L.M. and Department of Veterans Affairs, Veterans Health Administration (Board decision, October 22, 2018)

ECAB final decision. The Board affirmed OWCP’s September 21, 2017 denial of bilateral shoulder conditions. 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

L.M., a VA housekeeping worker, attributed shoulder conditions to pulling and moving heavy items at work. OWCP accepted the work factors, but the Board found that the submitted reports either described pain without a firm diagnosis or did not explain how the work caused a diagnosed condition. It affirmed the occupational disease claim denial.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: September 21, 2017 shoulder claim denial affirmed.
• Key point: Accepted work factors required a diagnosis and reasoned medical explanation of causation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.M., Appellant
)
)
and ) Docket No. 18-0473
) Issued: October 22, 2018
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
Dallas, TX, 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 January 8, 2018 appellant filed a timely appeal from a September 21, 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 over the merits of the case.2

ISSUE

The issue is whether appellant has met his burden of proof to establish bilateral shoulder conditions causally related to the accepted factors of his federal employment.

1
5 U.S.C. § 8101 et seq.
2
The record provided the Board includes evidence received after OWCP issued its September 21, 2017 decision.
The Board’s jurisdiction is limited to the evidence in the case record that was before OWCP at the time of its final decision. Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1). FACTUAL HISTORY

On January 31, 2017 appellant, then a 57-year-old housekeeping aid/training lead, filed a notice of recurrence (Form CA-2a) on July 24, 2015 from an October 27, 2011 employment injury under OWCP File No. xxxxxx905. He noted that he felt pain in both shoulders while pulling and moving heavy items. Appellant stopped work on January 25, 2017. OWCP converted the recurrence claim to an occupational disease claim as he claimed bilateral shoulder conditions due to new factors of employment over the course of more than one workday or shift, and assigned File No. xxxxxx595.3

In a September 9, 2010 partial progress note, Dr. Elizabeth George, a Board-certified family practitioner, noted that appellant worked at the employing establishment and had left shoulder pain for two weeks. Appellant stated that he worked in laundry and might have pulled a muscle. X-rays were reviewed and a diagnosis of shoulder pain was provided.

In an October 27, 2011 report, Dr. Teekam T. Ochani, a Board-certified anesthesiologist, and Dr. Solomon Pearce, an osteopathic resident physician, reported that appellant had a one-year history of bilateral upper extremity numbness. Appellant denied trauma, but stated that the symptoms came on as he was lifting heavy, wet clothes in the laundry. His right shoulder x-ray indicated mild degenerative joint disease of the glenohumeral and acromioclavicular (AC) joints.

In a July 24, 2015 partial note, Dr. George indicated that appellant was seen for chronic right shoulder pain. A July 24, 2015 right shoulder x-ray demonstrated degenerative changes in the acromioclavicular and glenohumeral joints.

In an April 8, 2016 emergency room report, Dr. Samuel Oluwole, an internist, reported that appellant complained of right shoulder and right hip pain after lifting heavy objects. Appellant provided a history of carrying some objects up the stairs the day before at about 11:30 a.m. when he was hit in the head by the object he was carrying. He did not pass out and there was no nausea, vomiting, dizziness, lightheadedness, or diplopia. Appellant also reported pain in his right shoulder after the incident. Dr. Oluwole provided examination findings and reviewed objective testing. Discharge diagnoses of right shoulder pain and osteoarthritis were provided.

In a partial report of May 4, 2016, an unknown author, noted that appellant had right shoulder pain for approximately three to four years.

