R.H. and U.S. Postal Service, Post Office, Oakland, CA (Board decision, January 10, 2017)

ECAB remand decision. The Board set aside OWCP’s May 12, 2016 decision and remanded the occupational disease claim for further medical development. OWCP still must decide whether the claimed conditions are work related. 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).

Plain-English summary

A Postal Service mail processing clerk sought benefits for wrist, shoulder, knee, and foot conditions she attributed to repetitive work and prolonged standing. OWCP denied the claim for lack of a supported medical explanation of causation. The Board found that her physician’s reports did not establish causation but described the possible work mechanisms in enough detail to require more investigation. It directed OWCP to prepare an accepted facts statement, obtain a specialist’s opinion, and issue a new decision.

Decision snapshot

• Authority: Occupational disease causal relationship and development of medical evidence.
• Outcome: May 12, 2016 denial set aside; further development required.
• Key point: The physician’s explanation warranted specialist review, although it did not yet prove the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.H., Appellant
)
)
and ) Docket No. 16-1704
) Issued: January 10, 2017
U.S. POSTAL SERVICE, POST OFFICE,
)
Oakland, CA, 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 COLLEEN DUFFY KIKO, Judge

JURISDICTION

On August 24, 2016 appellant filed a timely appeal from a May 12, 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.

ISSUE

The issue is whether appellant has met her burden of proof to establish bilateral wrist, left shoulder, and bilateral lower extremity conditions causally related to factors of her federal employment.

FACTUAL HISTORY

On October 5, 2015 appellant, than a 38-year-old mail processing clerk, filed an occupational disease claim (Form CA-2) alleging that on or before August 16, 2015, she

1
5 U.S.C. § 8101 et seq. sustained bilateral wrist, knee, foot, and left shoulder conditions due to pulling down and setting up mail sacks, and walking and standing without proper floor mats. She stopped work on August 16, 2015.

Dr. Michael E. Hebrard, an attending Board-certified physiatrist, held appellant off work through August 19, 2015, and released her to light duty. He provided work limitations on August 31, 2015 restricting appellant to lifting, pulling and pushing up to 10 pounds, limited reaching at or above shoulder level with the left arm, keyboarding no more than 10 minutes an hour, occasional pinch, grasp, and repetitive hand motions.

In an October 14, 2015 letter, OWCP advised appellant of the evidence needed to establish her claim, including medical evidence diagnosing a condition related to the identified work factors and a report from her physician explaining how and why that incident would cause those conditions. It afforded appellant 30 days to submit such evidence.

In response, appellant submitted an October 30, 2015 narrative statement, explaining that pushing and pulling heavy equipment, and lifting heavy sacks and trays of mail, caused bilateral wrist and left shoulder pain. She experienced bilateral knee and foot pain while walking up and down stairs to different divisions as part of her mail processing duties.

By decision dated December 7, 2015, OWCP denied the claim, finding that fact of injury had not been established. It accepted that the identified work factors, including repetitive motions of pulling down and lifting up sacks of mail, walking and standing on the work floor without proper mats, and pushing heavy equipment, occurred as alleged. OWCP found, however, that appellant had failed to submit medical evidence sufficient to establish causal relationship between those factors and the claimed upper and lower extremity conditions.

In a December 28, 2015 letter, appellant requested a review of the written record. She submitted additional reports from Dr. Hebrard.

On August 31, 2015 Dr. Hebrard explained that repetitive reaching at and above shoulder level, in particular while loading conveyor belts, “led to chronic impingement of the left shoulder where the supraspinatus tendon at the myotendinous junction which lies beneath the acromion with any reaching at 100 degrees or higher to an arc of 140 which was required in the course of her employment led to chronic functional impingement of the rotator cuff interval, subsequently leading to increased inflammation.” He opined that repetitive flexion and extension of the wrists while reaching, pulling, pushing, and grasping “led to accumulative aggravation of the flexor tendons of the wrist which lie in the carpal tunnel, causing compression along the median nerve and leading to” paresthesias and a bilaterally positive Tinel’s sign. Dr. Hebrard noted that appellant also had a positive Adson’s test on the left, documenting compression of the neurovascular bundle emerging from the brachial plexus region.

