T.B. and U.S. Postal Service, Post Office, Greenville, MI (Board decision, May 20, 2013)

ECAB final decision. The Board affirmed OWCP’s September 13, 2012 refusal to modify T.B.’s injury claim denial. A physician’s later report proposed several shoulder and neck conditions from a November 2009 mail-handling incident but did not examine her or adequately explain causation for each diagnosis. A party may petition the Board for reconsideration within 30 days of issuance unless the order 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

T.B., a Postal Service employee, claimed shoulder and neck injuries after stacking and rearranging mail in November 2009. An earlier Board decision had found the medical evidence insufficient. On reconsideration, a physician reviewed the record and attributed several conditions to the incident, but did not examine her. The Board found the opinion speculative and lacking an explanation of how the specific work activity caused or aggravated each condition. It affirmed OWCP’s decision to leave the claim denied.

Decision snapshot

• Authority: FECA fact-of-injury proof under 20 C.F.R. § 10.115.
• Outcome: September 13, 2012 denial of modification affirmed.
• Key point: A record review without examination or condition-specific causal reasoning did not establish the injury claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

_______
)
T.B., Appellant
)
)
and ) Docket No. 13-70
) Issued: May 20, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Greenville, MI, 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, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On October 10, 2012 appellant, through her attorney, filed a timely appeal from a September 13, 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 has established an injury in the performance of duty on November 21, 2009.

FACTUAL HISTORY

The case was before the Board on a prior appeal. By decision dated February 24, 2011, the Board affirmed OWCP’s decisions dated January 15 and April 9, 2010.2 The Board found 1 5 U.S.C. § 8101 et seq.
2
Docket No. 10-1574 (issued February 24, 2011). the medical evidence of record was insufficient to establish an injury causally related to the November 21, 2009 employment incident of stacking and rearranging mail. The history of the case as set forth in the February 24, 2011 decision is incorporated herein by reference.

By letter dated April 18, 2012, appellant requested reconsideration and submitted a February 29, 2012 report from Dr. Kevin L. Trangle, a Board-certified internist, who provided a review of the November 21, 2009 incident and the medical evidence and noted the compensation proceedings. Dr. Trangle noted that appellant was not seen or examined. He opined that appellant sustained injuries while working on November 21, 2009 noting that appellant had immediate pain in the right shoulder and arm which supported causal relationship between the duties performed and his symptoms. Dr. Trangle stated that the December 9, 2009 magnetic resonance imaging scan showed a superior glenoid labral tear, and given the mechanism of injury, the tear most likely occurred via direct causation. According to him, the same mechanism of injury likely substantially aggravated the supraspinatus and infraspinatus tendinopathy and acromioclavicular (AC) joint arthrosis. Dr. Trangle stated that the repetitive work activities involved constant motion of the shoulder and caused impingement on the right side. As to the neck, he opined that the employment injury most likely caused a substantial aggravation of C3-4 and C5-6 intervertebral discs with radiculopathy.

By decision dated September 13, 2012, OWCP reviewed the case on its merits and denied modification. It found that the report of Dr. Trangle was insufficient to warrant modification of the prior decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of establishing that he or she sustained an injury while in the performance of duty.3 In order to determine whether an employee actually sustained an injury in the performance of duty, OWCP begins with an analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of two components which must be considered in conjunction with one another. The first component to be established is that the employee actually experienced the employment incident which is alleged to have occurred. The second component is whether the employment incident caused a personal injury and generally this can be established only by medical evidence.4

Rationalized medical opinion evidence is medical evidence based on a complete factual and medical background of reasonable medical certainty and supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by the claimant.5

3
Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.
4
See John J. Carlone, 41 ECAB 354, 357 (1989).
5
Jennifer Atkerson, 55 ECAB 317, 319 (2004).

2
ANALYSIS

In the present case, appellant submitted a February 29, 2012 report from Dr. Trangle, who listed a history of the November 21, 2009 incident and reviewed medical evidence. Dr. Trangle did not, however, examine appellant or provide results on physical examination. The lack of any results on examination to support the opinion offered reduces the probative value of the medical report.6

Dr. Trangle provided a speculative opinion on causal relationship without providing medical rationale to support his stated conclusions. He listed a number of diagnoses, including superior glenoid labral tear, and aggravation of supraspinatus and infraspinatus tendinopathy and AC joint arthrosis, as well as aggravation of C3-4 and C5-6 intervertebral discs with radiculopathy. Dr. Trangle did not clearly address how the work activity on November 21, 2009 “likely” contributed to each of these conditions. Medical opinions that are speculative and not supported by adequate medical rationale are of diminished probative value and are insufficient to meet appellant’s burden of proof.7

It is appellant’s burden of proof to establish an injury in the performance of duty on November 21, 2009. The Board finds Dr. Trangle’s report is of diminished probative value on the issue of causal relation.

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 has not met her burden of proof to establish an injury in the performance of duty on November 21, 2009.

6
See Dorothy M. Evans, 36 ECAB 212 (1984).
7
Carolyn F. Allen, 47 ECAB 240 (1995).

3
ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated September 13, 2012 is affirmed.

Issued: May 20, 2013
Washington, DC

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

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

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

4