United States Department of Labor
Employees’ Compensation Appeals Board
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LARRY GRAVES, Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VETERANS ADMINISTRATION MEDICAL CENTER, Houston, TX, Employer __________________________________________ |
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Docket No. 05-867 Issued: April 3, 2006 |
Appearances: Case Submitted on the Record
Larry Graves, pro se
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On March 2, 2005 appellant filed a timely appeal from the Office of Workers’ Compensation Programs’ merit decision dated June 7, 2004, which denied his request for back surgery and a November 16, 2004 decision denying merit review in file number 16-0286681. Appellant also appealed an Office decision dated November 30, 2004 and March 2, 2005, which denied his claim in file number 16-2070804. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for back surgery; (2) whether the Office properly denied appellant’s request for reconsideration; and (3) whether appellant sustained a right shoulder, lower back and groin injury in the performance of duty on February 2, 2004.
FACTUAL HISTORY
On October 23, 2000 appellant, then a 45-year-old housekeeping aid, filed a traumatic injury claim for his neck and back after his automobile collided with the employing establishment gate. The Office accepted appellant’s claim for right shoulder, neck and lumbosacral strain and right rotator cuff tear. Appellant did not stop work.[1]
Dr. Thaddeus W. Hume, a Board-certified orthopedic surgeon, treated appellant from October 24 to November 21, 2000. He diagnosed rotator cuff tear, lumbosacral spine sprain and degenerative disc disease. Thereafter, appellant came under the treatment of Dr. James A. Ghadially, a Board-certified orthopedic surgeon. In a May 10, 2002 report, he diagnosed probable mechanical instability at L3-4 and multiple cervical disc herniations and recommended a discogram. In reports dated October 17 to December 19, 2002, Dr. Ghadially recommended that appellant undergo a nonsurgical procedure, a nucleoplasty at L3-4; however, the Office denied approval for this procedure. In a report dated January 7, 2003, he noted appellant’s complaints of severe low back pain with numbness and tingling into the foot. Dr. Ghadially diagnosed mechanical instability at L3-4, annular tear with disc disruption at L3-4, L4-5 and L5‑S1, multi-level disc disease, large herniation at C2-3 and central herniations at L3-4, C4-5, C5-6 and C6-7. He recommended a three level spinal fusion at L3-4, L4-5 and L5-S1. A magnetic resonance imaging (MRI) scan of the lumbar spine on October 9, 2002 revealed a normal L2-3 disc, right posterolateral annual tear at L3-4, left posterolateral annular tear at L4-5 and right posterolateral tear at L5-S1. An MRI scan of the cervical spine revealed a herniated disc at C2‑3, a central herniation at C3-4, C4-5, C5-6 and C6-7. A lumbar discogram performed on October 9, 2002 revealed a normal disc at L2-3, with a posterolateral tear at L3-4 a left posterolateral tear at L4-5 and a right posterolateral tear at L5-S1. An electromyograph (EMG) dated November 22, 2002 revealed peripheral neuropathy due to compression of the medial branch of the brachial plexus on the right but did not confirm the diagnoses of herniated nucleus pulposus at C3-4 and C5-6.
In a February 7, 2003 report, an Office medical adviser reviewed the medical records and diagnosed mild lumbar degenerative disc disease without spinal cord or nerve root impingement. He noted that the medical record did not support the proposed three level lumbar fusion surgery and opined that the chance of such an operation being successful was remote. The Office medical adviser recommended a second opinion evaluation.
On March 5, 2003 the Office referred appellant for a second opinion to Dr. Bernard Z. Albina, a Board-certified orthopedic surgeon. The Office provided Dr. Albina with appellant’s medical records, a statement of accepted facts as well as a detailed description of appellant’s employment duties. In a March 26, 2003 report, he reviewed the record, reported appellant’s history of back injuries and noted set forth findings on physical examination. Dr. Albina diagnosed degenerative cervical and lumbar disc disease with no clinical evidence of any cervical or lumbar radiculopathy. He recommended against surgical intervention and opined that appellant could return to his light-duty position, which he performed for two consecutive years following his work injury in 2000. Dr. Albina stated that the injury of October 23, 2000 caused a cervical and lumbar soft tissue injury, which would have subsided within three months. He indicated that the diagnosis of mechanical instability, annular tear, disruptions and multiple levels in appellant’s lumbar spine and disc herniation were related to underlying degenerative cervical disc disease and degenerative lumbar disc disease, which was not related to the work injury of October 23, 2000.
