C.W. and U.S. Postal Service, Post Office, Richmond, KY (Board decision, February 4, 2011)

ECAB final decision. The Board affirmed OWCP’s November 25, 2009 denial of C.W.’s September 2008 recurrence 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

C.W., a rural mail carrier, had accepted neck and back sprains from a 1997 mail truck collision. She claimed renewed disability in September 2008. Her doctor discussed current disc disease, pain, and work stress, but did not explain how the old accepted sprains caused the later disability. The Board noted the lack of treatment or bridging symptoms for much of the intervening period and affirmed the recurrence denial.

Decision snapshot

• Authority: FECA recurrence definition under 20 C.F.R. § 10.5(x).
• Outcome: November 25, 2009 recurrence denial affirmed.
• Key point: The medical evidence did not connect 2008 disability to the accepted 1997 sprains.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.W., Appellant
)
)
and
) Docket No. 10-915
) Issued: February 4, 2011
U.S. POSTAL SERVICE, POST OFFICE,
)
Richmond, KY, 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 18, 2010 appellant filed a timely appeal from an Office of Workers’ Compensation Programs’ November 25, 2009 merit decision. 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 sustained a recurrence of disability on September 30, 2008 causally related to her accepted July 29, 1997 employment injury.

FACTUAL HISTORY

Appellant, a 37-year-old rural mail carrier, injured her back and neck on July 29, 1997 when her mail truck was struck from behind by another vehicle. She filed a claim for benefits on July 30, 1997, which the Office accepted for cervical, thoracic and lumbar sprains.

On October 1, 2008 appellant filed a Form CA-2a claim for benefits, alleging that she sustained a recurrence of disability as of September 30, 2008 causally related to the July 29, 1997 employment injury. She indicated on the form that she was on light duty with restrictions from 1997 to 1999, when she returned to full duty.

In a report dated October 2, 2008, Dr. Patrick O’Daniel, Board-certified in internal medicine, summarized appellant’s current condition and stated that she required a leave of absence from work. Appellant sustained a work-related accident in 1997 which caused injuries to her low back and cervical spine. Dr. O’Daniel related that she had recently been working longer and harder and had complained of worsening pain in her neck in September 2008. He advised that x-rays demonstrated the consequences of a disc injury, with a suggestion of nerve root impingement. Appellant was seen with complaints of unbearable pain and her discomfort was related to disc disease in her neck as a consequence of the 1997 work accident, which had worsened as a result of her heavier workload. Dr. O’Daniel opined that she was experiencing a natural expectation of her condition and referred her to physical therapy.

By letter dated December 4, 2008, the Office asked appellant to submit additional factual and medical evidence in support of her recurrence claim. It asked her to provide medical evidence demonstrating that her claimed recurrence constituted a spontaneous worsening of a work-related condition without new injury or exposure to work factors.

In a November 24, 2008 report, Dr. O’Daniel stated that appellant’s course of physical therapy had produced some improvement in her cervicogenic pain, which she estimated at about 30 percent. Appellant did not feel ready to return to work and had ongoing issues with stress and conflict with a supervisor and management. Dr. O’Daniel stated that appellant recognized the contribution of this conflict and its attendant distress to her pain. He advised that she also developed increasing discomfort in her proximal lower extremities.

On January 5, 2009 Dr. O’Daniel advised that appellant underwent a brain scan, the results of which were normal. He advised that her complaints of increasing pain in her upper back, radiating toward the shoulder blade, were due to an exacerbation of underlying cervical disc disease. Dr. O’Daniel stated that a recently taken cervical x-ray demonstrated degenerative changes in appellant’s lower cervical spine, which was consistent with her symptomatology. He believed that her discomfort was severe enough to warrant stopping work on September 30, 2008.

Dr. O’Daniel opined that appellant’s neck discomfort was an exacerbation or worsening of the symptoms related to her 1997 work incident, motor vehicle accident.1 He also noted that work-related conflicts with her supervisor and workload issues that contributed substantially to an exacerbation of widespread body ache and pain, as well as a generalized anxiety that inhibited her recovery. Dr. O’Daniel indicated that appellant was experiencing ongoing, discogenic cervical pain, superimposed by fibromyalgia.

By decision dated March 4, 2009, the Office denied appellant’s claim, finding that the medical evidence was insufficient to establish that the claimed recurrence resulted from the accepted work injury.

1
Dr. O’Daniel stated that he believed appellant underwent a magnetic resonance imaging (MRI) scan recently.
He indicated, however, that he did not currently have access to appellant’s complete medical records.

2
 By letter dated March 25, 2009, appellant’s attorney requested an oral hearing, which was held on August 11, 2009. Appellant testified at the hearing that she worked light duty from 1997 to 1999, when she returned to full duty. She stated that, over the years, her route had grown longer and more arduous, which overburdened her and aggravated her back and neck conditions. Appellant also stated that she underwent a cervical MRI scan in 2008 which diagnosed degenerative disc disease. In addition, she asserted that her former postmaster treated her differently than the other carriers by pressuring her to perform her work within a certain time frame. Appellant stated that her postmaster’s husband was also her former supervisor. She asserted that when her workload increased her postmaster failed to make adjustments in her route.

