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U. S. DEPARTMENT OF LABOR

 

Employees’ Compensation Appeals Board

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In the Matter of KENNETH C. HOLSTON and DEPARTMENT OF VETERANS AFFAIRS,

VETERANS ADMINISTRATION MEDICAL CENTER, San Antonio, Tex.

 

Docket No. 96-1764; Submitted on the Record;

Issued July 1, 1998

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DECISION and ORDER

 

Before   MICHAEL J. WALSH, WILLIE T.C. THOMAS,

MICHAEL E. GROOM

 

 

            The issue is whether appellant has established his claim for total disability due to his December 2, 1995 employment injury.

            Appellant, a 33-year-old, a part-time housekeeping aid assigned to work on the weekends, fell down the stairs on December 2, 1995 when he became light-headed and tripped over his mop.  He was found slumped over at the bottom of the stairs, and was treated at an emergency room of a hospital, where diagnostic tests revealed a lack of fractures or head injury.[1]  Appellant indicated on his claim form that he related to the fall to either migraines or the medication he was using for his migraines, and noted a prior accepted claim for migraines.[2]

            Appellant was evaluated on December 6, 1995 by Dr. Salvador P. Baylan, a Board-certified physiatrist, who reported appellant’s complaints of pain in multiple regions.  Dr. Baylan reported a history of a gun shot wound to the left shoulder and knee in the military, and a history of migraine headaches.  He reported findings of negative Tinel’s and Phalen’s signs of the wrists, limited range of motion of the arm on abduction and flexion, a “fairly normal” range of motion of the lumbar spine, straight leg raising possible to 90 degrees, and negative McMurray’s and Apley’s test with respect to the left knee.  Dr. Baylan diagnosed a cervical and lumbar strain with
contusion of the left shoulder and knee, and noted the possibility of psychogenic overlay based on appellant’s history of depression and migraine headaches.[3]  On a follow-up visit on December 11, 1995, Dr. Baylan reviewed the diagnostic studies performed on the date of injury, and he completed a form report by which he diagnosed an acute cervical thoracic strain based on findings of limited range of motion of the neck, shoulder and left knee.  In his treatment notes Dr. Baylan recommended two more weeks of total disability, to enable appellant to undergo physical therapy treatment.[4]

            Based on Dr. Baylan’s reports, the Office accepted appellant’s claim for lumbar contusion, left shoulder contusion and left knee contusion.[5]

            Dr. Baylan recommended continued total disability from work due to appellant’s need for physical therapy treatment.  He reported that appellant had fallen at work during the first week of January 1996, without further injury, but noted upon subsequent evaluation on January 16, 1996 that appellant reported an exacerbation of neck and back pain.  Dr. Baylan referred appellant to a psychiatrist for depression and released appellant to work, noting that the physical therapy treatment would not interfere with his work on the weekends.  In a subsequent treatment note dated January 19, 1996, Dr. Baylan noted that appellant could not return to work due to the acute exacerbation of neck and back pain.

            Appellant submitted a claim for compensation on account of traumatic injury or occupational disease (Form CA-17) for compensation for the period beginning December 2, 1995.  The records from the employing establishment indicate that he used sick leave beginning January 18, 1995, and that he was requesting a repurchase of such leave as well as further wage-loss compensation.  Further treatment notes from Dr. Baylan indicate that he reevaluated appellant on January 27, 1996, provided him with medication on February 8, 1996, and referred appellant for a magnetic resonance imaging (MRI) scan on February 16, 1996.

            By decision dated March 5, 1996, the Office denied appellant’s request for wage-loss compensation resulting from his injury, on the grounds that the medical evidence did not establish total disability from work.[6]

            The Board finds that this case is not in posture for decision.

            An employee seeking benefits under the Federal Employees’ Compensation Act[7] has the burden of establishing the essential elements of his or her claim including the fact that the injury was sustained in the performance of duty as alleged and that any disability or specific condition for which compensation is claimed is causally related to the employment injury.[8]  These are the essential elements of each and every claim regardless of whether the claim is predicated upon a traumatic injury due to one single incident or an occupational disease due to events occurring over a period of time.[9]

            As part of this burden, the claimant must present rationalized medical opinion evidence, based on a complete factual and medical background, showing causal relationship.[10]  The Board notes that the term “disability” under the Act means incapacity, because of an employment injury, to earn the wages that the employee was receiving at the time of injury.[11]  Disability is thus not synonymous with physical impairment which may or may not result in an incapacity to earn wages.[12]  Whether a particular injury caused an employee disability from employment is a medical issue which must be resolved by competent medical evidence.

            In the instant case, the Office accepted appellant’s claim for contusions of the lumbar spine, left shoulder and knee, based on the reports Dr. Baylan, a Board-certified physiatrist, who evaluated appellant four days after appellant’s fall at work.  Appellant had been provided with a disability note from the emergency room facility where he received treatment on the date of injury.  Dr. Baylan continued the recommended total disability, in order to allow appellant the ability to undergo physical therapy treatment.  On January 16, 1996 he noted that appellant could return to work because continued physical therapy treatment would not interfere with his part‑time weekend work.  However, three days later on January 19, 1996 he noted that appellant’s continued symptoms precluded a return to work.

            The Board notes that while Dr. Baylan did not explain the change in his opinion from January 16 to 19, 1996, the reports of Dr. Baylan constitute sufficient evidence to warrant further development by the Office.[13]  On remand, the Office should further develop the medical evidence as appropriate to determine the period of disability causally related to appellant’s accepted injury.

            The Board notes that following the March 5, 1996 decision of the Office, the Office received further reports from Dr. Baylan relating to a condition other than contusions, which he diagnosed following an MRI scan.  Since this evidence was received by the Office after the issuance of the March 5, 1996 decision, the Board has no jurisdiction to consider the reports.[14]

            The decision of the Office of Workers’ Compensation Programs dated March 5, 1996 is hereby set aside and remanded for further development in accordance with this decision of the Board.

Dated,  Washington, D.C.

            July 1, 1998

 

 

 

 

                                                                                                            Michael J. Walsh

                                                                                                            Chairman

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Michael E. Groom

                                                                                                            Alternate Member