A.F. and Department of Veterans Affairs, Veterans Benefits Administration, Baltimore, MD (Board decision, January 22, 2015)

ECAB final decision. The Board affirmed OWCP’s August 4, 2014 denial of continuation of pay for November 25 through December 16, 2013. Under 20 C.F.R. § 501.6(d), this decision becomes final 30 days after issuance. 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

A.F., a veteran service representative, sought continuation of pay after an accepted workplace back injury. OWCP denied payment for a later period of missed work. The Board found that the medical reports and leave records did not adequately explain why the accepted injury prevented him from working from November 25 through December 16, 2013. It affirmed the denial for that period.

Decision snapshot

• Authority: 5 U.S.C. § 8118; 20 C.F.R. § 10.205.
• Outcome: Continuation of pay for November 25 through December 16, 2013 denied.
• Key point: The record lacked a reasoned medical opinion tying the specific missed work dates to the accepted injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.F., Appellant
)
)
and
)
) Docket No. 14-1838
DEPARTMENT OF VETERANS AFFAIRS, ) Issued: January 22, 2015
VETERANS BENEFITS ADMINISTRATION,
)
Baltimore, MD, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 18, 2014 appellant filed a timely appeal from an August 4, 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.

ISSUE

The issue is whether appellant has established that he was entitled to continuation of pay for the period November 25 to December 16, 2013.

FACTUAL HISTORY

Appellant, a 40-year-old veteran service representative, filed a claim for benefits and continuation of pay on October 24, 2013. He alleged a lower back injury when he twisted his

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5 U.S.C. § 8101 et seq. back while trying to grab a loose file. A witness indicated that she saw appellant trip and fall after he attempted to catch a loose folder. OWCP handled the claim administratively and approved payment for a limited amount of medical expenses as appellant sustained a minor injury that resulted in minimal or no lost time from work. The employing establishment did not controvert continuation of pay or challenge the merits of the case.

In a report dated December 2, 2013, Dr. Chino Mannikarutto, a specialist in internal medicine, indicated that appellant was treated at Good Samaritan Hospital from December 2 to 5, 2013. He stated that appellant could return to work on December 10, 2013.

Dr. Ayesha A. Butt, a specialist in internal medicine, reported on December 11, 2013 that she was excusing appellant from work from December 9 to 16, 2013 for medical reasons.

On May 20, 2014 appellant filed a Form CA-2a claim for benefits, alleging that he sustained a recurrence of disability on November 1, 2013 which was causally related to his October 24, 2013 work injury.

In a June 11, 2014 letter, OWCP advised appellant that, although it had initially handled the claim administratively because the injury appeared to be minor and resulted in minimal or no time lost from work, it had now reopened the claim for consideration of the merits because he had filed a claim of recurrence of disability. It advised him that he needed to submit additional factual and medical evidence, including a physician’s opinion as to how his injury resulted in the diagnosed condition, supported by a medical explanation as to how the reported work incident caused or aggravated a medical condition. OWCP stated that appellant had 30 days to submit the requested information.

On July 9, 2014 Dr. Dhruv A. Gadhia, a specialist in internal medicine, reported that he had treated appellant since September 27, 2013. He advised that appellant had exacerbated his chronic back pain after an injury in October 2013; he treated appellant again on November 7, 2013. Dr. Gadhia stated that appellant had symptoms of lumbar back pain with a normal lumbar spine x-ray. He asserted that appellant had chronic lower back pain and opined that he might have experienced regional muscular sprain and/or exacerbation of his pain after inadvertently twisting his body to catch a falling file of papers. Dr. Gadhia recommended referral to a physical therapist for further evaluation and treatment.

On August 4, 2014 OWCP accepted the October 24, 2013 traumatic injury claim for lumbar sprain and advised him that because he filed the Form CA-2a as his first claim for wage loss following his October 24, 2013 traumatic injury, his claim was not a true recurrence of disability. It advised him to file a Form CA-7 claim for compensation.

In a second August 4, 2014 decision, OWCP denied appellant’s claim for continuation of pay for the period November 25 to December 16, 2013 as he failed to submit medical evidence sufficient to establish a causal relationship between his absence from work and the October 24, 2013 work injury. It advised him that its decision concerned his entitlement to continuation pay only and did not affect his entitlement to other compensation benefits. OWCP noted that appellant could claim compensation by filing a Form CA-7 through the employing establishment.