A May 27, 2016 x-ray of appellant’s right shoulder indicated degenerative changes, disproportionately involving the AC joint. A June 17, 2016 right shoulder x-ray indicated

3
OWCP administratively combined File No. xxxxxx905 and File No. xxxxxx595. Under master OWCP File No. xxxxxx905, OWCP administratively adjudicated a September 1, 2010 traumatic injury claim (Form CA-1) in which appellant alleged a right shoulder injury due to lifting wet sheets from a washing machine which failed to spin all the water off the sheets. On January 31, 2017 appellant filed a notice of recurrence (Form CA-2a) due to medical treatment for right hip, left knee, and right shoulder conditions. He indicated that he felt pain in both shoulders while pulling and moving heavy items. Appellant stopped work on January 25, 2017. OWCP reopened the claim for consideration and, by decision dated June 22, 2017, denied the notice of recurrence as the medical evidence of record did not establish that the claimed medical conditions were causally related to the accepted September 1, 2010 employment incident.

2 moderate-to-advanced osteoarthritis in the right AC joint and mild osteoarthritis in the right glenohumeral joint.

On July 27, 2016 appellant was seen in the emergency department for right shoulder and arm pain which began three years prior. Marijeta Medverec, a certified physician assistant, noted that appellant worked laundry and did the same movement over and over. A July 27, 2016 right shoulder x-ray revealed moderate-to-advanced osteoarthritis in the right AC joint and mild osteoarthritis in the right glenohumeral joint. Appellant was discharged with a diagnosis of shoulder pain.

In an August 12, 2016 letter, Dr. Angele Arthur, a general practitioner, provided work restrictions until October 14, 2016. In the accompanying report dated August 12, 2016, he noted that appellant had right shoulder pain secondary to degenerative changes. Examination findings were provided and diagnostic testing was reviewed. An August 12, 2016 right shoulder x-ray noted mild degenerative joint disease of the glenohumeral and AC joints. An assessment of chronic right shoulder pain and right AC joint pain was provided.

In a November 2, 2016 report, Dr. Prathyusha Reddy, a specialist in internal medicine, provided work restrictions until May 1, 2016. In notes dated November 23, 2016 and February 22, 2017, she indicated that appellant was unable to work until May 1, 2017.

Diagnostic reports of record included an August 26, 2016 bone scan, which indicated arthritic/inflammatory changes with no significant interval change compared to a prior whole body bone scan of May 29, 2013.

In a July 7, 2017 development letter, OWCP advised appellant of the deficiencies in the claim. It asked him to submit additional factual and medical evidence, including his responses to a development questionnaire. OWCP afforded appellant 30 days to submit the necessary evidence. Also, in a July 7, 2017 letter, it requested information from the employing establishment pertaining to appellant’s employment duties.

No further evidence was received from neither appellant nor the employing establishment.

By decision dated September 21, 2017, OWCP accepted that the factors of employment occurred as alleged, but denied appellant’s claim finding that the medical component of fact of injury had not been met as he had submitted no medical evidence containing a diagnosis in connection with the accepted employment factors.

LEGAL PRECEDENT

A claimant seeking benefits under FECA has the burden of proof to establish the essential elements of his or her claim by the weight of the reliable, probative, and substantial evidence, including that an injury was sustained in the performance of duty as alleged, and that any specific condition or disability claimed is causally related to the employment injury.4

To establish that an injury was sustained in the performance of duty in an occupational disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence

4
20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

3 of the disease or condition for which compensation is claimed; (2) a 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 diagnosed condition is causally related to the identified employment factors.5

A physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment factors must be based on a complete factual and medical background.6 Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment factors.7

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish bilateral shoulder conditions causally related to the accepted factors of his federal employment.

