S.W. and Department of Veterans Affairs, Northern California Health Care System, Martinez, CA (Board decision, February 12, 2020)

ECAB final decision. The Board affirmed OWCP’s June 24, 2019 denial of an occupational arthritis 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).

Plain-English summary

A VA medical support assistant attributed arthritis in her back, knees, and hips to an unstable workstation and leaning toward a telephone. She did not describe the work activities in enough detail or answer OWCP’s requests for that information. The Board found the factual basis of the claim unproven and affirmed the denial without reaching the medical evidence.

Decision snapshot

• Authority: FECA occupational disease factual proof requirement.
• Outcome: OWCP’s June 24, 2019 claim denial affirmed.
• Key point: The employee did not identify the workplace activities with enough detail to establish the claimed exposure.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.W., Appellant
)
)
and ) Docket No. 19-1609
) Issued: February 12, 2020
DEPARTMENT OF VETERANS AFFAIRS,
)
NORTHERN CALIFORNIA HEALTH CARE
)
SYSTEM, Martinez, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 July 23, 2019 appellant filed a timely appeal from a June 24, 2019 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.

ISSUE

The issue is whether appellant has met her burden of proof to establish an occupational disease in the performance of duty, as alleged.

FACTUAL HISTORY

On March 29, 2019 appellant, then a 41-year-old medical support assistant, filed an occupational disease claim (Form CA-2) alleging that she developed arthritis in the back, knees,

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5 U.S.C. § 8101 et seq. and hips while in the performance of duty. She claimed that her primary duties were sedentary and that her condition was caused by her workstation which was not “ergonomically stable.” Appellant indicated that she first became aware of the condition on April 16, 2018 and first attributed the condition to factors of her federal employment on October 1, 2018. She related that she came to the realization that her conditions were work related because she was sitting in a chair in her workstation answering the telephone and, as she leaned forward, she felt pain over her lower back, which worsened over time. Appellant stopped work on March 22, 2019.

In support of her claim, appellant submitted a series of x-ray reports. In a November 26, 2018 report, Dr. Vincent Wong, a specialist in family medicine, found that appellant’s left knee x- ray revealed mild degenerative changes. In a March 7, 2019 report, he noted that x-ray of appellant’s lumbar spine revealed moderately advanced multilevel degenerative changes. In a March 18, 2019 report, Dr. Samuel Choi, a Board-certified radiologist, related that x-rays of appellant’s bilateral hips revealed mild-to-moderate degenerative changes.

In a March 27, 2019 note, appellant’s supervisor indicated that appellant had declined ergonomic evaluations on multiple occasions and had declined both a standing desk and a new chair. Appellant’s leave issues were also summarized.

In an April 25, 2019 report, Dr. Patricia Wiggins, a Board-certified specialist in occupational medicine, noted that appellant’s lumbar pain began on April 16, 2018 and that it worsened when bending, sitting, and standing. She also related that appellant had bilateral hip pain, which worsened with sitting and walking. Regarding appellant’s medical history, Dr. Wiggins related that appellant was a chronic pain patient with end-stage osteoarthritis in the hip, and spine, with milder osteoarthritis in the knees, who had been vocationally retrained after being out of the workforce for more than two years. She related appellant’s diagnoses of osteochondrosis of the lumbar spine and bilateral post-traumatic osteoarthritis of the hips. Dr. Wiggins opined that appellant’s spine and hip conditions, more likely than not, were “not caused or aggravated by factors of employment.”

In a development letter dated April 9, 2019, reissued on May 15, 2019, OWCP informed appellant that the evidence of record was insufficient to establish her claim. It advised her of the type of factual and medical evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit additional evidence. Appellant did not respond.

By decision dated June 24, 2019, OWCP denied appellant’s claim finding that the factual evidence of record was insufficient to establish an occupational disease claim. Specifically, it explained that appellant failed to respond to OWCP’s request for a detailed statement regarding the work activities that contributed to her claimed condition. OWCP also noted that appellant failed to submit sufficient medical evidence to establish a diagnosed medical condition causally related to the employment injury. It concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

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 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 timely filed within the applicable time limitation period of FECA,3 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.4 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.5

To establish that an injury was sustained in the performance of duty in an occupational disease claim, a claimant must submit the following: (1) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; (2) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to the identified employment factors.6

Appellant’s burden of proof includes the submission of a detailed description of the employment factors which he or she believes caused or adversely affected a condition for which compensation is claimed.7

Rationalized medical opinion evidence is required to establish causal relationship.8 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 must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the established employment factors.9

2
Id.
3
S.D., Docket No. 19-1240 (issued December 11, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4
A.S., Docket No. 19-0704 (issued September 11, 2019); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988). 5 20 C.F.R. § 10.115; M.C., Docket No. 18-1278 (issued March 7, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6
See D.S., Docket No. 19-0925 (issued September 25, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
7
A.M., Docket No. 19-1269 (issued December 4, 2019). S.J., Docket No. 17-1798 (issued February 23, 2018).
8
S.D., supra note 3; P.S., Docket No. 19-0549 (issued July 26, 2019).
9
Id.; see also A.S., Docket No. 18-1488 (issued March 11, 2019).

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 ANALYSIS

The Board finds that appellant has not met her burden of proof to establish an occupational disease in the performance of duty, as alleged.

Appellant alleged that she had arthritis in the back, knees, and hips and that she believed these conditions were causally related to her federal employment because she developed pain when leaning forward to answer her telephone, and because she did not have an ergonomic workstation. However, she did not submit a detailed statement describing the employment-related activities that she believed contributed to her condition. Appellant did not indicate how long she had worked in her present position, why she considered her workstation not to be “ergonomically stable,” how frequently she needed to lean forward to answer the telephone, or why she had to lean to reach her telephone. As such, appellant’s description of the implicated employment factors was vague and failed to provide specific detail to determine the manner in which she sustained her alleged condition.10

By development letters dated April 9 and May 15, 2019, OWCP informed appellant that the evidence submitted was insufficient to establish that she suffered from an occupational disease as alleged. It asked her to complete an attached questionnaire describing what employment factors she believed caused or contributed to her condition and requested medical evidence establishing that her medical condition was causally related to employment factors. Appellant did not respond to OWCP’s development letters. She bears the burden of submitting a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of a disease or condition.11

Accordingly, as appellant has not described the employment factors alleged to have caused her injury, the Board finds that she has not met her burden of proof to establish an injury in the performance of duty, as alleged. As such, the medical evidence need not be addressed.12

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 an occupational disease in the performance of duty, as alleged.

10
See A.M., supra note 7; C.L., Docket No. 19-0042 (issued April 17, 2019).
11
D.C., Docket No. 18-0314 (issued September 24, 2019); S.C., Docket No. 18-1242 (issued March 13, 2019); Woodhams, supra note 6. 12 A.M., supra note 7; see E.V., Docket No. 19-0447 (issued June 25, 2019).

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 ORDER

IT IS HEREBY ORDERED THAT the June 24, 2019 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 12, 2020
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

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