In reports dated April 1 to July 1, 2003, Dr. Ghadially noted that appellant was released to light-duty work in April 2003. He indicated that the Office denied approval for a global fusion and recommended a C4-5 and C5-6 anterior cervical discectomy and fusion.[2]
On September 2, 2003 the Office found that a conflict of medical opinion existed between Dr. Albina, the Office referral physician, who did not support surgery and Dr. Ghadially, appellant’s treating physician, who recommended surgery. The Office referred appellant to Dr. John J. DeBender, a Board-certified orthopedic surgeon. In a report dated September 18, 2003, he reviewed the records provided and performed a physical examination. He noted a history of appellant’s work-related injury and diagnosed degenerative cervical and lumbar disc disease with no radicular symptoms that would support the need for surgery. Dr. DeBender listed findings upon physical examination of the cervical spine of no tenderness to palpation, mild decrease in range of motion of the neck secondary to pain, no muscle spasm and indicated that sensation, muscle function and reflexes were normal. With respect to the lumbar spine, there was no tenderness to palpation, no muscle spasm, the straight leg raising and femoral stretch tests were normal and muscle function and gait was normal. As a result of the injury of October 2000, appellant sustained a cervical and lumbar strain that would have resolved in 6 to 12 weeks. Dr. DeBender noted that appellant returned to work immediately after the injury and continued to work light duty for two years. He stated that the diagnostic tests did not reveal significant nerve root compression or disc herniation in the cervical or lumbar spine and clinically there was no presence of cervical or lumbar radiculopathy requiring surgery. Dr. DeBender opined that appellant’s complaints were due to the degenerative cervical and lumbar disc disease, which was not related to the injury of October 23, 2000. He advised that appellant could return to work light duty.
On February 2, 2004 appellant filed a traumatic injury claim alleging that he injured his right shoulder, low back and groin while lifting a patient’s luggage. The claim was given file number 16-2070804. Appellant stopped work on February 3, 2004 and returned to work in a light-duty position on February 9, 2004.
By letter dated February 9, 2004, the Office advised appellant of the factual and medical evidence needed to establish his claim and requested that he submit such evidence, including a physician’s reasoned opinion addressing the relationship of his claimed condition and specific employment factors.
Appellant submitted an undated statement and advised that he felt pain in his groin area after lifting a patient’s luggage. He submitted a witness statement from Paula Webber, a clothing clerk, dated February 13, 2004. Ms. Webber noted that she asked appellant for assistance in lifting a patient’s luggage onto a cart. On February 26, 2004 Dr. Charles K. Speller, an orthopedic surgeon, noted treating appellant for a lifting injury sustained at work on February 2, 2004. He diagnosed herniated discs of the lumbar and cervical spine, sprain to the left groin area and urinary frequency.
In a decision dated March 11, 2004, the Office denied appellant’s February 2, 2004 injury claim on the grounds that the medical evidence did not establish that his condition was caused by the factors of employment.
On May 4, 2004 appellant requested reconsideration and submitted a February 2, 2004 return to work slip prepared by Dr. Ulysses Watkins, a Board-certified family practitioner, who advised that appellant could return to work on February 9, 2004 without restriction. Appellant also submitted an undated consultation with a urologist, whose signature is illegible, advising that appellant’s urinary condition was most likely related to his back injury. In an April 29, 2004 report, Dr. Speller opined that appellant’s current disabling condition was directly related to lifting luggage at work on February 2, 2004. He noted that October 2002 diagnostic studies had revealed multiple herniations of the lumbar and cervical spine and recommended further diagnostic tests of the back and physical therapy.
In a decision dated June 7, 2004, the Office denied appellant’s request for surgery on the grounds that the proposed surgery was neither warranted nor causally related to appellant’s October 23, 2000 work-related injury.
By letter dated June 23, 2004, appellant requested reconsideration of the June 7, 2004 decision and submitted additional medical evidence. Appellant contended that Dr. DeBender did not review his medical records while he was in the examining room and failed to review the MRI and computerized tomography (CT) scans. He submitted a June 17, 2004 report from Dr. Ghadially, who disagreed with the opinion of Dr. DeBender and opined that appellant’s symptoms were not consistent with degenerative cervical and lumbar disease. Dr. Ghadially noted that the MRI scan studies failed to reveal degenerative changes.
In a decision dated August 5, 2004, the Office denied modification of the March 11, 2004 decision.
