J.S. and Department of the Air Force, Robins Air Force Base, Warner Robins, GA (Board decision, October 10, 2014)

ECAB final decision. The Board affirmed OWCP’s May 28, 2014 denial of J.S.’s traumatic injury claim. 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 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

J.S., an Air Force sheet metal mechanic, reported that another employee drilled into his left thumb while he held a metal structure at work. OWCP accepted that the incident occurred but denied his injury claim for lack of medical evidence of a diagnosed condition related to it. His physician cleared him to return to work with no use of his left hand but gave no diagnosis or opinion connecting a condition to the incident. The Board affirmed the denial. It could not consider evidence J.S. submitted for the first time on appeal.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.; new evidence on appeal, 20 C.F.R. § 501.2(c)(1).
• Outcome: May 28, 2014 injury claim denial affirmed.
• Key point: The accepted workplace incident did not establish a compensable injury without a medical diagnosis and an affirmative statement linking the condition to the incident.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.S., Appellant
)
)
and ) Docket No. 14-1435
) Issued: October 10, 2014
DEPARTMENT OF THE AIR FORCE, ROBINS
)
AIR FORCE BASE, Warner Robins, GA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 June 13, 2014 appellant filed a timely appeal from a May 28, 2014 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.2

ISSUE

The issue is whether appellant sustained an injury on April 10, 2014 in the performance of duty.

1
5 U.S.C. § 8101 et seq.
2
On appeal appellant stated that he sent evidence supporting his claim and also submitted additional evidence.
The Board, however, has no jurisdiction to review new evidence for the first time on appeal.2 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 and 20 C.F.R. §§ 10.605 through 10.607. See 20 C.F.R. § 501.2(c)(1). FACTUAL HISTORY

On April 14, 2014 appellant, then a 34-year-old aircraft sheet metal mechanic, filed a traumatic injury claim alleging that on April 10, 2014 he drilled a hole in his left thumb in the performance of duty. The description of injury on the claim form provided that he was holding a metal structure in place when another employee drilled a hole in his left thumb. Appellant stopped work on April 10, 2014 and returned to work on April 11, 2014 with restrictions. The employing establishment indicated that he was injured in the performance of duty.

In an April 11, 2014 work status evaluation, Dr. Jean Felix Cyriaque, Board-certified in family practice, indicated that appellant’s visit was related to an occupational incident and provided an incident date of April 10, 2014. He found that he could return to work on April 11, 2014 with no use of his left hand.

By letter dated April 21, 2014, OWCP requested that appellant submit additional information in support of his claim, including a narrative report from his attending physician explaining the relationship between a diagnosed condition and the work incident.

By decision dated May 28, 2013, OWCP denied appellant’s claim on the grounds that he had not submitted medical evidence establishing that he sustained a diagnosed condition as a result of the accepted April 10, 2014 work incident.

On appeal appellant relates that he and the employing establishment had sent the requested information. He also provides additional evidence.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of establishing the essential elements of his or her claim, including the fact that the individual is an “employee of the United States” within the meaning of FECA; that the claim was filed within the applicable time limitation; that an injury was sustained while in the performance of duty as alleged; and that any disability and/or specific condition for which compensation is claimed are causally related to the employment injury.4 These are the essential elements of each and every compensation claim regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5

To determine whether an employee sustained a traumatic injury in the performance of duty, OWCP must determine whether “fact of injury” is established. First, an employee has the burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged, by a preponderance of the reliable, probative and substantial evidence.6 Second, the employee must submit sufficient evidence, generally only in the form of medical evidence, to establish a

3
5 U.S.C. § 8101 et seq.
4
Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).
5
See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).
6
David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

2 causal relationship between the employment incident and the alleged disability and/or condition for which compensation is claimed.7 An employee may establish that the employment incident occurred as alleged, but fail to show that his or her disability and/or condition relates to the employment incident.8

ANALYSIS

The employing establishment did not dispute that on April 10, 2014 appellant was holding part of a metal structure in place when an employee drilled a hole in his left thumb. OWCP denied the claim after finding that he failed to provide any medical opinion explaining how this employment incident contributed to a diagnosed medical condition. In a work status report dated April 11, 2014, Dr. Cyriaque indicated by notation that he was evaluating appellant for an occupational incident and that it occurred on April 10, 2014. He found that he could resume work on April 11, 2014 with no use of his left hand. Dr. Cyriaque did not provide a diagnosis or a description of the April 10, 2014 work incident and thus his opinion is of little probative value.9 While appellant is claiming a clear-cut traumatic injury, that of a drill going into his thumb, he must still provide a report containing a diagnosis and an affirmative statement.10 In the absence of a medical opinion containing a diagnosis and opinion on causal relationship, appellant has not met his burden of proof.11

CONCLUSION

The Board finds that appellant has not established that he sustained an injury on April 10, 2014 in the performance of duty.

7
Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).
8
Id.
9
See John W. Montoya, 54 ECAB 306 (2003) (a physician must provide a narrative description of the employment incident and a reasoned opinion on whether the employment incident described caused or contributed to appellant’s diagnosed medical condition). 10 In clear-cut traumatic injury claims, where the fact of injury is established and is clearly competent to cause the condition described (for instance, a worker falls from a scaffold and breaks an arm), a fully rationalized medical opinion is not needed. The physician’s diagnosis and an affirmative statement are sufficient to accept the claim. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d)(1) (January 2013). 11 See Donald W. Wenzel, 56 ECAB 390 (2005). This case does not fall into the category of cases set forth in OWCP procedures where a case can be accepted without a medical report because the injury is a minor one that can be identified on visual inspection by a lay person, the injury was witnessed or reported promptly with no dispute as to fact of injury and no time was lost from work due to disability. Federal (FECA) Procedure Manual, id. at Chapter 2.805.3(c) (January 2013). Here, the procedures do not apply as appellant missed time from work.

3
 ORDER

IT IS HEREBY ORDERED THAT the May 28, 2014 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: October 10, 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

4