W.F. and Department of Veterans Affairs, Veterans Administration Medical Center, Butler, PA (Board decision, July 9, 2014)

ECAB final decision and order. The Board affirmed OWCP’s October 30, 2013 decision denying W.F.’s claim for a neck and back injury. It found that his physician’s new report still did not give a reasoned explanation connecting the conditions to the May 17, 2012 work incident. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this 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

W.F. said a bumpy ride while driving a small bus at work injured his neck and low back. After an earlier denial, he submitted another report from his orthopedic surgeon and sought reconsideration. The surgeon compared imaging from years apart and said the jarring could aggravate spinal stenosis or cause strains. The Board found that the report lacked a full medical history and did not explain how this particular ride caused or aggravated the diagnosed conditions. It affirmed OWCP’s denial for lack of reasoned medical evidence of causation.

Decision snapshot

• Authority: FECA performance-of-duty compensation, 5 U.S.C. § 8102(a).
• Outcome: OWCP’s denial of the neck and back injury claim affirmed.
• Key point: Later imaging and a general statement about jarring did not explain a causal link to the specific work incident.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
W.F., Appellant
)
)
and ) Docket No. 14-673
) Issued: July 9, 2014
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Butler, PA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On January 29, 2014 appellant, through counsel, filed a timely appeal from an October 30, 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 a neck or back injury in the performance of duty on May 17, 2012.

1
5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

This case was previously before the Board.2 Appellant filed a traumatic injury claim alleging low back and neck injuries in the performance of duty on May 17, 2012. He attributed his condition to driving a small bus on a bumpy road, with the seat back as far as possible and being jolted from the bumpy ride. The Board noted that appellant’s attending, orthopedic surgeon, Dr. John Steele, opined that appellant sustained cervical and lumbar strain/sprains, as well as an aggravation of spinal stenosis. The Board found that Dr. Steele did not provide a complete medical history discussing appellant’s prior back and neck injuries, nor did he explain the nature and extent of any aggravation by the May 17, 2012 employment incident. Dr. Steele did not provide adequate medical rationale in support of his opinion on causal relation. The Board affirmed a January 31, 2013 OWCP decision denying the claim for compensation. The history of the case as provided in the Board’s prior decision is incorporated herein by reference.

On August 30, 2013 appellant requested reconsideration and submitted a March 14, 2013 report from Dr. Steele, who noted that appellant had been tossed around while driving over a bumpy road on May 17, 2012. He opined that the employment incident aggravated his preexisting spinal stenosis, stating “Comparing his previous MRI scan reports, his MRI scan from June 25, 2012 revealed moderately severe spinal stenosis at LS-S1 which was not evident on his previous MRI scan from 1994.” Dr. Steele also noted that an MRI scan of the cervical spine revealed a protruding disc at C7-T1, “which was not previously reported on an MRI scan from 1990. Stenosis was evident at C6-C7 and C7-T1 and was not present in 1990.” With respect to the claimed sprain and strains, Dr. Steele stated, “Within a reasonable degree of medical certainty, there is a causal relationship between the mechanism of injury and his diagnoses of lumbar sprain/strain and cervical sprain/strain. Repeated jarring up and down on the spine can cause sprain of the musculature and aggravate spinal stenosis[-]related symptoms.”

By decision dated October 30, 2013, OWCP reviewed the case on its merits and denied modification of the January 31, 2013 decision.

LEGAL PRECEDENT

FECA provides for the payment of compensation for “the disability or death of an employee resulting from personal injury sustained while in the performance of duty.”3 The phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the commonly found requisite in workers’ compensation law of “arising out of and in the course of employment.”4 An employee seeking benefits under FECA has the burden of establishing that he or she sustained an injury while in the performance of duty.5

2
Docket No. 13-901 (issued August 1, 2013).
3
5 U.S.C. § 8102(a).
4
Valerie C. Boward, 50 ECAB 126 (1998).
5
Melinda C. Epperly, 45 ECAB 196, 198 (1993).

2
 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.6

Rationalized medical opinion evidence is medical evidence that includes a physician’s rationalized opinion on the issue of whether there is a causal relationship between a diagnosed condition and the identified employment factor. The opinion of the physician must be based on a complete factual and medical background, must be 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. The weight of medical evidence is determined by its reliability, its probative value, its convincing quality, the care of the analysis manifested and the medical rationale expressed in support of the physician’s opinion.7

ANALYSIS

Dr. Steele submitted a March 14, 2013 report with respect to the conditions claimed as causally related to the May 17, 2012 employment incident. With respect to an aggravation of lumbar spinal stenosis, he opined that this condition was causally related to the employment incident. The Board finds that the medical rationale provided by Dr. Steele is of diminished probative value. Dr. Steele stated that the MRI scan from June 25, 2012 showed moderately severe spinal stenosis at L5-S1, whereas “this was not evident” in an MRI scan 18 years earlier. The one-page opinion provided by him did not set forth a full medical history of appellant’s cervical or lumbar conditions. This does not cure the deficiency previously noted in this case. The June 25, 2012 MRI scan documents a spinal stenosis condition; but Dr. Steele did not adequately explain why there was any contribution from the May 17, 2012 employment incident. The stated conclusion that jarring up and down can aggravate spinal stenosis does not explain the nature of such aggravation. Similarly, the existence of a cervical protruding disc on the MRI scan does not substitute for medical rationale on how or why the condition was related to the employment incident.

The Board finds that appellant has not established an aggravation of spinal stenosis or the cervical protruding disc as employment related. In this case, Dr. Steele failed to correct the deficiencies the Board noted in its prior decision. He did not provide a complete medical history, and the only additional statement he provided was that being jarred up and down can cause a sprain. This statement is general, speculative in nature and does not provide the rationale needed to establish causal relation.

6
See John J. Carlone, 41 ECAB 354, 357 (1989).
7
Jennifer Atkerson, 55 ECAB 317, 319 (2004).

3
 Based on the evidence of record, appellant has not established the claim for compensation. 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 meet his burden of proof to establish a neck or low back injury causally related to the May 17, 2012 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated October 30, 2013 is affirmed.

Issued: July 9, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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