J.S. and Department of Veterans Affairs, Hudson Valley Health Care System, Castle Point, NY (Board decision, June 1, 2018)

ECAB final decision. The Board affirmed OWCP’s August 9, 2017 denial of J.S.’s right knee injury claim. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance. 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

J.S., a VA employee, claimed a right knee fracture after an accepted work incident. One physician report diagnosed a patella fracture but did not discuss its cause. A later report attributed the fracture to work without explaining how the incident caused it. The Board found the medical proof insufficient and affirmed the denial.

Decision snapshot

• Authority: 5 U.S.C. § 8101.
• Outcome: August 9, 2017 right knee claim denial affirmed.
• Key point: A diagnosis and unsupported causal conclusion did not establish a work related fracture.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.S., Appellant
)
)
and ) Docket No. 18-0128
) Issued: June 1, 2018
DEPARTMENT OF VETERANS AFFAIRS,
)
HUDSON VALLEY HEALTH CARE SYSTEM,
)
Castle Point, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 23, 2017 appellant, through counsel, filed a timely appeal from an August 9, 2017 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 to consider the merits of this case.

ISSUE

The issue is whether appellant met his burden of proof to establish a right knee condition causally related to the accepted July 22, 2016 employment incident.

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.
 On appeal counsel argues that the medical evidence of record establishes appellant’s claim.

FACTUAL HISTORY

On July 22, 2016 appellant, then a 60-year-old laborer, filed a traumatic injury claim (Form CA-1) alleging that, on that date, he injured his right knee when he tripped over a metal bar and fell onto his right knee while in the performance of duty. He stopped work on July 22, 2016.

On August 24, 2016 Dr. Louis McIntyre, an attending Board-certified orthopedic surgeon, referred appellant for physical therapy for his right knee pain.

Dr. McIntyre, in notes dated October 5 and November 15, 2016, diagnosed patellar fracture and recommended rehabilitation services for appellant.

In a November 15, 2016 report, Dr. McIntyre provided examination findings and noted appellant’s medical history including a four-month history of right anterior knee pain. His diagnoses included left patella closed displaced comminuted fracture with malunion, right patella closed nondisplaced transverse fracture with routine healing, and pain.

By development letter dated December 29, 2016, OWCP advised appellant that when his claim was received, it appeared to be a minor injury that resulted in minimal or no lost time from work and, since the employing establishment did not controvert continuation of pay or challenge the case, a limited amount of medical expenses were administratively approved and paid. It noted that his claim had been reopened because the medical bills had exceeded $1,500.00. OWCP requested that appellant submit additional factual and medical evidence within 30 days. Appellant did not submit any additional evidence within the time allotted.

By decision dated February 28, 2017, OWCP denied appellant’s traumatic injury claim.
It found that the medical evidence of record was insufficient to establish that the diagnosed condition was causally related to the accepted July 22, 2016 work incident.

OWCP subsequently received two reports, dated August 22, 2016 and March 27, 2017, from Dr. McIntyre.

In the August 22, 2016 report, Dr. McIntyre noted that appellant was seen for right knee pain due to a fall at work five weeks prior. He observed appellant using a walker and demonstrating an antalgic gait. Appellant’s physical examination revealed right knee swelling and tenderness, limited range of motion, no valgus stress or varus stress laxity, and negative Lachman’s test. An x-ray interpretation revealed minimally displaced articular surface congruent patellar fracture. Dr. McIntyre diagnosed closed nondisplaced right patella traverse fracture and referred appellant for physical therapy. He related that appellant could return to work in 8 to 10 weeks.

In the March 27, 2017 report, Dr. McIntyre noted that appellant was first seen on August 22, 2016 for a work injury. Appellant related that approximately five weeks prior he fell directly on his right knee while at work. Physical examination findings included an antalgic gait while using a walker, pain on palpation of the right knee, mild right knee effusion, decreased

2 right knee range of motion, negative anterior and posterior drawer tests, and negative Lachman test. Dr. McIntyre reviewed an x-ray interpretation which revealed a minimally displaced patella fracture. He opined that appellant’s right patellar fracture with malunion was directly caused by the July 2016 work incident.

By decision dated August 9, 2017, OWCP denied modification of its prior decision. It found that the evidence of record was insufficient to establish causal relationship between the diagnosed conditions and 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 or specific condition for which compensation is claimed is causally related to the 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 compensable employment factors.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,

3
Id.
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. 09-60 (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. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006)

3 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 employee.11

ANALYSIS

The Board finds that appellant has failed to meet his burden of proof to establish a right knee condition causally related to the accepted July 22, 2016 employment incident.

In support of his claim appellant submitted reports from Dr. McIntyre. In the August 22, 2016 report, Dr. McIntyre diagnosed closed nondisplaced right patella traverse fracture. He, however, did not address causation condition in the August 22, 2016 report. 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.12 Thus, this report is insufficient to meet appellant’s burden of proof.

In a March 27, 2107 report, Dr. McIntrye noted that appellant fell on his right knee at work approximately five weeks prior. He diagnosed right patellar fracture with malunion which he attributed to the July 2016 work incident. To establish causal relationship, a physician must provide a narrative description of the identified employment incident and a reasoned opinion on whether the employment incident described caused or contributed to appellant’s diagnosed medical condition.13 A mere conclusory opinion provided by a physician without the necessary rationale explaining how and why the incident or work factors were sufficient to result in the diagnosed medical condition is insufficient to meet a claimant’s burden of proof to establish a claim.14 Dr. McIntrye provided no supporting rationale explaining his conclusion, and thus, this report is insufficient to meet appellant’s burden of proof.

In order to establish causal relationship, a physician must provide an opinion that the condition for which compensation is claimed is causally related to federal employment and such relationship must be supported with affirmative evidence, explained by medical rationale, and be based upon a complete and accurate medical and factual background of the claimant.15 Appellant has not submitted a medical report sufficient to show a diagnosed condition causally related to the accepted July 22, 2016 employment incident, and thus has not met his burden of proof.

On appeal counsel argues that the medical evidence of record establishes appellant’s claim for a work-related traumatic injury on July 22, 2016. However, the Board has explained

11
I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
12
See T.W., Docket No. 17-1904 (issued February 16, 2018); S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003); Willie M. Miller, 53 ECAB 697 (2002). 13 See K.B., Docket No. 17-1363 (issued February 14, 2018); John W. Montoya, 54 ECAB 306 (2003).
14
D.R., Docket No. 17-1584 (issued February 8, 2018); Docket No. 08-0975 (issued February 6, 2009); Roma A.
Mortenson-Kindschi, 57 ECAB 418 (2006); William C. Thomas, 45 ECAB 591 (1994) (a medical report is of limited probative value on the issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical rationale). 15 See J.W., Docket No. 17-0870 (issued July 12, 2017).

4 the deficiencies in the reports contained in the record and, thus, why appellant has failed to establish his claim.

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 a right knee condition causally related to the accepted July 22, 2016 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated August 9, 2017 is affirmed.

Issued: June 1, 2018
Washington, DC

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

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

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

5