E.W. and Department of Veterans Affairs, San Francisco VA Medical Center, San Francisco, CA (Board decision, January 11, 2021)

ECAB final decision. The Board affirmed OWCP’s January 17, 2019 denial of the occupational disease 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

E.W. sought benefits for bilateral wrist conditions she attributed to her VA work. The Board found that a doctor’s letter did not provide a reasoned causal explanation and used uncertain wording about the connection to work. Occupational and physical therapy notes did not supply qualifying physician opinions under FECA. It upheld the denial.

Decision snapshot

• Authority: FECA physician evidence and medical causation requirements for occupational disease.
• Outcome: Bilateral wrist claim denial affirmed.
• Key point: The medical record lacked a reasoned, definite physician opinion linking the conditions to work.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.W., Appellant
)
)
and ) Docket No. 20-0760
) Issued: January 11, 2021
DEPARTMENT OF VETERANS AFFAIRS,
)
SAN FRANCISCO VA MEDICAL CENTER,
)
San Francisco, CA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On February 20, 2020 appellant, through counsel, filed a timely appeal from a January 17, 2020 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.

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.
 ISSUE

The issue is whether appellant has met her burden of proof to establish a bilateral wrist condition causally related to the accepted factors of her federal employment.

FACTUAL HISTORY

On June 24, 2019 appellant, then a 59-year-old social worker, filed a traumatic injury claim (Form CA-1) alleging that on March 22, 2019 she injured both of her hands and developed carpal tunnel syndrome while in the performance of duty. She explained that during the past two months her workload increased, which required that she perform more typing, which then caused numbness and pain in both of her hands. Appellant related that her pain and numbness worsened when typing or sleeping, and that she awakened with numbness in her left thumb. On the reverse side of the claim form, the employing establishment indicated that appellant was injured in the performance of duty, but it controverted continuation of pay (COP) because appellant had not provided medical documentation when she filed her claim. It noted that appellant had been fitted for bilateral hand splints to wear to work, and that she also wore them when sleeping.

In a development letter dated June 1, 2019, OWCP informed appellant of the deficiencies of her claim. It advised her of the type of factual and medical evidence necessary to establish her claim and attached a questionnaire for her completion. OWCP afforded appellant 30 days to submit the requested evidence.

In a development letter dated June 1, 2019, OWCP informed the employing establishment that if appellant was treated at an agency medical facility for the alleged injury it must provide treatment notes. It additionally stated that, although the evidence of record was insufficient to make a decision regarding appellant’s alleged injury, the employing establishment should provide appellant with COP for up to 45 days.

May 2, 2019 progress notes by Dr. Tarini Anand, Board-certified in internal medicine, indicated that appellant complained of bilateral wrist pain along the thumb side of her wrists and numbness in both thumbs, which had increased gradually for the past two to three months and which had begun in her left hand. Appellant had related that her symptoms were exacerbated by repetitive movements like typing at work and noted the numbness woke her at night. Her physical examination revealed positive Phalen’s test with reproducible symptoms in the medial nerve distribution in both hands. Dr. Anand opined that appellant likely had a ganglion cyst in her right wrist and possibly superimposed de Quervain’s tenosynovitis on her right side, and he diagnosed bilateral carpal tunnel syndrome.

Appellant submitted occupational therapy notes from May 15 to July 22, 2019, and a July 12, 2019 report by a physical therapist.

By decision dated August 12, 2019, OWCP denied appellant’ claim, finding that the evidence of record was insufficient to establish fact of injury.

On August 26, 2019 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

2
 A May 23, 2019 employee health report containing an illegible signature indicated that appellant presented with bilateral hand pain and pain and numbness in her thumbs, with the left worse than the right. It listed her date of injury as March 22, 2019 and indicated that her symptoms worsened with typing, driving, gripping, and were relieved upon using splints. Appellant denied experiencing a specific traumatic incident or work exposure and indicated that she did not engage in repetitive hand motions or strenuous hand activity at home. She stated that she began to experience her symptoms when her work load and the amount of typing she had to do increased. The report indicated that appellant also experienced neck stiffness, finger weakness, and chronic fatigue for the past three to four months which had worsened in the past two weeks. Appellant’s past medical history included sciatica and narrowing at L4 and L5 in the lumbar spine and lower back and bilateral knee arthritis. A physical examination revealed normal results and the report related that this was a possible occupational injury and less likely to be cervical radiculopathy or hand osteoarthritis.

A hearing was held on December 2, 2019. Appellant testified that at work she handwrote notes while she was with patients and then typed them up and placed them in charts. She noted that she spent half of her day typing and that she had worked in the same job since 2007. Appellant indicated that her condition did not happen over just one shift and related that she started to notice her symptoms in March 2019. She noted that while she believed that her carpel tunnel was work related, no doctor had related that to her. Appellant confirmed that she would like her claim to be processed as an occupational disease claim.

