D.B. and Department of the Treasury, Internal Revenue Service, Office of the Chief Counsel, Washington, DC (Board decision, July 28, 2021)

ECAB final decision. The Board affirmed OWCP's denial of D.B.'s upper extremity claim because the medical evidence did not establish a causal link to accepted work duties. 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

D.B., an Internal Revenue Service management assistant, attributed a thumb sprain and wrist ganglion cyst to repetitive printing and handling work. His physician diagnosed those conditions but said the cyst's cause was unknown and only probably related to repetitive activity. The Board found the opinion speculative and lacking an explanation of how the particular duties caused or aggravated either condition. It affirmed OWCP's denial of the occupational disease claim.

Decision snapshot

• Authority: FECA occupational disease and medical causation rules.
• Outcome: August 27, 2019 and January 17, 2020 denials affirmed.
• Key point: A possible causal explanation without a reasoned link to the specific duties did not establish the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.B., Appellant
)
)
and ) Docket No. 20-0775
) Issued: July 28, 2021
DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE, OFFICE OF
)
THE CHIEF COUNSEL, Washington, DC,
)
Employer
)
__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On February 18, 2020 appellant filed a timely appeal from August 27, 2019 and January 17, 2020 merit decisions 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 to consider the merits of this case.2

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the January 17, 2020 decision, OWCP received additional evidence. 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 his burden of proof to establish an upper extremity condition causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On June 19, 2019 appellant, then a 35-year-old management assistant, filed an occupational disease claim (Form CA-2) alleging that on or before June 16, 2019 he sustained a ganglion cyst of the left thumb when working on a print, copy, label, project while in the performance of duty. He noted that a three-ring binder must have hit his hand. Appellant “noticed a knot of the wrist over the weekend” and reported the condition to his supervisor on June 18, 2019.

In a June 18, 2019 report, Dr. Dani S. Boulattouf, a Board-certified family practitioner, diagnosed a left thumb sprain.

In a development letter dated June 25, 2019, OWCP informed appellant of the deficiencies of his claim. It advised him of the type of factual and medical evidence required and provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary evidence.

In response, appellant provided a July 9, 2019 statement asserting that on June 14, 2019 his left hand hit against a large binder while assisting an attorney with a “print and copy and label” project. He noted that he performed these duties often for up to eight hours per day. Appellant described constant left wrist pain, aggravated by typing.

In a July 19, 2019 statement, Supervisor T.B. confirmed that appellant’s job duties required scanning and copying large case files, removing staples and binding clips from stacks of documents, and placing documents into three-ring binders. The employing establishment provided a September 26, 2017 official position description.

Appellant subsequently provided an additional portion of Dr. Boulattouf’s June 18, 2019 report, diagnosing a left thumb sprain with a small ganglion cyst. Dr. Boulattouf indicated that appellant believed that the diagnosed conditions were work related. In an August 7, 2019 report, he diagnosed a left wrist ganglion and left thumb sprain.

By decision dated August 27, 2019, OWCP denied appellant’s occupational disease claim, finding that the evidence of record was insufficient to establish that the alleged employment factors occurred as described.

On September 5, 2019 appellant requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review.

OWCP subsequently received a supplemental version of Dr. Boulattouf’s June 18, 2019 report, wherein he diagnosed a left wrist sprain with a small ganglion cyst.

During the hearing, held on December 6, 2019, appellant contended that he sustained injuries to both upper extremities due to repetitive motion while typing, moving boxes, lifting

2 heavy case files, and working on binder projects while in the performance of duty. He identified a June 14, 2019 incident when a binder fell on both of his hands. Appellant thereafter submitted additional medical evidence.

In a December 15, 2019 report, Dr. Boulattouf explained that the exact cause of the ganglion cyst on appellant’s left wrist was not known, but usually is related to tendon sheath inflammation or irritation which can happen from a repetitive minor injury. He noted that appellant had pain from repetitive motion such as typing, lifting cases, or moving boxes which “probably irritated the whole thing.” He prescribed a left wrist splint.

By decision dated January 17, 2020, the hearing representative modified the August 27, 2019 decision to find that appellant had established the identified work factors as factual. The claim remained denied, however, as the medical evidence of record was insufficient to establish causal relationship between the diagnosed conditions and the accepted employment factors.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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 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

To establish that an injury was sustained in the performance of duty in an occupational disease claim, an employee 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 employment factors identified by the employee.7

To establish causal relationship between the condition, as well as any attendant disability claimed and the employment event or incident, the employee must submit rationalized medical

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).
7
S.D., Docket No. 20-0413 (issued July 28, 2020); L.S., Docket No. 19-1769 (issued July 10, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3 opinion evidence.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 specific employment factor(s) identified by the employee.9 The weight of the medical evidence is determined by its reliability, its probative value, its convincing quality, the care of analysis manifested, and the medical rationale expressed in support of the physician’s opinion.10

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish an upper extremity condition causally related to the accepted factors of his federal employment.

In support of his occupational disease claim, appellant provided June 18 and August 7, 2019 reports from Dr. Boulattouf diagnosing a left thumb sprain and left wrist ganglion cyst. Dr. Boulattouf explained in a December 15, 2019 report that the cause of the ganglion cyst on appellant’s left wrist was not known, but was usually related to tendon sheath inflammation or irritation which can happen from a repetitive minor injury. He noted that appellant had pain from repetitive motion such as typing, lifting cases, or moving boxes which “probably irritated the whole thing.” His opinion is speculative in nature as he identified only a possible cause of the ganglion cyst. The Board has held that medical opinions that are speculative or equivocal are of diminished probative value.11 Also, without explaining how the frequent and repetitive actions of appellant’s employment caused or aggravated his left thumb sprain and ganglion cyst, Dr. Boulattouf’s reports are of limited probative value.12

As appellant has not submitted rationalized medical evidence establishing that his diagnosed upper extremity conditions were causally related to the accepted factors of his federal employment, the Board finds that he has not met his burden of proof to establish his 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 his burden of proof to establish an upper extremity condition causally related to the accepted factors of his federal employment.

8
S.D., id.; S.A., Docket No. 18-0399 (issued October 16, 2018); Robert G. Morris, 48 ECAB 238 (1996).
9
M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 7.
10
D.R., Docket No. 19-0954 (issued October 25, 2019); James Mack, 43 ECAB 321 (1991).
11
J.I., Docket No. 20-1374 (issued March 3, 2021); H.A., Docket No. 18-1455 (issued August 23, 2019).
12
J.I., id.; see A.P., Docket No. 19-0224 (issued July 11, 2019).

4
 ORDER

IT IS HEREBY ORDERED THAT the January 17, 2020 and August 27, 2019 decisions of the Office of Workers’ Compensation Programs is affirmed.

Issued: July 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5