H.O. and U.S. Postal Service, Post Office (Board decision, November 27, 2018)

ECAB final decision. The Board affirmed OWCP’s December 6, 2016 claim denial. 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

H.O., a letter carrier, claimed severe pain in both shoulders from his work. He did not describe the specific job activities he believed caused the condition or how long he performed them. The Board found the factual part of the claim unproved and affirmed OWCP’s denial.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: December 6, 2016 claim denial affirmed.
• Key point: The claim lacked enough detail about the alleged work factors to establish an occupational disease.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
H.O., Appellant
)
)
and ) Docket No. 17-1176
) Issued: November 27, 2018
U.S. POSTAL SERVICE, POST OFFICE,
)
North Metro, GA, 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 ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 8, 2017 appellant filed a timely appeal from a December 6, 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 his burden of proof to establish an injury in the performance of duty, as alleged.

FACTUAL HISTORY

On September 15, 2016 appellant, a 55-year-old letter carrier, filed an occupational disease claim (Form CA-2) alleging that he developed severe bilateral shoulder pain. He first became aware of his condition and realized the condition was employment related on September 15, 2016.

1
5 U.S.C. § 8101 et seq.
On his Form CA-2, appellant did not include a description of the particular employment activity/activities he believed either caused or contributed to his bilateral shoulder pain. He stopped work on September 15, 2016.

In support of his claim, appellant submitted a position description which described his federal duties, including delivering and collecting mail on foot or by vehicle.

Appellant also submitted a September 15, 2016 intake form indicating that he was injured while delivering mail. The form report noted that, with the constant repetition, his shoulder began to hurt and that he had a prior shoulder surgery in March 2013.

In a September 15, 2016 report, Charmaine Downer, a nurse practitioner, diagnosed cervical strain and bilateral arm strain.2 She noted that appellant constantly moved packages at his job and both of his shoulders began to hurt during the time of work.

Ms. Downer also submitted a duty status report (Form CA-17) dated September 15, 2016 providing work restrictions.

In an October 3, 2016 development letter, OWCP advised appellant of the deficiencies of his claim and instructed him as to the additional information necessary to establish his claim. It also included a questionnaire which inquired as to the work factors which he believed had caused him to sustain an occupational disease and the frequency and duration of those factors. Appellant was afforded 30 days to submit additional evidence and respond to its inquiries.

In response, appellant resubmitted Ms. Downer’s September 15, 2016 report. He did not provide a response to the questionnaire.

By decision dated December 6, 2016, OWCP denied appellant’s claim finding that the evidence of record was insufficient to establish that he failed to establish fact of injury.

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 or specific condition for which compensation is claimed is causally related to the employment injury.3 These are the essential elements of every compensation claim regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4 To establish that an injury was sustained in the performance of duty in an occupational disease claim, an employee

2
The diagnoses included: strain of muscle, fascia and tendon of neck (cervical); strain of unspecified muscle, fascia and tendon at shoulder and upper arm level, left arm; strain of unspecified muscle, fascia and tendon at shoulder and upper arm level, right arm; and pain. 3 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).
4
L.B., Docket No. 18-0411 (issued September 12, 2018); Michael E. Smith, 50 ECAB 313 (1999).

2 must submit the following: (1) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; (2) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the employee.5

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish an injury in the performance of duty, as alleged.

Upon review of the evidence of record it is found that appellant has not established the factual component of his claim as he failed to describe the job activities he believed contributed to his alleged employment injury and did not explain the duration of such activities. It is appellant’s burden of proof to establish the essential elements of his claim.6 To establish a claim for compensation in an occupational disease claim, an employee must submit a statement which identifies the factors of employment believed to have caused his or her condition.7 Appellant failed to provide sufficient detail to establish that an occupational exposure occurred as alleged. He did not adequately describe the circumstances of his injury, the duties he was performing which caused his injury, or the mechanism of injury.8

In an October 3, 2016 development letter, OWCP requested that appellant respond to its questionnaire and provide detailed information concerning the job activities he believed contributed to his alleged shoulder injury. While a September 15, 2016 medical form report generally noted constant repetition while delivering mail, there is no statement from appellant describing the specific employment-related activities which he believed contributed to his condition and the amount of time he spent engaging in such activities.9 Absent this evidence, as was requested in the questionnaire sent to appellant, it cannot be determined whether the history of injury provided in the medical evidence of record corresponds with his alleged injury.

The Board finds that the record lacks sufficient factual evidence to establish the specific details of how the claimed injury occurred. As appellant has not established the factual aspect of his claim, the medical evidence regarding causal relationship need not be addressed.10

5
See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989). 6 Supra note 3.
7
D.M., Docket No. 18-0335 (issued June 18, 2018).
8
Id.
9
See D.C., Docket No. 18-0082 (issued July 12, 2018).
10
See V.F., 58 ECAB 321, 327 (2007).

3
 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 has not met his burden of proof to establish an injury in the performance of duty, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the December 6, 2016 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 27, 2018
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

4