A January 6, 2020 letter from Dr. Norman Banks, Board-certified in physical medicine and rehabilitation, indicated that appellant had a complex medical history with various conditions that caused pain and impacted daily functions. He opined that regarding appellant’s carpel tunnel syndrome, it was probable that her symptoms were directly related to her job, which required repetitive keyboarding and various other desk-related responsibilities. Dr. Banks indicated that he had counseled appellant on various pain management strategies and that she did not have any surgeries or injections.

By decision dated January 17, 2020, OWCP’s hearing representative converted appellant’s claim to a claim for occupational disease and found that appellant had established fact of injury, however, she affirmed the denial of appellant’s claim finding that the evidence of record was insufficient to establish that her diagnosed bilateral wrist conditions were causally related to the accepted factors of federal employment.

LEGAL PRECEDENT

An employee seeking benefits under FECA 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

3
R.M., Docket No. 20-0342 (issued July 30, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3 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: (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

Causal relationship is a medical issue, and the medical evidence required to establish causal relationship is rationalized medical opinion evidence.7 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.8

In a case in which 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.9

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a bilateral wrist condition causally related to the accepted factors of her federal employment.

In support of her claim, appellant submitted May 2, 2019 progress notes by Dr. Anand who noted that appellant complained of bilateral wrist pain along the thumb side of the wrist and numbness in both thumbs, which she indicated had been worsening gradually for the past two to three months. Dr. Anand opined that appellant likely had a ganglion cyst in her right wrist and possibly superimposed de Quervain’s tenosynovitis on her right side and diagnosed bilateral carpal

4
V.P., Docket No. 20-0415 (issued July 30, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988). 5 S.A., Docket No. 20-0458 (issued July 23, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990). 6 See B.H., Docket No. 18-1693 (issued July 20, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989). 7 L.S., Docket No. 19-1769 (issued July 10, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008). 8 B.C., Docket No. 20-0221 (issued July 10, 2020); M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008). 9 R.C., Docket No. 19-0376 (issued July 15, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013)

4 tunnel syndrome. Dr. Anand did not offer an opinion regarding the cause of appellant’s diagnosed bilateral carpal tunnel syndrome. 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.10 This report, therefore, is insufficient to establish appellant’s claim.

The May 23, 2019 employee health report contained an illegible signature and indicated that appellant presented with bilateral hand pain and pain and numbness in her thumbs, with the left worse than the right, noting it was a possible occupational injury. The Board has held, however, that reports that are unsigned or bear an illegible signature lack proper identification and cannot be considered probative medical evidence as the author cannot be identified as a physician.11 Therefore, this report is also insufficient to establish the claim.

Dr. Banks’ January 26, 2020 letter indicated that appellant had a complex medical history with various conditions that caused pain and impacted daily functions. He opined that regarding appellant’s carpel tunnel syndrome, it was probable that her symptoms were directly related to her job, which required repetitive keyboarding and various other desk-related responsibilities. While Dr. Banks opined that there was a direct causal relationship between her employment and her various conditions, he failed to provide medical rationale explaining how or why they were related. The Board has held that a report is of limited probative value regarding causal relationship if it does not contain medical rationale explaining how a given medical condition was related to employment factors.12 Additionally, the Board has held that medical opinions that suggest that a condition was likely or possibly caused by work activities are speculative or equivocal in character and have limited probative value.13 Thus, Dr. Banks’ letter is insufficient to establish appellant’s claim.

Appellant additionally submitted occupational and physical therapy notes. The Board has held that treatment notes signed by physical therapists and occupational therapists are not considered probative medical evidence as those providers are not considered physicians under FECA.14

10
See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
11
M.A., Docket No. 19-1551 (issued April 30, 2020).
12
D.L., Docket No. 19-0900 (issued October 28, 2019); Y.D., Docket No. 16-1896 (issued February 10, 2017);
C.M., Docket No. 14-0088 (issued April 18, 2014).
13
J.W., Docket No. 18-0678 (issued March 3, 2020).
14
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). 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); see C.D., Docket No. 20-0858 (issued November 30, 2020); R.L., Docket No. 19-0440 (issued July 8, 2019) (physical therapists are not considered physicians under FECA; R.S., Docket No. 16-1303 (issued December 2, 2016) (occupational therapists are not considered physicians under FECA).

5
 As appellant has not submitted rationalized medical evidence establishing a bilateral wrist condition causally related to the accepted factors of her federal employment, the Board finds that she has not met her burden of proof.

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 a bilateral wrist condition causally related to the accepted factors of her federal employment.

ORDER

IT IS HEREBY ORDERED THAT the January 17, 2019 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: January 11, 2021
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

6