United States Department of Labor
Employees’ Compensation Appeals Board
|
___________________________________________
SCOTT THURMAN, Appellant
and
DEPARTMENT OF THE NAVY, PUGENT SOUND NAVAL SHIPYARD, Bremerton, WA, Employer ___________________________________________ |
) ) ) ) ) ) ) )
|
Docket No. 04-325 Issued: April 13, 2004 |
Appearances: Case Submitted on the Record
John Goodwin, Esq., for the appellant
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Member
DAVID S. GERSON, Alternate Member
WILLIE T.C. THOMAS, Alternate Member
JURISDICTION
On November 18, 2003 appellant filed a timely appeal from the Office of Workers’ Compensation Programs’ merit decision dated September 22, 2003. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a recurrence of disability on and after May 29, 2002 causally related to the accepted employment injury of February 28, 2001.
FACTUAL HISTORY
On February 28, 2001 appellant, then a 48-year-old electrician, filed a claim for compensation benefits alleging that he sustained an injury to his lower back when he stepped into a hole during an earthquake. The Office accepted that appellant sustained an employment-related lumbar strain and sciatica. Appellant stopped work on March 5, 2001, but returned to a limited-duty position on March 20, 2001 and resumed his regular duties on March 23, 2001.[1]
Appellant submitted a report from Dr. David Stackhouse, a Board-certified family practitioner, dated June 4, 2002 which noted that appellant presented with recurrent left-sided sciatic pain which developed on May 29, 2002 when he bent over to pick up his dog. He diagnosed left-sided radiculopathy and lumbar strain and appellant remained off work. Other reports from Dr. Lee W. Chu, a Board-certified family practitioner, dated June 4, 2002 noted treating appellant for sciatica. His reports of June 12 and 28, 2002 noted appellant’s complaints of back and left leg pain which occurred on May 29, 2002 when he bent over to pick up his dog. Dr. Chu diagnosed exacerbation of work-related left L3-L5 lumbar radiculopathy. Dr. Sheryl L. Harris, a Board-certified family practitioner, noted in a report dated June 16, 2002 appellant was treated for back pain radiating into the leg secondary to an injury sustained on the job. She diagnosed lumbar radiculopathy, acute exacerbation. A magnetic resonance imaging (MRI) scan dated June 18, 2002 revealed L3-4 left foraminal herniated nucleus pulposus; L4-5 bilateral facet degenerative change causing mild bilateral neural foraminal narrowing; and L5-S1 mild broad-based posterior disc bulge.
Also submitted was a report from Dr. Michael S. McManus, Board-certified in occupational medicine, dated June 24, 2002 which noted a history of appellant’s injury on February 28, 2001 and his recurrent low back pain. He advised that appellant had reinjured his back three times since the 2001 injury and most recently injured his back on May 29, 2002 when he bent over to lift a small dog and experienced an immediate onset of recurrent low back pain with paresthesias in the left lower extremity. Dr. McManus noted that appellant had aggravated his symptoms and diagnosed recurrent lumbar strain with L3-4 disc extrusion and L5-S1 disc bulge/osteophyte complex with subacute left L3, L5 and S1 radiculopathy (work related) and advised that appellant could return to work on July 1, 2002. In an attending physician’s report dated June 24, 2002, Dr. McManus advised that appellant fell forward twisting the low back and noted with a checkmark “yes” that the condition was caused or aggravated by an employment activity. His reports of July 19 and August 6, 2002 diagnosed aggravation of the L3-4 left disc extrusion with L5-S1 disc bulge/osteophyte complexes with left L3, L5 and S1 radiculopathy and adjustment disorder. Dr. McManus noted that appellant originally injured his back causing disc herniation and nerve root compression of the left spinal nerve root on February 28, 2001 and sustained a significant aggravation on May 29, 2002 and further noted that appellant’s present condition is a direct result of the original injury of February 28, 2001, which occurred in the performance of duty.
An electromyogram (EMG) dated August 1, 2002 revealed acute/ongoing left L5-S1 radiculopathy with some chronic changes occurring and acute ongoing left L2/3/4 radiculopathy. In a report dated August 5, 2002, Dr. Timothy D. Steege, a Board-certified neurologist, recommended a decompression of the left L3 and L5 nerve roots with a L3-4 far lateral laminotomy and microdiscectomy and a left L5 foraminotomy.
On August 8, 2002 the appellant filed a Form CA-2a, notice of recurrence of disability. Appellant indicated a recurrence of chronic back pain due to employment-related injuries sustained on February 28, 2001. Appellant stopped work on May 29, 2002. Appellant indicated that he returned to full duty on March 23, 2001 and had reinjured his back three times since the original work injury of February 28, 2001. He advised that on May 29, 2002 he bent over and felt pain in his lower back and numbness in his left leg.
