10, 2009, the Office advised appellant that it required additional factual and medical evidence, including a medical report, to establish that his current disability as of August 25, 2008 was causally related to his accepted cervical condition.

In a report dated February 3, 2009, received by the Office on May 11, 2009, Dr. Vidya Kini, Board-certified in physical medicine and rehabilitation, noted that appellant had sustained injuries to his right shoulder and right thumb in October 2007 and returned to work in April 2008. He related that appellant experienced increased pain in his right shoulder and right thumb in June and August 2008. The results of a recent right shoulder x-ray showed spurring of the inferior humeral head and that x-rays of the right hand did not reveal any significant acute deformities or fractures requiring surgical intervention. Dr. Kini stated, however, that appellant

2 complained of severe pain in his right shoulder and right hand and thumb, with moderate weakness in his right upper extremity. He advised that appellant had not been able to return to work since the acute increase in pain in the right shoulder and hand he experienced in June and August 2008. Dr. Kini stated that appellant currently had right shoulder and right hand pain, secondary to reinjury of these areas following his return to work after major, multiple traumas.

Dr. Kini opined that appellant had significant rotator cuff tendinitis, bicipital tendinitis, and secondary cervicoscapular myofascial pain syndrome, with early disease of the shoulder. He prescribed a comprehensive physical rehabilitation program to decrease spasm and improve range of motion strength and endurance. Dr. Kini stated that appellant also had right hand pain with deformity of the right radial collateral ligament rupture during his initial injury and had developed osteoarthritis of multiple joints of the right hand, especially the first MP joint. He believed that appellant’s current complaints of pain and instability in his right upper extremity were due to recurrent injury that occurred when he returned to upper work in 2008. Dr. Kini advised that appellant was able to work for a few weeks, after which he reinjured his right shoulder, right wrist and right hand; he attributed this to his higher predisposition for recurrent injury, as occurs with other major traumas. He concluded that appellant was totally disabled and was unlikely to return to his usual job as a seaman. Dr. Kini stated that appellant was currently precluded from performing any type of work.

In a report dated April 1, 2009, Dr. Kini noted continued complaints of right upper extremity pain and advised that appellant had only minimal improvement with anti-inflammatory medication and muscle relaxants. On examination, appellant had 60 percent strength in the right upper extremity with minimal essential change in his hand. Dr. Kini advised him to continue with physical therapy.

In report dated December 18, 2007, received by the Office on May 11, 2009, Dr. Andriola diagnosed a sprained right shoulder with glenohumeral arthritis based on results of a magnetic resonance imaging (MRI) scan. He stated that appellant’s rotator cuff was intact except for a minor partial thickness tear and cystic changes around the greater tuberosity as well. Dr. Andriola recommended that he undergo physical therapy.

By decision dated May 20, 2009, the Office denied appellant’s claim for a recurrence of disability due to his October 15, 2007 injury. It found that the medical evidence was insufficient to establish that the claimed disability commencing June 23, 2008 was caused or aggravated by the accepted conditions.

By letter dated May 28, 2009, appellant’s attorney requested a hearing, which was held on September 9, 2009.

In a July 15, 2009 report, Dr. Choi stated findings on examination and asserted that appellant’s chronic pain had not subsided. Appellant had pain with both extension and flexion in addition to pain on palpation of the MP joint. Dr. Choi opined that due to appellant’s history of chronic pain he probably would not be able to return to his regular job.

On July 21, 2009 Dr. Andriola stated that appellant had chronic right shoulder pain with glenohumeral arthritis. He related that when appellant tried to return to work he experienced

3 significant pain in his right shoulder. Dr. Andriola found a good range of motion on examination although appellant lacked about 5 degrees of forward flexion, 10 degrees of abduction and three vertebral levels of internal rotation. He advised that appellant had a positive impingement, positive Hawkins, and pain with external rotation, with no instability. Dr. Andriola indicated that x-ray results demonstrated persistent glenohumeral arthritis with osteophyte in the humeral head of sort of moderate severity.

