E.T. and U.S. Postal Service, Post Office, Monroe, WA (Board decision, July 27, 2020)

ECAB final decision on this appeal. The Board affirmed OWCP's March 8, 2019 refusal to add complex regional pain syndrome to E.T.'s accepted ankle injury claim. Under 20 C.F.R. § 501.6(d), this Board decision becomes final as to the appeal 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

E.T., a rural mail carrier, sustained an accepted right ankle sprain while delivering a package. She sought to expand her claim to include complex regional pain syndrome, also called reflex sympathetic dystrophy. The Board credited an OWCP referral neurologist's examination and conclusion that the record did not objectively support that condition. Other physicians had diagnosed or discussed it, but did not explain how the accepted injury caused it. The Board affirmed OWCP's refusal to expand the claim.

Decision snapshot

• Authority: FECA claim expansion and medical causation requirements.
• Outcome: March 8, 2019 denial of claim expansion affirmed.
• Key point: A diagnosis alone did not establish that the additional condition resulted from the accepted injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.T., Appellant
)
)
and ) Docket No. 19-0948
) Issued: July 27, 2020
U.S. POSTAL SERVICE, POST OFFICE,
)
Monroe, WA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On April 1, 2019 appellant, through counsel, filed a timely appeal from a March 8, 2019 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 over the merits of this case.

ISSUE

The issue is whether appellant has met her burden of proof to establish that the acceptance of her claim should be expanded to include the additional condition of complex regional pain

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. syndrome/reflex sympathetic dystrophy (CRPS/RSD) as causally related to her accepted December 1, 2015 employment injury.

FACTUAL HISTORY

On December 9, 2015 appellant, then a 52-year-old rural carrier, filed a traumatic injury claim (Form CA-1) alleging that on December 1, 2015 she sprained her right ankle when she stepped on an object in a gravel driveway when delivering a package and her ankle rolled inward while in the performance of duty. She stopped work on December 1, 2015. OWCP accepted the claim for sprain of an unspecified ligament of the right ankle and paid wage-loss compensation for disability from work.

A magnetic resonance imaging (MRI) scan of the right ankle taken on January 14, 2016 demonstrated mild-to-moderate sprains of the medial and lateral ligamentous structures without focal tear, mild tibialis posterior tendinopathy and tenosynovitis, mild peroneus longus tendinopathy and tenosynovitis, minimal Achilles tendinopathy, small tibiotalar and subtalar joint effusions, a small region of deep partial to full-thickness cartilage loss at the tibiotalar joint, and subtle reactive edema versus strain at the distal aspect of the plantar fascia.

By decision dated May 26, 2016, OWCP denied appellant’s claim for wage-loss compensation for temporary total disability beyond February 6, 2016. By separate decision of even date, it denied her claim for a schedule award.

In a report dated September 22, 2016, Dr. Daniel Gonzalez-Dilan, Board-certified in emergency medicine, discussed his physical examination of appellant’s right ankle. He noted no ecchymosis, slight swelling over the anterior dorsal foot, tenderness in the lateral ankle, and limited flexion and extension. Dr. Gonzalez-Dilan diagnosed right ankle sprain, opining that it was related to the December 1, 2015 incident on a more probable than not basis.

In a September 27, 2016 report, Dr. Sean S. Laghaeian, a podiatric surgeon, treated appellant for complaints of right ankle pain. On examination of the right ankle, he noted pain out of proportion which made examination difficult, edema, full muscle strength, generalized pain, and tenderness to palpation. Dr. Laghaeian diagnosed right ankle pain, type 1 CRPS of the right lower extremity, right posterior tibial tendinitis, and allodynia. He indicated that, due to the severity of appellant’s symptoms and the disproportionality of the pain level to the injury, he suspected CRPS of the right leg. Dr. Laghaeian recommended consultation with a neurologist.

On November 7, 2016 Dr. Rachel P. Allen, a Board-certified neurologist, evaluated appellant for CRPS. On physical examination, she noted allodynia with mild edema of the right ankle, but no other clear evidence of autonomic features as would be expected with CRPS. Dr. Allen indicated that there was “lower suspicion” for CRPS, but that the condition could not be definitively excluded. She recommended following up with a pain specialist.

On January 31, 2017 Dr. Christopher Merifield, a Board-certified anesthesiologist specializing in pain medicine, evaluated appellant for chronic right foot pain. He indicated that, on examination, he did not find symptoms consistent with CRPS, allodynia, or hyperesthesia. Dr. Merifield diagnosed chronic pain of the right ankle.

