19-0603 ) Issued: January 28, 2020 DEPARTMENT of the TREASURY, ) INTERNAL REVENUE SERVICE, ) Holtsville, NY, Employer ) ______)
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United States Department of Labor Employees’ Compensation Appeals Board __________________________________________ ) S.L., Appellant ) ) and ) Docket No. 19-0603 ) Issued: January 28, 2020 DEPARTMENT OF THE TREASURY, ) INTERNAL REVENUE SERVICE, ) Holtsville, NY, Employer ) __________________________________________ ) Appearances: Case Submitted on the Record Thomas S. Harkins, Esq., for the appellant1 Office of Solicitor, for the Director DECISION AND ORDER Before: CHRISTOPHER J. GODFREY, Chief Judge ALEC J. KOROMILAS, Alternate Judge VALERIE D. EVANS-HARRELL, Alternate Judge JURISDICTION On January 18, 2019 appellant, through counsel, filed a timely appeal from a July 26, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3 1 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 5 U.S.C. § 8101 et seq. 3 The Board notes that following the July 26, 2018 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. ISSUES The issues are: (1) whether appellant has met her burden of proof to establish that the acceptance of her claim should be expanded to include cervical spine derangement and other conditions causally related to the accepted April 4, 2016 employment injury; (2) whether appellant has met her burden of proof to establish total disability for the periods September 27, 2016 through January 6, 2017, January 9 through March 17, 2017, and March 30 through 31, 2017 causally related to her accepted April 4, 2016 employment injury; (3) whether OWCP has met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits, effective April 21, 2017, as she no longer had disability or residuals due to the accepted April 4, 2016 employment injury; and (4) whether appellant has met her burden of proof to establish continuing employment- related residuals or disability after April 21, 2017 causally related to the accepted April 4, 2016 employment injury. FACTUAL HISTORY On April 5, 2016 appellant, then a 45-year-old correspondence examination technician, filed a traumatic injury claim (Form CA-1) alleging that on April 4, 2016 she sustained facial injuries when she walked face first into a glass portal when leaving work for the day while in the performance of duty. She sought treatment at the emergency room. Appellant did not return to work after April 5, 2016 and received continuation of pay benefits. In an April 6, 2016 note, Dr. John Celentano, a Board-certified family practitioner, diagnosed concussion, headache, and facial trauma. He opined that she was unable to work until April 15, 2016. In an April 12, 2016 note, Dr. Jorge A. Reiley, a Board-certified neurologist, diagnosed headaches and neck pain. He opined that she was totally disabled until April 22, 2016. In a development letter dated April 18, 2016, OWCP advised appellant of the deficiencies in her claim and provided her the opportunity to submit additional evidence, including a well- rationalized report from her physician explaining how the employment incident caused or aggravated a medical condition. OWCP afforded her 30 days to respond. On April 6, 2016 the employing establishment provided appellant with an authorization for examination and/or treatment (Form CA-16) for injuries to her face, nose, and forehead as well as a concussion. In Part B -- attending physician’s report, on April 13, 2016 Dr. Celentano noted the history of the April 4, 2016 employment injury and diagnosed facial trauma and headache. He checked a box marked “yes,” in response to the question of whether appellant’s conditions had been caused or aggravated by the employment activity and he noted that she was totally disabled from April 5 to 15, 2016. On May 2, 2016 OWCP received an April 5, 2016 hospital report which noted the history of injury and listed a diagnosis of concussion without loss of consciousness. The accompanying April 5, 2016 x-ray report found no nasal bone fractures. OWCP subsequently received April 12, 22, and 29, 2016 reports from Dr. Reiley, who noted the history of injury and diagnosed: closed head and facial trauma with residual post- traumatic headaches, dizziness, short-term memory and concentration impairments; 2 postconcussion syndrome; cervicobrachial pain syndrome; and cervicalgia. Dr. Reiley opined that appellant was temporarily disabled and recommended additional testing. In an attending physician’s report (Form CA-20) and a work capacity