K.W. and Department of Defense, Defense Logistics Agency, New Cumberland, PA (Board decision, November 2, 2016)

ECAB final decision. The Board affirmed OWCP’s March 17, 2016 traumatic injury decision. 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

A Defense Logistics Agency employee claimed left shoulder and neck injuries from a June 2015 work incident. The Board accepted that the incident occurred but found the medical evidence insufficient to connect the claimed injuries to it. It affirmed OWCP’s denial.

Decision snapshot

• Authority: FECA traumatic injury and medical causation.
• Outcome: March 17, 2016 denial affirmed.
• Key point: The accepted work incident lacked sufficient medical proof of the claimed injuries.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.W., Appellant
)
) Docket No. 16-1176
and ) Issued: November 2, 2016
)
DEPARTMENT OF DEFENSE, DEFENSE
)
LOGISTICS AGENCY, New Cumberland, PA,
)
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 VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 11, 2016 appellant filed a timely appeal from a March 17, 2016 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.2

ISSUE

The issue is whether appellant met her burden of proof to establish left shoulder and neck injuries causally related to the June 4, 2015 employment incident.

1
5 U.S.C. § 8101 et seq.
2
Appellant submitted new evidence on appeal. The Board’s jurisdiction however is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore, the Board lacks jurisdiction to review this new evidence on appeal. See 20 C.F.R. § 501.2(c)(1). On appeal, appellant contends that the medical evidence of record is sufficient to establish that she sustained an injury causally related to the June 2015 employment incident.

FACTUAL HISTORY

On June 8, 2015 appellant, then a 54-year-old materials examiner and identifier, filed a traumatic injury claim (Form CA-1) alleging that on June 4, 2015 she pulled a muscle in her left shoulder while moving boxes from one pallet to another.

In a work restriction evaluation form dated June 4, 2015, Dr. Christina Balum Maier, an employing establishment physician Board-certified in family medicine, placed appellant off work on that date. She advised that appellant could perform light-duty work eight hours a day with restrictions from June 5 to 9, 2015. Dr. Maier concluded that she could return to full-duty work on June 10, 2015. In a June 10, 2015 work restriction evaluation, she reported that appellant could perform light-duty work with restrictions through June 24, 2015. By prescription of the same date, Dr. Maier ordered physical therapy to treat her work-related left shoulder and neck pain and muscle spasm.

Reports and therapy notes from appellant’s physical therapists addressed the treatment of appellant’s cervical condition from June 29 to July 31, 2015. A June 29, 2015 report from a physical therapist provided findings on examination and diagnosed appellant with work-related neck and left shoulder pain.

By letter dated August 19, 2015, OWCP notified appellant of the deficiencies of her claim and afforded her 30 days to submit additional medical and factual evidence. It also requested that the employing establishment submit medical evidence if appellant had been treated at its medical facility.

Reports and therapy notes from appellant’s physical therapists addressed appellant’s treatment and work restrictions from July 2 to September 2, 2015 and excused her from work on intermittent dates from August 10 to September 21, 2015 for her medical appointments.

In a July 28, 2015 prescription, Dr. Maier noted work-related left neck and shoulder pain and sprain.

On August 28, 2015 Dr. Balint Balog, an attending Board-certified orthopedic surgeon, reported that appellant could return to work on that date with restrictions related to her cervical spine. In an excuse slip of the same date, he excused her from work for her appointment on that date.

In a September 3, 2015 prescription, Dr. Kimberlee P. Young, a Board-certified family practitioner, recommended that appellant participate in a physical fitness program. She placed her on light duty due to her neck condition.

By decision dated September 21, 2015, OWCP accepted that the September 4, 2015 incident occurred as alleged. However, it denied appellant’s traumatic injury claim as it did not receive medical evidence from a physician that established neck and left shoulder conditions causally related to the accepted employment incident.

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 Appellant provided an August 28, 2015 report from Dr. Balog who noted that appellant’s neck, right shoulder, and right arm pain were first reported on June 4, 2015. Dr. Balog provided findings on physical examination and diagnostic x-ray findings of the cervical spine and left shoulder. He diagnosed left upper extremity pain, most likely secondary to a cervical spine sprain and cervical radiculitis. Dr. Balog concluded that appellant’s left shoulder pain was secondary to her cervical spine spondylosis. In a September 25, 2015 report, he noted that appellant sustained a cervical injury on June 4, 2015. Dr. Balog advised that she could return to work with restrictions on the date of his report. In a September 25, 2015 summary of visit, he noted appellant’s problems which included shoulder joint and limb pain and cervical spondylosis without myelopathy. In an excuse slip of the same date, Dr. Balog excused appellant from work on that date.

