L.M. and Department of Agriculture, Horticultural Research Laboratory (Board decision, August 27, 2015)

ECAB final decision. The Board affirmed OWCP's April 21, 2015 denial of L.M.'s occupational disease 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 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

L.M., a biological science technician, reported breathing and skin symptoms after chemicals were sprayed near trees she was trimming. OWCP accepted that the workplace exposure occurred. The only medical report had an illegible signature, so the Board could not verify that a physician prepared it. No identified physician explained how the exposure caused a diagnosed condition. The Board affirmed the denial of compensation.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq..
• Outcome: April 21, 2015 claim denial affirmed.
• Key point: An unidentified medical report could not establish a causal link between the accepted exposure and a diagnosed condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.M., Appellant
)
)
and ) Docket No. 15-1253
) Issued: August 27, 2015
DEPARTMENT OF AGRICULTURE,
)
HORTICULTURAL RESEARCH
)
LABORATORY, Fort Pierce, FL, 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
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On May 14, 2015 appellant filed a timely appeal from an April 21, 2015 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 the case.2

ISSUE

The issue is whether appellant met her burden of proof to establish an occupational disease while in the performance of duty.

1
5 U.S.C. § 8101 et seq.
2
On appeal, the employing establishment submitted new evidence. However, the Board cannot consider evidence that was not before OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1). FACTUAL HISTORY

On February 27, 2015 appellant, then a 22-year-old biologic science technician, filed an occupational disease claim (Form CA-2) alleging that she suffered from skin irritation, breathing difficulty, and burning of the throat, chest, eyes, and nose, as a result of sprouting trees. She first became aware of the condition and its relationship to her work on September 26, 2014. Appellant stopped work on September 26, 2014 and resigned on September 29, 2014.3

A September 26, 2014 medical report, bearing an illegible signature, reflects that appellant was cutting trees when she experienced shortness of breath, a scratchy throat, and a sore tongue. Appellant was diagnosed with chemical exposure. The medical provider checked a box “yes” to indicate that the condition was caused or aggravated by work activity and noted that she could resume regular work on September 26, 2014.

By letter dated March 2, 2015, OWCP advised appellant that the evidence of record was insufficient to support her claim. It requested that she provide a medical report containing a diagnosis with a physician’s explanation as to how employment activities caused or aggravated the diagnosed medical condition.

In a March 30, 2015 OWCP questionnaire form, appellant indicated that she was exposed to unknown chemicals being sprayed on September 26, 2014, while she was trimming trees. She inhaled the chemicals which caused coughing, wheezing, and burning in her chest and eyes. Appellant reported not previously experiencing a similar reaction.

On April 21, 2015 OWCP denied appellant’s claim for a traumatic injury finding that she failed to submit medical evidence establishing that a diagnosed condition was causally related to the work event.

LEGAL PRECEDENT

An employee seeking compensation under FECA has the burden of establishing the essential elements of his or her claim by the weight of reliable, probative, and substantial evidence,4 including that he or she is an “employee” within the meaning of FECA and that he or she filed his or her claim within the applicable time limitation.5 The employee must also establish that he sustained an injury in the performance of duty as alleged and that his disability for work, if any, was causally related to the employment injury.6

To determine whether a federal employee has sustained a traumatic injury in the performance of duty, it first must be determined whether fact of injury has been established.

3
OWCP adjudicated this as a claim for a traumatic injury as appellant attributed her condition to an event that happened within a single workday. See 20 C.F.R. § 10.5(ee).
4
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).
5
R.C., 59 ECAB 427 (2008).
6
Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2
There are two components involved in establishing fact of injury. First, the employee must submit sufficient evidence to establish that she actually experienced the employment incident at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the form of medical evidence, to establish that the employment incident caused a personal injury.7

Causal relationship is a medical issue and the evidence generally required to establish causal relationship is rationalized medical opinion evidence. Rationalized medical opinion evidence is evidence which includes a physician’s opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated employment factors. The opinion of the physician must be based on a complete factual and medical background, must be one of reasonable medical certainty and must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by the claimant.8

ANALYSIS

OWCP accepted that appellant’s duties included cutting and trimming trees and that chemicals were sprayed on or near those trees on September 26, 2014. The Board, however, finds that appellant failed to submit medical evidence sufficient to establish a causal relationship between these federal work factors and a diagnosed medical condition.

The only medical evidence received by OWCP was the September 26, 2014 report, with an illegible provider’s signature. It may have been prepared by an attending physician but it is impossible to verify from the report itself. The Board has held that reports bearing illegible signatures cannot be considered probative medical evidence because they lack proper identification.9 Therefore, the report is insufficient to establish appellant’s claim. Appellant has not provided any medical evidence from a physician who explains how appellant’s workplace exposure on September 26, 2014 caused or contributed to a diagnosed medical condition.

On appeal, a safety officer from the employing establishment asserts that appellant was injured when she had workplace chemical exposure on September 26, 2015. He requests that OWCP pay appellant’s medical bills. As explained, it is not disputed that the workplace events occurred. The claim is denied because appellant has not submitted medical evidence supporting that the exposure caused a diagnosed medical condition.

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.

7
T.H., 59 ECAB 388 (2008).
8
I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9
Thomas L. Agee, 56 ECAB 465 (2005) (holding that a medical report may not be considered probative medical evidence unless it can be established that the person completing the report is a physician as defined in 5 U.S.C.
§ 8101(2)).

3
 CONCLUSION

The Board finds that appellant did not meet her burden of proof to establish an occupational disease while in the performance of duty.

ORDER

IT IS HEREBY ORDERED THAT the April 21, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: August 27, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4