evaluation (Form OWCP-5) dated April 22, 2016, he opined that appellant remained totally disabled due to severe headaches and neck pain. On May 23, 2016 OWCP accepted the claim for contusion of face, concussion without loss of consciousness, and postconcussion syndrome. By decision dated May 24, 2016, OWCP denied the diagnosed cervical spine derangement condition as the medical evidence failed to provide rationalized medical evidence which explained how the accepted April 4, 2016 employment injury had caused or aggravated her neck symptoms. On June 28, 2016 appellant requested reconsideration. OWCP received appellant’s June 2, 2016 statement, physical therapy notes, several reports signed by a certified nurse practitioner, return to work notes and work restrictions, and several diagnostic reports. An April 5, 2016 x-ray of nasal bones revealed no fractures; a May 6, 2016 head computerized tomography (CT) revealed no intracranial hemorrhage or acute territorial-type infarct; a May 6, 2016 cervical spine CT found no acute cervical spine fracture; a June 28, 2016 magnetic resonance imaging (MRI) scan of the brain was unremarkable; a June 29, 2016 cervical spine MRI scan revealed right C5-6 foraminal stenosis; a July 7, 2016 upper extremity electromyogram (EMG) revealed mild bilateral upper tunnel syndrome; and an August 22, 2016 video nystagmography (VNG) revealed nonacute left peripheral vestibular dysfunction with an associated mild head left position sensitivity. In May 6, 2016 hospital discharge instructions, Dr. Lien Lam, a Board-certified emergency medicine practitioner, diagnosed cervical disc disorder, unspecified with radiculopathy. He indicated in a May 6, 2016 excuse slip that appellant could return to work on May 27, 2016. In a June 1, 2016 note, Dr. Celentano opined that appellant was disabled until July 1, 2016. Medical reports from Dr. Hos C. Luftus, a Board-certified neurologist, dated June 6 and 29, and July 20 and 21, August 31, September 7, and October 7 and 11, 2016 were received along with work restrictions dated July 20, 2016. Dr. Luftus noted a history of appellant’s injury and recorded his clinical findings. He indicated that appellant suffered a head injury at work followed by headaches, neck pain and numbness, and tingling in the hands possibly related to a radiculopathy caused by the injury. Dr. Luftus diagnosed carpal tunnel syndrome, unspecified upper limb; other spondylosis, cervical region; and post-traumatic headache, dizziness, and giddiness and opined that she was unable to work. In his September 7, 2016 report, he reviewed the August 22, 2016 VNG. Dr. Luftus noted, “vestibulopathy after head injury, with relationship between VNG findings and head injury unestablished, as is the correlation between VNG findings and clinical symptoms. While symptoms of dizziness started after a head injury, patient was referred for a number of blood tests to investigate for potential systemic etiologies for vestibulopathy.” In a September 8, 2016 report, Dr. Chandra Sharma, a Board-certified neurologist serving as an OWCP second opinion physician, reviewed the medical record and a statement of accepted facts (SOAF), noted appellant’s complaints, and presented normal neurological examination findings. She diagnosed cervical and lumbar sprain/strain, post trauma headaches, and post trauma vertigo. Dr. Sharma indicated that there were no objective findings of neurological injury to any 3 part of appellant’s nervous system and opined that her neurological problems had fully resolved. She also indicated that the subjective symptoms reported by appellant failed to correspond and were not supported by objective findings. Dr. Sharma explained that appellant’s decreased range of motion findings on examination were “subjective due to perception of pain and have no relevance to neurological issues,” noting that appellant’s range of motion was normal during spontaneous activities. She concluded that appellant was at maximum medical improvement (MMI). Dr. Sharma opined that appellant could return to her date-of-injury position without restrictions, that there was no need for further neurological treatment or diagnostic testing as no neurological injuries were sustained due to the employment injury, and that appellant had no preexisting or unrelated neurological injuries. In an October 7, 2016 worksheet, Dr. Bhupinder S. Anand, a Board-certified neurologist, noted that he provided a nerve block injection and opined that appellant was temporarily totally disabled.