On October 7, 2015 appellant requested a review of the written record by an OWCP hearing representative regarding the September 21, 2015 decision. By letter dated September 28, 2015, she contended that she sustained work-related left shoulder and neck injuries on June 4, 2015.

In a June 4, 2015 report, Dr. Maier provided a history that appellant had pain from desk ergonomics at work. She provided findings on examination and reiterated her diagnosis of muscle spasms and opinion that appellant could return to limited-duty work with restrictions from June 5 to 9, 2015. In a June 20, 2014 sick slip, Dr. Maier recommended that appellant undergo an ergonomic evaluation.

In a June 10, 2015 report, Dr. Maier provided a history that appellant experienced ergonomic overexertion that resulted in left neck and shoulder spasm and pain without direct injury. She provided examination findings and diagnosed muscle spasms in the neck and muscle spasms. Dr. Maier concluded that appellant had occupational ergonomic overexertion secondary to worksite ergonomics/overexertion.

On July 28, 2015 Dr. Richard E. Taggart, Board-certified in family and emergency medicine, noted seeing appellant in follow-up of left neck and shoulder pain “from ergonomics at her position.” He noted that physical therapy had not improved her condition. Appellant reported neck pain radiating to her shoulders and advised that the pain made it difficult to perform her job duties. Dr. Taggart noted findings and diagnosed shoulder sprain and neck muscle spasms. He recommended continued work restrictions and physical therapy. The report noted that appellant was seen for a “workman’s comp claim.”

In a summary of visit dated July 31, 2015, Dr. Balog indicated that appellant’s next medical appointment was scheduled for August 28, 2015. In a September 25, 2015 report, he examined appellant and diagnosed cervical radiculitis, left more than right that was greater than three months in duration and positionally related. On November 6, 2015 Dr. Balog again noted that appellant sustained a cervical injury on June 4, 2015. He advised that she could return to work with restrictions. In a December 1, 2015 excuse slip, Dr. Balog released appellant to return to work with no restrictions on December 3, 2015.

In a progress note dated September 30, 2015, Dr. Young listed appellant’s medications.
Also submitted were additional records from the physician assistant and physical therapists.

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 By decision dated March 17, 2016, an OWCP hearing representative affirmed the September 21, 2015 decision. She found that the medical evidence was insufficient to establish that appellant’s diagnosed medical conditions were causally related to the accepted June 4, 2015 employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of proof to establish the essential elements of his or her claim by the weight of the reliable, probative, and substantial evidence3 including that he or she sustained an injury in the performance of duty and that any specific condition or disability for work for which he or she claims compensation is causally related to that employment injury.4

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.5 There are two components involved in establishing the fact of injury. First, the employee must submit sufficient evidence to establish that she actually experienced the employment incident at the time, place, and in the manner alleged.6

The second component is whether the employment incident caused a personal injury and generally can be established only by medical evidence.7 The evidence required to establish causal relationship is rationalized medical opinion evidence, based upon complete factual and medical background, showing a causal relationship between the claimed condition and the identified factors.8 The belief of the claimant that a condition was caused or aggravated by the employment is insufficient to establish a causal relationship.9

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a traumatic injury caused by the June 4, 2015 employment incident. Appellant failed to submit sufficient medical evidence to establish that she had left shoulder and neck injuries causally related to the accepted employment incident.

3
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
4
G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
5
S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).
6
Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).
7
John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q) (traumatic injury and occupational disease defined, respectively). 8 Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).
9
Kathryn Haggerty, 45 ECAB 383, 389 (1994).