Appellant alleged that pulling and moving heavy items in his employment caused his bilateral shoulder conditions. OWCP accepted these factors as factual. However, in order to establish a claim for an employment-related injury, appellant must also submit rationalized medical evidence which explains how or why his medical conditions were caused or aggravated by the accepted employment factors.8

Dr. George, in her September 9, 2010 progress note, noted that appellant worked in laundry and that he had left shoulder pain for two weeks. She provided a diagnosis of shoulder pain. In her July 24, 2015 report, Dr. George reviewed a July 24, 2015 right shoulder x-ray, but did not provide any diagnosis. The Board has consistently held that pain is a symptom and not a compensable medical diagnosis.9 To establish a personal injury the medical evidence of record must document a diagnosed condition and must explain how that condition is causally related to the accepted factors of his federal employment. Lacking a firm diagnosis and an opinion regarding the cause of appellant’s condition, the reports from Dr. George are of no probative value on the issue of causal relationship.10

In their October 27, 2011 report, Dr. Ochani and Dr. Pearce reported that appellant’s bilateral upper extremity numbness started while he was lifting heavy clothes in the laundry. While they reviewed right shoulder x-rays, they did not provide any discussion or opinion as to whether appellant’s employment activities requiring heavy lifting caused his diagnosed conditions of mild degenerative joint disease of the glenohumeral and AC joints. The Board has held that medical evidence which does not offer an opinion regarding the cause of an employee’s condition is of no

5
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
6
Id.
7
Id.
8
See V.U., Docket No. 17-0860 (issued July 26, 2017); A.C., Docket No. 08-1453 (issued November 18, 2008).
9
B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).
10
L.F., Docket No. 17-0689 (issued May 9, 2018).

4 probative value on the issue of causal relationship.11 Therefore, this report does not establish appellant’s claim.

In an April 8, 2016 report, Dr. Oluwole noted appellant’s history of right shoulder pain after lifting heavy objects as well as an April 7, 2016 incident on stairs. He provided diagnoses of right shoulder pain, and osteoarthritis of the shoulder. As previously explained, pain is a symptom and not a compensable medical diagnosis.12 As Dr. Oluwole failed to provide any discussion or opinion regarding the cause of appellant’s diagnosed osteoarthritis of the hip and shoulder, his report does not establish appellant’s claim.13

In his August 12, 2016 report, Dr. Arthur noted that appellant had right shoulder pain secondary to degenerative changes. As previously noted, the 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.14 As Dr. Arthur did not offer an opinion based upon appellant’s employment history of heavy lifting, his report cannot establish appellant’s claim.15

Similarly, the reports from Dr. Reddy, do not provide a history of injury, a firm medical diagnosis, nor a rationalized opinion regarding causal relationship. Her reports are therefore of limited probative value.16

The diagnostic testing of record is also of diminished probative value. The Board has held that reports of diagnostic tests are of limited probative value as they do not provide an opinion on the causal relationship between appellant’s employment duties and the diagnosed conditions.17

Regarding the unsigned medical reports, it is unknown whether the author of the report is a physician. Therefore, as the Board has held, a report that is unsigned or bears an illegible signature lacks proper identification and cannot be considered probative medical evidence.18

Certain healthcare providers such as physician assistants, nurse practitioners, physical therapists, and social workers are not considered a physician as defined under FECA.19 Consequently, their medical findings and/or opinions will not suffice for purposes of establishing

11
Id.
12
Id.
13
Id.
14
See also S.H., Docket No. 17-1524 (issued December 21, 2017).
15
Charles H. Tomaszewski, 39 ECAB 461 (1988).
16
Id.
17
See R.T., Docket No. 17-2019 (issued August 24, 2018).
18
See A.P., Docket No. 18-0238 (issued July 20, 2018).
19
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

5 entitlement to FECA benefits.20 The July 27, 2016 report from Ms. Medverec, a certified physician assistant, is of no probative value as she is not a physician under FECA.

As there is no medical evidence explaining how the accepted employment factors of pulling and moving heavy items caused or aggravated a medical condition involving appellant’s shoulders, appellant has not met his burden of proof to establish his claim.21

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 bilateral shoulder conditions causally related to the accepted factors of his federal employment.

ORDER

IT IS HEREBY ORDERED THAT the September 21, 2017 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: October 22, 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

20
K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).
21
See J.K., Docket No. 16-1850 (issued January 9, 2017); K.G., Docket No. 15-1139 (issued September 28, 2016).

6