D.H. and U.S. Postal Service, Post Office, Memphis, TN (Board decision, January 29, 2016)

ECAB final decision. The Board affirmed OWCP’s denial of D.H.’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

D.H., a postal supervisor, claimed that years of walking and standing on concrete floors aggravated arthritis in both knees. The Board accepted that his job involved those activities but found no adequate medical opinion linking them to the knee condition. One physician recorded D.H.’s belief about his work but attributed his primary condition to an earlier military injury. Other reports diagnosed arthritis or described his work status without addressing whether his postal duties caused or worsened it. The Board affirmed OWCP’s denial of the claim.

Decision snapshot

• Authority: FECA occupational disease and causation requirements; 5 U.S.C. § 8128(a) for a new OWCP reconsideration request.
• Outcome: August 11, 2015 denial of the occupational disease claim affirmed.
• Key point: A worker’s account of worsening symptoms did not substitute for a medical opinion explaining how the identified duties caused or aggravated the condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

_______
)
D.H., Appellant
)
)
and ) Docket No. 15-1876
) Issued: January 29, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
Memphis, TN, 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
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 14, 2015 appellant filed a timely appeal from an August 11, 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 an injury causally related to factors of his federal employment.

FACTUAL HISTORY

On May 18, 2015 appellant, then a 52-year-old supervisor, filed an occupational disease claim (Form CA-2) alleging that he sustained arthritis of both knees in the performance of duty.

1
5 U.S.C. § 8101 et seq.
He indicated that he first became aware of the injury and its relation to his work on March 9, 2015. Appellant did not stop work.

In a May 19, 2015 statement accompanying his claim, appellant indicated that he was a supervisor who had been working on concrete floors for 17 years. He advised that he was filing a claim for aggravation of arthritis of both knees. Appellant noted that he had a prior claim, number xxxxxx409, for a left knee injury.2 He stated that arthritis set in after he had surgery. Appellant related that he had to walk 10 hours a day, six days a week in the plant and that over time the walking and standing on the concrete had taken a toll on his knees causing him to develop arthritis of both knees.

By letters dated May 21, 2015, OWCP informed appellant and the employing establishment of the type of evidence needed to support his claim and requested that he submit such evidence within 30 days. It particularly requested that he have his physician provide an opinion, supported by a medical explanation, as to how work activities caused or aggravated his claimed condition.

In a January 30, 2015 report, Dr. Kevin B. Cleveland, an orthopedic surgeon, noted that appellant was seen for follow up of the left knee and he had stated in the last few days he had significant pain. He provided results on examination and reported crepitus with range of motion of the knee and full extension and flexion with small trace effusion. Dr. Cleveland diagnosed left knee osteoarthritis. He completed a return to work note advising full duty on February 2, 2015.

In a May 14, 2015 x-ray of the right knee, Dr. Justin Robert Newman, a Board-certified diagnostic radiologist, diagnosed increased degenerative changes in all three knee compartments compared to previous examination from 1999 with no acute finding.

On May 20, 2015 Dr. Cleveland advised that appellant could return to work, full duty with no restrictions.

In a June 1, 2015 report, Dr. Michael A. Alday, Board-certified in preventive medicine, noted that appellant worked as a manager at the employing establishment and had sustained an aggravation of a preexisting condition as a result of walking and standing on hard floors for the past 17 years and working 10 hours per day, six days a week. He related that appellant did not remember any particular acute event that occurred on March 9, 2015. Dr. Alday indicated that appellant had an original injury in 2012 when he sustained a left knee injury from a work-related occurrence and eventually had a left knee arthroscopy to repair both medial and lateral meniscal tears in August 2012. He advised that appellant had a good result and, after 17 physical therapy visits, returned to full duties.

Dr. Alday indicated that appellant had reported working as a manager since 2005. He noted appellant’s job duties entailed walking, standing, and going up and down flights of stairs (at least three flights of stairs, four or five times per hour) along with occasional lifting of boxes and sorting mail, but primarily his role was of manager of the center. Dr. Alday reported that

2
Claim number xxxxxx409 is not before the Board in the present appeal.

2 appellant had increasing pain since 2012 and received a series of Cortisone injections with the last one on January 30, 2015. He also noted that appellant had a medial collateral ligament repair from a significant trauma while in the Army in 1984. While this was surgically repaired, appellant has had increasing difficulty with arthritis due to that injury. He was receiving a 40 percent disability from the Department of Veterans Affairs (VA) to the left knee for that injury.

Dr. Alday diagnosed osteoarthritis of the left leg and post tear of the meniscus of the left knee. He noted that appellant complained of significant aggravation of his preexisting medical conditions due to walking and standing on hard floors for the past 17 years and working 10-hour days, six days a week. Dr. Alday related that the 2012 injury had been successfully treated. He opined that it was his professional opinion that appellant’s primary condition remained the osteoarthritis that was a result of his significant trauma while in the Army. Dr. Alday recommended that appellant follow up with the VA regarding his continued service-connected arthritic condition, which appeared to be worsening with time. He noted that appellant’s impairment rating remained unchanged. Dr. Alday recommended returning to full duty with no restrictions.

