J.H. and Department of the Interior, National Park Service, Asheville, NC (Board decision, November 3, 2017)

ECAB final decision. The Board affirmed OWCP’s 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

J.H., a National Park Service employee, challenged termination of wage-loss compensation and claimed a later recurrence of disability from an accepted left arm condition. The Board found that he was able to resume his date-of-injury position when OWCP ended benefits in April 2012. His later physician reports changed work restrictions without adequately explaining why the accepted condition prevented work beginning June 2012. It affirmed both the termination and recurrence denial.

Decision snapshot

• Authority: 20 C.F.R. § 10.5(x).
• Outcome: February 12, 2016 decision affirming benefit termination and denying recurrence upheld.
• Key point: Later restrictions did not establish disability caused by the accepted injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.H., Appellant
)
)
and ) Docket No. 16-1449
) Issued: November 3, 2017
DEPARTMENT OF THE INTERIOR,
)
NATIONAL PARK SERVICE, Asheville, NC,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Timothy D. Welborn, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 6, 2016 appellant, through counsel, filed a timely appeal from a February 12, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 5 U.S.C. § 8101 et seq.
 ISSUES

The issues are: (1) whether OWCP properly terminated appellant’s wage-loss compensation effective April 11, 2012; and (2) whether appellant sustained a recurrence of disability on June 11, 2012, causally related to his August 17, 2010 employment injury.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances outlined in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On August 17, 2010 appellant, then a 60-year-old engineering equipment operator, injured his left upper extremity when he struck a machine with a hammer. OWCP accepted his traumatic injury claim (Form CA-1) for left elbow and forearm sprain, left lateral epicondylitis, and left shoulder region disorder of bursae and tendons. On June 29, 2011 appellant underwent OWCP-approved left elbow surgery performed by Dr. Christopher V. Bensen, a Board-certified orthopedic surgeon. OWCP paid wage-loss compensation beginning June 29, 2011, and subsequently placed appellant on the periodic compensation rolls.

In a November 15, 2011 follow-up report, Dr. Bensen diagnosed status post extensor carpi radialis brevis (ECRB) release with persistent pain. He indicated that he was uncertain as to the etiology of appellant’s symptoms and recommended obtaining a second opinion. In a separate work status form report, Dr. Bensen advised that appellant could return to work on November 16, 2011 with a left upper extremity 10-pound lifting/pushing/pulling restriction.4

In a December 19, 2011 report, Dr. Harrison A. Latimer, a Board-certified orthopedic surgeon and OWCP referral physician, noted appellant’s history and described the results of his December 14, 2011 physical examination. He reported that appellant showed lack of effort in shoulder motion, elbow motion, wrist motion, and hand gripping. However, appellant had full range of motion of theses joints passively and actively with assistance. His diagnoses included left elbow sprain/strain, lateral epicondylitis, left rotator cuff tendinitis, and acromioclavicular (AC) joint degenerative disease. Dr. Latimer believed appellant’s left elbow conditions were work related, but the left shoulder conditions were not medically connected to the work-related injury. He further indicated that appellant had residual left elbow symptoms, but was capable of returning to full-time work. Dr. Latimer believed that appellant exaggerated his left upper extremity symptoms. He advised that appellant was completely capable of performing his previous work activities as an engineering equipment operator, which required lifting/pushing/pulling/carrying objects weighing in excess of 40 pounds.

3
Docket No. 15-0280 (issued November 18, 2015). As discussed infra, the Board reversed OWCP’s October 6, 2014 nonmerit decision denying reconsideration. 4 The 10-pound lifting restriction included lifting from floor to waist, waist to shoulder, and lifting above shoulder level. Dr. Bensen also precluded left arm work involving repetitive activities and work requiring a strong grip.

2
 On February 2, 2012 OWCP advised appellant of its proposed termination of wage-loss compensation based on Dr. Latimer’s December 19, 2011 report. It afforded him 30 days to submit evidence and/or argument should he disagree with the proposed termination of benefits.