By decision dated September 9, 2002, the Office denied appellant’s claim for recurrence of disability on the grounds that he did not submit sufficient medical evidence to establish that he sustained a recurrence of disability on or after May 29, 2002 which was causally related to the accepted employment injury sustained on February 28, 2001.
Appellant requested an oral hearing before an Office hearing representative which was held June 17, 2002.
Appellant submitted various reports from Dr. McManus dated August 6 and 26, 2002 which noted that appellant still experienced pain in the lower lumbar region near the lumbosacral junction bilaterally. He diagnosed aggravation of the L3-4 left disc extrusion with L5-S1 disc bulge/osteophyte complexes with left L3, L5 and S1 radiculopathy and adjustment disorder and advised that appellant would be disabled through September 9, 2002. Dr. McManus’ reports of September 9 to 30 and October 3, 2002 advised that appellant was progressing well until October 1, 2002 when he was in an automobile and due to a sudden stop was thrown within the car and hit his elbow. Dr. McManus diagnosed recurrent aggravation of the large left paracentral L3-4 disc extrusion and L5-S1 disc protrusion/osteophyte complex with right S1 and left L3, L5 and S1 radiculopathy. His attending physician report of October 10, 2002 noted that appellant sustained a low back injury on October 1, 2002. Dr. McManus noted with a checkmark “yes” that appellant’s condition was caused or aggravated by an employment incident. In duty status reports dated October 3 to 10, 2002, Dr. McManus indicated that appellant could return to work on October 7, 2002 subject to various restrictions. Dr. McManus’ report of December 10, 2002 advised that appellant was treated for low back pain radiating into the leg which was due to a fall on a stairwell on December 9, 2002.
Also submitted was a report from Dr. Steege dated July 24, 2002 which noted a history of appellant’s injuries in 1995 and 2001 and advised that appellant had a recurrence of his symptoms on May 29, 2002 when he bent over to pick up a dog and experience back and leg pain. He diagnosed left L3-4 disc herniation with L3 nerve root compression possibly relating to some of the motor, sensory and reflex abnormalities on examination and chronic L5-S1 disc degeneration with bilateral nerve root impingement. Also submitted were reports from Dr. John F. Howe, a Board-certified neurologist, dated November 12 to December 10, 2002 which noted a history of appellant’s work-related injuries and diagnosed lumbar radiculopathy secondary to an extruded disc herniation at L3-4 and L5-S1 foraminal stenosis. He recommended a laminotomy and discectomy.
By decision dated September 22, 2003, the Office hearing representative affirmed the September 9, 2002 decision on the grounds that appellant did not submit sufficient medical evidence to establish a causal relationship between his claimed recurrence of disability and his February 28, 2001 employment injury.
LEGAL PRECEDENT
Where appellant claims a recurrence of disability due to an accepted employment-related injury, he has the burden of establishing by the weight of reliable, probative and substantial evidence that the recurrence of disability is causally related to the original injury.[2] This burden includes the necessity of furnishing evidence from a qualified physician who, on the basis of a complete and accurate factual and medical history, concludes that the condition is causally related to the employment injury.[3] Moreover, the physician’s conclusion must be supported by sound medical reasoning.[4]
The medical evidence must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated by the accepted injury.[5] In this regard, medical evidence of bridging symptoms between the recurrence and the accepted injury must support the physician’s conclusion of a causal relationship.[6] While the opinion of a physician supporting causal relationship need not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical certainty.[7]
ANALYSIS
The Office accepted that appellant sustained a lumbar strain on February 28, 2001. The medical record lacks a well-reasoned narrative from appellant’s physician relating appellant’s claimed recurrent condition, beginning May 29, 2002 to the May 3, 1995 or February 28, 2001 employment injuries.