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 LEGAL PRECEDENT

Section 8118 of FECA provides for payment of continuation of pay, not to exceed 45 days, to an employee who has filed a claim with his immediate supervisor for a period of wage loss due to a traumatic injury on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of FECA.2 In order to establish entitlement to continuation of pay, an employee must establish, on the basis of reliable, probative and substantial evidence, that he or she was disabled as a result of a traumatic employment injury. As part of this burden, he or she must furnish medical evidence from a qualified physician who, based on a complete and accurate history, concludes that the employee’s disability for specific periods was causally related to such injury.3

FECA’s implementing regulations provide, in pertinent part, that to be eligible for continuation of pay, a claimant must: (1) have a traumatic injury which is job related and the cause of the disability and/or the cause of lost time due to the need for medical examination and treatment; (2) file a Form CA-1 within 30 days of the date of injury; and (3) begin losing time from work due to the traumatic injury within 45 days of the injury.4

ANALYSIS

On October 24, 2013 appellant filed a Form CA-1 claim for a traumatic injury, alleging that he injured his lower back when he twisted his back while attempting to catch a loose case file. OWCP treated his claim administratively. It accepted the claim on August 4, 2014, but denied continuation of pay, finding that appellant failed to establish that he lost time from work due to the traumatic injury. OWCP stated that he had not established that his alleged period of recurrent disability from November 25 to December 16, 2013 was the result of the accepted traumatic injury.

The Board finds that appellant did not meet the standards for receiving continuation of pay. Although he gave written notice that he was claiming continuation of pay within 30 days of being injured, appellant has not established that his traumatic injury caused disability from November 25 to December 16, 2013. He has provided no medical evidence indicating that his time from work were due to the accepted lumbar sprain injury as of November 25, 2013. Appellant submitted leave slips and return to work reports from Drs. Mannikarutto and Butt which did not contain any probative, rationalized medical opinion regarding causation.

Dr. Gadhia stated that he had treated appellant on November 7, 2013 after he had exacerbated his chronic back pain during the October 2013 work injury. He opined that appellant might have experienced regional muscular sprain and/or exacerbation in his pain after

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5 U.S.C. § 8118. A traumatic injury refers to injury caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an occupational disease refers to an injury produced by employment over a period longer than a single workday or shift. 20 C.F.R. §§ 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992). 3 Carol A. Dixon, 43 ECAB 1065 (1992).
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20 C.F.R. § 10.205(a)(1)-(3). See also Carol A. Lyles, 57 ECAB 265 (2005).

3 inadvertently twisting his body during the incident. Dr. Gadhia advised that appellant had lumbar back pain symptoms with a normal lumbar spine x-ray. His July 9, 2014 report does not constitute sufficient medical evidence to establish that appellant’s disability for the period November 25 to December 16, 2013 was causally related to his October 24, 2013 employment injury. Causal relationship must be established by rationalized medical opinion evidence. At best, Dr. Gadhia’s report is speculative in nature. He offers no medical explanation as to why appellant’s accepted lumbar strain condition would have caused disability during the time period in question. Dr. Gadhia noted appellant’s back pain, but also noted that x-ray of appellant’s lumbar spine was normal. He provided no explanation, supported by objective evidence, as to why appellant could not work from November 25 to December 16, 2013. Dr. Gadhia’s report failed to provide an explanation in support of appellant’s claim that he was disabled due to the accepted traumatic injury.5 The record therefore contains no contemporaneous medical evidence supporting his claim that he was entitled to continuation of pay for the period November 25 to December 16, 2013.

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.6 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.7 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.8 There is no such evidence in this case. OWCP properly denied appellant’s claim for continuation of pay because he failed to submit a medical report which described his accepted condition in any detail or how it would have been competent to result in disability from November 25 to December 16, 2013.

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 OWCP properly denied appellant’s claim for continuation of pay from November 25 to December 16, 2013.

5
William C. Thomas, 45 ECAB 591 (1994).
6
Donald E. Ewals, 51 ECAB 428 (2000).
7
Paul E. Thams, 56 ECAB 503 (2005).
8
Howard A. Williams, 45 ECAB 853 (1994).

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 ORDER

IT IS HEREBY ORDERED THAT the August 4, 2014 decision of the Office of Workers’ Compensation Programs be affirmed.

Issued: January 22, 2015
Washington, DC

Christopher J. Godfrey, 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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