United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.M., Appellant 

and 

DEPARTMENT OF JUSTICE, U.S. 

PROBATION DEPARTMENT, EASTERN 

DISTRICT OF NEW YORK, Brooklyn, NY, 

Employer 

__________________________________________ 

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Docket No. 14-482 

Issued: May 15, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 23, 2013 appellant, through her attorney, filed a timely appeal from the 

October 29, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) 

denying her traumatic injury claim. 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 her burden of proof to establish that she sustained 

bilateral knee, back and right shoulder injuries on November 15, 2012 while in the performance 

of duty. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On November 21, 2012 appellant, then a 38-year-old probation officer, filed a traumatic 

injury claim alleging pain in both knees, back and right shoulder as a result of being struck by a 

sport utility vehicle (SUV) as she crossed the street on November 15, 2012. She submitted a 

police accident report regarding the November 15, 2012 incident. 

In a November 16, 2012 medical report, Dr. Michael M. Raffinan, a Board-certified 

family practitioner, diagnosed a sprain not otherwise specified. He placed appellant on lightduty work through November 30, 2012. 

An unsigned hospital report dated November 15, 2012 noted that appellant was treated by 

Debra Duncan-Anderson, a nurse practitioner. She was diagnosed as having a sprain and strain 

of an unspecified site of the back. In a November 15, 2012 prescription, Ms. Duncan-Anderson 

ordered ibuprofen to treat appellant’s sprain and strain. 

By letter dated November 28, 2012, OWCP advised appellant that the evidence submitted 

was insufficient to establish her claim. It requested that she submit additional factual and 

medical evidence, including a rationalized medical opinion from an attending physician which 

provided dates of examination and treatment, a history and date of injury, a detailed description 

of findings and test results, a diagnosis and clinical course of treatment together with a 

physician’s opinion explaining how the reported November 15, 2012 work incident caused or 

aggravated a medical condition. OWCP also requested that the employing establishment submit 

factual and any medical evidence regarding treatment appellant received at its medical facility. 

In a December 5, 2012 letter, the employing establishment stated that appellant was 

conducting official business when she was struck by an SUV on November 15, 2012. 

On December 12, 2012 appellant stated that she was conducting an initial home visit as 

required at the time of her injury on November 15, 2012. 

On November 28, 2012 Dr. Raffinan prescribed physical therapy to treat appellant’s neck 

and back sprain after a car accident. On December 5, 2012 he reported a history of the 

November 15, 2012 incident and appellant’s medical treatment. Dr. Raffinan saw her on 

November 16, 2012, at which time she complained about pain in her knees, upper and lower 

back and shoulders, more on the right side than the left side. He provided findings on physical 

examination and placed appellant off work from November 20 through December 4, 2012. On 

November 28, 2012 appellant returned to Dr. Raffinan’s office with pain in the same areas. 

Dr. Raffinan stated that his examination findings were similar to those of November 16, 2012. 

He referred appellant to an orthopedic surgeon for further evaluation and advised that until a 

determination was made by this physician, she was unable to perform field work. Dr. Raffinan 

stated that this type of work may require defensive or combative actions which would worsen her 

sprained back, shoulders and knees. 

Daily notes from physical therapists addressed the treatment of appellant’s lumbago on 

December 7, 12 and 20, 2012. 
3

In a January 3, 2013 decision, OWCP accepted that the November 15, 2012 incident 

occurred as alleged. It denied appellant’s claim, however, finding that she failed to submit 

sufficient medical evidence to establish that her back, shoulder or knee injuries were causally 

related to the accepted employment incident. 

On January 25, 2013 appellant requested an oral hearing before an OWCP hearing 

representative. 

Daily notes from physical therapists addressed the treatment of appellant’s lumbago on 

December 21 and 31, 2012 and January 2, 2013. 

In a January 17, 2013 report, Dr. Keith S. Tobin, a Board-certified radiologist, advised 

that an x-ray of the right knee was normal. 

On January 17, 2013 Dr. Leon E. Popovitz, an orthopedic surgeon, reported that appellant 

had suffered from right knee pain for approximately two months. He obtained a history of the 

November 5, 2012 employment incident. Dr. Popovitz listed findings on physical examination 

and assessed appellant as having right knee pain possibly secondary to a meniscal tear. He 

recommended further diagnostic testing of the right knee. In reports dated January 24 and 

March 28, 2013, Dr. Popovitz listed physical examination findings and diagnostic test results. 

