United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.O., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, East Boston, MA, 

Employer 

__________________________________________ 

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Docket No. 14-1877 

Issued: January 13, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On August 26, 2014 appellant, through his attorney, filed a timely appeal from a July 16, 

2014 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. 

ISSUE 

The issue is whether appellant met his burden of proof to establish a traumatic injury in 

the performance of duty on September 27, 2012. 

On appeal, appellant’s attorney asserts that the July 16, 2014 decision is contrary to law 

and fact. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On October 11, 2012 appellant, then a 34-year-old lead transportation security officer, 

filed a traumatic injury claim alleging that on September 27, 2012 he sustained a herniated disc 

at L5 while lifting large bags from the floor to a belt to a table. The employing establishment 

indicated that he had not lost time or incurred a medical expense. 

In support of his claim, appellant submitted an October 24, 2012 report in which 

Dr. Robert Bates, a chiropractor, indicated that he had been treating appellant for injuries 

sustained at work since October 1, 2012. He telephoned OWCP on November 7, 2012 and was 

informed that in order to obtain treatment authorization for a chiropractor, the claim had to be 

accepted and a spinal subluxation had to be shown by x-ray. In treatment notes dated October 24 

and 30 and November 1, 2012, Dr. Bates described appellant’s complaints of low back and leg 

pain, provided physical examination findings, and diagnosed probable disc herniation. He 

indicated that appellant was undergoing aggressive chiropractic rehabilitation. Appellant also 

submitted (Form CA-7) claims for intermittent compensation from October 24 to 

November 16, 2012. In letters dated November 16 and 28, 2012, Dr. Bates indicated that he had 

treated appellant “for injuries sustained at work.” 

By letter dated December 3, 2012, OWCP informed appellant that his claim had 

originally been processed up as a minor injury with no lost time, but it had been reopened for 

review and adjudication. Appellant was informed that no action could be taken on Form CA-7 

claims, pending adjudication of his initial traumatic injury claim. In a December 4, 2012 letter, 

OWCP again informed him of the evidence needed to support his claim. It specifically advised 

that a chiropractor did not qualify as a physician under FECA unless there was a diagnosed 

spinal subluxation that was confirmed by an x-ray. 

On December 10, 2012 Dr. Bates indicated that appellant was seen for treatment on 

December 3, 5, and 10, 2012. Appellant telephoned OWCP on December 18, 2012 and was told 

that an x-ray report had not been received. He submitted an additional Form CA-7 claim for 

intermittent compensation from October 24 to December 10, 2012. 

By decision dated January 4, 2013, OWCP found that the September 27, 2012 lifting 

incident occurred as described. However, it denied the claim because appellant had not 

submitted sufficient medical evidence to meet his burden of proof. OWCP noted that Dr. Bates 

did not qualify as a physician under FECA and there was no medical evidence of record that 

established a medical condition causally related to the September 27, 2012 incident. 

Appellant telephoned OWCP on January 9, 2013. He was told that the record did not 

contain a report diagnosing subluxation by x-ray. On January 23, 2013 appellant requested 

reconsideration and submitted January 16, 2013 correspondence in which Dr. Bates indicated 

that he had been treating appellant since October 1, 2012 for work-related low back sprain strain, 

radiculopathy, and a probable disc herniation. He indicated that the billing diagnosis was lumbar 

subluxation. Appellant also submitted a seven-page report describing his initial visit with 

Dr. Bates that included physical examination findings and appellant’s description of the 

September 27, 2012 incident. On a disability slip dated October 11, 2012, Dr. Bates indicated 

that appellant could only perform light work until further notice. In multiple treatment notes 

from October 1 to December 3, 2012, he noted appellant complaints of neck, low back, and leg 
3

pain, described physical examination findings, and diagnosed improving probable disc 

herniation. Dr. Bates indicated that appellant was undergoing aggressive chiropractic 

rehabilitation. 

In a merit decision dated July 11, 2013, OWCP denied modification of the prior decision. 

It noted that none of the medical reports submitted on reconsideration indicated that x-rays were 

performed upon which a diagnosis of spinal subluxation was based. 

