A.L. and U.S. Postal Service, Post Office, New York, NY (Board decision, March 21, 2016)

ECAB final decision. The Board affirmed OWCP’s denial of the occupational disease claim. 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

A.L., a postal city carrier, attributed bilateral knee pain to stair climbing and pushing carts at work. The Board accepted that he performed those duties and had diagnosed knee conditions. His physicians did not explain how the work caused or aggravated those conditions. Some additional medical reports lacked an identifiable physician’s signature. The Board affirmed the denial because the medical evidence did not establish a causal connection.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq..
• Outcome: OWCP’s July 24, 2015 occupational disease denial affirmed.
• Key point: A diagnosis and accepted work duties did not establish causation without a reasoned medical opinion.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.L., Appellant
)
)
and ) Docket No. 16-0278
) Issued: March 21, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
New York, NY, 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 December 1, 2015 appellant filed a timely appeal of a July 24, 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 merit decision in the case.

ISSUE

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

FACTUAL HISTORY

On March 20, 2015 appellant then a 26-year-old city carrier, filed an occupational disease claim (Form CA-2), alleging that he developed bilateral knee pain as a result of repeatedly climbing stairs while carrying packages and pushing heavy carts while in the performance of

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5 U.S.C. § 8101 et seq. duty. He first became aware of his condition on February 5, 2015 and realized that it was causally related to his employment on February 28, 2015. Appellant did not stop work.

Appellant submitted a narrative statement dated April 4, 2015 and explained that his bilateral knee pain began on February 5, 2015. He noted that his position required the use of a pushcart to deliver his mail route and repetitive climbing in and out of his mail truck with packages weighing up to 10 pounds. Appellant believed that his work duties caused his bilateral knee pain. He noted never having a prior knee injury.

Appellant submitted a treatment report from Dr. Muhammad Shahid, a Board-certified internist, dated February 23, 2015, who treated him in the emergency room. Dr. Shahid provided restrictions of limited lifting of heavy packages and pushing heavy carts for three days. He noted appellant’s current medications and referred him for physical therapy. Appellant submitted a note from Dr. Sewon Lee, a Board-certified physiatrist, dated March 10, 2015, who provided a summary of appellant’s current medications. Dr. Lee recommended physical therapy for four weeks. In an undated referral form he diagnosed right knee pain and referred appellant for physical therapy. Appellant submitted a report from Dr. Dustin Pardo, a Board-certified internist, dated February 13, 2015 who diagnosed right knee pain. Dr. Pardo recommended an oral analgesic and physical therapy. Appellant submitted an undated referral form from Dr. Pardo for physical therapy. He was treated by Dr. Daniel Tsukanov, a Board-certified internist, on April 7, 2015, for a knee condition. Dr. Tsukanov noted that appellant would require physical therapy.

By letter dated June 10, 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.

By questionnaire dated June 18, 2015, appellant noted performing work activities six days a week for 8 to 14 hours. He noted that he was not involved in any activities or sports. Appellant was treated by an unidentified health care provider on June 9, 2015 for a right knee condition. The health care provider diagnosed bilateral patellofemoral syndrome, possible right quadriceps tendinopathy, knee pain, asthma, and allergic rhinitis. Appellant was referred for physical therapy and injections into the knee joint. In an undated report, the unidentified health care provider noted evaluating appellant on March 10, April 7, and June 9 and 15, 2015 for bilateral knee pain. He noted that appellant was treated with physical therapy and injections in the knee joint. Appellant was instructed to avoid strenuous activity such as prolonged kneeling and continuous stair negotiation until his symptoms improve. The health care provider diagnosed patellofemoral pain syndrome, knee pain, asthma, and allergic rhinitis.

In a decision dated July 24, 2015, OWCP denied the claim because the medical evidence was insufficient to establish that a medical condition was diagnosed in connection with the claimed event or work factors.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of proof to establish the essential elements of his claim. When an employee claims that he or she sustained an injury in

2 the performance of duty, he or she must submit sufficient evidence to establish that he or she experienced a specific event, incident or exposure occurring at the time, place, and in the manner alleged. Appellant must also establish that such event, incident or exposure caused an injury.2

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) factual 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 claimant. The medical evidence required to establish causal relationship is generally 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.3

ANALYSIS

It is not disputed that appellant’s work duties as a city carrier included repetitively climbing stairs with packages and pushing carts. It is also not disputed that he was diagnosed with bilateral patellofemoral syndrome, possible right quadriceps tendinopathy, and right knee pain. However, appellant has not submitted sufficient medical evidence to establish that his diagnosed medical conditions were causally related to the employment factors. On June 10, 2015 OWCP advised him of the type of medical evidence needed to establish his claim. However, appellant has not submitted sufficient medical evidence to establish that any of these conditions are causally related to specific employment factors or conditions.

Appellant submitted a report from Dr. Shahid dated February 23, 2015, who recommended restrictions of limited lifting of heavy packages and pushing heavy carts for three days. Dr. Shahid referred appellant for physical therapy. On March 10, 2015 Dr. Lee provided a summary of appellant’s current medications and recommended physical therapy and diagnosed right knee pain. Similarly, a February 13, 2015 note from Dr. Pardo diagnosed right knee pain, recommended an oral analgesic, and referred appellant for physical therapy. Likewise, in an April 7, 2015 report, Dr. Tsukanov noted treating appellant for a knee condition which would require physical therapy. However, these reports are insufficient to establish the claim as they do

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See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB 243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). 3 Solomon Polen, 51 ECAB 341 (2000).

3 not provide a history of injury4 or specifically address whether appellant’s employment activities had caused or aggravated the diagnosed medical conditions.5

Appellant was treated by an unidentified health care provider on June 9, 2015, March 10, April 7, June 9, and 15, 2015 for bilateral knee pain. There is no evidence that these reports from unidentified health care providers are signed by a physician. Medical documents not signed by a physician and lacking proper identification are not probative medical evidence and are not sufficient to establish appellant’s claim. The Board has held that medical reports lacking proper identification do not constitute probative medical evidence.6

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 condition was causally related to his employment.

4
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). 5 A.D., 58 ECAB 149 Docket No. 06-1183 (issued November 14, 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). 6 See R.M., 59 ECAB 690 (2008); Bradford L. Sullivan, 33 ECAB 1568 (1982) (where the Board held that a medical report may not be considered as probative medical evidence if there is no indication that the person completing the report qualifies as a “physician” as defined in FECA).

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ORDER

IT IS HEREBY ORDERED THAT the July 24, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 21, 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

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