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 On March 7, 2017 Dr. Merifield noted continued pain of the right lower extremity in the lateral and dorsum right foot with intermittent swelling. On examination, he noted mild edema over the lateral right ankle with slight discoloration, as well as small varicosities in appellant’s dorsum foot compared to the left. Dr. Merifield diagnosed chronic pain of the right ankle, right foot pain, and paresthesia of the right foot. He reported that appellant had a confusing presentation, as she did not have any specific signs of sympathetically-mediated pain. Dr. Merifield indicated that he was not convinced of the diagnosis and recommended pursuing a bone scan.

Appellant submitted reports of Chelsea Eslick, a physical therapist, who reported the findings of therapy sessions conducted from March 25 through June 10, 2017.

On April 27, 2017 Dr. Gonzalez-Dilan noted that appellant’s condition had improved with physical therapy and that she had increased range of motion and less pain. On examination of the right ankle, he observed no ecchymosis, no edema, and pain on inversion. Dr. Gonzalez-Dilan diagnosed right ankle sprain, related to the December 1, 2015 employment incident on a more probable than not basis, and CRPS of the right lower extremity.

In a report dated June 8, 2017, Dr. Gonzalez-Dilan observed that appellant’s condition had improved markedly. On examination of the right ankle, he noted no ecchymosis, no edema, and pain only in the posterior right ankle and on ankle inversion. Dr. Gonzalez-Dilan diagnosed right ankle sprain, related to the employment incident on a more probable than not basis, and CRPS of the right lower extremity. He advised that appellant could perform light-duty work.

OWCP referred appellant for a second opinion examination with Dr. Vicki Kalen, a Board- certified orthopedic surgeon. It requested that Dr. Kalen provide a report indicating whether appellant’s work-related condition had resolved and discussing her current functional capacity and recommended course of treatment. In a report dated June 28, 2017, Dr. Kalen reviewed appellant’s medical history and a statement of accepted facts (SOAF). On examination of the right ankle, she noted no swelling and varicosities, no edema, unremarkable stance and gait, nearly full motion of the right ankle, and negative Babinski and Clonus tests. Sensory testing demonstrated a nondermatomal pattern with some loss of sensation on appellant’s lateral calf and toes, but good sensation on the dorsum of the foot. Dr. Kalen observed tenderness to palpation that began a few inches above appellant’s ankles and was most marked laterally, noting that when she examined the malleoli appellant had pain in front of and behind both malleoli, as well as distal to the malleoli where the collateral ligaments would be. She diagnosed resolved lateral ankle sprain. Dr. Kalen advised that diagnosing CRPS was outside her experience as an orthopedist, but noted that there were no symptoms of temperature changes, color changes, or swelling of the right foot. She indicated that if, it was true that there was ongoing CRPS, it was improving. Dr. Kalen noted that appellant had no physical restrictions and that any specific symptoms hindering recovery seemed to be on a psychological basis.

By decision dated August 14, 2017, OWCP terminated appellant’s medical benefits effective August 10, 2017, based on the opinion of Dr. Kalen who opined that appellant had no further residuals or disability due to the accepted December 1, 2015 employment injury.

On August 24, 2017 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review.

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 Appellant subsequently submitted a September 5, 2017 from Dr. Mary F. Read, a Board- certified family practitioner, who examined appellant for right ankle swelling, pain, sensitivity, and neurogenic symptoms. Dr. Read reviewed appellant’s history of injury, noting that appellant rolled her ankle in early December 2015 on a gravel driveway while delivering mail. On examination, she noted mild swelling, somewhat decreased range of motion on all planes, pain on palpation on the lateral and medial aspects of the ankles, discoloration of the skin, different temperature compared to the left, dullness of sensation on the bottom of the foot, and a mildly antalgic gait. Dr. Read assessed persistent neurogenic symptoms and activity intolerance since an ankle sprain two years prior. She indicated that a definite diagnosis of CRPS had not been given.

A nerve conduction study of the right lower extremity, administered on September 20, 2017 demonstrated a normal right lower extremity study with no evidence of sensory or motor neuropathy across the right ankle and foot. There was no evidence of a right sural, superficial peroneal, medial, or lateral plantar sensory neuropathy, and there was no evidence of a right peroneal or right tibial motor neuropathy.

In a follow-up report dated October 10, 2017, Dr. Read indicated that appellant did not meet the criteria for CRPS, but that her earlier presentation may have been compatible with that diagnosis. On examination of the right foot, she noted no significant ankle or foot edema, a slightly dusky coloration compared to the left foot when seated for more than 10 minutes, decreased coolness on the toes of the foot, and fine varicosities that did not appear on the left foot. Dr. Read noted sensitivity to light touch and/or pressure on the top of the medial aspect of the foot.

In a November 1, 2017 letter to counsel, Dr. Read indicated that it was difficult to give appellant a firm diagnosis. She noted that, from review of the records, it appeared that appellant exhibited most of the symptoms consistent with a diagnosis of CRPS, but she could not render the diagnosis at that time.

