B.B. and Department of the Air Force, Nellis Air Force Base, NV (Board decision, March 1, 2016)

ECAB final decision. The Board affirmed OWCP’s October 14, 2015 refusal to modify the traumatic injury claim denial. 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).

Plain-English summary

B.B., an Air Force aircraft overhaul leader, became lightheaded and vomited while doing maintenance work. OWCP accepted that he was working and that he had been diagnosed with vomiting, fainting, and dehydration, but found no medical link to his duties. The Board noted that the emergency physician recorded B.B.’s report of eating spoiled food the night before and did not explain how work caused or aggravated the conditions. Nursing and emergency technician records did not supply a physician’s causation opinion. The Board affirmed the claim denial.

Decision snapshot

• Authority: FECA physician evidence requirement under 5 U.S.C. § 8101(2).
• Outcome: October 14, 2015 decision denying modification of the injury claim denial affirmed.
• Key point: Illness appearing during a work shift did not establish that work caused it.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.B., Appellant
)
)
and ) Docket No. 16-0139
) Issued: March 1, 2016
DEPARTMENT OF THE AIR FORCE,
)
NELLIS AIR FORCE BASE, NV, 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 COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 2, 2015 appellant filed a timely appeal of an October 14, 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish a traumatic injury in the performance of duty.

FACTUAL HISTORY

On April 22, 2015 appellant then a 36-year-old aircraft overhaul leader, filed a traumatic injury claim (Form CA-1) alleging that on April 21, 2015, while performing aircraft maintenance, he began to feel lightheaded and vomited several times. He did not stop work.

1
5 U.S.C. § 8101 et seq.
 By letter dated April 28, 2015, OWCP advised appellant of the type of evidence needed to establish his claim, particularly requesting that he submit a physician’s reasoned opinion addressing the relationship of his claimed condition and specific employment factors.

On April 21, 2015 appellant was treated by Dr. David L. Watson, Board-certified in emergency medicine, who diagnosed dehydration. Dr. Watson provided discharge instructions for an upper respiratory infection, diarrhea, allergy, and sinus. He recommended that appellant stay hydrated and drink frequent sips of clear liquid and follow up with his primary care physician. Also submitted was a position description and core personnel document for an aircraft overhaul leader.2

In a decision dated June 5, 2015, OWCP denied appellant’s claim for a traumatic injury finding that he had failed to establish an injury or medical condition causally related to the accepted work events.

In an appeal request form dated June 17, 2015, appellant requested reconsideration. In an undated statement he referenced attached documentation in support of his claim which he believed would clear up any causal relationship issues. Appellant submitted an Air Force patient care report dated April 21, 2015, prepared by an emergency medical technician, who treated appellant for abdominal and gastrointestinal issues, nausea/vomiting and syncope/fainting. He reported working on a jet when he started feeling dizzy and lightheaded and sat down and vomited. The technician noted that appellant began to vomit in the ambulance as he was transported to the hospital.

Appellant submitted emergency department provider order sheets dated April 21, 2015 from Dr. Watson who prescribed internal venous fluids and blood work. In an emergency physician record dated April 21, 2015, Dr. Watson noted that appellant reported vomiting from consuming spoiled food the previous night. Appellant noted experiencing cramping, abdominal pain, nausea/vomiting with syncope. Dr. Watson diagnosed volume depletion, vomiting and dehydration and discharged appellant. In an emergency care and treatment record dated April 21, 2015, he noted appellant’s complaints of nausea and vomiting. Dr. Watson diagnosed nausea/vomiting, syncope and dehydration. In emergency department nursing and data report, a nurse noted treating appellant for nausea, vomiting, and possible syncope. She noted that appellant was discharged home.

In a decision dated October 14, 2015, OWCP denied modification of the decision dated June 5, 2015.

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

2
The record contains an authorization for examination or treatment (Form CA-16) dated April 21, 2015. The employing establishment advised that appellant reported experiencing severe light headiness and nausea while working and vomited several times. The attending physician’s section of the CA-16 form was not completed.

2 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. 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

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. There are two components involved in establishing fact of injury. First, the employee must submit sufficient evidence to establish that he actually experienced the employment incident at the time, place, and in the manner alleged. Second, the employee must submit medical evidence to establish that the employment incident caused a personal injury.4

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

ANALYSIS

It is not disputed that on April 21, 2015 appellant was performing aircraft maintenance duties. It is also not disputed that he was diagnosed with nausea/vomiting, syncope and dehydration. However, appellant has not submitted sufficient medical evidence to establish that his diagnosed conditions were caused or aggravated by the April 21, 2015 incident.

The medical reports from Dr. Watson noted that appellant reported vomiting from consuming spoiled food the previous night. Appellant noted experiencing cramping, abdominal pain, nausea/vomiting with syncope. Dr. Watson diagnosed volume depletion, vomiting and dehydration, and discharged appellant from his care. These reports are insufficient to establish the claim as Dr. Watson did not provide a history of the April 21, 2015 work incident or reflect knowledge of appellant’s work duties that day,6 or specifically address how his employment activities had caused or aggravated a diagnosed medical condition.7 Rather, Dr. Watson noted that appellant reported the diagnosed nausea and vomiting were caused by eating spoiled food the previous night.

Appellant submitted emergency department nursing notes dated April 21, 2015.
However, the Board has held that treatment notes signed by a nurse are not considered medical

3
Gary J. Watling, 52 ECAB 357 (2001).
4
T.H., 59 ECAB 388 (2008).
5
I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
6
Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are speculative or equivocal in character have little probative value). 7 A.D., 58 ECAB 149 (2006) (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).

3 evidence under FECA.8 Similarly, appellant submitted a report dated April 21, 2015, prepared by an emergency medical technician who treated appellant for abdominal and gastrointestinal issues, nausea/vomiting and syncope/fainting. As there is no evidence that the document was prepared by a physician, it also is not considered medical evidence.9

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor the belief that her condition was caused, precipitated, or aggravated by her employment is sufficient to establish causal relationship. Causal relationships must be established by rationalized medical opinion evidence.10 Appellant failed to submit such evidence, and OWCP therefore properly denied appellant’s claim for compensation.

On appeal appellant asserts that OWCP had improperly denied his claim and believed he submitted sufficient evidence to establish that his diagnosed nausea, vomiting and dehydration were causally related to his employment. He has not submitted a physician’s report, based on an accurate history, which describes how work activities on April 21, 2015 caused or aggravated his diagnosed conditions of nausea, vomiting and dehydration.

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 his burden of proof to establish that his claimed conditions were causally related to his employment.

8
See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical therapists are not competent to render amedical opinion under the FECA); 5 U.S.C. § 8101(2) (this subsection defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law). 9 Id.
10
See Dennis M. Mascarenas, 49 ECAB 215 (1997).

4
 ORDER

IT IS HEREBY ORDERED THAT the October 14, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 1, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5