P.N. and U.S. Postal Service, Post Office, Rocky River, OH (Board decision, February 15, 2011)

ECAB final decision. The Board affirmed OWCP's May 11, 2010 denial of wage loss compensation for August 15 to September 16, 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

P.N., a postal clerk with accepted knee conditions, sought compensation for time off from a modified job before an authorized left knee replacement. Her surgeon said she needed to stop pain medication before surgery and could not work, but did not explain why medication had to stop for a month or how that prevented her from performing the modified duties. The Board found that the medical opinion did not establish that her accepted injury caused disability during the claimed period. It affirmed OWCP's denial of wage loss compensation for August 15 to September 16, 2009.

Decision snapshot

• Authority: FECA disability compensation under 5 U.S.C. § 8102(a).
• Outcome: May 11, 2010 denial of pre-surgery wage loss compensation affirmed.
• Key point: The surgeon did not connect the required medication change to an inability to perform the specific modified job duties.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.N., Appellant
)
)
and ) Docket No. 10-1641
) Issued: February 15, 2011
U.S. POSTAL SERVICE, POST OFFICE,
)
Rocky River, OH, 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
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On June 8, 2010 appellant, through her representative, filed a timely appeal from the May 11, 2010 merit decision of the Office of Workers’ Compensation Programs, which denied compensation for claimed disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.

ISSUE

The issue is whether appellant’s disability from August 15 to September 16, 2009 was causally related to her August 5, 2003 employment injury.

FACTUAL HISTORY

On August 5, 2003 appellant, then a 42-year-old clerk, sustained an injury in the performance of duty when she stood up from her chair and felt a sharp pain in her right knee. The Office accepted her claim for right knee strain and aggravation of right knee osteoarthritis with resultant joint effusion. It later accepted as consequential injuries post-traumatic osteoarthritis of the left knee, right hand strain and tendinitis of the left elbow. Appellant received compensation for temporary total disability on the periodic rolls. On April 28, 2008 she accepted a modified assignment.

The Office authorized a left total knee arthroplasty, which appellant underwent on September 17, 2009. Appellant stopped work on August 15, 2009 and claimed compensation for wage loss from August 15 to September 16, 2009.

On December 15, 2009 the Office denied appellant’s claim for compensation.

On February 24, 2010 Dr. Robert Molloy, appellant’s orthopedic surgeon, explained appellant’s time off work prior to surgery:

“This is to certify that [appellant] is under my care and underwent surgery on September 17, 2009 for a left total knee arthroplasty. Because of increased pain and her upcoming surgery she had to be off her pain medications prior to surgery and that she was unable to do her job working for the post office at that time. At the patient’s request, I had agreed for her to be off from work from August 17 to September 17, 2009. Please do not hesitate to contact my office should you have any questions or concerns.”

On May 11, 2010 an Office hearing representative affirmed the denial of compensation.
The hearing representative found that Dr. Molloy did not offer sufficient rationale to establish disability for the period claimed.

LEGAL PRECEDENT

The Federal Employees’ Compensation Act provides compensation for the disability of an employee resulting from personal injury sustained while in the performance of duty.1 A claimant seeking benefits under the Act has the burden of proof to establish the essential elements of her claim by the weight of the evidence,2 including that she sustained an injury in the performance of duty and that any specific condition or disability for work for which she claims compensation is causally related to that employment injury.3

The claimant must submit a rationalized medical opinion that supports a causal connection between her claimed disability and the employment injury. The medical opinion must be based on a complete factual and medical background with an accurate history of the employment injury, and must explain from a medical perspective how the claimed disability is related to the injury.4

1
5 U.S.C. § 8102(a).
2
Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.
3
Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
4
John A. Ceresoli, Sr., 40 ECAB 305 (1988).

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 ANALYSIS

Appellant claimed compensation for wage loss from August 15 to September 16, 2009.
She therefore has the burden to establish that this disability was causally related to her August 5, 2003 employment injury, which the Office accepted, in part, for post-traumatic osteoarthritis of the left knee.

The Office authorized a left total knee arthroscopy, which appellant underwent on September 17, 2009. Dr. Molloy, the orthopedic surgeon, stated that appellant had to be kept off her pain medications prior to surgery. While that may be true, he did not explain the reason and did not explain why appellant needed to be off her pain medications a full month before surgery.

Moreover, Dr. Molloy did not explain how being off pain medications prevented appellant from performing any of the duties of her modified assignment. He did not demonstrate an understanding of the assignment and did not attempt to show how being off pain medications would disable appellant from performing any of her specific duties.

Dr. Molloy stated that he agreed for appellant to be off work from August 17 to September 17, 2009 “at the patient’s request.” He did not indicate when appellant requested or why he agreed. This raises a question of whether there was a sound medical basis for taking her off modified duty or whether she was simply self-certifying her disability by complaining that she hurt too much to work. 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 the 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.5

Although Dr. Molloy’s opinion offers some support to appellant’s claim for compensation from August 15 to September 16, 2009, the Board finds that he has not provided sufficient medical rationale to establish that appellant was disabled from her modified assignment beginning August 15, 2009 as a result of her scheduled left knee surgery. As appellant has not met her burden to establish the critical element of causal relationship, the Board will affirm the Office’s May 11, 2010 decision denying compensation.

CONCLUSION

The Board finds that appellant has not met her burden to establish that her disability from August 15 to September 16, 2009 was causally related to her August 5, 2003 employment injury.

5
Fereidoon Kharabi, 51 ECAB 291 (2001).

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 ORDER

IT IS HEREBY ORDERED THAT the May 11, 2010 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 15, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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