The hearing before OWCP’s hearing representative was held on February 13, 2018. At the hearing, counsel requested a decision as to whether appellant had CRPS/RSD causally related to her accepted December 1, 2015 employment injury. The record was held open for at least 30 days subsequent to the hearing for submission of additional evidence.

Appellant submitted physical therapy notes of Ms. Eslick dated February 28 through May 13, 2017.

By decision dated April 27, 2018, OWCP’s hearing representative affirmed the August 14, 2017 termination decision, but remanded the case to OWCP for a de novo decision on the additional claimed conditions of CRPS/RSD.

In May 2018 OWCP referred appellant to Dr. William Stump, a Board-certified neurologist, for a second opinion examination and opinion on the issue of whether she had CRPS/RSD causally related to the accepted December 1, 2015 employment-related injury. In a report dated June 11, 2018, Dr. Stump reviewed the medical record and a SOAF. On examination of the right ankle, he noted normal skin coloration, no motor weakness, decreased sensation over the dorsum of the right foot, pain with dorsiflexion of the right foot, a stable Romburg examination, and +1 knee and ankle reflexes, symmetrical bilaterally. Dr. Stump diagnosed objectively resolved

4 right ankle sprain secondary to industrial injury, and persistent pain and parasthesia in the right ankle and foot region without objective support for RSD. He opined that appellant did not have CRPS/RSD and noted, “It was not work related.” Dr. Stump advised that she did not require medical treatment and advised that she was capable of performing the duties of her federal employment without objectively-based restrictions.

By decision dated July 6, 2018, OWCP denied expansion of appellant’s claim to include CRPS/RSD causally related to the accepted December 1, 2015 employment injury. It found that the medical evidence of record, including Dr. Stump’s June 11, 2018, did not support expansion of the acceptance of the claim.

On July 13, 2018 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was held on November 7, 2018 and OWCP’s hearing representative held the case record open for at least 30 days for the submission of additional evidence.

By decision dated December 17, 2018, OWCP’s hearing representative affirmed the July 6, 2018 decision.

On January 2, 2019 appellant, through counsel, requested reconsideration of the December 17, 2018 decision.

Appellant submitted a November 28, 2018 report from Dr. Read who reviewed appellant’s medical history and noted that she had continued physical limitations due to appellant’s right ankle symptoms. Dr. Read indicated that appellant continued to note differences in color of her right foot compared to her left, as well as sensitivity to light touch, swelling, decreased range of motion, sweatiness, and pain with cold temperatures. She did not note results on examination. Dr. Read diagnosed type 1 CRPS of the right lower extremity, decreased range of motion of the right ankle, and abnormality of gait.

By decision dated March 8, 2019, OWCP denied modification of the December 17, 2018 decision.

LEGAL PRECEDENT

Where an employee claims that, a condition not accepted or approved by OWCP was due to an employment injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury.3

The medical evidence required to establish causal relationship between a claimed specific condition and/or period of disability and an employment injury is rationalized medical opinion evidence. 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

3
J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

5 by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by the claimant.4

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that the acceptance of her claim should be expanded to include the additional condition of CRPS/RSD as causally related to her accepted December 1, 2015 employment injury.

The Board finds that the weight of the medical opinion evidence with respect to appellant’s claim for employment-related CRPS/RSD is represented by the thorough, well-rationalized opinion of Dr. Stump, an OWCP referral physician. The June 11, 2018 report of Dr. Stump establishes that she does not have CRPS/RSD related to her accepted December 1, 2015 right ankle injury and that the acceptance of her claim should not be expanded to include this condition.

In his June 11, 2018 report, Dr. Stump noted that, on physical examination of the right ankle, appellant exhibited normal skin coloration, no motor weakness, decreased sensation over the dorsum of the right foot, pain with dorsiflexion of the right foot, a stable Romburg examination, and +1 knee and ankle reflexes, symmetrical bilaterally. He diagnosed objectively resolved right ankle sprain secondary to industrial injury, and persistent pain and parasthesia in the right ankle and foot region without objective support for RSD. Dr. Stump opined that appellant did not have CRPS/RSD. He noted that she did not require medical treatment and indicated that she was capable of performing the duties of her federal employment without objectively-based restrictions.

