O.S. and Federal Bureau of Investigation, Field Office, El Paso, TX (Board decision, November 16, 2010)

ECAB final decision. The Board affirmed OWCP’s denial of O.S.’s occupational disease claim but modified its finding about her typing duties. 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

O.S., an FBI language analyst, claimed that prolonged typing caused hand and arm symptoms. OWCP denied the claim after finding both the workplace activity and medical evidence insufficient. The Board found that her account and her employer’s response established repetitive typing at work, so it changed that factual finding. O.S. had submitted no physician report diagnosing a condition or linking it to those duties before OWCP decided the claim. The Board therefore affirmed the denial as modified.

Decision snapshot

• Authority: FECA occupational disease fact-of-injury and medical causation requirements.
• Outcome: OWCP’s January 27, 2010 denial affirmed as modified; typing duties established, injury claim unproven.
• Key point: Establishing the work activity does not establish an occupational disease without medical evidence of diagnosis and causation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
O.S., Appellant
)
)
and ) Docket No. 10-1089
) Issued: November 16, 2010
FEDERAL BUREAU OF INVESTIGATION,
)
FIELD OFFICE, El Paso TX, 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 March 15, 2010 appellant filed a timely appeal from a January 27, 2010 merit decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.

ISSUE

The issue is whether appellant met her burden of proof to establish that she sustained an occupational disease in the performance of duty.

FACTUAL HISTORY

On November 23, 2009 appellant, then a 39-year-old language analyst, filed an occupational disease claim alleging that she sustained numbness in her fingers up to her elbows and pain in her neck and shoulders as a result of typing approximately seven hours each workday. She first became aware of her condition in January 2009, but took no action because she used wrist braces and an ergonomic keyboard, which “seemed to help.” Appellant did not stop working. In a December 17, 2009 letter, the Office informed appellant that the evidence submitted was insufficient to establish her claim and advised her of the evidence needed to establish her claim. It requested a medical report from her physician containing a diagnosis and the physician’s opinion as to the cause of the diagnosed condition. The Office also requested additional information from the employing establishment.

Appellant submitted a January 12, 2010 letter, in which she stated that her primary job duty as a language analyst was to translate recorded materials and documents. She recounted that approximately five years ago she began to feel numbness and pain in both hands during and after work hours. Appellant sought medical treatment and obtained wrist braces and an ergonomic keyboard, which helped relieve the pain. She asserted that the numbness continued and worsened as she performed certain tasks. In October 2009, appellant began to experience constant pain in her left shoulder and sporadic numbness of the left arm. In November 2009, she noted seeing a physician who performed a nerve test and diagnosed moderate carpal tunnel syndrome of the left hand and severe carpal tunnel syndrome of the right hand. Appellant also stated that she was undergoing physical therapy.

In a July 29, 2009 letter,1 the employing establishment concurred with appellant’s statements regarding her work. It noted that her job tasks involved repetitive typing and wrist movement and she was at her desk almost eight hours a day. The employing establishment also noted that appellant used wrist braces and an ergonomic keyboard, but neither appeared to alleviate her pain.

By decision dated January 27, 2010, the Office denied appellant’s claim on the grounds that the evidence submitted was insufficient to establish the occurrence of a work-related event and that no medical evidence was submitted providing a diagnosis that could be connected to such an event.

LEGAL PRECEDENT

An employee seeking benefits under the Federal Employees’ Compensation Act2 has the burden of establishing the essential elements of 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 timely filed within the applicable time limitation period of the Act, that an injury was sustained in the performance of duty as alleged and that any disabilities and/or specific conditions for which compensation is claimed are causally related to the employment injury.3 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.4

1
The date of the letter appears to be erroneous as the employing establishment stated that it was in response to a December 17, 2009 request for information. 2 5 U.S.C. §§ 8101-8193.
3
Elaine Pendleton, 40 ECAB 1143 (1989).
4
Victor J. Woodhams, 41 ECAB 345 (1989).

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 Whether an employee actually sustained an injury in the performance of duty begins with an analysis of whether fact of injury has been established.5 To establish fact of injury in an occupational disease claim, an employee must submit: (1) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; (2) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the employee.6

Causal relationship is a medical issue and the evidence generally required to establish causal relationship is rationalized medical opinion evidence. Rationalized medical opinion evidence is evidence which includes a physician’s 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, 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.7

ANALYSIS

The Board finds that the evidence supports that appellant typed approximately seven hours each workday as part of her translation tasks. Appellant provided a factual statement, with which the employing establishment concurred, identifying repetitive typing as the cause of her claimed upper extremity symptoms. The Board has held that an employee’s statement alleging that an injury occurred at a given time and in a given manner is of great probative value.8 Although the Office found that the evidence was insufficient to establish that the claimed work event occurred as alleged, the employer agreed with appellant’s description of her duties involving typing and repetitive wrist movement. The Board will modify the Office’s January 27, 2010 decision to find that she has established the claimed workplace activity, typing, to which she attributes her claimed carpal tunnel condition.

While the evidence supports that appellant performed the duties that she alleged, she has not met her burden of proof to establish her claim as she has not submitted medical evidence that diagnoses a medical condition for which compensation is claimed and she also has not submitted any medical evidence establishing that her work duties caused or aggravated a diagnosed medical condition.

On December 17, 2009 the Office advised appellant of the medical evidence needed to establish her claim. Specifically, it asked her to submit a medical report from her physician containing a diagnosis and the physician’s opinion as to the cause of the diagnosed condition.

5
See S.P., 59 ECAB 184, 188 (2007).
6
See R.R., 60 ECAB ___ n.12 (Docket No. 08-2010, issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).
7
I.J., 59 ECAB 408, 415 (2008); Woodhams, supra note 4 at 352.
8
R.T., 60 ECAB ___ (Docket No. 08-408, issued December 16, 2008).

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No medical evidence was submitted. Appellant submitted a January 12, 2010 letter noting that she was diagnosed with bilateral carpal tunnel syndrome by her physician in November 2009. However, she did not furnish any medical reports from her physician before the Office denied her claim on January 27, 2010. Because there was no medical evidence submitted in support of her duties, she failed to provide the medical evidence required to establish a prima facie claim.9

Appellant argues on appeal that she addressed the deficiencies in her claim as pointed out in the Office’s December 17, 2009 letter and submitted evidence in a timely manner. She also contends that she asked her physician on January 11, 2010 to send her medical records to the Office. However, the Office did not receive any medical evidence prior to the issuance of its January 27, 2010 decision.10 Appellant did not meet her burden of proof to establish her claim.

CONCLUSION

The Board finds that appellant did not establish that she sustained an occupational disease in the performance of duty.

9
A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008); Richard H. Weiss, 47 ECAB 182 (1995). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.3(a) (April 1993). 10 The Board notes that appellant submitted new medical evidence on appeal. As the Office did not considered this evidence in reaching the January 27, 2010 decision, the Board may not consider it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

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 ORDER

IT IS HEREBY ORDERED THAT the January 27, 2010 decision of the Office of Workers’ Compensation Programs is affirmed as modified.

Issued: November 16, 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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