O.M. and Defense Agencies, DLA-Distribution Region East Injury Compensation Center, Fort Belvoir, VA (Board decision, November 5, 2015)

ECAB final decision. The Board affirmed OWCP’s March 9, 2015 denial of O.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

O.M., a materials examiner and forklift operator, claimed that her work caused conditions in both hands and shoulders. OWCP asked her to describe the specific tasks, their frequency, and how long she performed them, but she did not respond. Her physician mentioned lifting a heavy gate and overhead work, without enough detail to establish whether the claim concerned a single incident or repeated exposure. The Board found that the workplace factors alleged to have caused the conditions were too vague to establish the claim. It affirmed OWCP’s denial without reaching medical causation.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.; 20 C.F.R. § 10.5(q), (ee).
• Outcome: March 9, 2015 occupational disease claim denial affirmed.
• Key point: The claimant had to identify specific work activities before medical causation could be evaluated.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
O.M., Appellant
)
)
and ) Docket No. 15-1723
) Issued: November 5, 2015
DEFENSE AGENCIES, DLA-DISTRIBUTION
)
REGION EAST INJURY COMPENSATION
)
CENTER, Fort Belvoir, VA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 17, 2015 appellant filed a timely appeal from a March 9, 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 that she developed bilateral hand and shoulder conditions causally related to factors of her federal employment.

FACTUAL HISTORY

On December 16, 2014 appellant, then a 60-year-old materials examiner and identifier (forklift operator), filed an occupational disease claim (Form CA-2) alleging that she developed

1
5 U.S.C. § 8101 et seq. tendinitis in both hands and bilateral rotator cuff shoulder pain as a result of her federal employment duties.2 She explained that her duties entailed manual labor and constant mobilization which caused her muscle tendons to be severely aggravated. Appellant first became aware of her condition and of its relationship to her employment on May 28, 2014. On the reverse side of the form, her supervisor, Rebecca Green, contended that she was first notified on December 10, 2014 and that appellant had not stopped work.

By letter dated January 26, 2015, OWCP informed appellant that the evidence of record was insufficient to support her claim. Appellant was advised of the medical and factual evidence necessary to establish her claim. She was provided 30 days to respond to the request. OWCP requested that appellant describe in detail the employment-related activities which she believed contributed to her condition, how often she performed the activities described, the length and period of the described activities, activities she engaged in outside of her federal employment, the reason for her delay in notifying her supervisor, and whether she sustained any other injuries since the time she realized her condition was employment related. Appellant did not respond to the request for further factual information.

OWCP subsequently received a January 26, 2015 report from Dr. John Grandrimo, an osteopathic physician. Dr. Grandrimo reported that appellant sought treatment for a new problem due to complaints of bilateral shoulder pain. Appellant informed him that she injured both shoulders at work when using a gate which was heavy to lift. Dr. Grandrimo stated that her job entailed a lot of overhead work. Activities which increased appellant’s symptoms involved lifting the heavy gate at work, pushing, pulling, carrying, and lifting anything in front of her that is heavy. Upon physical examination and review of diagnostic testing, Dr. Grandrimo diagnosed left rotator cuff tear secondary to workers’ compensation injury and right shoulder impingement with exacerbation secondary to workers’ compensation injury. He opined that, based upon examination and clinical description, appellant’s right and left shoulder conditions were related to work.

By decision dated March 9, 2015, OWCP denied appellant’s claim finding that the evidence of record failed to establish that the occupational exposure occurred as alleged. It noted that she failed to establish fact of injury because she did not respond to the questions provided in its January 26, 2015 development letter.

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

2
The Board notes that appellant has seven other traumatic and occupational disease claims from June 10, 2003 through August 29, 2014. The record before the Board contains no other information pertaining to these claims.

2 employment injury.3 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.4

In order 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.5 The second component is whether the employment incident caused a personal injury and generally can be established only by medical evidence.

To establish that an injury was sustained in the performance of duty in a claim for occupational disease, 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.6

ANALYSIS

The Board finds that appellant failed to establish that she developed bilateral hand and shoulder conditions in the performance of duty as a forklift operator.

Appellant alleged that she developed bilateral hand tendinitis and a bilateral rotator cuff injury as a result of her federal employment duties. By letter dated January 26, 2015, OWCP advised her that additional factual and medical evidence was required to establish her claim. It requested appellant describe in detail the employment-related activities which she believed contributed to her condition, how often she performed the activities described, the length and period of the described activities. Appellant did not respond to this request.

To establish a claim for compensation, the Board has held that an employee must submit a statement which identifies the factors of employment believed to have caused her condition and submit medical evidence to establish causal relation.7

Appellant has provided insufficient detail to establish that an occupational exposure occurred as alleged.8 On her Form CA-2, she explained that her injuries were caused by her employment duties which entailed manual labor and constant mobilization, resulting in severely

3
Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).
4
Michael E. Smith, 50 ECAB 313 (1999).
5
Elaine Pendleton, supra note 3.
6
See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).
7
See Donald W. Wenzel, 56 ECAB 390 (2005).
8
A.S., Docket No. 14-1983 (issued January 14, 2015).

3 aggravated muscle tendons. The Board notes that appellant’s description of the occupational exposure is vague and fails to provide any detail regarding the actual employment duties to which she is attributing her injury. The only explanation provided pertaining to her employment duties was the generalized and vague statement noted on her Form CA-2. By failing to describe her employment duties and circumstances surrounding her alleged injury, appellant has not established that the occupational exposure occurred as alleged.9

Subsequent to the Form CA-2, the only evidence received was Dr. Grandrimo’s January 26, 2015 medical report. The Board notes that in his report Dr. Grandrimo described some of appellant’s employment duties. However, Dr. Grandrimo’s report lacks sufficient explanation to determine which specific employment duties appellant is attributing her injury to, how often she performed these tasks, the frequency and duration of each task, whether she had prior injuries, and any nonwork-related activities. Furthermore, it is unclear whether Dr. Grandrimo was attributing appellant’s bilateral shoulder injury to an incident having occurred in a single workday, as a result of lifting a heavy gate, or a result of an occupational injury produced by her work environment over a period longer than a single workday or shift.10

The Board finds that the evidence of record is insufficient to establish a claim as appellant failed to describe the specific employment factors alleged to have caused or contributed to her alleged hand and shoulder conditions.

As appellant has not established the employment factors alleged to have caused her claimed conditions, it is not necessary to consider the medical evidence with respect to causal relationship.11

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. §§ 10.605 and 10.607.

CONCLUSION

The Board finds that appellant did not establish that she developed bilateral hand and shoulder conditions causally related to factors of her federal employment.

9
P.T., Docket No. 14-598 (issued August 5, 2014).
10
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 work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). 11 Supra note 8.

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 ORDER

IT IS HEREBY ORDERED THAT the March 9, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 5, 2015
Washington, DC

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

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