In February 21, 2012 follow-up treatment notes, Dr. Bensen diagnosed persistent left lateral epicondylitis. On physical examination he noted persistent tenderness over the left lateral epicondyle and common extensor origin. Appellant had good range of motion with minimal discomfort, and some pain with resisted wrist extension and supination. Dr. Bensen also noted that distal motor and sensory examinations were otherwise grossly intact. He recommended continued conservative treatment and administered a cortisone injection. Dr. Bensen also recommended continued use of a counterforce brace and light duty activity only. In a February 21, 2012 work status form report, he diagnosed left tennis elbow and advised that appellant could return to work on February 22, 2012 with restrictions. Dr. Bensen imposed a 20- pound left upper extremity lifting limitation, which included lifting from floor to waist, waist to shoulder, and lifting above shoulder level. He also precluded him from left arm work involving repetitive activities and work requiring a strong grip.

On February 27, 2012 appellant returned to work full time, with no loss in wages.
OWCP subsequently advised him that it had terminated wage-loss compensation pursuant to 5 U.S.C. § 8115 because his actual wages as of February 27, 2012 met or exceeded the wages of his date-of-injury position.

In an April 11, 2012 decision, OWCP terminated appellant’s entitlement to future wage- loss compensation benefits effective immediately. It noted that appellant had returned to his date-of-injury job in “full capacity” effective February 27, 2012 and that OWCP had already terminated his wage-loss compensation. OWCP acknowledged receipt of Dr. Bensen’s February 21, 2012 work restrictions, but noted that the employing establishment represented that appellant had been working full capacity since his return on February 27, 2012. It found that Dr. Bensen’s February 21, 2012 treatment notes and work restrictions were insufficient to alter the proposed termination, noting that he failed to explain how appellant’s accepted conditions continued to limit him from performing his date-of-injury position. OWCP further found that Dr. Bensen’s February 21, 2012 opinion was contrary to the fact that six days later appellant had returned to full-duty work, with no evidence that he had subsequently stopped work.

Appellant timely requested a review of the written record and submitted additional evidence.

In response to a written inquiry from the employing establishment, Dr. Bensen advised on March 27, 2012 that appellant was unable to perform several of his regular duties as an engineering equipment operator. This included an inability to operate equipment, such as field- type farm and industrial tractors. Dr. Bensen also noted that appellant could not perform various types of manual labor. He reported that appellant was capable of operating trucks with lowboy trailers and tractor-trailer/semi combinations and could also perform routine servicing and preventative maintenance on equipment, but could not operate a chainsaw or power tools. Dr. Benson noted that appellant could perform light duty. He provided April 20, 2012 treatment notes and a work status report with the same limitations previously identified on February 21, 2012.

3
 OWCP also received a June 11, 2012 letter from the employing establishment advising appellant that the engineering equipment operator position could not be restructured to accommodate the various restrictions outlined by Dr. Bensen in his March 27, 2012 response. The employing establishment informed appellant that if he could not perform the essential functions of his position, then he must utilize his accrued leave, leave without pay (LWOP), or apply for and use leave under the Family Medical Leave Act. It further advised that there were no other available positions for which appellant was qualified and was able to perform with or without accommodation(s).

Appellant stopped work effective June 11, 2012 and used his accrued leave through July 29, 2012, at which point he began using LWOP.

By decision dated August 6, 2012, OWCP’s hearing representative affirmed the April 11, 2012 decision. He found that Dr. Latimer’s December 19, 2011 report represented the weight of the evidence, and supported appellant’s ability to return to full-time, regular duty without restrictions. With respect to Dr. Bensen’s opinion, the hearing representative noted that he supplied insufficient rationale to support his assessment regarding appellant’s ability to return to limited-duty work. He further noted that, effective February 27, 2012, appellant returned to full- time, regular-duty work.

On August 17, 2012 OWCP received the first of a series of claims for wage-loss compensation (Form CA-7) for temporary total disability commencing July 29, 2012.5

By letter dated August 31, 2012, OWCP advised appellant that he was not entitled to receive schedule award benefits and disability compensation concurrently. It further explained that, if the employing establishment was still unable to accommodate his work restrictions, then he should file a new Form CA-7 claiming wage-loss compensation on or after November 18, 2012. On September 26, 2012 OWCP issued a recurrence claim development letter, which explained the legal criteria, as well as the factual and medical evidence necessary to establish a recurrence of disability. It requested additional factual and medical evidence, and reiterated that appellant was not entitled to wage-loss compensation during the period of the schedule award.