At the hearing, appellant stated that he returned to his job as an able seaman in April 2008 but was forced to quit in late June 2008 because his job duties caused his right hand to become swollen and prohibitively painful. He obtained another job but was forced to stop work in August 2008 due to difficulty gripping with his right hand and using his right arm. Appellant advised that his right thumb and right arm initially improved and became functional following the October 2007 injury but he experienced a recurrence of his work-related disability because his job duties were too strenuous.

By decision dated December 23, 2009, an Office hearing representative affirmed the May 23, 2009 Office decision.

LEGAL PRECEDENT

A recurrence of disability means an inability to work after an employee has returned to work, caused by a spontaneous change in a medical condition which has resulted from a previous injury or illness without an intervening injury or new exposure to the work environment that caused the illness.1 A person who claims a recurrence of disability due to an accepted employment-related injury has the burden of establishing by the weight of the substantial, reliable and probative evidence that the disability for which she claims compensation is causally related to the accepted injury. This burden of proof requires that an employee furnish medical 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.2 Where no such rationale is present, medical evidence is of diminished probative value.3 In order to establish that a claimant’s alleged recurrence of the condition was caused by the accepted injury, medical evidence of bridging symptoms between his present condition and the accepted injury must support the physician’s conclusion of a causal relationship.4

1
R.S., 58 ECAB 362 (2007);see also 20 C.F.R. § 10.5(x).
2
I.J., 59 ECAB 408 (2008) ; Nicolea Bruso, 33 ECAB 1138, 1140 (1982).
3
See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).
4
Mary A. Ceglia, 55 ECAB 626 (2004).

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 ANALYSIS

In the instant case, appellant did not submit sufficient evidence providing a rationalized, opinion relating his recurrence of disability commencing June 23, 2008 to his accepted right thumb and right shoulder conditions.5 For this reason, he has not established his claim.

Dr. Choi performed January 2008 surgery to repair the radial collateral ligament tear in appellant’s right thumb and submitted reports dated June 23, July 23 and August 11, 2008. He indicated that appellant had strained his right MP joint, which had become sore and swollen. Although the right thumb had diminished range of motion, this was a normal postsurgical condition; Dr. Choi noted that there were no other sensory, motor or vascular problems, no gross instability or any infection. He instructed appellant to limit the use of his thumb for a month. Dr. Choi stated that appellant’s right thumb pain had resolved with good mobility and good strength and he released him to full duty. On August 11, 2008 he stated that appellant had developed arthritis in his right hand, as shown by x-ray. However, Dr. Choi advised that the thumb had resolved, with normal alignment, excellent range of motion and stated that it was difficult to pinpoint the source of his pain.

On July 1, 2008 Dr. Andriola stated that appellant had recently quit work due to his right thumb condition, although his right shoulder had shown improvement. He advised that appellant had no significant pain in his right thumb and had right shoulder arthritis which was currently stable but was aggravated by aggressive activity. Dr. Andriola stated that appellant could return to work when his right thumb condition improved.

In reports dated February 3 and April 1, 2009, Dr. Kini stated that appellant had experienced increased pain in his right shoulder and right thumb in June and August 2008 and complained of severe pain in his right shoulder and right hand and thumb on examination, with moderate weakness in his right upper extremity. He opined that appellant had significant rotator cuff tendinitis, bicipital tendinitis and secondary cervicoscapular myofascial pain syndrome, with early disease of the shoulder, in addition to right hand pain with deformity of the right radial collateral ligament rupture and osteoarthritis of multiple joints of the right hand, especially the first MP joint. Although right shoulder x-rays showed some spurring of the inferior humeral head, x-rays of the right hand did not reveal any significant, acute deformities or fractures requiring surgical intervention. Dr. Kini stated that appellant’s right shoulder and hand pain was secondary to reinjury of these areas following his return to work after major, multiple traumas. He opined that his complaints of pain and instability in his right upper extremity were due to recurrent injury that occurred when he returned to work in 2008, as he had a higher predisposition for recurrent injury. Dr. Kini concluded that appellant was totally disabled. In his April 1, 2009 report, he stated on examination that appellant had 60 percent strength in the right upper extremity with minimal essential change in his hand. Dr. Kini noted continued complaints of right hand, right wrist and right shoulder pain and advised that appellant had shown only minimal improvement due to treatment with anti-inflammatory medication and muscle relaxants.

