A.M. and U.S. Postal Service, Post Office, Malden, MA (Board decision, October 17, 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

A.M., a postal letter carrier, sought compensation for head, neck, and back symptoms after her vehicle was rear-ended at work. The Board found that the medical evidence did not adequately connect a diagnosed condition to the accepted October 2016 incident. It affirmed OWCP’s denial.

Decision snapshot

• Authority: 20 C.F.R. §§ 501.2(c), 501.3.
• Outcome: December 9, 2016 injury denial upheld.
• Key point: The accepted collision required a reasoned medical connection to the claimed condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.M., Appellant
)
)
and ) Docket No. 17-1107
) Issued: October 17, 2017
U.S. POSTAL SERVICE, POST OFFICE,
)
Malden, MA, 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 April 27, 2017 appellant filed a timely appeal from a December 9, 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 to consider the merits of this case.2

ISSUE

The issue is whether appellant met her burden of proof to establish a traumatic injury causally related to the accepted October 24, 2016 employment incident.

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the December 9, 2016 decision, OWCP received additional evidence.
Appellant also submitted new evidence with her appeal to the Board. However, the Board may only review evidence that was in the record at the time OWCP issued its final decision. Thus, it has no jurisdiction to review this additional evidence for the first time on appeal. See 20 C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008). FACTUAL HISTORY

On October 24, 2016 appellant, then a 51-year-old letter carrier, filed a traumatic injury claim (Form CA-1) alleging that on that date she sustained head, neck, and back pain in the performance of duty when she was rear ended. She stopped work on the date of the alleged injury.

In support of her claim, appellant submitted a report dated October 24, 2016 from Hallmark Health Center Emergency Department, signed by Dr. Alexander O. Walker, a specialist in emergency medicine, diagnosing acute cervical neck strain. Dr. Walker noted that appellant had been involved in an automobile accident on that day.

By letter dated November 1, 2016, OWCP informed appellant that it required additional factual and medical evidence to determine whether she was eligible for compensation benefits. It asked her to complete a questionnaire and to submit a comprehensive medical report from her treating physician, which provided a diagnosis and a rationalized medical opinion explaining causal relationship. Appellant was afforded 30 days to submit the requested information.

Appellant submitted a partially illegible work status report dated November 1, 2016 from Dr. Jonathan Holder, a treating osteopath Board-certified in occupational medicine, noting that appellant was out of work. She also submitted October 27, 2016 notes from Anna Shapiro, a certified physician assistant. Ms. Shapiro, in the October 27, 2016 progress notes, noted the injury history, provided examination findings, and diagnosed neck and back strains status post the October 24, 2016 motor vehicle accident. She requested appellant be excused from work beginning October 28, 2015.

On December 2, 2016 OWCP received appellant’s response to OWCP’s request for further factual information. Appellant explained that she had just entered her parked truck when it was struck from behind.

By decision dated December 9, 2016, OWCP found that the October 24, 2016 incident occurred as alleged, but also found that she failed to submit sufficient medical evidence that her diagnosed conditions were causally related to the accepted employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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

3
Supra note 1.

2 employment injury.4 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.5

To determine whether a federal employee has sustained a traumatic injury in the performance of duty it must first be determined whether fact of injury has been established.6 First, the employee must submit sufficient evidence to establish that he or she actually experienced the employment incident at the time, place, and in the manner alleged.7 Second, the employee must submit sufficient evidence, generally only in the form of medical evidence, to establish that the employment incident caused a personal injury.8

Causal relationship is a medical issue and the medical evidence generally required to establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical opinion evidence is medical evidence which includes a physician’s rationalized opinion on whether there is causal relationship between the employee’s diagnosed condition and the work incident.10 The opinion of the physician must be based on a complete factual and medical background of the employee, 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 incident.11

ANALYSIS

The Board finds that the record before the Board is without rationalized medical evidence establishing that appellant sustained a traumatic injury causally related to the accepted October 24, 2016 work incident.

OWCP advised appellant that it was her responsibility to provide a comprehensive medical report which provided a diagnosis and medical rationale, explaining causal relationship between the diagnosed condition and the employment incident.

Appellant was initially seen by Dr. Walker, an emergency room physician, on October 24, 2016. Dr. Walker noted appellant’s history of injury and diagnosed acute cervical neck strain. He, however, offered no rationalized medical explanation as to how the accepted

4
C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).
5
S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6
B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.
7
D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).
8
C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 4.
9
Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 642 (2006).
10
J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).
11
I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

3 employment incident would have caused the diagnosed condition.12 Lacking a medical explanation regarding causal relationship, his report is of limited probative value.13

Appellant also submitted a partially illegible November 11, 2016 work restriction form from Dr. Holder. However, this report is also insufficient to support appellant’s claim as it contained no diagnosis or opinion on causal relationship.14

Appellant submitted a report and disability note from Ms. Shapiro, a certified physician assistant dated October 27, 2016. This evidence is of no probative medical value as the Board has held that physician assistants are not considered physicians under FECA and are, therefore, not competent to render a medical opinion under FECA.15 Thus, this evidence is not sufficient to meet appellant’s burden of proof.

The Board has held that the mere fact that a condition manifests itself during a period of employment does not raise an inference of causal relation.16 An award of compensation may not be based on surmise, conjecture, speculation, or on the employee’s own belief of causal relation.17

The Board, therefore, finds that appellant failed to establish a traumatic injury causally related to the accepted October 24, 2016 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.

CONCLUSION

The Board finds that appellant did not meet her burden of proof to establish a traumatic injury causally related to the accepted October 24, 2016 employment incident.

12
C.S. Docket No. 17-0399 (issued June 19, 2017).
13
See P.S., Docket No. 17-0598 (issued June 23, 2017).
14
A.D., 58 ECAB 159 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004).
15
See S.E., Docket No. 08-2214 (issued May 6, 2009); David P. Sawchuk, 57 ECAB 316, 320 n. 11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under 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). 16 L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB 559 (2006).
17
S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303 (2007); Donald W. Long, 41 ECAB 142 (1989).

4
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated December 9, 2016 is affirmed.

Issued: October 17, 2017
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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