11/17/2020
(November 16, 2020)
To further improve communication lines and respond to the concerns between the National VA Council and you, our members, I have established a National VA Council Briefing. This NVAC Briefing will bring you the latest news and developments within DVA and provide you with the current status of issues this Council is currently addressing. I believe that this NVAC Briefing will significantly enhance how we communicate, and how we share new information, keeping you better informed.
Alma L. Lee
National VA Council, President
In This Briefing: Physician assistants are not considered physicians under the Federal Employee Compensation Act ( FECA) OWCP
Due to the COVID 19 Pandemic, many medical facilities are resorting to physician assistants to see our members, if a Federal Employee is injured on the job or contract COVID19, physician assistants are not accepted by OWCP/ Dept. of Labor. The members must see a Doctor MD.
Section 8101(2) of Federal Employee Compensation Act (FECA) provides that physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); R.K., Docket No. 20-0049 (issued April 10, 2020) (a physician assistant is not considered a physician as defined under FECA).
The below case is an example as it was denied due to the employee being treated by a physician assistant.
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120 LRP 27494
R.R., Appellant and U.S. POSTAL SERVICE, BURNSVILLE POST OFFICE, Burnsville, MN, Employer
Employees' Compensation Appeals Board
20-0558
August 31, 2020
Ruling
The ECAB found that the OWCP properly denied a claim, as the claimant failed to establish a medical condition causally related to the accepted employment incident.
Meaning
Certain healthcare providers such as physician assistants are not considered physicians under the FECA. Therefore, their medical findings or opinions will not suffice for purposes of establishing entitlement to FECA benefits.
Case Summary
A city carrier filed a traumatic injury claim alleging that she sustained a right lateral strain when she twisted her right foot after stepping in a divot on the lawn while in the performance of duty. The OWCP accepted that the employment incident occurred as alleged but denied the claim, finding that the claimant did not establish a medical condition causally related to the described employment activity. The ECAB found the OWCP properly denied the claim.
In support of her claim, the claimant submitted an attending physician's report signed solely by a physician assistant. However, certain healthcare providers such as physician assistants are not considered physicians under the FECA. Therefore, their medical findings or opinions will not suffice for purposes of establishing entitlement to FECA benefits. The ECAB found the medical report submitted by the claimant was insufficient to establish her claim.
Judge / Administrative Officer
ALEC J. KOROMILAS
Judge / Administrative Officer
JANICE B. ASKIN
Judge / Administrative Officer
PATRICIA H. FITZGERALD
Full Text
Decision and order
Jurisdiction
Issue
Factual history
Legal precedent
Analysis
Conclusion
Order
APPEARANCES
Appellant, pro se
Office of Solicitor, for the Director
Decision and order
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
Jurisdiction
On January 14, 2020 appellant filed a timely appeal from an October 2, 2019 merit decision of the Office of Workers Compensation Programs (OWCP). Pursuant to the Federal Employees Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
Issue
The issue is whether appellant has met her burden of proof to establish a medical condition causally related to the accepted July 3, 2019 employment incident.
Factual history
On August 17, 2019 appellant, then a 48-year-old city carrier, filed a traumatic injury claim (Form CA-1) alleging that on July 3, 2019 she sustained a right lateral strain when she twisted her right foot after stepping in a divot on the lawn while in the performance of duty. She did not stop work.
In a September 4, 2019 development letter, OWCP informed appellant of the deficiencies in her claim. It advised her of the type of medical evidence necessary to establish her claim and afforded her 30 days to respond.
In an August 27, 2017 attending physician's report, Part B of an authorization for examination and or treatment (Form CA-16), a certified physician assistant diagnosed a capsule sprain at the fifth tarsometatarsal (TMP) joint of the right foot and noted that the diagnosed condition was caused or aggravated by the described employment activity. Appellant was released to resume regular work without restrictions.
By decision dated October 2, 2019, OWCP denied appellant's claim. It accepted that the July 3, 2019 employment incident occurred as alleged, however, it found that she had not established a diagnosed medical condition causally related to the accepted employment incident, thus the requirements had not been met for establishing an injury as defined by FECA.
Legal precedent
An employee seeking benefits under FECA3 has the burden of proof to establish the essential elements of his or her claim, including that the individual is an employee of the United States within the meaning of FECA, that the claim was timely filed within the applicable time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that any disability or medical condition for which compensation is claimed is causally related to the employment injury.5 These are the essential elements of each and every compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the performance of duty, it first must be determined whether fact of injury has been established. There are two components involved in establishing fact of injury. First, the employee must submit sufficient evidence to establish that he or she actually experienced the employment incident at the time, place and in the manner alleged. Second component is whether the employment incident caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific condition and an employment incident is rationalized medical opinion evidence.8 The opinion of the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors identified by the employee.9
Analysis
The Board finds that appellant has not met her burden of proof to establish a medical condition causally related to the accepted July 3, 2019 employment incident.
In support of her claim, appellant submitted an August 27, 2019 attending physician's report, Form CA-16, signed solely by a physician assistant, who diagnosed a capsule sprain at the fifth TMP joint of the right foot. However, certain healthcare providers such as physician assistants are not considered physician[s] as defined under FECA.10 Consequently, their medical findings and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits.11 Thus, this evidence is of no probative value and is insufficient to establish appellant's claim.
As appellant has not submitted a rationalized medical opinion sufficient to establish that she sustained a traumatic injury causally related to the accepted July 3, 2019 employment incident, the Board finds that she has not met her burden of proof to establish an employment-related traumatic injury.
On appeal appellant asserts that proper forms were not provided to her physician, who was on vacation and would provide the requested documentation later, and alleges that she is having a communication problem with OWCP. As noted above, however, OWCP properly found that appellant has not met her burden of proof to establish a medical condition causally related to the accepted July 3, 2019 employment incident.12
Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
Conclusion
The Board finds that appellant has not met her burden of proof to establish a medical condition causally related to the accepted July 3, 2019 employment incident.
Order
IT IS HEREBY ORDERED THAT the October 2, 2019 decision of the Office of Workers Compensation Programs is affirmed.
Washington, DC
//signed
Alec J. Koromilas, Chief Judge
Employees Compensation Appeals Board
//signed
Janice B. Askin, Judge
Employees Compensation Appeals Board
//signed
Patricia H. Fitzgerald, Alternate Judge
Employees Compensation Appeals Board
15 U.S.C. § 8101 et seq.
2The Board notes that following the October 2, 2019 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.
3Supra note 1.
4F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989).
5L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); James E. Chadden, Sr., 40 ECAB 312 (1988).
6P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41 ECAB 992 (1990).
7T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. Carlone, 41 ECAB 354 (1989).
8S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G. Morris, 48 ECAB 238 (1996).
9T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
105 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).
11Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); R.K., Docket No. 20-0049 (issued April 10, 2020) (a physician assistant is not considered a physician as defined under FECA).
12The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).
