S.W. and Department of Veterans Affairs, Clement J. Zablocki VA Medical Center, Milwaukee, WI (Board decision, February 11, 2020)

ECAB final decision. The Board affirmed OWCP’s January 4, 2018 denial of a lower back condition attributed to a May 15, 2017 work incident. 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

A VA medical support assistant said a cart struck her chair and jolted her back. OWCP accepted the incident. The Board found that medical reports did not adequately explain how it caused or aggravated a diagnosed lower back condition, particularly given her earlier back symptoms. It affirmed the denial.

Decision snapshot

• Authority: FECA medical causation requirement.
• Outcome: OWCP’s January 4, 2018 back condition denial affirmed.
• Key point: A reasoned medical explanation was needed to connect the chair impact to the diagnosed strain.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.W., Appellant
)
)
and ) Docket No. 18-1014
) Issued: February 11, 2020
DEPARTMENT OF VETERANS AFFAIRS,
)
CLEMENT J. ZABLOCKI VA MEDICAL
)
CENTER, Milwaukee, WI, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 17, 2018 appellant filed a timely appeal from a January 4, 2018 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.2

1
5 U.S.C. § 8101 et seq.
2
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. ISSUE

The issue is whether appellant has met her burden of proof to establish that her lower back condition is causally related to the accepted May 15, 2017 employment incident.

FACTUAL HISTORY

On May 23, 2017 appellant, then a 56-year-old medical support assistant, filed a traumatic injury claim (Form CA-1), alleging that when sitting on a chair, she got hit on the back of her chair by a cart, jerking her forward, and felt pain stabbing in her lower back while in the performance of duty. She indicated “lower back, muscle strain” on May 15, 2017 “while [she was] sitting at [her] desk.” Appellant did not stop work.

In a May 30, 2017 development letter, OWCP advised appellant of the deficiencies of her claim and afforded her 30 days to submit appropriate medical evidence and factual information.

In response, appellant submitted a June 4, 2017 narrative statement explaining that on the date of injury she was sitting at her desk, talking with staff members, when all of a sudden she was hit from behind by a nurse pushing a medical cart. She was “protruded forward” and immediately felt pain in her back. Appellant noted that she had problems with her back for years; however, she was not having any issues, problems, or concerns on the date of the incident.

An incident report and a report of contact dated May 15, 2017 indicated that appellant was sitting at her desk when a nurse accidentally hit the back of her chair with a cart and her upper body was thrust forward towards her front desk/computer from the impact.

In a May 15, 2017 report, Dr. Gregory Kaftan, a Board-certified occupational medicine specialist, diagnosed low back pain and asserted that appellant presented to the clinic in a wheelchair complaining of low back pain and stated that her date of injury was May 15, 2017. He stated that appellant was sitting at her desk when another employee pushing a medical cart ran right into the back of her chair and it jolted her back, propelling her forward.

On May 16 and 22, 2017 Dr. Michael T. Von Rueden, a Board-certified family practitioner, diagnosed low back pain and asserted that appellant presented in a wheelchair assisted by a member of her family. He indicated that appellant complained of lower back pain exacerbated at work on May 15, 2017 when she was hit from the back by a medical cart while sitting at work. Dr. Von Rueden also noted that appellant “has had back pain intermittently since eight grade” and her “last episode was actually about [one to two] years ago.”

In a May 22, 2017 certificate for return to work, Dr. Von Rueden opined that appellant was able to return to work on a date “to be determined, hopefully goal date May 30, 2017.”

On May 25, 2017 Dr. Von Rueden diagnosed work-related sacroiliac (SI) joint pain left lower back radiating into left foot.

In a May 30, 2017 report, Dr. Von Rueden indicated that appellant reported that the pain in her lower back was nearly gone, except for an occasional twinge; however, she now felt pain in the back of her left shoulder, which had radiated down into her left elbow for about one week. He

2 found that appellant’s SI joint pain due to a work-related injury had “improved, nearly resolved” and diagnosed tendinitis of left rotator cuff, strain of left supraspinatus muscle, left shoulder pain, and impingement syndrome of the left shoulder “not likely related to work comp[ensation] injury.”

In a May 30, 2017 certificate for return to work, Dr. Von Rueden opined that appellant was able to return to full duty without restrictions that day.

On June 28, 2017 the employing establishment controverted appellant’s claim and argued that no medical diagnosis had been provided. It noted that appellant had returned to full duty, with no restrictions on May 30, 2017.

By decision dated July 3, 2017, OWCP accepted that the May 15, 2017 incident occurred as alleged, but denied appellant’s claim because she failed to submit evidence containing a medical diagnosis in connection with the chair hitting incident. Thus, it concluded that the requirements had not been met to establish an injury as defined by FECA.