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 Appellant submitted a series of reports from Dr. Maier. In her prescriptions dated June 10 and July 28, 2015, she found that appellant had work-related left shoulder and neck pain and sprain. Dr. Maier’s prescriptions are unsupported by rationale and are conclusory. Medical opinions which contain no rationale or explanation are of little probative value.10 Dr. Maier’s June 4, 2015 report found that appellant had muscle spasms and could perform limited-duty work with restrictions. Appellant informed Dr. Maier that her pain resulted from desk ergonomics at work and reported findings on physical examination. The Board notes that appellant did not attribute her claimed medical condition to the accepted June 4, 2015 work incident. Moreover, Dr. Maier did not offer her own opinion as to whether appellant’s muscle spasms were caused or aggravated by the accepted June 4, 2015 work incident. Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value.11

Appellant also submitted reports from Dr. Balog. In his September 25 and November 6, 2015 reports, Dr. Balog related that she sustained a cervical injury on June 4, 2015. He advised that appellant could return to work with restrictions. Dr. Balog did not provide a history of injury, examination findings, a firm diagnosis of a cervical condition, or medical rationale which explained the nature of the relationship between the diagnosed condition and the accepted June 4, 2015 employment incident. As such, his report is of diminished probative value and is insufficient to establish appellant’s claim.12 In another September 25, 2015 report, Dr. Balog found that appellant had cervical radiculitis. He opined that she had this condition for more than three months and it was positionally related. Dr. Balog’s opinion on causal relationship is of limited probative value as it is not supported by rationale and is conclusory.13 He did not explain how moving boxes from one pallet to another pallet on June 4, 2015 caused the diagnosed cervical condition.

Dr. Balog’s August 28, 2015 report provided a history that appellant first reported her neck, right shoulder, and right arm pain on June 4, 2015. He provided findings on physical examination and diagnostic testing and diagnosed left upper extremity pain. Dr. Balog opined that appellant’s condition was most likely secondary to cervical sprain and cervical radiculitis. He concluded that her left shoulder pain was secondary to her cervical spine spondylosis. Dr. Balog did not provide a firm medical diagnosis for appellant’s condition as pain is a description of a symptom and not considered a compensable medical diagnosis.14 Moreover, he attributed her left upper extremity pain to her cervical conditions, but failed to provide an opinion addressing whether these conditions were caused or aggravated by the June 4, 2015

10
F.T., Docket No. 09-919 (issued December 7, 2009) (medical opinions not fortified by rationale are of diminished probative value); Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements merely asserting causal relationship generally do not discharge a claimant’s burden of proof). 11 C.B., Docket No. 09-2027 (issued May 12, 2010).
12
See T.G., Docket No. 13-76 (issued March 22, 2013); Lee R. Haywood, 48 ECAB 145 (1996).
13
F.T., supra note 10.
14
K.W., Docket No. 12-1590 (issued December 18, 2012).

5 employment incident.15 Other reports from Dr. Balog are of limited probative value as this evidence did not provide a history of injury, examination findings, a firm diagnosis of a medical condition, or medical rationale on the causal relationship between the diagnosed condition and the accepted June 4, 2015 employment incident.

Dr. Taggart’s July 28, 2015 report diagnosed shoulder sprain and neck muscle spasms.
He noted seeing appellant in follow-up of left neck and shoulder pain “from ergonomics at her position.” The report noted that appellant was seen for a “workman’s comp claim.” Dr. Taggart, however, did not address how work duties on June 4, 2015 caused or aggravated the diagnosed conditions. As he provided no medical rationale to support causal relationship, his report is of limited probative value.16

Other medical reports of record are of limited probative value as they did not offer a specific opinion on any causal relationship between the diagnosed medical condition and the accepted June 4, 2015 employment incident.17

Also of record are reports from physical therapists and a physician assistant. However, these records are of no probative medical value as neither physical therapists nor physician assistants are considered physicians as defined under FECA.18

The Board finds that appellant has failed to submit any rationalized probative medical evidence to establish that she sustained left shoulder and neck injuries causally related to the June 4, 2015 employment incident. Appellant did not meet her burden of proof.

On appeal, appellant contends that the medical evidence of record is sufficient to establish that she sustained an injury causally related to the June 2015 employment incident. As found above, the Board finds that appellant did not submit any rationalized probative medical evidence supporting a causal relationship between her diagnosed left shoulder and neck conditions and the established employment incident.

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.

15
Supra note 11.
16
See supra note 10.
17
See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship). 18 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008) (physical therapists); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative medical evidence from a physician).

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 CONCLUSION

The Board finds that appellant has failed to meet her burden of proof to establish left shoulder and neck injuries causally related to the June 4, 2015 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the March 17, 2016 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 2, 2016
Washington, DC

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

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

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

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