He assessed appellant as having right knee patellofemoral syndrome which was recovering well. 

In a January 24, 2013 report, Dr. William Louie, a Board-certified radiologist, advised 

that an x-ray of the lumbar spine revealed subtle grade 1 retrolisthesis at L5-S1. 

In reports dated March 28 and May 21, 2013, Dr. Michael Y. Mizhiritsky, a Boardcertified physiatrist, noted that appellant’s back pain had improved. He listed findings on 

physical examination and diagnosed lumbar sprain and strain, and myofascial pain syndrome. 

In a June 20, 2013 decision, an OWCP hearing representative affirmed the January 3, 

2013 decision. She found that appellant failed to submit sufficient medical evidence to establish 

a causal relationship between her diagnosed medical conditions and the November 15, 2012 

employment incident. 

On July 30, 2013 appellant, through her attorney, requested reconsideration. 

In a July 9, 2013 report, Dr. Mizhiritsky advised that appellant sustained a lumbar stain 

and myofascitis secondary to the November 15, 2012 employment incident. He noted that a 

January 2013 x-ray revealed mild retrolisthesis and no fractures. Dr. Mizhiritsky further noted 

that appellant was currently attending physical therapy two to three times a week for six weeks. 

He advised that if her symptoms worsened he would possibly obtain a magnetic resonance 

imaging scan and electromyogram to rule out disc pathology. 

In an October 29, 2013 decision, OWCP denied modification of the June 20, 2013 

decision. It found that Dr. Mizhiritsky’s July 9, 2013 report was not sufficiently rationalized to 
4

establish that appellant sustained lumbar conditions causally related to the November 15, 2012 

employment incident.2

LEGAL PRECEDENT 

An employee seeking benefits under FECA3

 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative and substantial 

evidence4

 including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.5

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.6

 

There are two components involved in establishing the 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.7

 

The second component is whether the employment incident caused a personal injury and 

generally can be established only by medical evidence.8 The evidence required to establish 

causal relationship is rationalized medical opinion evidence, based upon complete factual and 

medical background, showing a causal relationship between the claimed condition and the 

identified factors.9 The belief of the claimant that a condition was caused or aggravated by the 

employment is insufficient to establish a causal relationship.10

ANALYSIS 

OWCP accepted that on November 15, 2012 appellant was struck by an SUV while in the 

performance of duty. It found that the medical evidence failed to establish that she sustained 

bilateral knee, back and right shoulder injuries as a result of the accepted incident. The Board 

 2

 Following the issuance of the October 29, 2013 decision, OWCP received additional evidence. The Board 

cannot consider evidence for the first time on appeal which was not before OWCP at the time it issued the final 

decision in the case. See 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); 

Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 

3

 5 U.S.C. §§ 8101-8193. 

4 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 

5 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

6 S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005). 

7 Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968). 

8 John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q) 

(traumatic injury and occupational disease defined, respectively). 

9 Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979). 

10 Kathryn Haggerty, 45 ECAB 383, 389 (1994). 
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finds that appellant failed to provide sufficient medical evidence to establish that she sustained 

bilateral knee, back and right shoulder conditions causally related to the November 15, 2012 

employment incident. 

In a July 9, 2013 report, Dr. Mizhiritsky found that appellant sustained a lumbar strain 

and myofascitis secondary to the November 15, 2012 employment incident. Although he 

generally supported causal relationship, he did not adequately explain the basis of his 

conclusion.11 Dr. Mizhiritsky noted the results of the January 24, 2013 lumbar x-ray and that 

appellant was undergoing physical therapy. He advised that further diagnostic testing may be 

required if appellant’s symptoms worsened. Dr. Mizhiritsky did not provide a fully-rationalized 

opinion explaining how the accepted employment incident caused the diagnosed medical 

conditions. His other reports did not provide a medical opinion addressing the causal 

relationship between the accepted employment incident and appellant’s lumbar sprain and strain, 

and myofascial pain syndrome. Medical evidence which does not offer any opinion regarding 

the cause of an employee’s condition is of limited probative value.12 For the stated reasons, the 

Board finds that Dr. Mizhiritsky’s reports are of diminished probative value and insufficient to 

establish appellant’s claim. 

