F.G. and Department of Homeland Security, Customs & Border Protection, Del Rio, TX (Board decision, November 20, 2015)

ECAB final decision. The Board affirmed OWCP’s July 10, 2015 denial of F.G.’s knee injury claim as modified: the medical evidence established a diagnosed knee strain, but did not establish that training caused it. 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

F.G., a border patrol agent, claimed that physical training caused a left knee injury. OWCP denied the claim in part because it found no firm medical diagnosis. The Board disagreed on that point: his physician had diagnosed a left knee strain. It nevertheless upheld the denial because the physician did not explain which activities on the claimed injury date caused or aggravated the strain, or whether he instead meant to attribute it to training over several days. The Board affirmed OWCP’s decision as modified.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.; 20 C.F.R. § 10.5(ee).
• Outcome: July 10, 2015 injury claim denial affirmed as modified to recognize a diagnosed knee strain.
• Key point: A supported diagnosis did not resolve whether the claimed single-day training incident caused the injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
F.G., Appellant
)
)
and ) Docket No. 15-1712
) Issued: November 20, 2015
DEPARTMENT OF HOMELAND SECURITY,
)
CUSTOMS & BORDER PROTECTION,
)
Del Rio, TX, 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 August 17, 2015 appellant filed a timely appeal from a July 10, 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 his burden of proof to establish a left knee injury in the performance of duty on April 5, 2014.

FACTUAL HISTORY

On April 6, 2014 appellant, then a 37-year-old border patrol agent, filed a traumatic injury claim (Form CA-1) alleging that on April 5, 2014 he sustained a left knee injury as a result

1
5 U.S.C. § 8101 et seq. of constant physical exertion from his training. He notified his supervisor on April 6, 2014. Appellant did not stop work.

In support of his claim, appellant submitted progress and Duty Status Reports (Form CA-
17) dated April 8 through 15, 2014 from Dr. Rahul D. Puri, Board-certified in family medicine. Dr. Puri reported that appellant sustained left knee pain on April 5, 2014 which started at work during his training. He recommended an x-ray of the left knee.

    By letter dated May 7, 2014, OWCP notified appellant that his claim was initially

administratively handled to allow medical payments as his claim appeared to involve a minor injury resulting in minimal or no lost time from work. However, the merits of appellant’s claim had not been formally considered and his claim had been reopened for consideration of the merits because the medical bills had exceeded $1,500.00. OWCP informed him that the evidence of record was insufficient to support his claim. Appellant was advised of the medical and factual evidence needed and was instructed to respond within 30 days.

   In an April 9, 2014 diagnostic report, Dr. George Rodenko, a Board-certified diagnostic

radiologist, reported that a left knee x-ray revealed normal findings.

     In an April 28, 2014 initial physical therapy evaluation, Doreen Ruiz, a physical

therapist, reported that appellant complained of left lateral knee pain when he was participating in tactile training for his job which involved a four-week preparatory course of intense physical activity followed by an additional five weeks at the Academy. Appellant stated that he injured his knee on April 5, 2014 and was involved in vigorous activity all day with no rest. Ms. Ruiz provided findings on physical examination and diagnosed pain in joint, stiffness of joint, weakness, and gait abnormality.

     In progress notes (Forms CA-17) dated May 13 through June 10, 2014, Dr. Puri provided

findings on physical examination, diagnosed left knee strain, and opined that appellant injured his left knee during his physical training at the BORSTAR Academy Course.

    By decision dated April 11, 2014, OWCP denied appellant’s claim finding that the

medical evidence of record failed to provide a firm medical diagnosis which could be reasonably attributed to the April 5, 2014 employment incident.

   On October 2, 2014 appellant requested reconsideration of OWCP’s decision.

    In a June 3, 2014 discharge report, Dr. Puri released appellant to full duty. By letter

dated June 11, 2014, he reported that he had treated appellant for a left knee injury and was releasing him to full duty.

    By letter dated September 25, 2014, Dr. Puri noted that he was treating appellant for a

left knee injury which occurred on April 5, 2014. He diagnosed left knee strain while attending BORSTAR Academy Course, which was a highly intense physical course provided through appellant’s employing establishment. Due to the constant physical exertion, appellant injured his left knee. Dr. Puri’s previously submitted progress notes were also provided.

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By decision dated July 10, 2015, OWCP affirmed the April 11, 2014 decision finding that the evidence of record failed to establish a firm medical diagnosis which could be reasonably attributed to the April 5, 2014 employment incident.

                                       LEGAL PRECEDENT

    An employee seeking benefits under FECA 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 or specific condition for which compensation is claimed are causally related to the employment injury.2 These are the essential elements of each and every compensation claim regardless of whether the claim is predicated on a traumatic injury or occupational disease.3

    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.4 The second component is whether the employment incident caused a personal injury and generally can be established only by medical evidence.

