D.K. and Department of Homeland Security, Cybersecurity and Infrastructure Security Agency, Philadelphia, PA (Board decision, September 29, 2021)

ECAB final decision. The Board affirmed OWCP’s denial of a claimed left eye condition. 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.K. developed a left eye hemorrhage while traveling for work. His physicians diagnosed eye conditions but did not explain how the accepted work incident caused them. The Board held that neither physician offered an opinion on whether the accepted work incident caused the diagnosed eye conditions. It affirmed OWCP’s denial.

Decision snapshot

• Authority: FECA medical causation requirements.
• Outcome: Denial of left eye condition claim affirmed.
• Key point: Medical evidence must address the cause of the condition, not only name its diagnosis.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.K., Appellant
)
)
and ) Docket No. 21-0214
) Issued: September 29, 2021
DEPARTMENT OF HOMELAND SECURITY,
)
CYBER SECURITY AND INFRASTRUCTURE
)
SECURITY AGENCY, Philadelphia, PA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Michael D. Overman, 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 December 8, 2020 appellant, through counsel, filed a timely appeal from a June 23, 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 his burden of proof to establish a left eye condition causally related to the accepted September 17, 2019 employment incident.

FACTUAL HISTORY

On September 23, 2019 appellant, then a 52-year-old chief of regulatory compliance, filed a traumatic injury claim (Form CA-1) alleging that on September 17, 2019 he sustained a left eye condition when his eye became blurry while either loading suitcases in his car or when he rubbed his eyes while in the performance of duty. He indicated that he was diagnosed with a hemorrhage and that his vision remained cloudy. Appellant stopped work on September 18, 2019.

In a medical report dated September 18, 2019, Dr. Arunan Sivalingam, a Board-certified ophthalmologist, noted that appellant related a history of blurred vision, fogginess, and light sensitivity in his left eye. He performed an examination and noted retinal elevation consistent with subretinal fluid, subretinal hemorrhage, and late hyperfluorescence consistent with macular degeneration. Dr. Sivalingam diagnosed myopic choroidal neovascularization, subretinal hemorrhage, and posterior vitreous detachment in the left eye and high myopia and nuclear sclerosis in both eyes.

In an unsigned work slip from a healthcare facility dated October 21, 2019, appellant was released to return to work as of November 20, 2019.

In a development letter dated October 31, 2019, OWCP informed appellant of the deficiencies of his claim and advised him of the type of factual and medical evidence necessary to establish his claim. It attached a questionnaire for his completion and requested that he provide a narrative medical report from his treating physician, which contained a detailed description of findings and diagnoses, explaining how his work activities caused, contributed to, or aggravated his medical condition. OWCP afforded appellant 30 days to respond.

In a November 16, 2019 narrative letter, Dr. Doray Gurkaynak, an optometrist, noted that appellant came under his care on September 17, 2019 due to sudden onset subretinal hemorrhage in his left eye with macular edema, which occurred while appellant was traveling for work. He indicated that acuity in the left eye had been reduced to 20/400, which was being treated with a series of injections. Dr. Gurkaynak further noted that appellant had seen his family doctor to rule out systemic causes of subretinal hemorrhage, and that blood tests conducted on October 4, 2019 were inconclusive in finding a cause for the condition.

In a November 19, 2019 response to OWCP’s development questionnaire, appellant indicated that he was driving to attend and deliver closing remarks at an employing establishment workshop when he rubbed his left eye and noticed his vision was blurry. He stopped and changed his contact lens, but a grey cloud blocking his vision persisted. Appellant contacted Dr. Gurkaynak, who instructed him to seek emergency eye care. On that basis he immediately went to a medical facility specializing in eye care, where he was diagnosed with a subretinal hemorrhage. While there, Dr. Sivalingam recommended a series of injections. Appellant

2 indicated that he had no similar prior issues in the left eye, but does have a history of floaters in both eyes for the past five years.

By decision dated December 3, 2019, OWCP denied appellant’s claim, finding that the evidence of record was insufficient to establish causal relationship between his diagnosed left eye condition and the accepted September 17, 2019 employment incident.

