D.T. and Department of Justice, Bureau of Prisons, Marianna, FL (Board decision, May 18, 2011)

ECAB final decision. The Board affirmed OWCP’s June 2, 2010 denial of the occupational disease 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

D.T., a prison administrator, developed a staphylococcus infection and cellulitis in his right thigh. He attributed the condition to his work at the prison. The Board found no evidence identifying a specific workplace exposure to infection. It also found no physician’s reasoned opinion connecting the condition to work; the submitted physician assistant’s notes did not qualify as medical evidence under the Act. The claim remained denied.

Decision snapshot

• Authority: Federal Employees’ Compensation Act definition of physician, 5 U.S.C. § 8101(2).
• Outcome: June 2, 2010 occupational disease claim denial affirmed.
• Key point: The record established an infection but did not establish workplace exposure or medical causation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.T., Appellant
)
)
and ) Docket No. 10-2292
) Issued: May 18, 2011
DEPARTMENT OF JUSTICE, BUREAU OF
)
PRISONS, Marianna, FL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION

On September 7, 2010 appellant filed a timely appeal from a June 2, 2010 merit decision of the Office of Workers’ Compensation Programs which denied his occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 and 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 met his burden of proof to establish that he sustained an injury in the performance of duty.

FACTUAL HISTORY

On March 1, 2010 appellant, then a 45-year-old correctional institute administrator, filed an occupational disease claim alleging that he suffered from a staphylococcus infection in his right leg due to working in a prison. He stated that he first became aware of the infection and

1
5 U.S.C. § 8101 et seq. realized it resulted from his employment on February 15, 2010. Appellant reported that the attending physician’s assistant in the hospital emergency room advised him that his condition was contracted at the prison where he worked.

On March 17, 2010 the Office advised appellant that the evidence submitted was insufficient to support his claim and requested additional information. It requested that he describe where he was exposed to the alleged sources of infection, what he was exposed to, dates of exposure, the manner of exposure and the duration of the exposure. The Office also requested that appellant provide a comprehensive medical report which included his medical history, description of employment factors and exposure, description of symptoms, examination and test results, a firm diagnosis, treatment provided, and a physician’s opinion, with medical rationale, as to whether the claimed work exposures were related to his alleged condition.

Appellant provided various hospital emergency room records. In discharge instructions dated February 15 to 18, 2010, D. Johnson, a physician’s assistant, diagnosed appellant with cellulitis and a healing abscess in his right thigh and advised him to continue medication and heating treatments. In a February 15, 2010 lab report, it was noted that appellant suffered from staphylococcus aureus in his right thigh.

Appellant also provided handwritten hospital treatment notes with an illegible signature dated February 15 to 17, 2010. These notes indicated that he complained of pain, swelling, and redness in his right thigh and was diagnosed with an abscess and cellulitis in his right thigh.

In a letter dated April 28, 2010, the Office advised appellant that the evidence was insufficient to support his claim and requested additional factual and medical evidence. Appellant did not submit any additional evidence.

By decision dated June 2, 2010, the Office denied appellant’s claim because fact of injury had not been established. It found that the factual evidence was insufficient to establish that appellant was exposed to infection at work and the medical evidence failed to provide a diagnosed condition that was causally related to his alleged work exposure.

LEGAL PRECEDENT

An employee seeking benefits under the Act has the burden of proof to establish the essential elements of his claim by the weight of the reliable, probative, and substantial evidence2 including that he sustained an injury in the performance of duty and that any specific condition or disability for work for which he claims compensation is causally related to that employment injury.3 In an occupational disease claim, appellant’s burden requires submission of the following: (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

2
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
3
G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued November 25, 2010).

2 claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the employee.4

ANALYSIS

Appellant filed an occupational disease claim alleging that he developed a staphylococcus infection as a result of his federal employment. The Office denied his claim on the grounds of insufficient factual evidence demonstrating exposure to infection at work and insufficient medical evidence establishing that his claimed condition was causally related to his employment. The Board finds the evidence of record supports that appellant suffers from a staphylococcus infection and cellulitis. The record, however, fails to establish that he experienced any exposure at work and that his condition is causally related to the alleged exposure.

Appellant claimed that his staphylococcus infection resulted from his work at the prison.
He did not, however, submit any evidence to establish that he was exposed to any infection at work. Appellant did not provide any information regarding where he was exposed to the infection, how his exposure occurred and for how long he was exposed to the alleged infection. Office regulations provide that treatment can be authorized where there is actual or probable exposure to a known contaminant due to an injury. The record, however, is void, of any evidence providing an identifiable contaminant or specific exposure to infection. On appeal, appellant contends that numerous inmates have infections and that the Office should have cross referenced their laboratory reports to confirm the infection located at his work site. As previously noted, the claimant has the burden to prove the essential elements of his claim, including whether the specific employment factors or exposure actually occurred.5 The Board finds that the evidence fails to establish whether appellant was exposed to infection during his federal employment, and therefore, the factual component of his claim is not satisfied.6

The Board also finds that appellant failed to submit sufficient medical evidence establishing that his condition resulted from his employment. Appellant submitted hospital records and treatment notes from D. Johnson, a physician’s assistant, dated February 15 to 18, 2010 which provided a diagnosis of staphylococcus infection, cellulitis and an abscess. This evidence, however, is not entitled to probative medical weight as a physician’s assistant is not a physician as defined by the Act.7 None of the reports contain a rationalized medical opinion

4
R.H., 59 ECAB 382 (2008); see Roy L. Humphrey, 57 ECAB 238 (2005); Ruby I. Fish, 46 ECAB 279 (1959).
5
E.A., 58 ECAB 677 (2007); Ernest St. Pierre, 51 ECAB 623 (2000); D.U., Docket No. 10-144, (issued July 27, 2010).
6
See J.C., Docket No. 09-1630 (issued April 14, 2010) (finding that appellant failed to submit prima facie evidence establishing that she was exposed to black mold in her workplace); see also M.M., Docket No. 09-920 (issued October 21, 2009). 7 A medical report may not be considered as probative medical evidence if there is no indication that the person completing the report is a physician as defined under 5 U.S.C. § 8101(2). Section 8101(2) of the Act provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrist, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law. See Merton J. Sills, 39 ECAB 572, 575 (1988).

3 explaining how appellant’s alleged condition was caused by exposure to infection at work exposures. The medical evidence, therefore, is insufficient to establish a causal relationship between appellant’s medical condition and his federal employment. As appellant failed to demonstrate that he suffered a staphylococcus infection and cellulitis as a result of his employment, the evidence is insufficient to support his claim.8

CONCLUSION

The Board finds that appellant did not meet his burden of proof to establish that he sustained an injury in the performance of duty.

ORDER

IT IS HEREBY ORDERED THAT the June 2, 2010 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: May 18, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8
The Board notes that appellant submitted additional evidence following the June 2, 2010 decision. Since the Board’s jurisdiction is limited to evidence that was before the Office at the time it issued its final decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

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