By letter dated August 16, 2004, appellant requested reconsideration of the Office decision dated August 5, 2004. In reports dated August 12 and 16, 2004, Dr. Speller diagnosed cervical and lumbar radiculopathy with herniations and recommended updated diagnostic studies.
By decision dated August 30, 2004, the Office denied appellant’s reconsideration request on the grounds that his letter neither raised substantive legal questions nor included new and relevant evidence and was insufficient to warrant review of the prior decision.[3]
By letter dated November 15, 2004, appellant requested reconsideration of the August 5, 2004 Office decision He submitted a CA-16 form dated April 16, 2004, prepared by Dr. Watkins, who noted that appellant injured his back, right shoulder and groin on February 2, 2004. Dr. Watkins diagnosed right shoulder, lower back and left groin pain. He noted with a checkmark that appellant’s condition was not caused or aggravated by an employment activity. Also submitted was a November 11, 2004 report from Dr. Speller, who noted a history of the February 2, 2004 injury with subsequent pain, spasms in the back and lower extremities. Dr. Speller diagnosed cervical and lumbar radiculopathy with disc herniations. He noted that appellant underwent a cervical spine MRI scan on October 5, 2004, which revealed posterior protrusions of the discs at C2-3, C3-4, C4-5, C6-7 and C7-T1. A lumbar MRI scan revealed a three millimeter posterior protrusion of the disc at L3-4, L4-5 and L5-S1. He noted that appellant had previous injuries to his cervical and lumbar spine and opined that the injury of February 2, 2004 aggravated the preexisting conditions. Dr. Speller recommended a further discogram CT scan and surgery.
In a decision dated November 16, 2004, the Office denied reconsideration on the grounds that his request neither raised substantive legal questions nor included new and relevant evidence and was insufficient to warrant review of the prior decision.
By a decision dated November 30, 2004, the Office denied modification of the August 5, 2004 decision, which denied his February 2, 2004 injury.
On January 26, 2005 appellant requested reconsideration of the November 30, 2004 decision. Appellant indicated that the employing establishment failed to timely issue a Form CA-16 and contended that believed he was owed 45 days of continuation of pay. He also submitted a duplicate report from Dr. Speller dated November 11, 2004.
In a decision dated March 2, 2005, the Office denied modification of the November 30, 2004 decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of the Federal Employees’ Compensation Act provides that the United States shall furnish to an employee who is injured while in the performance of duty, the services, appliances and supplies prescribed or recommended by a qualified physician, which the Office considers likely to cure, give relief, reduce the degree or the period of disability or aid in lessening the amount of the monthly compensation.[4] The Office has the general objective of ensuring that an employee recovers from his injury to the fullest extent possible in the shortest amount of time. The Office therefore has broad administrative discretion in choosing means to achieve this goal. The only limitation on the Office’s authority is that of reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic and probable deductions from established facts. It is not enough to merely show that the evidence could be construed so as to produce a contrary factual conclusion.[5]
Proof of causal relationship in a case such as this must include supporting rationalized medical evidence. Thus, in order for surgery to be authorized, appellant must submit evidence to show that the requested surgery is for a condition causally related to the employment injury and that the requested procedure is medically warranted. Both of these criteria must be met in order for the Office to authorize payment.[6]
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained right shoulder, neck and lumbosacral strains and a right rotator cuff tear on October 23, 2000. The Office properly determined that a conflict of medical opinion was created existed over whether surgery for a global three level fusion at L3-4, L4-5 and L5-S1 was warranted. Dr. Ghadially, appellant’s treating physician, stated that appellant required a global three level fusion at L3-4, L4-5 and L5-S1. Dr. Albina, an Office referral physician, recommended against the surgery and opined that appellant could return to his light-duty position. The Office properly referred appellant to Dr. DeBender, for an impartial medical examination.