On December 13, 2019 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

OWCP received additional medical evidence including October 16, November 13, and December 20, 2019 follow-up reports of Dr. Sivalingam, who continued to diagnose myopic choroidal neovascularization, subretinal hemorrhage, and posterior vitreous detachment in the left eye. Dr. Sivalingam recommended ongoing anti-vascular endothelial growth factor injections.

During a telephonic hearing held before an OWCP hearing representative on April 9, 2020, appellant clarified that, while preparing to drive to speak at a workshop for the employing establishment, he was struggling to load his suitcase into his vehicle and became light headed. Then, after driving for a few minutes, he rubbed his left eye and realized something was wrong with it. Appellant also outlined his treatment thereafter and his ongoing symptoms including cloudy vision, tunnel vision, and light sensitivity. He returned to work in January 2020. The hearing representative advised appellant of the type of medical evidence necessary to establish his traumatic injury claim and held the case record open for 30 days for the submission of additional evidence. OWCP did not receive any further evidence.

By decision dated June 23, 2020, OWCP’s hearing representative affirmed the December 3, 2019 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA 3 has the burden of proof to establish the essential elements of his or her claim, including 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
F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989). 5 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); James E. Chadden, Sr., 40 ECAB 312 (1988). 6 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

3
 To determine whether a federal employee has sustained a traumatic injury in the performance of duty, it first must be determined whether fact of injury has been established. There are two components involved in establishing fact of injury. First, the employee must submit sufficient evidence to establish that he or she actually experienced the employment incident at the time, place, and in the manner alleged. The second component is whether the employment incident caused a personal injury and can be established only by medical evidence. 7

The medical evidence required to establish a causal relationship between a claimed specific condition and an employment incident is rationalized medical 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 specific employment factors identified by the employee. 9

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. 10

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a left eye condition causally related to the accepted September 17, 2019 employment incident.

In his November 16, 2019 narrative letter, Dr. Gurkaynak noted that appellant came under his care on September 17, 2019 for sudden onset subretinal hemorrhage in the left eye, which occurred while appellant was traveling for work. However, he did not provide an opinion on the issue of causal relationship. 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. Therefore, Dr. Gurkaynak’s November 16, 2019 letter is insufficient to establish appellant’s claim.11

Similarly, in his reports, Dr. Sivalingam diagnosed myopic choroidal neovascularization, subretinal hemorrhage, and posterior vitreous detachment in the left eye; however, he did not offer

7
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G. Morris, 48 ECAB 238 (1996). 9 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021).
11
S.W., Docket No. 19-1579 (issued October 9, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).

4 an opinion regarding the cause of appellant’s condition. Therefore, his reports are also insufficient to establish appellant’s claim.12

OWCP also received an unsigned work slip from a medical facility dated October 21, 2019.
The Board has held that a report that is unsigned or bears an illegible signature lacks proper identification and cannot be considered probative medical evidence as the author cannot be identified as a physician. 13 This report is, therefore, insufficient to establish appellant’s claim.

As appellant has not submitted rationalized medical evidence establishing that his left eye condition is causally related to the accepted September 17, 2019 employment incident, the Board finds that he has not met his burden of proof to establish his claim.14

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 10.607.15.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a left eye condition causally related to the accepted September 17, 2019 employment incident.

12
Id.
13
I.M., Docket No. 19-1038 (issued January 23, 2020); T.O., Docket No. 19-1291 (issued December 11, 2019);
Merton J. Sills, 39 ECAB 572, 575 (1988).
14
The Board notes that, during the course of the April 8, 2020 hearing and in connection with the instant appeal, counsel referred to a March 18, 2020 narrative report of Dr. Gurkaynak, which he asserted would establish a causal relationship between the accepted employment incident and appellant’s left eye condition. A careful examination of the record reveals that this report is not contained therein and, therefore, is not available for review or consideration by the Board.

5
 ORDER

IT IS HEREBY ORDERED THAT the June 23, 2020 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: September 29, 2021
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

6