5
On February 3, 2009 Form CA-2a appellant stated that he experienced a recurrence of disability on August 25, 2009. He testified at the hearing that he initially experienced a recurrence of disability on June 23, 2008. The Board finds that the claimed date for the recurrence of disability in this case is June 23, 2008.

5
 The opinions of Drs. Choi, Andriola and Kini on causal relationship are of limited probative value in that they did not provide adequate medical rationale in support of their conclusions.6 They did not directly address whether appellant’s current right thumb and right shoulder conditions were causally related to his originally accepted October 15, 2007 employment injury. Medical evidence that does not offer adequate opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship.7 Drs. Choi and Kini noted x-ray findings but did not specifically address causal relationship between the claimed recurrence beginning August 25, 2008 and the October 15, 2007 work injury. Dr. Choi indicated that appellant had strained his thumb in June 2008, which could constitute a new injury. Dr. Kini stated that appellant’s right shoulder and hand pain was secondary to reinjury of these areas following his return to work and opined that his initial work injury had created a higher predisposition for recurrent injury. However, his opinion is of limited probative value for the further reason that it is generalized in nature and equivocal in that he only noted summarily that appellant’s conditions were causally related to the October 15, 2007 employment injury. The December 18, 2007 report from Dr. Andriola is of no value in establishing his claim as it clearly predates the claimed recurrence.8 Therefore, the reports from the physicians of record are insufficient as they did not specifically support causal relationship between appellant’s condition as of June 23, 2008 and the October 15, 2007 work injury.

Following the May 20, 2009 decision, appellant submitted a July 15, 2009 report from Dr. Choi and a July 21, 2008 report from Dr. Andriola. These reports, however, essentially reiterated the findings and conclusions stated by these physicians in previously submitted reports. Dr. Choi reported that appellant had chronic right thumb pain which had not subsided and would likely prevent his return to his usual job with the employing establishment. Dr. Andriola indicated that appellant had chronic right shoulder pain with glenohumeral arthritis based on x-ray results and advised that he experienced right shoulder pain when he attempted to return to work. He stated that appellant had a positive impingement, positive Hawkins and pain with external rotation, with no instability. Dr. Andriola opined that he was probably disabled from his job as an able seaman.

These reports do not constitute sufficient medical evidence demonstrating a causal connection between appellant’s employment-related condition and his alleged recurrence of disability. Causal relationship must be established by rationalized medical opinion evidence. The reports submitted by appellant failed to provide an explanation in support of his claim that he was disabled as of June 23, 2008. Thus, the reports from these physicians did not establish a worsening of appellant’s condition. Appellant has failed to meet his burden to establish a recurrence of a medical condition causally related to his accepted right thumb and right shoulder conditions. The Board therefore affirms the December 23, 2009 Office decision affirming the

6
William C. Thomas, 45 ECAB 591 (1994).
7
See K.W., 59 ECAB 271 (2007).
8
Appellant submitted several reports from a physical therapist. These reports, however, are of no probative value, as physical therapists are not considered physicians under the Federal Employees’ Compensation Act and as a result, they are not competent to provide a medical opinion. Barbara J. Williams, 40 ECAB 649 (1989). A.C., 60 ECAB __ (Docket No. 08-1453, issued November 18, 2008); 5 U.S.C. § 8101(2).

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May 20, 2009 Office decision denying compensation based on a recurrence of his work-related disability.

CONCLUSION

The Board finds that appellant has not met his burden to establish that he was entitled to compensation for a recurrence of disability as of June 23, 2008 causally related to his accepted right thumb and right shoulder conditions.

ORDER

IT IS HEREBY ORDERED THAT the December 23, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 23, 2010
Washington, DC

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

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

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

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