Where there exists a conflict of medical opinion and the case is referred to an impartial specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual background, is entitled to special weight.[7]
The Board finds that the weight of the medical evidence is represented by the thorough, well-rationalized opinion of Dr. DeBender. After reviewing appellant’s complaints, a medical history including the October 23, 2000 work-related injury, the medical records and conducting a physical examination, Dr. DeBender diagnosed degenerative cervical and lumbar disc disease and explained that there were no radicular symptoms which would indicate a need for surgery. He noted that, as a result of the October 23, 2000 injury, appellant sustained cervical and lumbar strains, which would have resolved in 6 to 12 weeks. He concluded that surgical intervention was not appropriate based on the physical examination and review of the diagnostic tests, which did not reveal significant nerve root compression or disc herniation in the cervical or lumbar spine. Dr. DeBender reviewed the case record and various reports, including Dr. Ghadially’s reports on appellant’s medical treatment since the initial October 23, 2000 injury. He examined appellant thoroughly, discussed the diagnostic testing, explained his clinical findings and provided medical rationale for his conclusion that the requested back surgery was not needed. Dr. DeBender opined that appellant’s complaints were due to the degenerative cervical and lumbar disc disease and were not related to the work injury of October 23, 2000. He provided an opinion that is sufficiently well rationalized and based upon a proper factual background such that his opinion is entitled to the special weight accorded an impartial specialist. The Board finds that Dr. DeBender’s report represents the weight of the medical opinion evidence and establishes that the recommended surgery was not needed.[8]
Appellant submitted additional reports from Dr. Ghadially, who continued to recommend surgery for an anterior cervical and lumbar discectomy at all levels involved. However, Dr. Ghadially’s report’s failed to provide a rationalized opinion regarding the causal relationship of the proposed lumbar surgery to accepted the employment injury or address how this procedure was medically warranted.[9] These reports repeated his opinion and are insufficient to overcome that of Dr. DeBender or to create a new medical conflict as Dr. Ghadially was on the one side of the conflict that Dr. DeBender resolved.[10]
Accordingly, the Board finds that the Office did not abuse its discretion in denying authorization for the requested surgery.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,[11] the Office has the discretion to reopen a case for review on the merits. The Office must exercise this discretion in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal regulations,[12] which provides that a claimant may obtain review of the merits of his or her written application for reconsideration, including all supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of law; or
“(ii) Advances a relevant legal argument not previously considered by the [Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered by [the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim which does not meet at least one of the requirements listed in section 10.606(b) will be denied by the Office without review of the merits of the claim.[13]
ANALYSIS -- ISSUE 2
On June 23, 2004 appellant requested reconsideration of the denial of surgery. He request, however, did not allege or demonstrate that the Office erroneously applied or interpreted a specific point of law. Additionally, appellant did not advance a relevant legal argument not previously considered by the Office.
Appellant asserted that Dr. DeBender did not review his medical records and failed to review the MRI and CT scans. However, appellant’s unsupported assertions are insufficient to show that the Office erroneously applied or interpreted a point of law nor did it advance a point of law or fact not previously considered by the Office. Consequently, appellant is not entitled to a review of the merits of his claim based on the first and second above-noted requirements under section 10.606(b)(2). With respect to the third requirement, constituting relevant and pertinent new evidence not previously considered, appellant submitted a June 17, 2004 report from Dr. Ghadially who stated his disagreement with the opinion of Dr. DeBender and opined that appellant’s symptoms were not consistent with degenerative cervical and lumbar disease as alleged but with cervical and lumbar radiculopathy. However, this report is essentially duplicative of Dr. Ghadially’s other reports already contained in the record that were previously considered by the Office in its June 7, 2004 decision.[14] The Office properly found that this evidence was not a basis for reopening the case for a merit review.
Appellant neither showed that the Office erroneously applied or interpreted a point of law; advanced a point of law or fact not previously considered by the Office; nor constitute relevant and pertinent evidence not previously considered by the Office.”[15] Therefore, the Board finds that the Office properly denied appellant’s requests for reconsideration without reviewing the merits of the claim.
LEGAL PRECEDENT -- ISSUE 3
An employee seeking benefits under the Act has the burden of establishing the essential elements of his or her claim including the fact that the individual is an employee of the United States within the meaning of the Act, that the claim was filed within the applicable time limitation of the Act, that an injury was sustained in the performance of duty as alleged and that any disability and/or specific condition for which compensation is claimed are causally related to the employment injury. These are the essential elements of each and every compensation claim regardless of whether the claim is predicated upon a traumatic injury or occupational disease.[16]
In order to determine whether an employee actually sustained an 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, which must be considered in conjunction with one another. The first component to be established is that the employee actually experienced the employment incident which is alleged to have occurred.[17] The second component is whether the employment incident caused a personal injury and generally can be established only by medical evidence. To establish a causal relationship between the condition, as well as any attendant disability, claimed and the employment event or incident, the employee must submit rationalized medical opinion evidence, based on a complete factual and medical background, supporting such a causal relationship.[18]
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. 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.[19] 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.[20]
ANALYSIS -- ISSUE 3
Appellant alleged injury on February 2, 2004 after lifting luggage. The Office found that the incident occurred as alleged. The Board finds, however, that the medical evidence is insufficient to establish that appellant sustained a right shoulder, low back or groin injury causally related to the February 2, 2004 incident.
