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United States Department of Labor

Employees’ Compensation Appeals Board

 

 

__________________________________________   EUNICE M. PERRYMAN, Appellant   and   DEPARTMENT OF VETERANS AFFAIRS, VETERANS ADMINISTRATION MEDICAL CENTER, Cleveland, OH, Employer __________________________________________

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Docket No. 04-2257 Issued: March 9, 2005

Appearances:                                                                          Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director

 

 

DECISION AND ORDER

 

Before:

ALEC J. KOROMILAS, Chairman

WILLIE T.C. THOMAS, Alternate Member

MICHAEL E. GROOM, Alternate Member

 

 

JURISDICTION

 

On September 15, 2004 appellant, through counsel, filed a timely appeal of a decision of an Office of Workers’ Compensation Programs’ hearing representative dated August 26, 2004,  which found that she did not establish that her back condition was causally related to an October 7, 2003 employment incident.  Pursuant to 5 U.S.C. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.

ISSUE

 

The issue is whether appellant has established that her back condition is causally related to an October 7, 2003 employment incident.

FACTUAL HISTORY

 

On October 21, 2003 appellant, a 62-year-old nurse, filed a traumatic injury claim alleging that she sustained a lumbar strain on October 7, 2003 when a patient fell on her and another nurse while being helped back into bed. 

In support of her claim, appellant submitted progress notes dated October 21, 2003 from Kathleen S. Dooner, a nurse practitioner and an October 21, 2003 x-ray interpretation by Dr. Nami R. Azar, a Board-certified diagnostic radiologist.  Ms. Dooner related that appellant injured herself on October 7, 2003 and diagnosed a lumbar strain.  Dr. Azar related that appellant strained her lower back muscles when grabbing a falling patient. 

In a letter dated October 23, 2003, the employing establishment controverted the claim.  The employing establishment related that appellant “did not make the connection between the October 7, 2003, (sic) incident and her back pain until after she saw her physician” and that appellant informed her physician that her injury did not occur at work 

In a letter dated October 28, 2003, the Office informed appellant that the evidence of record was insufficient to support her claim and advised her as to the type of medical and factual evidence required to support her claim. 

In a decision dated December 5, 2003, the Office denied the claim on the grounds that the medical evidence failed to establish that her back condition was causally related to the October 7, 2003 employment incident. 

On January 5, 2004 appellant requested an oral hearing, which was held on June 22, 2004.  Appellant was represented by counsel and provided testimony. 

She submitted a December 1, 2003 report from Dr. Audley M. Mackel, III, a treating Board-certified orthopedic surgeon.  Dr. Mackel diagnosed lumbar strain and sprain.  He reported that appellant sustained an injury on October 7, 2003 when she attempted to prevent a patient from falling and that she did not initially note any pain.  However, within 24 hours, appellant noted acute pain in her lower back.  Physical findings revealed “tenderness along the paraspinal muscles of the lower back, primarily on the left side,” intact neurovascular status, 10 to 15 degrees of side bending, 80 degrees of flexion, 10 degrees of extension and 20 degrees of rotation.   

In an October 9, 2003 report, Dr. Mackel diagnosed lumbar strain and sprain.  He reported seeing appellant on October 7, 2003 due to her complaints of an injury sustained on October 7, 2003 when she attempted to prevent a patient from falling.  Physical findings revealed “tenderness along the paraspinal muscles about the lower back,” intact lower extremity neurovascular status, “[t]enderness is present with deep digital palpation,” 10 to 15 degrees of side bending, 40 to 50 degrees of flexion and 10 degrees of extension.  

In a January 22, 2004 report, Dr. Mackel related that appellant continued to have complaints of lower back pain.  He stated that appellant’s injury was sustained on October 7, 2003 when she was lifting a patient.  He diagnosed lumbar sprain and strain.  Physical findings revealed “tenderness along the paraspinal muscles about the lower back,” intact neurovascular status, 10 to 15 degrees of side bending, 70 to 80 degrees of flexion, 10 degrees of extension and 20 degrees of rotation. 

In an August 26, 2004 decision, the Office hearing representative affirmed the December 5, 2003 denial of appellant’s claim.  The Office hearing representative found the medical evidence insufficient to establish that her lumbar strain was causally related to the October 7, 2003 incident.  As the opinion of Dr. Mackel was unrationalized and not based upon an accurate history of the employment incident.    

LEGAL PRECEDENT

 

In order to determine whether an employee sustained a traumatic injury in the performance of duty, the Office begins with an analysis of whether “fact of injury” has been established.  Generally, fact of injury consists of two components that must be considered in conjunction with one another.  The first component to be established is that the employee actually experienced the employment incident that is alleged to have occurred.[1]  The second component is whether the employment incident caused a personal injury.[2]  Causal relationship is a medical question that can generally be resolved only by rationalized medical opinion evidence.[3]

Rationalized medical opinion evidence is medical evidence, which includes a physician’s rationalized opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated employment factors.[4]  The opinion of the physician must be based on a complete factual and medical background of the claimant, 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 the specific employment factors identified by the claimant.[5]  The weight of medical evidence is determined by its reliability, its probative value, its convincing quality, the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion.[6]

ANALYSIS

 

The Office found that appellant experienced the October 7, 2003 employment incident at the time, place and in the manner alleged.  However, it denied the claim finding insufficient medical evidence relating the diagnosed lumbar strain to the October 7, 2003 employment incident.  The Board finds that the evidence of record does not contain rationalized medical opinion evidence relating appellant’s condition to the October 7, 2003 employment incident.

In his reports, Dr. Mackel failed to explain how appellant’s diagnosed lumbar strain and sprain was causally related to her preventing a patient from falling on October 7, 2003.  His history of injury contained in the January 22, 2004 report was different than that listed in prior reports.  He stated that appellant injured herself when lifting a patient on October 7, 2003.  He did not explain the inconsistent histories and did not explain how the mechanism of the incident affected appellant’s back or whether the variance in the medical history significantly affected his opinion.  Dr. Mackel provided no medical rationale addressing the basis for his stated conclusion on causal relationship.  As Dr. Mackel’s opinion is not supported by medical rationale, based on a complete and accurate history, explaining the nature of the relationship between the diagnosed condition and the accepted incident, it is of diminished probative value and is insufficient to establish causal relation.[7] 

Dr. Azar’s October 21, 2003 x-ray interpretation is also insufficient to support appellant’s burden of proof.  Dr. Azar opined that appellant strained her lower back muscles when grabbing a falling patient.  However, he did not provide any supporting rationale explaining how the diagnosed condition was related to the accepted employment incident.  Dr. Azar’s report is of diminished probative medical value and insufficient to establish causal relationship.[8]

The October 21, 2003 progress notes from Ms. Dooner, a nurse practitioner, contain a diagnosis of lumbar sprain and noted that appellant injured herself on October 7, 2003.  This report has no probative medical value as a nurse is not a “physician” as defined under the Federal Employees’ Compensation Act.[9]  Therefore, Ms. Dooner cannot render a competent medical opinion.

Appellant has failed to submit rationalized medical opinion explaining how her lumbar strain is causally related to the accepted October 7, 2003 incident she has not satisfied her burden of proof. 

CONCLUSION

 

The Board finds that appellant has not established that her back condition is causally related to the accepted October 7, 2003 employment incident.

ORDER

 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated August 26, 2004 is affirmed.

Issued: March 9, 2005

Washington, DC

 

 

                                                                                                            Alec J. Koromilas

                                                                                                            Chairman

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Michael E. Groom

                                                                                                            Alternate Member