M.W. and U.S. Postal Service, Post Office, St. Louis, MO (Board decision, February 10, 2011)

ECAB final decision. The Board affirmed OWCP’s January 8, 2010 denial of M.W.’s claimed disability on February 20 and 21, 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

M.W., a postal employee with an accepted trigger thumb condition, sought compensation for two days after a cortisone injection. OWCP had paid compensation for the injection date but denied the following days. The physician’s earlier report predated the disputed period, and the later records did not explain why the accepted condition or injection kept her from work on those two days. The Board held that the medical evidence did not establish the claimed disability and affirmed the denial.

Decision snapshot

• Authority: FECA disability definition under 20 C.F.R. § 10.5(f).
• Outcome: January 8, 2010 denial for February 20 and 21, 2009 affirmed.
• Key point: The record lacked a physician’s reasoned opinion connecting those missed days to the accepted condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.W., Appellant
)
)
and ) Docket No. 10-964
) Issued: February 10, 2011
U.S. POSTAL SERVICE, POST OFFICE,
)
St. Louis, MO, 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
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On February 23, 2010 appellant filed a timely appeal of a January 8, 2010 merit decision of the Office of Workers’ Compensation Programs which denied disability for the period February 20 to 21, 2009. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction.

ISSUE

The issue is whether appellant met her burden of proof to establish that she was disabled from February 20 to 21, 2009 as a result of her employment-related conditions.

FACTUAL HISTORY

This case has previously been before the Board.1 In an April 26, 2010 decision, the Board affirmed the Office’s April 21, 2009 decision. The Board found that appellant failed to

1
Docket No. 09-1480 (issued April 26, 2010). Appellant’s occupational disease claim was accepted for right trigger thumb. She was advised to claim time lost from work by filing a CA-7 claim form. establish that she was disabled for the period May 20 to July 2 and July 17 to August 21, 2008 as a result of her accepted employment-related injuries. The facts and history contained in the prior appeal are incorporated by reference.

On May 12, 2009 appellant submitted a Form CA-7 requesting wage-loss compensation for disability for the period February 19 to 21, 2009.

In a February 19, 2009 report, Dr. Gary W. Farley, a Board-certified orthopedic surgeon and osteopath, advised that appellant was unable to work from February 19 to 26, 2009. In a separate report of February 19, 2009, he noted that appellant returned for a recurrence of problems with her right thumb. Dr. Farley found a positive grind test and administered a steroid injection. He indicated that he would allow her to return to work next week. Dr. Farley noted that appellant received a cortisone injection on February 19, 2009 and that she was advised not to work due to “possible side effects of the injection.”

By letter dated May 15, 2009, the Office informed appellant of the evidence needed to support her claim for the dates of February 20 and 21, 2009 and requested that she submit such evidence within 30 days. It noted that it was processing payment for February 19, 2009 due to a steroid injection that was administered that date.

In a letter dated May 24, 2009, appellant advised the Office that she was including a December 2, 2008 report from Dr. Farley. She alleged that the injury, diagnosis and treatment were the same and the recovery time took five weeks after she received injections in October 2008.

In a December 2, 2008 report, Dr. Farley advised that appellant was last seen on November 13, 2008. He indicated that appellant had not recovered from her original injury or returned to regular employment. Dr. Farley noted that appellant continued to have lingering symptoms of synovitis with degenerative changes at the carpometacarpal (CMC) joint of her thumbs. He indicated that, due to the repetitive nature of her position, she was prone to recurrence due to inflammation and the degenerative changes. On July 2, 2009 the Office received a letter from Dr. Farley’s secretary. The secretary noted that appellant was able to return to work on February 26, 2009 with her prior restrictions.

By decision dated July 9, 2009, the Office denied appellant’s claim for compensation for the period February 20 to 21, 2009. It paid compensation for February 19, 2009 because she had an injection on that date. The Office advised appellant that the medical evidence did not establish disability for February 20 or 21, 2009.

On July 27, 2009 appellant’s representative requested a telephonic hearing, which was held on November 5, 2009.

In a September 29, 2009 report, Dr. Randall Roush, a Board-certified orthopedic surgeon and treating physician noted that appellant came in for bilateral thumb pain. He provided an injection to the CMC joints in both thumbs and provided an off work prescription for two days. Dr. Roush also saw appellant on November 17, 2009 and placed her off work from September 29 through 30, 2009 due to swelling, inflammation and the need to rest the hands after cortisone injections in her right and left thumb. Additionally, in reports dated November 24, 2009, he

2 noted that appellant was treated in the past for CMC joint arthritis with occasional injections. Dr. Roush advised that appellant received an injection of the first extensor tendon sheath and placed her off work for a week because she had involvement of both hands and difficulty at work.

In a January 8, 2010 decision, an Office hearing representative affirmed the July 9, 2009 decision.

LEGAL PRECEDENT

The term disability as used in the Federal Employees’ Compensation Act2 means the incapacity because of an employment injury to earn the wages that the employee was receiving at the time of injury.3 Whether a particular injury caused an employee disability for employment is a medical issue which must be resolved by competent medical evidence.4 When the medical evidence establishes that the residuals of an employment injury are such that, from a medical standpoint, they prevent the employee from continuing in the employment held when injured, the employee is entitled to compensation for any loss of wage-earning capacity resulting from such incapacity.5 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 employee’s to self-certify their disability and entitlement to compensation.6

ANALYSIS

In support of her claim for disability on February 20 and 21, 2009, appellant provided reports from her treating physician, Dr. Farley; however, he did not support appellant’s claim for total disability with sufficient medical rationale.

On February 19, 2009 Dr. Farley advised generally that appellant was unable to work from February 19 to 26, 2009. Appellant returned for a recurrence of problems with her right thumb and he administered a steroid injection. Dr. Farley stated that he would “allow her to return to work next week. He noted that appellant received a cortisone injection on February 19, 2009 and that she was advised not to work due to “possible side effects of the injection.” Dr. Farley did not address why administration of the injection would disable appellant for any period of time. Further, his report is speculative as to “possible” side effects that were not otherwise described or discussed. Medical evidence which does not offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal

2
5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).
3
Paul E. Thams, 56 ECAB 503 (2005).
4
W.D., 61 ECAB ___ (Docket No. 09-658, issued October 22, 2009); Paul E. Thams, supra note 3.
5
Id.
6
William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

3 relationship.7 Dr. Farley provided a steroid injection on February 19, 2009 to treat appellant’s accepted trigger thumb and the Office paid her compensation for that date. The record also contains Dr. Farley’s December 2, 2008 report but this report predates the period in question and does not offer any opinion regarding appellant’s inability to work on February 20 and 21, 2009. The letter from Dr. Farley’s secretary is not competent medical opinion evidence as such evidence can only be provided by a qualified physician.8

The reports from Dr. Roush do not address whether appellant’s accepted condition caused disability on February 20 and 21, 2009. 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.9

Appellant alleged that she was disabled on February 20 and 21, 2009, due to her accepted employment injury. The medical evidence of record does not establish her claimed disability was due to the cortisone injection of February 19, 2009. The Board finds that appellant has failed to submit rationalized medical evidence to establish disability from February 20 to 21, 2009 was causally related to her accepted employment injury.

CONCLUSION

The Board finds that appellant failed to establish that she was disabled on February 20 and 21, 2009 as a result of her employment-related injuries.

7
Michael E. Smith, 50 ECAB 313 (1999).
8
See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician). 9 K.W., 59 ECAB 271 (2007).

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 ORDER

IT IS HEREBY ORDERED THAT the January 8, 2010 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 10, 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

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