Dr. Speller’s February 26, 2004 report noted a history of the February 2, 2004 incident, but the physician did not provide a rationalized opinion regarding the causal relationship between the diagnosed conditions of herniated discs of the lumbar and cervical spine, sprain to the left groin area and urinary frequency to lifting luggage on February 2, 2004. This is especially important in view of appellant’s history of prior lumbar and cervical injuries. Dr. Speller failed to address how these injuries were caused or contributed to by the incident. Reports from Dr. Speller dated March 15 to August 16, 2004, noted appellant’s complaints resulting from the incident of February 2, 2004 but the physician did not provide any medical reasoning to support causal relationship. In reports dated April 29 and November 11, 2004, Dr. Speller diagnosed cervical and lumbar radiculopathy with disc herniations and noted that appellant had sustained previous injuries to his cervical and lumbar spine. He opined that the injury of February 2, 2004 aggravated the preexisting work-related conditions. Dr. Speller further opined that appellant’s current disabling condition was directly related to lifting of a patient’s bag while working on February 2, 2004. While Dr. Speller supported causal relationship in these reports he provided insufficient rationale to explain the basis for his stated conclusion on causal relationship. For example, he did not explain the medical reasons by which the February 2, 2004 incident caused or aggravated a medical condition and why any such condition would not be solely the result of appellant’s preexisting conditions. Without any explanation or rationale for the conclusion reached, such report is insufficient to establish causal relationship.[21]
Appellant also submitted a return to work slip prepared by Dr. Watkins dated February 2, 2004, which advised that appellant could return to work on February 9, 2004 without restriction. However, Dr. Watkins failed to reference an injury causing event on February 2, 2004 nor did he provide a rationalized opinion regarding the causal relationship between appellant’s conditions and the factors of employment believed to have caused or contributed to such conditions.[22] Rather, in a Form CA-16 dated April 16, 2004, Dr. Watkins noted that appellant’s back, right shoulder and groin injury on February 2, 2004 was not caused or aggravated by an employment activity.
An award of compensation may not be based on surmise, conjecture or speculation. Neither the fact that appellant’s condition became apparent during a period of employment nor the belief that his condition was caused, precipitated or aggravated by his employment is sufficient to establish causal relationship.[23]
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for authorization of a three level spinal fusion at L3-4, L4-5 and L5-S1 in file number 16-0286681. The Board further finds that the Office properly denied appellant’s request for reconsideration dated June 23, 2004 without a merit review in file number 16-0286681. The Board also finds that appellant has failed to meet his burden of proof to establish that he sustained a right shoulder, lower back and groin injury causally related to his February 2, 2004 employment incident in file number 16-2070804.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office dated March 2, 2005, November 30 and 16, and June 7, 2004 are affirmed.
Issued: April 3, 2006
Washington, DC
Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board
David S. Gerson, Judge
Employees’ Compensation Appeals Board
Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
[1] Appellant filed a claim for a back injury sustained on September 24, 1996, file number 16-0286681, the current claim for a back injury sustained on October 23, 2000, a claim for an injury sustained on July 19, 2001, file number 16-2022337, a claim for an injury sustained on November 8, 2001, file number 16-2028025 and a claim for a injury sustained on October 9, 2002, file number 16-2008696. All of these claims were consolidated into file number 16‑0286681.
[2] On January 8, 2003 appellant filed a recurrence of disability claim which was accepted by the Office on April 1, 2003.
[3] Appellant appealed his claim to the Board. In an order dated November 5, 2004, the Board dismissed the appeal at appellant’s request. Docket No. 04-2254 (issued August 30, 2004).
[8] David Alan Patrick, 46 ECAB 1020, 1023 (1995) (impartial medical examiner’s opinion was based on a complete review of the medical record and a thorough examination and was sufficiently rationalized to establish that appellant had no work-related residuals of his diagnosed cervical condition; thus his opinion was entitled to special weight).
[9] Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are entitled to little probative value).
[10] See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Ghadially’s report did not contain new findings or rationale upon which a new conflict might be based.