T.B. and Department of State, Bureau of Administration, Washington, DC (Board decision, November 24, 2015)

ECAB final decision. The Board affirmed OWCP’s July 16, 2015 denial of T.B.’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 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

T.B., a State Department human resources specialist, claimed that typing and cold air from a workplace vent caused or worsened carpal tunnel syndrome and spinal disc conditions. OWCP accepted that she performed the typing and had made requests about the vent. Several physicians diagnosed conditions or recommended work adjustments, but the Board found that their reports did not explain how the specific work factors caused or aggravated the diagnosed conditions. It affirmed OWCP’s denial for lack of a reasoned medical opinion on causation.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: July 16, 2015 occupational disease denial affirmed.
• Key point: Workplace symptoms and accommodation recommendations did not establish the medical cause of a condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.B., Appellant
)
)
and ) Docket No. 15-1643
)
Issued: November 24, 2015
DEPARTMENT OF STATE, BUREAU OF
)
ADMINISTRATION, Washington, DC, 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
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

JURISDICTION

On July 28, 2015 appellant filed a timely appeal from a July 16, 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 this case.

ISSUE

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

FACTUAL HISTORY

On April 16, 2015 appellant, then a 42-year-old human resource specialist, filed an occupational disease claim (Form CA-2) alleging that factors of her federal employment caused or aggravated her bilateral carpal tunnel syndrome, arthritis, disc disease, and emotional stress.

1
5 U.S.C. § 8101 et seq.
She alleged that typing, sitting by a window, and a lack of response to her reasonable accommodation request contributed to her condition. Appellant noted that she first became aware of her condition on March 17, 2015 and its relation to her federal employment on March 19, 2015. She stopped work on April 14, 2015.

In a February 2, 2015 diagnostic report, Dr. Carl Waldman, a Board-certified neurologist, advised that a nerve conduction study of the upper extremity revealed bilateral carpal tunnel syndrome.

By report dated March 23, 2015, Dr. John Ergener, a Board-certified orthopedic surgeon, advised that appellant complained of neck and arm pain. He assessed cervical disc degeneration, cervical disc herniation, and cervical radiculopathy. Dr. Ergener noted that appellant recently had a flare up of pain and was having difficulty at work typing all day. Examination of the cervical spine revealed mild trapezius tenderness, mid-left medial scapular boarder tenderness, and mild paraspinal tenderness.

In a March 30 report, Dr. Paul Millea, Board-certified in family medicine, advised that appellant had been under his care since April 28, 2014 for left rotator cuff syndrome and cervical disc herniation with brachial radiculitis. He noted that her conditions were ameliorated by a recumbent position and that her medications caused dizziness, making driving unsafe. As a result, Dr. Millea recommended that appellant be allowed to telework twice a week.

On April 2, 2015 Dr. Kathryn Palmer, Board-certified in neuroradiology and diagnostic radiology, advised that an x-ray of the cervical spine revealed no acute bony findings and moderate spondylotic changes at C4-5, C5-6, and C6-7 with mild progression at C5-6 and C6-7 as compared to 2010. An April 3, 2015 x-ray of the lumbar spine revealed no acute bony findings, interval development of grade 1 anterolisthesis of L4 on L5, worsening of moderate facet joint arthrosis in the lower lumbar spine, and no definite change in the moderate degenerative disc changes at L5-S1.

Appellant submitted several work order requests from May 29, 2014 through April 26, 2015 regarding cold air from a window vent blowing on her back.

By letter dated April 22, 2015, OWCP advised appellant of the type of evidence needed to establish her claim.

In an April 22, 2015 report, Dr. Swati Shirali, Board-certified in orthopedic and hand surgery, advised that appellant was experiencing numbness with writing, typing, and driving. She assessed bilateral carpal tunnel syndrome. Dr. Shirali opined that appellant’s work appeared to be aggravating her symptoms and noted that she filed a workers’ compensation claim as she felt that her work was contributing to her condition.

On April 27, 2015 Dr. Gregory Ford, a Board-certified orthopedic surgeon, advised that appellant complained of neck, arm, hand, and back pain. He detailed her treatment history and diagnostic testing results. Dr. Ford assessed degenerative arthritis of the cervical and lumbar spine and bilateral carpal tunnel syndrome.

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 By report dated April 29, 2015, Dr. Steven Scherping, a Board-certified orthopedic surgeon, advised that appellant complained of neck and intermittent back pain. On examination he noted minimal restriction in flexion and extension and no discrete weakness of the upper extremity. Dr. Scherping noted that appellant has a disc protrusion and some disc degeneration to the lower cervical spine, but he opined that there was nothing worrisome about his findings. He noted that she discussed the issues in her workplace that she felt caused an aggravation of her symptoms. Dr. Scherping advised that a standing and sitting workstation, alteration to the vent in appellant’s office which blew cold air on her, and telework one day per week was reasonable based on the severity of her condition.

In a May 6, 2015 report, Dr. Sean Johnson, a Board-certified orthopedic surgeon, advised that appellant had pain and numbness in her hands that began in January 2014. He opined that there was reasonable medical certainty that her bilateral carpal tunnel syndrome was related to her job which involved a significant amount of repetitive typing since 2007.