In an October 7, 2012 statement, appellant indicated that he had not sustained any other injuries or incurred any illness since his original employment injury. He also indicated that he had no other activities, hobbies, or another job that may have affected his accepted work-related condition(s). Appellant further explained that when he returned to work on March 11, 2012 he was still under restrictions imposed by Dr. Bensen. He stated that he was brought back on restricted, light-duty work, and instructed to only run the boom axe (roadside brush cutting tractor) while using his right arm exclusively. Appellant further indicated that, by early June 2012, the boom axe cleaning was complete, and because of his restrictions the employing

5
Appellant submitted a total of three Form CA-7s for temporary total disability covering the period July 29 through September 8, 2012.

4 establishment informed him there was no more work available to accommodate him.6 He also claimed that the employing establishment asked him to work outside of his restrictions, which he reportedly refused to do out of concern for his own health and safety, as well as concern for the safety of his coworkers. Appellant indicated that the employing establishment then asked him to leave.

OWCP also received Dr. Bensen’s July 31, 2012 follow-up treatment notes and a work status form report. At the time, he indicated that appellant reported gradual improvement in his condition with diminishing pain and swelling. Dr. Bensen also noted that appellant was able to work with the exception of heavy lifting. He related that appellant advised he had been terminated because the employing establishment felt he was unable to perform the essential functions of his job as an engineering equipment operator. Appellant reported that he would likely look for different work in the near future. Dr. Bensen examined appellant and diagnosed left lateral epicondylitis, status post ECRB release. Appellant was said to be “doing well.”7 Dr. Bensen recommended that appellant pursue a job that required lighter duty work, but otherwise released him to perform activities as tolerated “with no restrictions.” Appellant was to follow-up on an as-needed basis. In a separate work status report, Dr. Bensen imposed a 20- pound left upper extremity lifting restriction, which included lifting from floor to waist, waist to shoulder, and lifting above shoulder level. He also precluded left arm work involving repetitive activities and work requiring a strong grip. Dr. Bensen advised that the identified work restrictions were permanent.

In a December 12, 2012 letter, OWCP informed appellant that it would not take further action on his claims (Form CA-7) for wage-loss compensation for periods subsequent to the April 11, 2012 termination of wage-loss compensation. It explained that the weight of the medical evidence, as represented by Dr. Latimer’s December 19, 2011 report, supported that appellant was capable of resuming his regular job without limitations. OWCP further explained that the fact that appellant’s physician’s restrictions were not being followed was outside the purview of his workers’ compensation claim. Lastly, it explained that if appellant disagreed with the determination that he was able to resume his regular-duty position, then he should pursue the appeal rights associated with the hearing representative’s August 6, 2012 decision.

OWCP subsequently received a May 14, 2013 follow-up report from Dr. Bensen who explained that appellant had left lateral epicondylitis with atypical muscular swelling. Dr. Bensen diagnosed elbow joint pain and left elbow lateral epicondylitis. He indicated that he was uncertain as to the etiology of appellant’s new symptoms. Dr. Bensen recommended a

6
In a September 12, 2012 letter, the employing establishment indicated that on March 13, 2012 appellant refused to operate a chainsaw, claiming the vibration would irritate his elbow. Therefore, the employing establishment sought further input from Dr. Bensen, which resulted in his March 27, 2012 report. According to the employing establishment, Dr. Bensen ruled out three of the five essential elements of the position of engineering equipment operator. Additionally, the employing establishment confirmed that appellant had been working as a boom axe operator from March 26 through June 11, 2012 because he remained unable to perform the work of his position description. It also confirmed that in early June 2012, there was no light-duty work available to assign appellant within his restrictions, as outlined by Dr. Bensen. 7 Dr. Bensen also provided a rating of 10 percent permanent impairment of the left elbow.

5 magnetic resonance imaging (MRI) scan. In a May 14, 2013 work status report, he indicated that appellant could not return to work.

A June 21, 2013 left elbow MRI scan revealed injury to the origin of the common extensor tendon, which was partially torn from its humeral attachment. There was also injury to the humeral attachment of the radial collateral ligament and evidence of a small subchondral cyst in the lateral epicondyle. Lastly, there was evidence of tendinosis of the common flexor tendon.

