A.G. and U.S. Postal Service, Post Office, Pinellas Park, FL (Board decision, February 1, 2013)

ECAB remand decision. The Board set aside OWCP’s May 24, 2012 denial after finding that A.G.’s accepted conditions prevented her from performing her full-duty carrier job when she stopped work. OWCP must determine the compensable period and issue a new decision; the amount and duration remain unresolved. 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

A.G., a postal letter carrier with accepted cervical, lumbar, and carpal tunnel conditions, claimed disability after stopping full-duty work in December 2005. Medical restrictions showed she could not meet the lifting requirements of her carrier job at that time. The Board held that she had established work disability when she stopped, contrary to OWCP’s denial. The record did not establish how long that disability continued or the resulting compensation. It set aside the decision and directed OWCP to determine the period owed.

Decision snapshot

• Authority: FECA disability and wage-earning capacity from accepted conditions.
• Outcome: May 24, 2012 denial set aside; compensable period remanded for determination.
• Key point: Proof that A.G. could not perform her full-duty job did not establish the duration of compensation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.G., Appellant
)
)
and ) Docket No. 12-1770
) Issued: February 1, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Pinellas Park, FL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On August 14, 2012 appellant, through her attorney, filed a timely appeal from a May 24, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) that denied her claim. 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 employment-related disability beginning December 5, 2005 causally related to the conditions accepted by OWCP on November 12, 2009 of cervical sprain, lumbar sprain or bilateral carpal tunnel syndrome.

On appeal, appellant’s attorney asserts that appellant is entitled to disability compensation for the period claimed, based on the opinions of her attending physician and that of an OWCP referral physician.

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

This case has previously been before the Board. In a November 13, 2008 decision, the Board found that appellant failed to meet her burden of proof to establish that she sustained a recurrence of disability on December 5, 2005 causally related to an October 1, 2004 employment injury.2 In a March 13, 2012 decision, the Board found that the case was not in posture for decision regarding whether she established that she was totally disabled beginning on December 5, 2005 due to her accepted conditions and remanded the case to OWCP. On remand OWCP was to ask Dr. William Dinenberg, a Board-certified orthopedic surgeon and OWCP referral physician, to furnish a supplementary report regarding whether the restrictions that he provided in both the body of his October 16, 2009 report and on an attached work capacity evaluation were due to the conditions of cervical and lumbar sprains and/or bilateral carpal tunnel syndrome accepted as employment related on November 12, 2009 or whether the restrictions were due to conditions that had not been accepted by OWCP, such as diagnosed left shoulder impingement. Dr. Dinenberg was to further provide an opinion as to whether appellant was totally disabled beginning on December 1, 2005 solely due to the accepted conditions. After this and such further development deemed necessary, OWCP was to issue an appropriate decision.3 The law and facts of the previous Board decisions are incorporated herein by reference.

Dr. Harish J. Patel, an attending neurologist, furnished a number of treatment notes dated July 2, 2010 to April 13, 2012 in which he reported his physical examination findings and diagnosed headaches, cervical and lumbosacral radiculopathy with pain and depression. A September 21, 2011 nerve conduction study of the lower extremities demonstrated abnormal activity indicative of tibial and peroneal neuropathies and lumbosacral radiculopathies.4

In April 2012 OWCP referred appellant to Dr. Dinenberg for a second-opinion evaluation. Dr. Dinenberg was asked to clarify whether the restrictions he provided in his October 16, 2009 report were due to the employment injury and whether appellant was disabled

2
Docket No. 08-1393 (issued November 13, 2008). The October 1, 2004 injury, adjudicated by OWCP under file number xxxxxx718, occurred when appellant tripped on an uneven pavement. The claim was accepted for an open wound and contusion to the right knee and strains to the left ankle, left knee and left wrist. Appellant filed the instant occupational disease claim, adjudicated by OWCP under file number xxxxxx416, on December 15, 2008. On November 12, 2009 OWCP accepted that appellant sustained a work-related cervical sprain, lumbar sprain and bilateral carpal tunnel syndrome and on November 20, 2009 she filed a claim for compensation beginning December 1, 2005. By decision dated May 2, 2011, appellant was granted a schedule award for a five percent impairment of the right upper extremity and a five percent impairment of the left upper extremity. In an October 5, 2011 decision, OWCP denied her claim for a schedule award for the lower extremities. 3 Docket No. 11-490 (issued March 13, 2012).
4
Counsel requested that OWCP additionally accept lumbar radiculopathy. OWCP continues to develop this issue.

2 on December 1, 2005 due to the accepted conditions.5 In a May 7, 2012 report, he noted his review of the statement of accepted facts and medical record. Dr. Dinenberg noted tenderness on examination of the cervical and lumbar spine and positive Phalen’s test, Tinel’s sign and carpal compression tests bilaterally. He diagnosed cervical and lumbar sprain and strain and bilateral carpal tunnel syndrome. A May 8, 2012 study of the upper and lower extremities was normal, with no electrical evidence of carpal tunnel syndrome or cervical or lumbar radiculopathies. In an addendum report dated May 10, 2012, Dr. Dinenberg advised that the only restriction he provided in October 2009 for a nonwork-related condition was that of reaching above the left shoulder. He stated that all other restrictions were for the accepted conditions. Dr. Dinenberg further opined that he did not feel that appellant was totally disabled on December 1, 2005 but did have restrictions secondary to the accepted conditions beginning on that date.