In a May 12, 2015 statement, appellant advised that her job required repetitive movement of both wrists and hands for typing and moving her computer mouse nine hours each workday. She noted that her hobbies included water aerobics and walking. Appellant stated that her nonwork related computer usage was 15 minutes to an hour during the weekend. She advised that numbness and tingling in her hands began around the fall of 2014 and that she requested typing assistance, and ultimately she was trained to use an assistance typing software. Appellant detailed her treatment history and noted that she had no other hand or wrist injuries previously.

In a May 27, 2015 statement, appellant advised that her health care provider told her that it could not provide her with a medical report and that she would need to seek an assessment through an independent medical examiner. She also advised that she no longer wanted to pursue an emotional condition claim.

By decision dated July 16, 2015, OWCP denied appellant’s claim because the medical evidence was insufficient to establish that the diagnosed conditions were causally related to factors of her employment.

On appeal appellant argues that medical evidence submitted established that her conditions were causally related to factors of her employment.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden to establish 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 timely filed within the applicable time limitation, that an injury was sustained in the performance of duty as alleged, and that any disabilities and/or specific conditions for which compensation is claimed are causally related to

3 the employment injury.2 These are the essential elements of each and every compensation claim regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3

Whether an employee actually sustained an injury in the performance of duty begins with an analysis of whether fact of injury has been established. To establish an occupational disease claim, an employee must submit: (1) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; (2) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the employee.4

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 generally required to establish causal relationship. 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.5 The weight of medical evidence is determined by its reliability, its probative value, its convincing quality, the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion.6

ANALYSIS

It is not disputed that appellant’s job entailed typing and that she made several requests to close a window vent blowing cold air. However, the medical evidence is insufficient to establish that these factors caused or aggravated her bilateral carpal tunnel syndrome or disc disease.

In his May 6, 2015 report, Dr. Johnson advised that appellant had pain and numbness in the hands beginning in January 2014. He opined that there was reasonable medical certainty that her bilateral carpal tunnel syndrome was related to her job, which involved a significant amount of repetitive typing. Although Dr. Johnson provides an opinion on causal relationship he does not provide any medical rationale to support his opinion. The Board has long held that medical opinions not containing rationale on causal relation are of diminished probative value and are generally insufficient to meet appellant’s burden of proof.7 This report is also of limited probative value as Dr. Johnson did not explain how the particular work duties contributed to her condition.

2
Elaine Pendleton, 40 ECAB 1143 (1989).
3
Victor J. Woodhams, 41 ECAB 345 (1989).
4
R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).
5
I.J., 59 ECAB 408 (2008); supra note 3.
6
James Mack, 43 ECAB 321 (1991).
7
Carolyn F. Allen, 47 ECAB 240 (1995).

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 In her April 22, 2015 report, Dr. Shirali advised that appellant was experiencing numbness with writing, typing, and driving. She assessed bilateral carpal tunnel syndrome. Dr. Shirali opined that appellant’s work appeared to be aggravating her symptoms. This report is also of limited probative value as Dr. Shirali does not provide medical rationale to explain her opinion on causation.8

In his March 30 report, Dr. Millea advised that appellant had been under his care since April 28, 2014 for left rotator cuff syndrome and cervical disc herniation with brachial radiculitis. He noted that her conditions were ameliorated by a recumbent position and that her medications caused dizziness, making driving unsafe. As a result, Dr. Millea recommended that appellant be allowed to telework twice a week. Although he recommended certain work accommodations, he does not offer an opinion as to the cause of her diagnosed conditions. Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship.9

Dr. Ergener assessed cervical disc degeneration, cervical disc herniation, and cervical radiculopathy. He noted that appellant had a flare up of pain and was having difficulty at work typing all day. However, the Board has found that the mere fact that a condition manifests itself or is worsened during an employment period does not raise an inference of causal relationship between the two.10 Dr. Ergener does not specifically attribute appellant’s diagnosed condition to her work duties, nor does he explain how these particular work duties contributed to her diagnosed conditions. Thus, this report is of limited probative value.

Dr. Scherping advised that appellant had a disc protrusion and some disc degeneration to the lower cervical spine, but opined that there was nothing worrisome about his findings. He noted that she felt her workplace aggravated her symptoms and recommended certain accommodations, but he did not provide an opinion as to whether these workplace conditions actually caused or aggravated her condition. The Board has held that medical opinions that do not state an opinion on causal relationship are of little probative value.11

Multiple diagnostic reports were submitted. However, they are insufficient to discharge appellant’s burden of proof as they do not offer a physician’s opinion on causal relationship.12

On appeal appellant disagreed with OWCP’s decision and reiterated that medical evidence established causal relationship. However, the claim is deficient because she has not submitted medical evidence explaining how the established work factors caused or contributed to the diagnosed condition. As noted, causal relationship is a medical question that must be

8
Id.
9
S.E., Docket No. 08-2214 (issued May 6, 2009).
10
Patricia Bolleter, 40 ECAB 373 (1988).
11
See supra note 9.
12
See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).

5 established by probative medical opinion from a physician.13 The physician must accurately describe appellant’s work duties and medically explain the pathophysiological process by which these duties would have caused or aggravated her condition.14 Because appellant has not provided such medical opinion evidence in this case, she has failed to meet her burden of proof.

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 her burden of proof to establish an occupational disease caused by factors of her employment.

ORDER

IT IS HEREBY ORDERED THAT the July 16, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 24, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13
See supra note 5.
14
Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No. 11-237 (issued September 9, 2011).

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