In a July 16, 2013 follow-up report, Dr. Bensen provided an impression of status post left ECRB release with persistent pain. Appellant reported intermittent periods of left elbow pain, as well as pain-free intervals. Dr. Bensen noted that appellant seemed to think his pain was likely related to activity, such as yard work. He reviewed appellant’s recent MRI scan results, and commented that some of the reported findings were likely artifacts from appellant’s previous surgery. Dr. Bensen did not think the MRI scan results were suggestive of anything that would require additional surgical intervention. He recommended continued conservative management, including nonsteroidal anti-inflammatory drugs (NSAID), counterforce bracing, and activity modification. Dr. Bensen advised appellant to follow-up on an as-needed basis. In a separate July 16, 2013 work status report, he advised that appellant could return to work on July 17, 2013 with a 10-pound left upper extremity lifting restriction. Dr. Bensen also indicated that the noted restriction was permanent.

On August 8, 2013 counsel requested reconsideration of the August 6, 2012 termination decision. He noted that appellant attempted a return to work on February 27, 2012, but by March 22, 2012 it was apparent that he was unable to perform the essential functions of his job. Counsel argued that OWCP should not have deferred to the second opinion examiner’s findings, but instead should have relied on Dr. Bensen’s opinion that appellant was unable to perform the full-time duties of an engineering equipment operator.

In an October 6, 2014 decision, OWCP denied appellant’s request for reconsideration because it was untimely filed and failed to demonstrate clear evidence of error. Appellant appealed to the Board.

By decision dated November 18, 2015, the Board reversed OWCP’s October 6, 2014 decision.8 Although the August 8, 2013 reconsideration request was untimely, the Board found that the evidence appellant submitted raised a substantial question as to the correctness of OWCP’s decision, and he had therefore demonstrated clear evidence of error. The Board explained that the hearing representative had not considered available evidence regarding the employing establishment’s inability to accommodate appellant’s restrictions, effective June 11, 2012.

In a February 12, 2016 merit decision, OWCP denied modification of the August 6, 2012 decision.9 It found that Dr. Bensen had not provided any medical rationale for the imposed 8 See supra note 3.
9
OWCP issued a January 4, 2016 decision, which found that appellant’s request for reconsideration was untimely. It also noted that the Board found that appellant demonstrated clear evidence of error, and therefore, OWCP advised that a separate merit decision was forthcoming.

6 lifting restriction(s) and appellant’s reported inability to perform the essential duties of the date- of-injury job. OWCP further found that the medical reports of record did not address how the increased disability was due to the original injury.

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it bears the burden to justify modification or termination of benefits.10 Having determined that an employee has a disability causally related to his federal employment, OWCP may not terminate compensation without establishing either that the disability has ceased or that it is no longer related to the employment.11

After termination or modification of compensation benefits, clearly warranted on the basis of the evidence, the burden for reinstating compensation benefits shifts to the claimant.12 In order to prevail, the claimant must establish by the weight of the reliable, probative, and substantial evidence that he had an employment-related disability which continued after termination of compensation benefits.13

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly terminated appellant’s wage-loss compensation, effective April 11, 2012. First, the Board notes that on February 27, 2012 appellant resumed full-time work with no loss of wage-earning capacity. Therefore, OWCP properly removed him from the periodic compensation rolls.14 Second, it properly relied upon Dr. Latimer’s December 19, 2011 report in determining that appellant was capable of resuming his full-time, regular duties as an engineering equipment operator. He found that appellant continued to have residuals of his accepted left elbow condition based on his subjective pain complaints. With respect to left upper extremity motion and/or strength deficits, Dr. Latimer believed that appellant displayed signs of symptom exaggeration. He reported that appellant showed complete lack of effort in shoulder motion, elbow motion, wrist motion, and hand gripping. However, appellant had full range of motion of theses joints passively and actively with assistance. Based on his overall evaluation, which included a review of appellant’s history of injury, medical records, and a description of appellant’s job duties, Dr. Latimer found appellant “completely capable” of performing his previous full-time work activities as an engineering equipment operator, which required lifting/pushing/pulling/carrying objects weighing in excess of 40 pounds.

10
Curtis Hall, 45 ECAB 316 (1994).
11
Jason C. Armstrong, 40 ECAB 907 (1989).
12
See A.B., Docket No. 14-1510 (issued October 23, 2014).
13
Id.
14
See 20 C.F.R. §§ 10.503(d), 10.504(d).

