N.S. and U.S. Postal Service, Main Post Office, Billings, MT (Board decision, November 26, 2012)

ECAB final decision on the merits. The Board affirmed OWCP's March 29, 2012 denial of N.S.'s continuing disability claim after April 21, 2008. The Board's compensation decision is final under 5 U.S.C. § 8128(b), without ordinary judicial review. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

N.S., a postal employee, sought compensation for disability and injury residuals after April 21, 2008. The Board found that later medical reports did not adequately show continued disability from her accepted 2007 injury. It affirmed OWCP's denial.

Decision snapshot

• Authority: FECA continuing disability after accepted injury.
• Outcome: March 29, 2012 decision affirmed.
• Key point: Later medical evidence did not establish continuing work-related effects.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
N.S., Appellant
)
)
and ) Docket No. 12-1264
) Issued: November 26, 2012
U.S. POSTAL SERVICE, MAIN POST OFFICE,
)
Billings, MT, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On May 24, 2012 appellant, through her attorney, filed a timely appeal from a March 29, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) 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 established that she had any continuing employment- related disability or residuals after April 21, 2008.

On appeal appellant’s attorney asserts that the March 29, 2012 decision is contrary to fact and law.

1
5 U.S.C. §§ 8101-8193.
FACTUAL HISTORY

This case has previously been before the Board. In an April 10, 2009 decision, the Board found that an April 21, 2008 OWCP decision properly determined that appellant had no disability or residuals due to an April 30, 2007 employment injury, accepted for closed dislocations of the sacrum and lumbar vertebra. OWCP terminated her monetary and medical benefits effective that day.2 By order dated January 12, 2012, the Board remanded the case to OWCP to consider appellant’s timely reconsideration request under 20 C.F.R. § 10.606(b)(2).3 The facts of the previous Board decision and order are incorporated herein by reference.

The relevant medical evidence includes an April 10, 2008 magnetic resonance imaging (MRI) scan study of the lumbar spine. It demonstrated minimal facet arthropathy and no disc protrusions, spinal stenosis or foraminal narrowing. A June 11, 2008 imaging scan demonstrated increased uptake in the sacroiliac joint which could represent bilateral sacroiliitis and degenerative changes in the mid-cervical and lower lumbar spine. In reports dated May 28, 2008 to January 28, 2009, Dr. Steven J. Rizzolo, an attending Board-certified orthopedic surgeon, noted appellant’s history that she had been injured at work in October 2007. He described her complaint of right iliolumbar pain. Dr. Rizzolo noted that the MRI scan study was unremarkable and the bone scan negative. He provided examination findings, noting probable right sacroiliac joint dysfunction. Dr. Rizzolo diagnosed chronic right iliolumbar pain and sacroiliitis and recommended a work-up for a rheumatologic disorder. On July 14 and November 19, 2008 he injected appellant’s sacroiliac joint and on January 28, 2009 advised that her continuing care could be handled by a primary care provider.

In a March 29, 2012 merit decision, OWCP denied modification of its April 21, 2008 decision. It found that the medical evidence submitted did not establish a causal relationship between appellant’s continuing condition and the October 30, 2007 work injury.

LEGAL PRECEDENT

As OWCP met its burden of proof to terminate the employee’s compensation benefits on April 21, 2008, the burden shifted to her to establish that she had any continuing disability causally related to her accepted low back injury.4 To establish a causal relationship between the condition, as well as any attendant disability claimed and the employment injury, an employee must submit rationalized medical evidence, based on a complete factual and medical background, supporting such a causal relationship.5 Causal relationship is a medical issue and the medical evidence required to establish a causal relationship is rationalized medical evidence.6 2 Docket No. 08-2051 (issued April 10, 2009). OWCP accepted that appellant, a mail processing clerk, sustained closed dislocations of the sacrum and lumbar vertebra on November 8, 2007 when she pulled open a drawer that was stuck. 3 Docket No. 11-1399 (issued January 12, 2012).
4
See Joseph A. Brown, Jr., 55 ECAB 542 (2004).
5
Jennifer Atkerson, 55 ECAB 317 (2004).
6
Id.

2
The opinion of the physician must be based on a complete factual and medical background of the employee, 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 appellant submitted insufficient medical evidence to establish that she continued to be disabled after April 21, 2008 due to the October 30, 2007 employment injury.8

In reports dated May 28, 2008 to January 28, 2009, Dr. Rizzolo generally indicated that appellant was injured at work in October 2007. He reviewed diagnostic studies which he advised were unremarkable and provided physical examination findings. Dr. Rizzolo did not provide an opinion regarding the cause of any condition or an opinion regarding her ability to work.9 The diagnostic studies submitted on reconsideration provided no opinion on disability. The Board has held that 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.10

The medical evidence therefore is of little probative value. As appellant did not provide a rationalized medical opinion on reconsideration, she did not meet her burden of proof to establish that she continues to have work-related disability due to the accepted dislocations of the sacrum and lumbar vertebra caused by the October 30, 2007 employment injury.11

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant did not establish that she had any continuing employment- related disability or condition after April 21, 2008 causally related to the October 30, 2007 employment injury.

7
Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).
8
Appellant also submitted an October 22, 2008 report from Randy Glaser, a physician’s assistant. Reports from a physician’s assistant are not considered medical evidence as a physician’s assistant is not considered a physician under FECA. 5 U.S.C. § 8101(2); Ricky S. Storms, 52 ECAB 349 (2001). 9 The most recent medical report of record is Dr. Rizzolo’s January 28, 2009 report.
10
Willie M. Miller, 53 ECAB 697 (2002).
11
S.S., 59 ECAB 315 (2008).

3
ORDER

IT IS HEREBY ORDERED THAT the March 29, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 26, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

4