Similarly, Dr. Raffinan’s November 16, 2012 report which found that appellant had a 

sprain not otherwise specified is also insufficient to establish the claim, as this report does not 

provide a medical opinion addressing whether the accepted employment incident caused or 

aggravated the diagnosed condition.13 Further, on November 28, 2012 he prescribed physical 

therapy to treat appellant’s neck and back sprain post car accident, but he did not specifically 

address whether the accepted work incident caused or aggravated the diagnosed conditions.14 In 

a December 5, 2012 report, Dr. Raffinan provided a history of the November 15, 2012 

employment incident and appellant’s medical treatment. He stated that his examination findings 

were similar to his prior November 16, 2012 examination findings. Dr. Raffinan did not provide 

a sufficiently rationalized medical opinion explaining why being hit by an SUV on 

November 15, 2012 caused appellant’s sprain. He noted that she was being treated by an 

orthopedist and found that until the physician determined otherwise, she was unable to perform 

field work because it may require defensive or combative actions that would worsen her sprained 

back, shoulders and knees. However, the Board has held that fear of future injury is not 

compensable.15 For the stated reasons, the Board finds that Dr. Raffinan’s reports are 

insufficient to establish appellant’s claim. 

Dr. Popovitz’s January 17, 2013 report found that appellant had right knee pain possibly 

secondary to a meniscal tear. His opinion, however, does not specifically address whether the 

 11 Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are 

entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001). 

12 A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999). 

13 Id.

14 Id.

15 I.J., 59 ECAB 408 (2008). 
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November 15, 2012 employment incident caused an injury.16 Dr. Popovitz did not otherwise 

state that being hit by an SUV on November 15, 2012 caused a meniscal tear nor did he provide 

adequate rationale explaining how the diagnosed condition resulted from the accepted incident or 

worsened her underlying right knee condition. His other reports also failed to provide an opinion 

addressing whether appellant’s diagnosed right knee patellofemoral syndrome was caused by the 

accepted employment incident.17 The Board finds that Dr. Popovitz’s reports are insufficient to 

establish appellant’s claim. 

Dr. Tobin’s January 17, 2013 diagnostic test results did not find that appellant had a right 

knee condition causally related to the accepted employment incident. He advised that an x-ray of 

the right knee was normal. 

Dr. Louie’s January 24, 2013 x-ray report found that appellant had subtle grade 1 

retrolisthesis at L4-S1, but he did not opine that the diagnosed condition was caused by the 

November 15, 2013 employment incident.18 The Board finds, therefore, that Dr. Louie’s report 

is insufficient to establish appellant’s claim. 

The reports from Ms. Duncan-Anderson, a nurse practitioner, and appellant’s physical 

therapists are insufficient to establish appellant’s claim. As neither a nurse practitioner nor a 

physical therapist is considered to be a physician as defined under FECA, their opinions are of 

no probative value.19 

The unsigned hospital report is insufficient to establish appellant’s claim. A report that is 

unsigned or bears an illegible signature lacks proper identification and cannot be considered 

probative medical evidence.20 The Board finds that there is insufficient medical evidence to 

establish that appellant sustained bilateral knee, back and right shoulder injuries causally related 

to the accepted November 15, 2012 employment incident. 

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. 

 16 See cases cited, supra note 12. 

17 Id.

18 Id.

19 The term 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. § 8102(2); A.C. 

Docket No. 08-1453 (issued November 18, 2008) (records from a physical therapist do not constitute competent 

medical opinion in support of causal relation, as physical therapists are not physicians as defined under FECA); 

L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA); Roy L. Humphrey, 57 

ECAB 238 (2005). 

20 Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004). 
7

CONCLUSION 

The Board finds that appellant has not met her burden of proof to establish that she 

sustained bilateral knee, back and right shoulder injuries on November 15, 2012 while in the 

performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the October 29, 2013 decision of the Office of 

Workers’ Compensation Programs are affirmed. 

Issued: May 15, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board