OWCP also received a position description, April 10, 2015 notes from a physician assistant, and a statement from Charlie Payne, a manager of distribution operations. Mr. Payne indicated that appellant’s statements were correct to the best of his knowledge and the employing establishment concurred with the allegations. He explained that appellant’s duties included walking the aisle to ensure that the mail was being processed and dispatched as well as climbing on the sorter to monitor his employees. Additionally, Mr. Payne advised that appellant had to walk, stand, bend, and climb stairs seven hours a day.

By decision dated August 11, 2015, OWCP denied appellant’s claim. It found that the medical evidence failed to establish his current medical condition was causally related to his employment.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of proof 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 FECA, that the claim was timely filed within the applicable time limitation period of FECA, that an injury was sustained in the performance of duty as alleged, and that any disability and/or specific condition for which compensation is claimed are causally related to the employment injury.3 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.4

To establish that an injury was sustained in the performance of duty in an occupational disease claim, a claimant must submit the following: (1) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; (2) a factual

3
Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
4
Victor J. Woodhams, 41 ECAB 345 (1989).

3 statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; and (3) medical evidence establishing that the employment factors identified by the claimant were the proximate cause of the condition for which compensation is claimed or, stated differently, medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the claimant.

The medical evidence required to establish causal relationship, generally, is rationalized medical opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s rationalized 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 of the claimant, 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

ANALYSIS

Appellant alleged that he developed arthritis of both knees as part of his duties and activities as a supervisor. The evidence supports that he worked on concrete floors and climbed stairs as part his supervisory duties. However, the Board finds that appellant submitted insufficient medical evidence to establish that his worsening medical condition was caused or aggravated by these employment activities or any other specific factors of his federal employment.

Dr. Alday reported that appellant had sustained an aggravation of his preexisting left knee condition as a result of walking and standing on hard floors for the past 17 years. He described appellant’s job duties and explained that appellant had increasing pain since 2012 and had received a series of Cortisone injections. Dr. Alday also noted that appellant had 40 percent disability from the VA to the left knee. He diagnosed osteoarthritis of the left leg and status post tear of the meniscus of the left knee. Dr. Alday related appellant’s assertions that appellant believed that his work duties aggravated his preexisting medical condition. However, he opined that the primary condition remained the osteoarthritis that was a result of appellant’s significant trauma while in the Army and he recommended that appellant follow up with the VA regarding his continued service-connected arthritic condition. This opinion is insufficient to establish appellant’s claim as Dr. Alday attributes appellant’s condition to his military service injury and does not attribute the condition to his work duties for the employing establishment. Dr. Alday acknowledged appellant’s contentions that his work duties aggravated his condition, but Dr. Alday did not confirm those contentions. Medical evidence that does not offer an opinion in support of the alleged cause of an employee’s condition is of limited probative value on the issue of causal relationship.6 A medical opinion in support of causation is especially needed in this case as the record reflects that appellant sustained a previous left knee condition and has a VA disability and continuing VA treatment. For these reasons, the medical opinion of Dr. Alday is

5
Id.
6
See B.T., Docket No. 13-138 (issued March 20, 2013).

4 insufficient to establish a causal relationship between appellant’s work duties and his current knee condition.

OWCP also received a January 30, 2015 report from Dr. Cleveland, who diagnosed left knee osteoarthritis. Dr. Cleveland completed return to work notes advising a full-duty work status on February 2, 2015. He also completed a May 20, 2015 return to work note advising a return to full duty with no restrictions. However, these reports are of limited probative value on the relevant issue as they fail to contain a medical diagnosis attributed to the restrictions and they do not contain an opinion on causal relationship.7 OWCP also received a May 14, 2015 x-ray report for the right knee. However, this evidence is also of limited probative value as it does not address whether the work activities caused or aggravated a diagnosed condition. For these reasons, these medical reports are insufficient to establish a causal relationship between appellant’s duties and his current knee condition.

The Board has held that the mere fact that a condition manifests itself during a period of employment does not raise an inference that there is a causal relationship between the two.8 Neither the fact that the condition became apparent during a period of employment nor the belief that the condition was caused or aggravated by employment factors or incidents is sufficient to establish causal relationship.9

There is insufficient medical evidence explaining how appellant’s employment duties caused or aggravated a medical condition involving his knees and therefore the Board finds that he has not met his burden of proof to establish that he sustained a medical condition causally related to factors of his employment.

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 has not met his burden of proof to establish an injury causally related to factors of his federal employment.

7
See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship). 8 See Joe T. Williams, 44 ECAB 518, 521 (1993).
9
Id.

5
 ORDER

IT IS HEREBY ORDERED THAT the August 11, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: January 29, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

6