In an October 21, 2015 report, Dr. Hebrard diagnosed left shoulder impingement with bicipital tendinitis, and cervical brachial syndrome due to work factors. He noted work restrictions necessitated by left shoulder and bilateral knee conditions. On November 11, 2014 Dr. Hebrard found appellant’s knee symptoms improved, but that she still had limited cervical

2 and lumbar motion, as well as limited elbow and wrist flexion and extension bilaterally. He limited appellant to sedentary work with occasional overhead lifting.

Dr. Hebrard addressed the causation of appellant’s upper extremity conditions in a January 13, 2016 report. He opined that repetitive pushing, pulling, and reaching away from the body caused microscopic trauma and “subsequent inflammatory changes” to the long head of the biceps tendon due to friction in the intertubercular groove with repetitive pushing, pulling, and reaching away from the body. This process caused “impairment of weakness of shoulder abduction and forward flexion.” Dr. Hebrard added on February 24, 2016 that repetitive reaching at and above the shoulder level caused chronic mechanical rotator cuff impingement with subsequent weakness in both shoulders.

By decision dated May 12, 2016, an OWCP hearing representative affirmed as modified OWCP’s December 7, 2015 decision, finding that Dr. Hebrard’s reports were insufficiently rationalized to establish causal relationship.

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 of FECA, that the claim was filed within the applicable time limitation, that an injury was sustained while 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.2 These are the essential elements of each and every compensation claim regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3

An occupational disease is defined as a condition produced by the work environment over a period longer than a single workday or shift.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) 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 the 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

2
Joe D. Cameron, 41 ECAB 153 (1989).
3
See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).
4
20 C.F.R. § 10.5(q).

3 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 claimed that she sustained bilateral wrist, knee, foot, and left shoulder conditions in the performance of duty on or before August 16, 2015. She attributed these conditions to repetitive heavy lifting, pushing, pulling, and prolonged walking and standing without proper floor mats. In support of her claim, appellant submitted work limitations from Dr. Hebrard, an attending Board-certified physiatrist. OWCP denied the claim by December 7, 2015 decision, finding that the medical evidence of record was insufficient to establish causal relationship.

Pursuant to a request for a review of the written record, appellant submitted additional reports from Dr. Hebrard, containing detailed explanations of the pathophysiologic mechanics of causation. Dr. Hebrard explained that repetitive reaching at and above shoulder level led to chronic impingement due to aggravation of the supraspinatus tendon at the myotendinous junction. He noted repetitive wrist flexion that “led to accumulative aggravation of the flexor tendons” in the carpal tunnel, compressing the median nerve. Dr. Hebrard opined that repetitive pushing, pulling, and reaching caused cumulative microtrauma and inflammation to the long head of the biceps tendon due to friction in the intertubercular groove, as well as chronic rotator cuff impingement.

The Board finds that although Dr. Hebrard’s opinion is insufficiently rationalized to meet appellant’s burden of proof to establish causal relationship,6 it is of sufficient probative quality to warrant additional development.7 Dr. Hebrard provided discussions of the pathophysiologic mechanisms whereby appellant’s specific work tasks would have caused the claimed injuries. However, OWCP did not undertake further development of the medical record, such as referring the record to an OWCP medical adviser, or referring appellant for a second opinion examination.

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested arbiter. While the claimant has the burden of proof to establish entitlement to compensation, OWCP shares responsibility in the development of the evidence. It has the obligation to see that justice is done.8 The case must be remanded to OWCP for preparation of a statement of accepted facts including the physical requirements of her position and the working conditions, and referral of the matter to an appropriate medical specialist, consistent with OWCP’s procedures, to

5
Solomon Polen, 51 ECAB 341 (2000).
6
See Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001). 7 John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 280 (1978).
8
Jimmy A. Hammons, 51 ECAB 219 (1999); Marco A. Padilla, 51 ECAB 202 (1999); John W. Butler, 39 ECAB 852 (1988).

4 determine whether appellant sustained the claimed conditions as alleged due to factors of her employment. Following this and any other development deemed necessary, OWCP shall issue an appropriate decision in the case.
CONCLUSION

The Board finds that the case is not in posture for a decision.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated May 12, 2016 is set aside, and the case remanded for additional development consistent with this decision.

Issued: January 10, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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