R.A. and Department of the Air Force, Kirkland Air Force Base, NM (Board decision, April 22, 2014)

ECAB final decision. The Board affirmed OWCP’s wage-loss decision. 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 of issuance unless this decision 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

R.A. sought wage-loss compensation for intermittent periods after an accepted injury. The Board found no reasoned medical opinion showing that the accepted conditions prevented work during the claimed periods. It also found no evidence of medical treatment on the alleged dates of disability. The Board affirmed OWCP’s October 8, 2013 denial.

Decision snapshot

• Authority: FECA, 5 U.S.C. § 8101 et seq.
• Outcome: October 8, 2013 denial of intermittent wage-loss compensation affirmed.
• Key point: The record did not establish disability or treatment-related wage loss for the claimed periods.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.A., Appellant
)
)
and ) Docket No. 14-210
) Issued: April 22, 2014
DEPARTMENT OF THE AIR FORCE,
)
KIRKLAND AIR FORCE BASE, NM, 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
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 4, 2013 appellant filed a timely appeal from an October 8, 2013 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 met his burden of proof to establish disability for intermittent periods from May 17 to August 9, 2013.

FACTUAL HISTORY

Appellant, a 48-year-old program analyst, injured his right wrist and right thumb when he fell while ascending a flight of stairs on September 19, 2012. He filed a claim for benefits,

1
5 U.S.C. § 8101 et seq. which OWCP accepted for right thumb strain, lumbar strain and tenosynovitis of the left thumb. Appellant missed work for intermittent periods.

On January 30, 2013 appellant underwent surgery for a right thumb and right ring finger trigger release. On May 2, 2013 he underwent a surgical release procedure to ameliorate the condition of tenosynovitis of the left thumb.

Appellant returned to full duty on May 13, 2013.

Appellant submitted Forms CA-7 requesting compensation for wage loss for the following periods: 8 hours on May 17, 2013; 17.5 hours between May 20 through 31, 2013; 19 hours between June 3 to 14, 2013; 36 hours between June 17 through 28, 2013; 8 hours between July 1 through 12, 2013; and 40 hours between July 29 and August 9, 2013.

By letter to appellant dated August 27, 2013, OWCP requested additional factual and medical evidence to establish disability for work during periods claimed, including medical documentation to establish that he either had medical treatment or was unable to work as a result of his work injury for all dates claimed. It noted that he was authorized to return to work on full- duty status on May 13, 2013 and that it had not received any medical documentation to support the claimed periods of disability since that time. OWCP advised appellant that he had 30 days to submit the requested information.

Appellant submitted several brief medical reports from March and April 2013. None of these reports discussed whether he was disabled due to his accepted conditions for the periods claimed.

In a September 30, 2013 report, Dr. Christopher P. Patton, an osteopath, stated that appellant had undergone an electromyogram (EMG) on that date for evaluation of bilateral hand pain and electrodiagnostic evaluation of the bilateral upper limbs. He discussed the history of injury and indicated that appellant underwent surgical release in both hands but continued to experience pain, mostly in the area where the trigger finger releases were performed. Appellant also related having numbness and pain with activities. Dr. Patton diagnosed mononeuritis and carpal tunnel syndrome. He advised that bilateral EMG tests of appellant’s hands showed evidence of denervation with reinnervation but no ongoing denervation. Dr. Patton asserted that all other muscles in the upper limbs were normal. He opined that there was electrodiagnostic evidence of moderate to severe bilateral carpal tunnel syndrome, with no electrodiagnostic evidence of cervical radiculopathy, plexopathy, peripheral polyneuropathy or myopathy.

By decision dated October 8, 2013, OWCP denied appellant’s claim for the periods of wage-loss compensation.

LEGAL PRECEDENT

It is the employee’s burden of proof to establish disability during the period of time for which wage-loss compensation is claimed. The term “disability” is defined by implementing regulation as “the incapacity, because of an employment injury, to earn the wages the employee

2 was receiving at the time of injury. It may be partial or total.”2 The Board has long held that whether a particular injury causes an employee disability for employment is a medical question which must be resolved by competent medical evidence.3

ANALYSIS

OWCP accepted a claim for right thumb strain, lumbar strain and tenosynovitis of the left thumb. It asked appellant to submit medical evidence to support the periods of disability claimed. Appellant, however, did not provide a probative, rationalized medical opinion establishing that he was disabled for work due to the accepted conditions for May 17, May 20 through 31, June 3 to 14; June 17 through 28; July 1 through 12; and July 29 to August 9, 2013.4

As noted above, to establish entitlement to compensation, an employee must establish through competent medical evidence that disability from work resulted from the employment injury.5 The Board will not require OWCP to pay compensation for disability in the absence of medical evidence directly addressing the specific dates of disability for which compensation is claimed. To do so would essentially allow an employee to self-certify their disability and entitlement to compensation.6 Appellant has the burden to demonstrate his disability for work based on rationalized medical opinion evidence. The issue of whether a claimant’s disability is related to an accepted condition is a medical question which must be established by a physician who, on the basis of a complete and accurate factual and medical history, concludes that the disability is causally related to employment factors and supports that conclusion with sound medical reasoning.7 There is no such evidence in the case record. Appellant did not offer any opinion or supporting medical rationale regarding the date that his disability began or his disability for work for any additional periods. The only medical report which described his conditions was the September 30, 2013 EMG report from Dr. Patton, who indicated that he still had bilateral hand pain and numbness despite having undergone surgical release in both hands. He diagnosed mononeuritis and carpal tunnel syndrome and stated that bilateral EMG tests of appellant’s hands showed evidence of denervation with reinnervation. Dr. Patton, however, did not provide a medical opinion containing medical rationale explaining how or why his right thumb strain, lumbar strain and tenosynovitis of the left thumb conditions were affected by or related to factors of employment during the periods claimed.8 Appellant has thus failed to submit such evidence which would indicate that his accepted conditions caused any wage loss for any periods.

2
20 C.F.R. § 10.5(f).
3
See Donald E. Ewals, 51 ECAB 428 (2000).
4
William C. Thomas, 45 ECAB 591 (1994).
5
Donald E. Ewals, supra note 3.
6
Paul E. Thams, 56 ECAB 503 (2005).
7
Howard A. Williams, 45 ECAB 853 (1994).
8
Id.

3
 The Board also notes that there is no medical evidence of record that appellant obtained medical treatment on any of the alleged dates of disability. Therefore he has also not established that he sustained compensable wage loss due to time lost from work for medical treatment. Because appellant has not provided evidence supporting his disability for work for the periods in question, OWCP properly denied his claim for wage-loss compensation.

CONCLUSION

The Board finds that appellant has not met his burden to establish that he was entitled to compensation for wage loss for intermittent periods from May 17; May 20 to 31; June 3 to 14; June 17 to 28; July 1 to 12; and July 29 to August 9, 2013.

ORDER

IT IS HEREBY ORDERED THAT the October 8, 2013 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: April 22, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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