On June 26, 2014 appellant, through his attorney, requested reconsideration. He 

submitted a February 26, 2014 report, in which Dr. Bates indicated that he first evaluated 

appellant on October 1, 2012 for subjective complaints of moderately severe low back pain, left 

leg numbness, and cramping that radiated to the foot. Dr. Bates stated that appellant reported 

that he was involved in an incident on September 27, 2012 when he lifted several heavy bags at 

work. He described October 1, 2012 physical examination findings. Dr. Bates also stated: 

“X-rays were performed on November 7, 2012 consisting of a lumbar series with 

obliques. There was a noted subluxation at the L5-S1 level with a forward flexion 

distortion in standing at L5-S1. A diagnosis was formulated which consisted of a 

subluxation of L5, sprain strain of the lumbosacral junction, probable 

radiculopathy with apparent neuropathy. It is my considered opinion to a 

reasonable degree of medical/chiropractic certainty that there is a direct causal 

relationship between the symptoms manifested and the disability demonstrated by 

the patient as well as the subluxation of L5 documented and the work-related 

accident of September 27, 2012.” 

In a merit decision dated July 16, 2014, OWCP denied modification of the prior 

decisions. It found that Dr. Bates was not considered a physician under FECA, noting that, while 

he stated in his February 26, 2014 report that subluxation was diagnosed by x-ray, he did not 

identify who took the films, and an interpretation of x-rays taken on November 7, 2012 did not 

accompany his report. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, 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. Regardless of whether the asserted claim involves traumatic 

injury or occupational disease, an employee must satisfy this burden of proof.2

OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the 

body caused by a specific event or incident or series of events or incidents within a single 

workday or shift.3

 To determine whether an employee sustained a traumatic injury in the 

 2 Gary J. Watling, 52 ECAB 278 (2001). 

3

 20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004). 
4

performance of duty, OWCP must determine whether “fact of injury” is established. First, an 

employee has the burden of demonstrating the occurrence of an injury at the time, place and in 

the manner alleged, by a preponderance of the reliable, probative and substantial evidence. 

Second, the employee must submit sufficient evidence, generally only in the form of medical 

evidence, to establish a causal relationship between the employment incident and the alleged 

disability and/or condition for which compensation is claimed. An employee may establish that 

the employment incident occurred as alleged, but fail to show that his or her disability and/or 

condition relates to the employment incident.4

Under section 8101(2) of FECA, the term “physician” includes chiropractors only to the 

extent that their reimbursable services are limited to treatment consisting of manual manipulation 

of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation 

by the Secretary.5

 Implementing regulations indicate that the diagnosis of spinal subluxation 

must appear in the chiropractor’s report, and a chiropractor may interpret his or her x-rays to the 

same extent as any other physician.6

Causal relationship is a medical issue, and the medical evidence required to establish a 

causal relationship is rationalized medical evidence.7 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 employee.8

 Neither the mere fact that a disease or condition manifests itself during a period 

of employment nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish causal relationship.9

ANALYSIS 

As noted above, a chiropractor is not considered a physician under FECA without an 

x-ray diagnosing subluxation.10 

Dr. Bates, the attending chiropractor, indicated on February 26, 2014 that a lumbar spine 

x-ray had been completed on November 7, 2012 and that the x-ray demonstrated a subluxation at 

L5-S1. He advised that this was caused by the September 27, 2012 work incident. The Board 

notes, however, that a copy of the x-ray report is not in the record, and in his treatment note 

dated November 7, 2012, Dr. Bates did not indicate that an x-ray was completed. Thus, the 

record does not show that Dr. Bates was interpreting his x-ray or one obtained in conjunction 

 4 Supra note 2. 

5

 5 U.S.C. § 8102(2); see D.S., Docket No. 09-860 (issued November 2, 2009). 

6

 20 C.F.R. § 10.311(b)(c). 

7 Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

8 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 

9 Dennis M. Mascarenas, 49 ECAB 215 (1997). 

10 Supra note 5. 
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with his treatment of appellant, as required under the implementing federal regulations.11 The 

record contains no medical evidence other than Dr. Bates’ reports. 

The Board therefore concludes that Dr. Bates is not a physician as defined under FECA, 

and his services do not constitute authorized medical treatment.12 Accordingly, appellant failed 

to establish a traumatic injury due to the September 27, 2012 employment injury. 

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 did not meet his burden of proof to establish a traumatic 

injury in the performance of duty on September 27, 2012. 

ORDER 

IT IS HEREBY ORDERED THAT the July 16, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 13, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 11 Supra note 6; see Sean O’Connell, 56 ECAB 195 (2004). 

12 Id.