The Board has reviewed the opinion of Dr. Stump and finds that it has reliability, probative value and convincing quality with respect to its conclusions regarding appellant’s claim for CRPS/RSD related to her accepted December 1, 2015 employment injury. Dr. Stump provided a thorough factual and medical history and accurately summarized the relevant medical evidence. He provided medical rationale for his opinion by explaining that appellant had no objective findings of the condition of CRPS/RSD.5

The case record contains other medical reports regarding the claimed CRPS/RSD condition, but the Board finds that these reports are of no probative value with respect to appellant’s expansion claim because they do not contain an opinion relating CRPS/RSD to the accepted December 1, 2015 employment injury. In a September 27, 2016 report, Dr. Laghaeian diagnosed CRPS of the right lower extremity, which he suspected due to the severity of her symptoms and disproportionality of the pain level to the injury. On April 27, 2017 Dr. Gonzalez- Dilan diagnosed right ankle sprain related to the incident on a more probable than not basis, and CRPS of the right lower extremity. On June 8, 2017 he observed that appellant’s condition had improved markedly, diagnosing right ankle sprain related to the incident on a more probable than

4
See E.J., Docket No. 09-1481 (issued February 19, 2010).
5
See W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 (issued October 4, 2018);
Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical history, and the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion).

6 not basis, and CRPS of the right lower extremity. In a November 28, 2018 report, Dr. Read did not note results on examination, but she diagnosed type 1 CRPS of the right lower extremity. As noted, these medical reports do not attribute the diagnosis of CRPS to the December 1, 2015 employment injury. The reports contain a firm diagnosis of CRPS, but no opinion as to the cause of the condition. The Board has held that medical evidence that does not offer an opinion regarding the cause of an employee’s condition is of no probative value on the issue of causal relationship.6 Without medical reasoning explaining how the accepted employment injury of December 1, 2015 caused or contributed to the diagnosed condition, these reports containing a diagnosis of CRPS are insufficient to establish appellant’s claim.7

The record contains numerous reports that reference CRPS/RSD, but do not give firm diagnoses of the condition. On January 31, 2017 Dr. Merifield noted that he did not find symptoms consistent with CRPS, allodynia, or hyperesthesia. In a November 7, 2016 report, Dr. Allen indicated that there was “lower suspicion” for CRPS, but it could not be definitively excluded. On March 7, 2017 Dr. Merifield noted that he was not convinced of the diagnosis and recommended pursuing a bone scan. On June 28, 2017 Dr. Kalen, a prior OWCP referral physician, noted that diagnosis of CRPS was outside her experience as an orthopedic surgeon, but indicated that there were no symptoms of temperature changes, color changes, or swelling of the right foot. On September 5, 2017 Dr. Read noted that a definite diagnosis of CRPS had not been given and, on October 10, 2017 she advised that appellant did not meet the criteria for CRPS, but that her earlier presentation may have been compatible with that diagnosis. In a November 1, 2017 report, she indicated that it was difficult to give appellant a firm diagnosis. Dr. Read noted that, from review of the records, it appeared that she exhibited most of the symptoms consistent with a diagnosis of CRPS, but she could not render the diagnosis at that time. The Board has held that a medical report is of no probative value on causal relationship if it does not provide a firm diagnosis of a particular medical condition or offer a specific opinion as to whether the accepted employment incident caused or aggravated the claimed condition.8 As these reports do not provide a firm diagnosis of CRPS/RSD or an affirmative opinion on the causal relationship between appellant’s accepted injury and a diagnosis of CRPS/RSD they are insufficient to establish CRPS/RSD causally related to the accepted employment injury.

Appellant submitted diagnostic reports including an MRI scan of the right ankle taken on January 14, 2016 and a nerve conduction study taken on September 20, 2017. These reports are insufficient to establish her expansion claim because the Board has held that diagnostic reports standing alone that do not offer an opinion regarding the cause of an employee’s condition lack probative value on the issue of causal relationship.9

The remainder of the medical evidence of record, including a September 22, 2016 report of Dr. Gonzalez-Dilan, does not contain diagnoses or discussion of CRPS/RSD. As previously noted, lacking a firm diagnosis and opinion that a diagnosed CRPS/RSD condition is related to the 6 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
7
See L.D., Docket No. 19-0623 (issued June 19, 2019).
8
See A.R., Docket No. 19-1560 (issued March 2, 2020).
9
C.S., Docket No. 19-1279 (issued December 30, 2019).

7 accepted employment injury, these reports are of no probative value regarding causal relationship.10

Appellant also submitted notes from Ms. Eslick, a physical therapist, dated February 28 through June 10, 2017. These reports are of no probative value on the underlying issue of this case because the report of a physical therapist does not constitute probative medical evidence given that a physical therapist is not a physician under FECA.11

As the medical evidence of record is insufficient to establish that the diagnosed condition of CRPS/RSD is causally related to the accepted December 1, 2015 employment injury, the Board finds that appellant has not met her burden of proof to expand the acceptance of her 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 her burden of proof to establish that the acceptance of her claim should be expanded to include the additional condition of CRPS/RSD as causally related to her accepted December 1, 2015 employment injury.

10
See id.
11
Section 8101(2) of FECA provides that 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. § 8101(2). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).

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 ORDER

IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: July 27, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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