By decision dated November 25, 2009, an Office hearing representative affirmed the March 4, 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.2 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.3 Where no such rationale is present, medical evidence is of diminished probative value.4

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.5

The Office’s procedure manual provides that, after 90 days of release from medical care (based on the physician’s statement or instruction to return as needed, or computed by the claims examiner from the date of last examination), a claimant is responsible for submitting an attending physician’s report, which contains a description of the objective findings and supports causal relationship between the claimant’s current condition and the previously accepted work injury.6

2
R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).
3
I.J., 59 ECAB 408 (2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).
4
See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).
5
Mary A. Ceglia, 55 ECAB 626 (2004).
6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (January 1995).

3
 ANALYSIS

Appellant’s claim was accepted in 1997 for strains of the cervical, thoracic and lumbar spine. She claimed a recurrence of disability commencing September 30, 2008. The Board finds that appellant has failed to submit sufficient medical evidence to establish a recurrence of disability for work as of September 30, 2008 due to her accepted lumbar, thoracic and cervical conditions. For this reason, she has not discharged her burden of proof.

The Office accepted appellant’s July 29, 1997 employment injury for cervical, thoracic and lumbar sprains. The record reflects that appellant returned to light duty some time in 1999 following her July 1997 work injury and was on light duty until 1999, when she returned to full duty. Appellant filed a recurrence claim on October 1, 2008 for both wage loss and medical treatment. The Board notes that the record does not contain any evidence of medical treatment or bridging symptoms from 1999 to 2008.

Dr. O’Daniel stated in an October 2, 2008 report that he took appellant off work on September 30, 2008 because she was overworked, which exacerbated her neck condition and caused her unbearable pain. Dr. O’Daniel advised that x-rays indicated a disc injury, with a suggestion of nerve root impingement; however, he did not specifically address causal relationship between the claimed recurrence and the July 29, 1997 work injury. He stated that appellant’s discomfort was related to disc disease in her neck as a consequence of the 1997 work accident and that she was experiencing a natural “expectation” of her condition. Although, Dr. O’Daniel referred to the July 29, 1997 work injury, he failed to sufficiently explain how appellant’s medical treatment in 2008 was due to the accepted injury.7 Moreover, he addressed appellant’s work activities and exposures contemporaneous to the recurrence claims as possible causes for her symptoms. Dr. O’Daniel did not discuss any spontaneous change of her accepted conditions or address how the accepted strains in 1997 would contribute to degenerative disease of the spine.

In his November 24, 2008 and January 5, 2009 reports, Dr. O’Daniel stated that appellant’s neck discomfort was an exacerbation or worsening of the symptoms related to her employment copy. He believed that appellant was experiencing discogenic cervical pain, superimposed by fibromyalgia. Dr. O’Daniel again stated that her ongoing workplace conflicts with management and her workload exacerbated her physical symptoms. He did not explain how appellant’s accepted lumbar, thoracic or cervical injury contributed to her condition and disability on September 30, 2008. This explanation is particularly important as there is no bridging evidence of medical treatment between June 1997 and October 2, 2008 and appellant had been released to regular duty since 1999. Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship.8

7
See Mary A. Ceglia, supra note 5 (appellant has the burden of furnishing medical evidence from a physician who, on the basis of a complete and accurate factual and medical history, concludes that the condition is causally related to the employment injury and supports that conclusion with sound rationale). 8 See K.W., 59 ECAB 271 (2007).

4
 As noted, appellant has the burden of proof to submit rationalized medical evidence establishing the relationship of the claimed recurrence to the original injury. The weight of the medical opinion is determined by the opportunity for and thoroughness of examination, the accuracy and completeness of physician’s knowledge of the facts of the case, the medical history provided, the care of analysis manifested and the medical rationale expressed in support of stated conclusions.9 The record establishes that the 1997 work injury resulted in strains to the lumbar, thoracic and cervical spine. Appellant has not submitted a reasoned medical opinion from a physician that explains how her current condition is causally related to the 1997 work injury.10 The Board will affirm the denial of appellant’s claim for a recurrence of disability beginning September 30, 2008.

CONCLUSION

The Board finds that appellant did not meet her burden to establish a recurrence of disability as of September 30, 2008 causally related to her accepted lumbar, thoracic and cervical strain conditions.

9
See Ann C. Leanza, 48 ECAB 115 (1996).
10
The Board notes that the record contains several reports from physical therapists that treated appellant for her accepted lumbar, thoracic and cervical conditions. However, these reports 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).

5
 ORDER

IT IS HEREBY ORDERED THAT the November 25, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 4, 2011
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

6