R.T. and Department of Homeland Security, U.S. Customs & Border Protection, Weslaco, TX (Board decision, October 5, 2021)

ECAB final decision. The Board reversed in part and affirmed in part, accepting the tick bite but leaving additional conditions unproved. 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

R.T., a border patrol agent, reported a tick bite at work and sought compensation for resulting conditions. The Board found that a visible tick bite on his right wrist was established by the record and could be accepted without a detailed medical report. It found the evidence insufficient to connect additional upper extremity conditions to the incident because the medical reports had illegible signatures and lacked a reliable causal opinion. The Board reversed OWCP in part, affirmed it in part, and remanded for medical expenses and any related disability from the bite.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a).
• Outcome: Tick bite accepted; additional conditions denied; case remanded for related benefits.
• Key point: A visible bite may be proved without detailed medical opinion, while additional conditions still require reliable causal evidence.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.T., Appellant
)
)
and ) Docket No. 21-0831
) Issued: October 5, 2021
DEPARTMENT OF HOMELAND SECURITY,
)
U.S. CUSTOMS & BORDER PROTECTION,
)
Weslaco, TX, Employer
)
__________ )

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

DECISION AND ORDER

Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 9, 2021 appellant filed a timely appeal from a November 12, 2020 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 to consider the merits of this case. 2

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the November 12, 2020 decision, appellant submitted additional evidence to OWCP. 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 injury causally related to the accepted October 3, 2020 employment incident.

FACTUAL HISTORY

On October 5, 2020 appellant, then a 35-year-old border patrol agent, filed a traumatic injury claim (Form CA-1) alleging that on October 3, 2020 3 he sustained a tick bite on his right wrist while in the performance of duty. He stopped work on October 3, 2020.

In an October 7, 2020 development letter, OWCP informed appellant that the evidence was insufficient to establish his claim. It advised him of the type of factual and medical evidence necessary and provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond.

Appellant provided a chart note and duty status report (Form CA-17) dated October 26, 2020 by a family practitioner whose signature is illegible, noting that appellant had sustained a tick bite to his right wrist on October 3, 2020. The practitioner diagnosed lymph gland infection and cellulitis, with an infection at the site of the tick bite extending up the right upper extremity. The practitioner held appellant off work.

By decision dated November 12, 2020, OWCP accepted that the October 3, 2020 employment injury occurred as alleged, but denied the claim as that the evidence of record was insufficient to establish a valid medical diagnosis from a qualified physician in connection with the accepted employment incident. It concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

LEGAL PRECEDENT

An employee seeking benefits under FECA 4 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, 5 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

3
The claim form noted October 3, 1985 as the date of injury. In an October 22, 2020 letter, however, appellant clarified that he was injured on October 3, 2020.
4
Supra note 1.
5
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).

2 employment injury. 6 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. 7

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. The first component is that 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.8

The medical evidence required to establish causal relationship between a claimed specific condition and an employment incident is rationalized medical opinion evidence. 9 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. 10

ANALYSIS

The Board finds that appellant has met his burden of proof to establish a right wrist tick bite causally related to the accepted October 3, 2020 employment incident.

In October 26, 2020 medical reports, a family practitioner diagnosed a tick bite to appellant’s right wrist sustained on October 3, 2020 with subsequent lymph gland infection and cellulitis. OWCP’s procedures provide that, if a condition reported is a minor one, such as a burn, laceration, insect sting, or animal bite, which can be identified on visual inspection by a lay person, a case may be accepted without a medical report. 11 As the evidence of record establishes diagnosed visible injuries, the Board finds that appellant has met his burden of proof to establish a tick bite

6
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). 7 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). 8 R.H., Docket No. 20-1684 (issued August 27, 2021); 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). 9 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). 10 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).
11
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a) (June 2011); id. at Chapter 2.805.3(c) (January 2013). See also A.J., Docket No. 20-0484 (issued September 2, 2020).

3 to the right wrist causally related to the accepted October 3, 2020 employment incident.12 The case will, therefore, be remanded for payment of medical expenses and any attendant disability.

The Board further finds, however, that appellant has not met his burden of proof to establish additional medical conditions causally related to the accepted October 3, 2020 employment injury. The October 26, 2020 reports of record do not bear a legible signature. The Board has held that reports which contain an illegible signature are of no probative value, as it is not established that the author is a physician. 13 This evidence is, therefore, insufficient to establish appellant’s claim.

As the record lacks rationalized medical evidence establishing causal relationship between appellant’s diagnosed right upper extremity conditions and the accepted October 3, 2020 employment injury, the Board finds that he has not met his burden of proof.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.

CONCLUSION

The Board finds that appellant has met his burden of proof to establish a tick bite to his right wrist causally related to the accepted October 3, 2020 employment incident. The Board further finds, however, that he has not met his burden of proof to establish additional medical conditions causally related to the accepted October 3, 2020 employment injury.

12
R.H., supra note 8; see A.J., id.; see also W.R., Docket No. 20-1101 (issued January 26, 2021); S.K., Docket No.
18-1411 (issued July 22, 2020).
13
See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).
14
R.H., supra note 8.

4
 ORDER

IT IS HEREBY ORDERED THAT the November 12, 2020 decision of the Office of Workers’ Compensation Programs is reversed in part and affirmed in part. The case is remanded for further proceedings consistent with this decision of the Board.

Issued: October 5, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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