7
 The proper weight to be accorded a physician’s opinion is determined by its reliability, its probative value, and its convincing quality.15 The factors that comprise the evaluation of medical evidence include the opportunity for and the thoroughness of physical examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and the medical rationale expressed in support of the physician’s opinion.16 Dr. Latimer’s December 19, 2011 opinion satisfies the above-noted criteria, and accordingly, represents the weight of the medical evidence regarding appellant’s ability to resume his full-time, date-of-injury position on or about April 11, 2012.

Appellant’s surgeon, Dr. Bensen, imposed a 10-pound lifting restriction effective November 16, 2011, but admittedly at the time was uncertain as to the etiology of appellant’s then-current left upper extremity complaints, and thus, recommended a second opinion. In his February 21, 2012 follow-up report, Dr. Bensen adjusted appellant’s lifting restriction to 20 pounds without explanation. In his March 27, 2012 response to the employing establishment’s inquiry regarding which of the engineering equipment operator duties appellant was capable of performing, Dr. Bensen merely placed a check mark next to the description of the particular duty appellant either could or could not perform. He did not otherwise elaborate upon the basis of such determination. Lastly, Dr. Bensen’s April 20, 2012 work status report similarly offered no explanation as to why appellant was restricted to lifting no more than 20 pounds.

None of the above-referenced reports from Dr. Bensen offered an opinion as to why or how appellant’s accepted left upper extremity condition(s) precluded him from resuming his date-of-injury position. Consequently, OWCP’s hearing representative properly deferred to Dr. Latimer’s well-rationalized report in affirming the termination of appellant’s wage-loss compensation effective April 11, 2012.17

LEGAL PRECEDENT -- ISSUE 2

A recurrence of disability means an inability to work after an employee has returned to work, caused by a spontaneous change in a medical condition which resulted from a previous injury or illness without an intervening injury or new exposure to the work environment that caused the illness.18 Recurrence of disability also means an inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s physical limitations due to his work-related injury or illness is withdrawn or when the physical requirements of such an assignment are altered so that they exceed his established physical limitations.19 Generally, a withdrawal of a light-duty assignment would constitute a recurrence

15
E.g., K.W., 59 ECAB 271, 279-80 (2007).
16
Id. at 280.
17
The hearing representative did not specifically address entitlement to wage-loss compensation on or after April 11, 2012. Although there was evidence that appellant had stopped work on June 11, 2012, OWCP had yet to receive appellant’s Form CA-7 claiming lost wages beginning July 29, 2012. 18 20 C.F.R. § 10.5(x).
19
Id.

8 of disability where the evidence established continuing injury-related disability for regular duty.20 A recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing or where a loss of wage-earning capacity determination is in place.21

Absent a change or withdrawal of a light-duty assignment, a recurrence of disability following a return to light duty may be established by showing a change in the nature and extent of the injury-related condition such that the employee could no longer perform the light-duty assignment.22

Where an employee claims a recurrence of disability due to an accepted employment- related injury, he has the burden of establishing that the recurrence is causally related to the original injury.23 This burden includes the necessity of furnishing evidence from a qualified physician who concludes that the condition is causally related to the employment injury.24 The physician’s opinion must be based on a complete and accurate factual and medical history and supported by sound medical reasoning.25

ANALYSIS -- ISSUE 2

Therefore, the burden for reinstating compensation benefits shifted to appellant.26 Appellant stopped work on June 11, 2012 and later filed several claims for compensation (Form CA-7) for lost wages beginning July 29, 2012. As noted, OWCP granted a schedule award on August 29, 2012, which covered a 15.6-week period from July 31 through November 17, 2012. Appellant is not entitled to receive wage-loss compensation and a schedule award for the same time period.27

Although the record does not include a formal, written limited-duty assignment, after appellant returned to work in February 2012, the employing establishment made an effort to accommodate some, if not all of the restrictions identified by Dr. Bensen on February 21 and March 27, 2012. The employing establishment acknowledged that from March 22 through

20
Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).
21
20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013).
22
Theresa L. Andrews, 55 ECAB 719, 722 (2004).
23
20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 and 2.1500.6 (June 2013).
24
See S.S., 59 ECAB 315, 318-19 (2008).
25
Id. at 319.
26
See A.B., Docket No. 14-1510 (issued October 23, 2014); Virginia Davis-Banks, 44 ECAB 389 (1993).
27
A schedule award is payable consecutively, but not concurrently with an award for wage loss for disability for the same injury. See S.W., Docket No. 10-2071 (issued July 11, 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.4a(2) (February 2013).

