PDF Version

 

 

U. S. DEPARTMENT OF LABOR

 

Employees’ Compensation Appeals Board

____________

 

In the Matter of MICHAEL L. TIPPER and U.S. POSTAL SERVICE,

POST OFFICE, San Francisco, Calif.

 

Docket No. 97-1632; Submitted on the Record;

Issued June 21, 1999

____________

 

DECISION and ORDER

 

Before   DAVID S. GERSON, WILLIE T.C. THOMAS,

BRADLEY T. KNOTT

 

 

            The issue is whether appellant sustained a recurrence of disability beginning March 22, 1995 causally related to his accepted employment injuries.

            Appellant developed carpal tunnel syndrome in the right wrist and cubital tunnel syndrome of the right elbow while in the performance of his duties as a building maintenance custodian on or about February 1, 1991.  The Office of Workers’ Compensation Programs accepted his claim, authorized surgeries and paid compensation for temporary total disability until September 7, 1994, when appellant returned to work in a limited-duty position approved by his attending physician, Dr. Gordon A. Brody, a Board-certified orthopedic surgeon.[1]  On July 11, 1995 appellant filed a claim asserting that he sustained a recurrence of disability on March 22, 1995 causally related to his accepted employment injuries.

            In a decision dated December 27, 1996, the Office denied appellant’s claim of recurrence.

            The Board finds that the medical opinion evidence of record is insufficient to establish that appellant sustained a recurrence of disability on March 22, 1995 causally related to his accepted employment injuries.

            An individual who claims a recurrence of disability resulting from an accepted employment injury has the burden of establishing that the disability is related to the accepted injury.  This burden requires furnishing medical evidence from a physician who, on the basis of a complete and accurate factual and medical history, concludes that the disabling condition is causally related to the employment injury and who supports that conclusion with sound medical reasoning.[2]

            The medical evidence of record through August 1995 supports appellant’s complaints of pain and discomfort in early 1995 but fails to explain with sound medical reasoning how the accepted employment injuries caused a recurrence of disability for work on March 22, 1995.  On January 17, 1995 Dr. Brody reported that appellant was working full duties without restrictions but continued to have pain and tenderness in the medial epicondylar region of the right arm as well as pain in the region of the right palmar fasiectomy.  He reiterated that appellant was permanent and stationary.  On March 22, 1993 the date of the claimed recurrence of disability, Dr. Brody reported that appellant was having pain and discomfort in the right elbow as well as a new pain in the left hand.  Appellant advised him that he could not perform his usual and customary occupation because of this pain and discomfort.  Dr. Brody reported that appellant was a candidate for vocational rehabilitation.  Responding to an Office inquiry, he reported on August 15, 1995 that all of his current findings were based on appellant’s subjective complaints of frequent pain of moderate intensity and on appellant’s insistence that he could not perform his usual and customary occupation.

            Dr. Brody first directly addressed the issue of causal relationship in his report of November 7, 1995.  Following an Office decision denying appellant’s claim, Dr. Brody reported that he disagreed with the Office’s finding on causal relationship:  “The subjective discomfort that [appellant] is suffering at this time is due to his initial industrial injury in my opinion.  I know of no other injury which has caused this problem.  Based on this, the patient, in my opinion, is a qualified injured worker.”[3]

            Although this report draws a connection between appellant’s current discomfort and his initial industrial injury, it fails to address appellant’s disability for work beginning March 22, 1995 and it offers no medical explanation of how the work stoppage occurred.  To establish the critical element of causal relationship, Dr. Brody must address appellant’s disability for work beginning March 22, 1995 and must support his opinion on causal relationship with sound medical reasoning.  It is not necessary that his discussion be so conclusive as to suggest a causal connection beyond all possible doubt in the mind of a medical scientist.  The evidence required is only that necessary to convince the adjudicator that the conclusion drawn is rational, sound and logical.[4]

            The only other opinion on causal relationship appearing in the record is found in the October 26, 1996 report of Dr. John D. Smiley, an orthopedic surgeon.  He noted that after surgery in 1994 appellant returned to work for a period of time and continued to complain of pain in his right and left upper extremity.[5]  Dr. Smiley noted that appellant developed pain during working hours and had decreased ability to function and eventually stopped working because of the pain.  He reported that appellant was unable to continue with work at the employing establishment without severe pain in his elbow and wrist bilaterally.  After reporting brief clinical findings, he stated that appellant was disabled from working for the employing establishment and that the condition was caused by his working for the employing establishment.

            This report tends to support that appellant’s current disability is employment related, but as was the case with Dr. Brody’s report of November 7, 1995, it does not address appellant’s disability beginning March 22, 1995 and it offers no medical explanation of how the accepted employment injuries caused appellant to stop work on that date.  From his comment that appellant developed pain during working hours, it appears that Dr. Smiley may be attempting to relate appellant’s current disability to the duties appellant performed after returning to work in 1994.[6]  He did not identify these duties, however, and he offered no explanation of how specific duties affected appellant’s condition so as to cause a work stoppage on March 22, 1995.  Whether appellant claims a spontaneous return of disability on March 22, 1995 as a result of his accepted employment injuries or whether he claims a new injury to the same part of the body by renewed exposure to the causative agent of a previously suffered occupational disease, he must support his claim with a medical opinion that uses sound medical reasoning to establish the critical element of causal relationship.  Without such reasoning, the conclusions of Dr. Brody and Dr. Smiley, while generally supportive of appellant’s claim, are insufficient to establish appellant’s entitlement to further benefits.[7]

            The December 27, 1996 decision of the Office of Workers’ Compensation Programs is affirmed.

Dated,  Washington, D.C.

            June 21, 1999

 

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Member

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Bradley T. Knott

                                                                                                            Alternate Member