Reports from Dr. McManus provide some support for causal relationship but are insufficient to establish the claimed recurrence of injury. His report of June 24, 2002 advised that appellant had reinjured his back three times since the 2001 injury and most recently injured his back on May 29, 2002 when he bent over to lift a small dog and experienced an immediate onset of recurrent low back pain with paresthesias in the left lower extremity. The doctor diagnosed recurrent lumbar strain with L3-4 disc extrusion and L5-S1 disc bulge/osteophyte complex with subacute left L3, L5 and S1 radiculopathy (work related). His reports of July 19 to September 30, 2002 diagnosed aggravation of the degenerative disease and disc herniations at L3-4 and L4-5 with left L3, L5-S1 radiculopathies. However, Dr. McManus made no attempt to explain how a lumbar strain would cause or aggravate any of the other diagnosed conditions. There is no “bridging evidence” which would relate diagnosed aggravation of the degenerative disease and disc herniations at L3-4 and L4-5 with left L3, L5-S1 radiculopathies to the accepted lumbar strain. That is, the doctor did not explain, how, over one year following the accepted lumbar strain, it was exacerbated by appellant’s employment factors to result in a diagnosed aggravation of the degenerative disease and disc herniations at L3-4 and L4-5 with left L3, L5-S1 radiculopathies. The Office never accepted that appellant sustained an aggravation of the degenerative disease and disc herniations at L3-4 and L4-5 with left L3, L5-S1 radiculopathies as a result of his May 3, 1995 or February 28, 2001 work injuries and there is no medical rationalized evidence to support such a conclusion.[8] The Board has found that vague and unrationalized medical opinions on causal relationship have little probative value.[9]
Dr. McManus opined that appellant’s present condition was a direct result of the original injury of February 28, 2001. Although the doctor supported causal relationship in this conclusory statement he did not provide a rationalized opinion regarding the causal relationship between appellant’s lumbar strain with L3-4 disc extrusion and L5-S1 disc bulge/osteophyte complex with subacute left L3, L5 and S1 radiculopathy and the employment incident believed to have caused or contributed to such condition.[10]
Appellant submitted a report from Dr. Stackhouse dated June 4, 2002 who diagnosed left-sided radiculopathy and lumbar strain due to the May 29, 2002 incident. Other reports from Drs. Chu, Harris, Steege and Howe noting treating appellant for sciatica which developed on May 29, 2002 and diagnosed exacerbation of work-related left L3-L5 lumbar radiculopathy, left L3-4 disc herniation with L3 nerve root compression and chronic L5-S1 disc degeneration with bilateral nerve root impingement. However, as noted above, none of these physicians made an attempt to explain how a lumbar strain would cause or aggravate any of the other diagnosed conditions. There is no “bridging evidence” which would relate the L3-5 lumbar radiculopathy, sciatica, L3-4 disc herniation with L3 nerve root compression, chronic L5-S1 disc degeneration and bilateral nerve root impingement to the accepted lumbar strain. That is, the doctors did not explain, how, over one year following the accepted lumbar strain, it was exacerbated by appellant’s employment factors to result in relate the L3-5 lumbar radiculopathy, sciatica, L3-4 disc herniation with L3 nerve root compression, chronic L5-S1 disc degeneration and bilateral nerve root impingement to the accepted lumbar strain. The Office never accepted that appellant sustained a L3-5 lumbar radiculopathy, sciatica, L3-4 disc herniation with L3 nerve root compression, chronic L5-S1 disc degeneration and bilateral nerve root impingement as a result of his May 3, 1995 or February 28, 2001 work injuries and there is no medical rationalized evidence to support such a conclusion.[11] As previously stated, vague and unrationalized medical opinions on causal relationship have little probative value.[12]
Other medical reports submitted by appellant did not specifically address causal relationship between his accepted condition and his claimed recurrence of disability or conditions.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he sustained a recurrence of disability or a medical condition beginning May 29, 2002 causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2003 decision of the Office of Worker’ Compensation Programs is affirmed.
Issued: April 13, 2004
Washington, DC
Colleen Duffy Kiko
Member
David S. Gerson
Alternate Member
Willie T.C. Thomas
Alternate Member
[1] The record indicates that appellant sustained a low back injury on May 3, 1995 which was accepted by the Office as a work-related injury, File No. A14-0304206. On September 12, 2002 the Office consolidated that claim with the present claim before the Board, File No. A14-360762.
[3] Section 10.104(a)-(b) of the Code of Federal Regulations provides that when an employee has received medical care as a result of the recurrence, he or she should arrange for the attending physician to submit a detailed medical report. The physicians report should include the physician’s opinion with medical reasons regarding the causal relationship between the employee’s condition and the original injury, any work limitations or restrictions, and the prognosis. 20 C.F.R. § 10.105(b).
[5] Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).
[6] For the importance of bridging information in establishing a claim for a recurrence of disability, see Robert H. St. Onge, supra note 2; Shirloyn J. Holmes, 39 ECAB 938 (1988); Richard McBride, 37 ECAB 748 (1986).
[8] For conditions not accepted by the Office as being employment related, it is the employee’s burden to provide rationalized medical evidence sufficient to establish causal relation, not the Office’s burden to disprove such relationship. Alice J. Tysinger, 51 ECAB 638 (2000).