9
June 11, 2012, appellant served as the primary operator of a boom axe because he remained unable to perform the work of his position description. Dr. Bensen had effectively precluded appellant from performing three of the five essential elements of his engineering equipment operator position. The employing establishment also acknowledged that as of June 11, 2012, it was no longer able to accommodate appellant’s restrictions, as identified by Dr. Bensen.

Appellant’s claim for wage-loss compensation on or after July 29, 2012 is based on the employing establishment’s inability to accommodate him after June 11, 2012. Recurrence of disability includes an inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s physical limitations due to his work-related injury or illness is withdrawn.28 However, entitlement to FECA compensation benefits is not premised solely on withdrawal of a light- or limited-duty assignment. The medical evidence of record must establish continuing injury-related disability for regular duty.29

Subsequent to appellant’s June 11, 2012 work stoppage, Dr. Bensen provided follow-up treatment notes and work status reports dated, May 14 and July 16, 2013. Throughout this period he continued to diagnose left elbow lateral epicondylitis and continued to impose left- upper extremity work restrictions.

When Dr. Bensen examined appellant on July 31, 2012, he was noted to be “doing well.” Appellant was to follow-up on an as-needed basis. Dr. Bensen recommended that he pursue a job that required lighter-duty work, but otherwise he released appellant to perform activities as tolerated “with no restrictions.” In a similarly dated work status report, he imposed a 20-pound left upper extremity lifting restriction, which included lifting from floor to waist, waist to shoulder, and lifting above shoulder level. Dr. Bensen also precluded left arm work involving repetitive activities and work requiring a strong grip. He advised that the identified work restrictions were permanent.

Dr. Bensen’s May 14, 2013 follow-up treatment notes indicated that appellant had atypical muscular swelling. He diagnosed elbow joint pain and left elbow lateral epicondylitis. Dr. Bensen noted that he was uncertain as to the etiology of appellant’s new symptoms. He also recommended a left elbow MRI scan. In a May 14, 2013 work status report, Dr. Bensen indicated that appellant could not return to work.

In a July 16, 2013 follow-up report, Dr. Bensen noted that appellant reported experiencing intermittent periods of left elbow pain, as well as pain-free intervals. Appellant seemed to think his pain was likely related to activity, such as yard work. Dr. Bensen reviewed a recent left elbow MRI scan that reportedly did not reveal anything requiring additional surgery. He again diagnosed left elbow lateral epicondylitis, and recommended continued conservative management, including NSAIDs, counterforce bracing, and activity modification. Dr. Bensen advised appellant to follow-up on an as-needed basis. In a separate July 16, 2013 work status report, he indicated that appellant could return to work on July 17, 2013 with a 10-pound left

28
20 C.F.R. § 10.5(x).
29
Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

10 upper extremity lifting restriction. Dr. Bensen also indicated that the noted restriction was permanent.

Dr. Bensen continued to diagnose left elbow lateral epicondylitis as noted, but he altered appellant’s work restrictions without explanation. Appellant went from a 20-pound lifting restriction in July 2012 to no work at all in May 2013, and then to a 10-pound left upper extremity lifting restriction in July 2013. Noticeably absent from the above-referenced reports was any explanation as to how or why appellant’s accepted left upper extremity condition(s) precluded him from performing his date-of-injury position as an engineering equipment operator. At one point, Dr. Bensen expressed uncertainty as to the etiology of appellant’s symptoms and he subsequently reported that appellant seemed to think his pain was likely related to activity, such as yard work. Given the lack of medical evidence demonstrating causal relationship between appellant’s employment injury and his current left upper extremity complaints and/or limitations, the Board finds that appellant failed to establish that he was disabled from performing his date-of-injury position on or after June 11, 2012.30

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 OWCP properly terminated appellant’s entitlement to wage-loss compensation effective April 11, 2012 as he was no longer disabled from performing his date-of- injury position. The Board further finds that appellant failed to establish that he sustained a recurrence of disability on or after June 11, 2012, causally related to his August 17, 2010 employment injury.

30
A physician’s opinion on causal relationship must be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment factor(s). Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11
 ORDER

IT IS HEREBY ORDERED THAT the February 12, 2016 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 3, 2017
Washington, DC

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

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

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

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