    To establish a causal relationship between the condition, as well as any attendant

disability claimed and the employment event or incident, the employee must submit rationalized medical opinion evidence based on a complete factual and medical background, supporting such a causal relationship.5 The opinion of the physician must be based on 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. This medical opinion must include an accurate history of the employee’s employment injury and must explain how the condition is related to the injury. 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

2
Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).
3
Michael E. Smith, 50 ECAB 313 (1999).
4
Elaine Pendleton, supra note 2.
5
See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).
6
James Mack, 43 ECAB 321 (1991).

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ANALYSIS

   The Board finds that appellant failed to establish that he sustained a left knee injury in the

performance of duty on April 5, 2014.7

    In a June 10, 2014 progress note, Dr. Puri provided findings on physical examination,

diagnosed left knee strain, and opined that appellant injured his left knee during his physical training at the BORSTAR Academy Course. By letter dated September 25, 2014, he noted that he was treating appellant for a left knee injury which occurred on April 5, 2014. Dr. Puri diagnosed left knee strain while attending BORSTAR Academy Course.

    In its July 10, 2015 decision, OWCP found insufficient evidence to establish a firm

medical diagnosis of appellant’s condition. The Board finds, however, that the medical evidence of record establishes a sufficient diagnosis of left knee strain. While Dr. Puri’s prior progress notes only noted left knee pain, his subsequent reports provided findings on physical examination, review of diagnostic testing, and a firm medical diagnosis of left knee strain. Given that appellant has established a diagnosed condition, the question becomes whether the April 5, 2014 incident caused a left knee injury. Thus, he must submit rationalized medical evidence to establish that his diagnosed medical condition is causally related to the April 5, 2014 employment incident.

    While Dr. Puri’s reports established a diagnosis of left knee strain, he failed to provide a

rationalized opinion regarding the cause of appellant’s injury. His June 10, 2014 progress note vaguely noted that appellant injured his left knee during his BORSTAR Academy Course training. Dr. Puri did not provide details regarding appellant’s medical history or comment on any potential preexisting knee conditions. His September 25, 2014 letter failed to provide further clarification as he only generally stated left knee strain occurred while attending BORSTAR Academy Course, a highly intense physical course provided through appellant’s employing establishment. Dr. Puri merely recounted the incident as described by appellant and failed to detail the physical exertion and activities which would cause him injury on April 5, 2014. Moreover, while he noted the date of injury as April 5, 2014, it is unclear if he is attributing the cause of appellant’s knee strain to cumulative physical exertion during the BORSTAR Academy Course training over a period longer than a single workday or shift, or rather, to an injury from a single occurrence within a single workday as alleged by appellant in this claim.8 Dr. Puri’s statement on causation fails to provide a sufficient explanation as to the mechanism of injury pertaining to this traumatic injury claim, namely, what physical activities appellant was performing on April 5, 2014 and how these activities would cause or aggravate a left knee injury.9 Medical reports without adequate rationale on causal relationship are of diminished

7
See Robert Broome, 55 ECAB 339 (2004).
8
A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition produced by the employing establishment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). See also S.R., Docket No. 12-1098 (issued September 19, 2012). 9
S.W., Docket 08-2538 (issued May 21, 2009).

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probative value and do not meet an employee’s burden of proof.10 The opinion of a physician supporting causal relationship must rest on a complete factual and medical background supported by affirmative evidence, address the specific factual and medical evidence of record, and provide medical rationale explaining the relationship between the diagnosed condition and the established incident or factor of employment.11

    The Board has held that the mere fact that a condition manifests itself during a period of

employment does not raise an inference of causal relation.12 An award of compensation may not be based on surmise, conjecture, speculation, or on the employee’s own belief of causal relation.13

    In his April 9, 2014 report, Dr. Rodenko related normal x-ray findings of the left knee,

and causal relationship was not addressed. An April 28, 2014 physical therapy report was also received, however, the Board has long held that lay individuals such as physical therapists are not considered physicians under FECA and are not competent to render a medical opinion.14 Appellant has therefore not established that he sustained a left knee injury at work on April 5, 2014.

   Appellant may submit additional evidence, together with a written request for

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

                                            CONCLUSION

    The Board finds that appellant did not meet his burden of proof to establish a left knee

injury in the performance of duty on April 5, 2014.

10
Ceferino L. Gonzales, 32 ECAB 1591 (1981).
11
See Lee R. Haywood, 48 ECAB 145 (1996).
12
Daniel O. Vasquez, 57 ECAB 559 (2006).
13
D.D., 57 ECAB 734 (2006).
14
See Robert J. Krystyen, 44 ECAB 227 (1982).

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ORDER

  IT IS HEREBY ORDERED THAT the July 10, 2015 decision of the Office of

Workers’ Compensation Programs is affirmed, as modified.

Issued: November 20, 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

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