On October 5, 2017 appellant requested reconsideration and submitted a September 13, 2017 addendum from Dr. Von Rueden who asserted that her diagnosis was a lower back strain and this was causing the lower back pain.

By decision dated January 4, 2018, OWCP modified its prior decision to reflect that a diagnosed condition had been established. However, the claim remained denied because the medical evidence of record failed to establish a causal relationship between appellant’s diagnosed condition and the accepted May 15, 2017 employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of establishing 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 timely filed within the applicable time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that any disability or medical condition for which compensation is claimed is causally related to the employment injury.5 These are the essential elements of each and every compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

3
Supra note 1.
4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. Cameron, 41 ECAB 153 (1989). 5 J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988). 6 R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3
 To determine if an employee sustained a traumatic injury in the performance of duty, OWCP begins with an analysis of whether fact of injury has been established.7 Fact of injury consists of two components that must be considered in conjunction with one another. The first component is whether the employee actually experienced the employment incident that allegedly occurred.8 The second component is whether the employment incident caused a personal injury.9 An employee may establish that an injury occurred in the performance of duty as alleged, but fail to establish that the disability or specific condition for which compensation is being claimed is causally related to the injury.10

Causal relationship is a medical question that requires rationalized medical opinion evidence to resolve the issue.11 A physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment factor(s) must be based on a complete factual and medical background.12 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 factor(s).13

In any case where a preexisting condition involving the same part of the body is present and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, the physician must provide a rationalized medical opinion that differentiates between the effects of the work-related injury or disease and the preexisting condition.14

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a lower back condition causally related to the accepted May 15, 2017 employment incident.

In his May 15, 2017 report, Dr. Kaftan diagnosed low back pain and asserted that appellant presented to the clinic in a wheelchair, complaining of low back pain and stated that her date of injury was May 15, 2017. He stated that appellant was sitting at her desk when another employee pushing a medical cart ran right into the back of her chair and it jolted her back, propelling her forward. The Board finds that the diagnosis of “pain” is a description of a symptom rather than a

7
E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).
8
L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).
9
B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).
10
J.P., supra note 4; L.T., supra note 8; Shirley A. Temple, 48 ECAB 404, 407 (1997).
11
E.M., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).
12
M.V., Docket No. 18-0884 (issued December 28, 2018).
13
Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).
14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see N.C., Docket No. 19-1191 (issued December 19, 2019); R.D., Docket No. 18-1551 (issued March 1, 2019).

4 clear diagnosis of the medical condition.15 Thus, the report from Dr. Kaftan is insufficient to establish causal relationship.

In his reports, Dr. Von Rueden diagnosed a lower back strain and opined appellant’s SI joint pain in the left lower back radiating into left foot was exacerbated on May 15, 2017 when she was hit from the back by a medical cart while sitting at work. He noted that appellant sustained an injury on May 15, 2017 during work-related activities. However, such generalized statements do not establish causal relationship because they merely repeat her allegations and are unsupported by adequate medical rationale explaining how her physical activity actually caused the diagnosed conditions.16 Dr. Von Rueden did not sufficiently explain the reasons why the examination findings led him to conclude that the accepted May 15, 2017 work incident caused or contributed to the diagnosed condition. The need for rationale is particularly important as Dr. Von Rueden indicates that appellant had a history of intermittent back pain since the eighth grade and an episode of back pain “about [one to two] years ago.” The fact that a condition manifests itself during a period of employment is not sufficient to establish causal relationship.17 Temporal relationship alone will not suffice.18 A physician’s opinion must be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment exposure.19 Although he presented a diagnosis of appellant’s lower back condition, Dr. Von Rueden failed to provide a rationalized medical opinion explaining how the May 15, 2017 chair hitting incident caused or aggravated appellant’s lower back strain. For these reasons, his reports are insufficient to satisfy appellant’s burden of proof with respect to causal relationship.

As appellant has not submitted any rationalized medical evidence to support her claim that she sustained a lower back injury causally related to the accepted May 15, 2017 employment incident, she has failed to meet her burden of proof to establish entitlement to compensation benefits.

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 her burden of proof to establish that her lower back condition is causally related to the accepted May 15, 2017 employment incident.

15
See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
16
See K.W., 59 ECAB 271, 279 (2007).
17
20 C.F.R. § 10.115(e).
18
See D.I., 59 ECAB 158, 162 (2007).
19
Victor J. Woodhams, supra note 13.

5
 ORDER

IT IS HEREBY ORDERED THAT the January 4, 2018 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 11, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6