By decision dated May 24, 2012, OWCP denied appellant’s claim for disability compensation beginning on December 1, 2005 and continuing on the grounds that the medical record did not support disability.

LEGAL PRECEDENT

Under FECA the term “disability” is defined as incapacity, because of employment injury, to earn the wages that the employee was receiving at the time of injury.6 Disability is thus not synonymous with physical impairment which may or may not result in an incapacity to earn the wages. An employee who has a physical impairment causally related to a federal employment injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of injury has no disability as that term is used in FECA.7 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 his or her employment, the employee is entitled to compensation for any loss of wage-earning capacity resulting from the employment injury.8 Whether a particular injury causes an employee to be disabled for employment and the duration

5
In his October 16, 2009 report, Dr. Dinenberg provided examination findings and diagnosed work-related cervical sprain/strain, lumbar sprain/strain and bilateral carpal tunnel syndrome and nonemployment-related left shoulder impingement, minimal disc herniation at L5-S1 and minimal disc herniation at C2 through C6. He noted that appellant’s subjective complaints outweighed her objective findings but that she had work-related residuals of the cervical and lumbar spine, including loss of range of motion and tenderness and that the hands had decreased sensation. Dr. Dinenberg advised that appellant was at maximum medical improvement for the cervical and lumbar sprains but not at maximum medical improvement for bilateral carpal tunnel syndrome and recommended carpal tunnel release. He provided temporary restrictions of no overhead work with the left shoulder and no lifting greater than 20 pounds and advised that appellant could not perform the duties of a letter carrier and would need a primarily sedentary position. Dr. Dinenberg provided permanent restrictions of no reaching above the shoulder and no bending, stooping, squatting, kneeling or climbing. He indicated that appellant could repetitively move her wrists for one hour daily and could push, pull and lift 20 pounds for two hours daily. 6 See Prince E. Wallace, 52 ECAB 357 (2001).
7
Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).
8
Roberta L. Kaaumoana, 54 ECAB 150 (2002).

3 of that disability are medical issues which must be proved by a preponderance of the reliable, probative and substantial medical evidence.9

Causal relationship is a medical issue and the medical evidence required to establish a causal relationship is rationalized medical evidence.10 Rationalized medical opinion evidence is medical evidence which includes a physician’s rationalized medical opinion of whether there is a causal relationship between the claimant’s diagnosed condition and the compensable employment factors. The opinion of the physician must be based on a complete factual and medical background of the claimant, 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.11

ANALYSIS

The Board finds that this case is not in posture for decision. In reports dated October 16, 2009 and May 7 and 12, 2012, Dr. Dinenberg advised that appellant continued to have residuals of the accepted cervical and lumbar strains and carpal tunnel syndrome. In his October 16, 2009 report, he advised that she could not perform her regular job duties as a letter carrier and would need a primarily sedentary position with permanent restrictions, which he described.12 In his May 10, 2012 report, Dr. Dinenberg indicated that the restrictions of no bending, stooping, squatting, kneeling or climbing with additional restrictions that she could repetitively move her wrists for one hour daily and could push, pull and lift 20 pounds for two hours daily were based on the employment injuries.

The record indicates that appellant was working full duty at the time she stopped work in December 2005. The record also indicates that the physical requirements of the carrier position include carrying mail in shoulder satchels weighing as much as 35 pounds and loading and unloading sacks of mail weighing up to 70 pounds. The restrictions provided by Dr. Dinenberg clearly indicate that appellant could not meet those physical requirements. Appellant therefore established that she was disabled from performing the duties of the letter carrier position when she stopped work.

The record, however, is unclear regarding the period of disability due to the employment injuries. In his May 10, 2012 report, Dr. Dinenberg stated: “I do not feel that the claimant was totally disabled on December 1, 2005, but did have restrictions secondary to the accepted conditions beginning on that date.” As noted above, 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 his or her employment, the employee is entitled to compensation for any loss of wage-earning capacity resulting from the employment injury.13 The case will 9 Tammy L. Medley, 55 ECAB 182 (2003).
10
Jennifer Atkerson, 55 ECAB 317 (2004).
11
Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).
12
Supra note 5.
13
Supra note 8.

4 therefore be remanded to OWCP to determine the period in which appellant would be entitled to disability compensation.14

CONCLUSION

The Board finds this case is not in posture for decision regarding the period of disability in which appellant would be entitled to monetary compensation.

ORDER

IT IS HEREBY ORDERED THAT the May 24, 2012 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for proceedings consistent with this opinion of the Board.

Issued: February 1, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

14
The Board notes that at a July 27, 2009 hearing, appellant testified that, since she stopped worked at the employing establishment, she had been tutoring at home.

5