J.P. and U.S. Postal Service, Post Office, Medford, MA (Board decision, July 18, 2018)

ECAB final decision. The Board affirmed denial of the right elbow injury claim. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

J.P., a postal clerk, reported right elbow pain after lifting a mail tray from a container at work. OWCP accepted the incident, but the Board found that his physician’s form reports did not adequately explain how it caused the diagnosed elbow condition. A physician assistant’s report did not qualify as a medical opinion under FECA. It affirmed denial of the elbow injury claim.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: October 27, 2017 right elbow claim denial affirmed.
• Key point: The physician reports lacked a reasoned causal explanation for the diagnosed elbow condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.P., Appellant
)
)
and ) Docket No. 18-0310
) Issued: July 18, 2018
U.S. POSTAL SERVICE, POST OFFICE,
)
Medford, 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
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 22, 2017 appellant filed a timely appeal from an October 27, 2017 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish a right elbow injury causally related to the accepted September 11, 2017 employment incident.

FACTUAL HISTORY

On September 11, 2017 appellant, then a 56-year-old clerk, filed a traumatic injury claim (Form CA-1) alleging that on that day he injured his right elbow when he lifted a letter tray from

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5 U.S.C. § 8101 et seq. a postcon. He stopped work on September 11, 2017 and returned to a light-duty position on October 3, 2017.

In an undated attending physician’s report (Form CA-20), a certified physician assistant, noted an injury date of September 11, 2017 and diagnosed right elbow strain and swelling, which was attributed to lifting a tray. He/She indicated that appellant was disabled from work from September 11 to 15, 2017.

In a duty status report (Form CA-17) dated September 19, 2017, Dr. John Lynch, a treating Board-certified orthopedic surgeon, noted an injury date of September 11, 2017. He described the injury as occurring when appellant lifted a tray out of a postcon and noted the right elbow was the affected body part. Dr. Lynch checked the box marked “no” to the question of whether appellant had been advised to return to work.

In a development letter dated September 26, 2017, OWCP advised appellant that the evidence submitted was insufficient to establish his claim. It advised him regarding the type of medical evidence required and afforded 30 days to provide the requested evidence.

A September 11, 2017 ultrasound test showed no evidence of right upper extremity deep vein thrombosis. The report noted that appellant complained of pain and swelling in the right upper extremity.

A September 11, 2017 x-ray report noted unremarkable findings, with no fracture or effusion.

In progress notes dated September 15, 2017, Scott Pladel, a physician assistant, noted right elbow pain and diagnosed medial epicondyle flexor strain. He noted appellant’s history of injury and provided his examination findings, which included pain at end of elbow extension, full elbow range of motion, a resolving right elbow ecchymosis, and notable tenderness of the right medial epicondyle. Mr. Pladel indicated that appellant was capable of working with restrictions. In a prescription note dated September 15, 2017, he diagnosed right medial elbow epicondylitis strain. OWCP continued to receive progress notes from Mr. Pladel.

In a physical therapy note dated September 22, 2017, Emily Smalheiser, physical therapist, noted an injury date of September 11, 2017 and provided a diagnosis of right medial epicondylitis. She noted that the injury occurred at work and that appellant heard a pop followed by immediate swelling. In a physical therapy note dated September 28, 2017, Jenna Thomas, a physical therapist, noted soreness at the right medial epicondyle.

On October 5, 2017 appellant was seen for physical therapy with Daniel O’Neill, a physical therapist. Mr. O’Neill diagnosed right medial epicondylitis.

In a Form CA-17 dated October 12, 2017, Dr. Lynch noted an injury date of September 11, 2017 and reported a diagnosis of medial epicondylitis strain as due to the injury. He described the injury as occurring when appellant lifted a tray out of a postcon and noted the right elbow as the affected body part. Dr. Lynch checked the box marked “yes” to the question of whether appellant had been advised to return to work and provided work restrictions. In an October 12, 2017 work capacity evaluation form (Form OWCP-5c), he diagnosed right medial epicondyle strain.

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Dr. Lynch indicated that appellant was capable of working an eight-hour day with restrictions for the right upper extremity.

By decision dated October 27, 2017, OWCP denied appellant’s claim. It found that the September 11 2017 incident occurred as alleged, but that medical evidence of record was insufficient to support a diagnosed medical condition causally related to the accepted incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA2 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 conditions for which compensation is claimed are causally related to the employment injury.3 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.4

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.5 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.6 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.7

Causal relationship is a medical issue and the medical evidence generally required to establish causal relationship is rationalized medical opinion evidence.8 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.9 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

2
5 U.S.C. § 8101 et seq.
3
C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).
4
S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5
B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.
6
D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).
7
C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 3.
8
Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 642 (2006).
9
J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

3 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.10

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a right elbow injury causally related to the accepted September 11, 2017 employment incident.

Appellant submitted form reports dated September 19 and October 12, 2017 from his attending physician, Dr. Lynch. In the October 12, 2017 Form CA-17 report, Dr. Lynch diagnosed medial epicondylitis strain as due to the September 11, 2017 work incident. While he described the accepted September 11, 2017 employment incident, Dr. Lynch failed to provide rationale explaining how the diagnosed medial epicondylitis strain was causally related to the accepted work incident. The opinion of a physician supporting causal relationship must rest on a complete factual and medical background supported by affirmative evidence, address the specific factual and medical evidence of record, and provide medical rationale explaining the relationship between the diagnosed condition and the established incident or factor of employment.11 Dr. Lynch offered no rationalized medical explanation as to how the accepted employment incident caused appellant’s diagnosed condition. As such, his opinion is of limited probative value.12 The mere fact that a condition arises after an event and was not present before an event is insufficient to support causal relationship.13

In the September 19, 2017 Form CA-17 and October 12, 2017 Form OWCP-5c, Dr. Lynch diagnosed right medial epicondyle strain, but offered no opinion as to the cause of the condition. The Board has held that 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.14 For the reasons set forth above, none of Dr. Lynch’s reports are sufficient to meet appellant’s burden of proof.

Appellant also submitted reports from physician assistants and physical therapists. This evidence has no probative medical value. The Board has held that neither a physician assistant

10
I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
11
See Lee R. Haywood, 48 ECAB 145 (1996).
12
See A.B., Docket No. 16-1163 (issued September 8, 2017).
13
Michael S. Mina, supra note 9.
14
C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

4 nor a physical therapist is considered a physician as defined under FECA.15 As such, this evidence is also insufficient to meet appellant’s burden of proof.

The record also contains an x-ray and ultrasound dated September 11, 2017 in support of his claim. However, diagnostic studies are of limited probative value as they do not address whether the accepted September 2017 employment incident caused a diagnosed medical condition.16

The record before the Board is without rationalized medical evidence establishing that appellant sustained a right elbow condition causally related to the accepted September 11, 2017 work incident. OWCP advised appellant that it was his responsibility to provide a comprehensive medical report which described his symptoms, test results, diagnosis, history of treatment, and the physician’s opinion, with medical reasons, on the cause of his conditions. Appellant has failed to submit appropriate medical documentation in response to OWCP’s request. 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.17 An award of compensation may not be based on surmise, conjecture, speculation, or on the employee’s own belief of causal relation.18

The medical evidence of record is therefore insufficient to establish that appellant sustained a right elbow injury causally related to the accepted 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 has not met his burden of proof to establish a right elbow injury causally related to the accepted September 11, 2017 employment incident.

15
The term “physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative medical evidence from a physician). 16 See R.S., Docket No. 17-1139 (issued November 16, 2017); G.M., Docket No. 14-2057 (issued May 12, 2015).
17
L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB 559 (2006).
18
S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303 (2007); Donald W. Long, 41 ECAB 142 (1989).

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 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated October 27, 2017 is affirmed.

Issued: July 18, 2018
Washington, DC

Christopher J. Godfrey, 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

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