United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.G., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Seattle, WA, Employer 

__________________________________________ 

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Docket No. 15-752 

Issued: June 15, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 18, 2015 appellant filed a timely appeal from a January 13, 2015 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 her burden of proof to establish an injury in the 

performance of duty on April 3, 2014, as alleged. 

On appeal, appellant contends that she was pregnant at the time of her injury and was 

advised by her doctors against x-rays. She further contends that there must be some provision 

made for pregnant employees seeking chiropractic treatment after being injured on the job. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 4, 2014 appellant, then a 30-year-old criminal investigator, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained an injury on April 3, 2014 due to a motor 

vehicle accident. She indicated that she was stopped at a red light in her government vehicle 

when she was rear-ended by another vehicle. Appellant was eight months pregnant at the time. 

Her seat belt pulled tight along her stomach, and her head, neck, and back hit the head rest upon 

impact. 

An OWCP Form CA-16, authorization for examination, was issued by the employing 

establishment on April 3, 2014. Appellant was authorized to visit her treating obstetrician and 

gynecologist in Bellingham, Washington. She submitted an April 23, 2014 report from Dr. Carl 

Shayne Mora, a Board-certified obstetrician and gynecologist, who indicated that she was 

involved in a low-speed motor vehicle accident on April 3, 2014 while she was pregnant. 

Dr. Mora stated that appellant was 36 weeks and 3 days pregnant and found good fetal 

movement, no contractions, no bleeding, and no loss of fluid. 

In an April 10, 2014 letter, OWCP notified appellant of the deficiencies of her claim and 

afforded her 30 days to submit additional evidence and respond to its inquiries. 

Appellant submitted massage therapy notes dated April 9 to 24, 2014 from Jessica Willis, 

a licensed massage practitioner. 

In reports dated April 4 to 24, 2014, Dr. David Adich, appellant’s chiropractor, indicated 

that appellant presented for consultation, examination, and treatment of injuries she sustained in 

a work-related motor vehicle accident on April 4, 2014. He advised that she should not submit 

to x-rays as she was 8.5 months pregnant. Dr. Adich diagnosed acute thoracic, cervical, and left 

lumbar strains with associated subluxation complexes and post-traumatic headaches with 

associated cervical subluxation complexes. 

By decision dated May 16, 2014, OWCP denied appellant’s claim on the basis that the 

medical evidence failed to establish a diagnosis causally related to the employment incident. 

On June 17, 2014 appellant requested a review of the written record by an OWCP hearing 

representative and submitted an April 4, 2014 report from Dr. Karen O’Keefe, a Board-certified 

family practitioner, who indicated that appellant was pregnant and advised her to wait for x-ray 

until she delivered her baby. 

By decision dated January 13, 2015, the hearing representative affirmed the May 16, 

2014 decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA2

 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 

                                                             2 Id. 
3

States” within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, that an injury3

 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.4

 

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether a “fact of injury” has been established. 

A fact of injury determination is based on two elements. First, an 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, an employee must submit sufficient 

evidence, generally only in the form of medical evidence, to establish that the employment 

incident caused a personal injury. An employee may establish that the employment incident 

occurred as alleged but fail to show that his or her condition relates to the employment incident.5

 

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. 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 the specific employment factors 

identified by the employee.6 

ANALYSIS 

OWCP has accepted that the employment incident of April 3, 2014 occurred at the time, 

place, and in the manner alleged. The issue is whether appellant sustained an injury as a result. 

The Board finds that she did not meet her burden of proof to establish an injury related to the 

April 3, 2014 employment incident. 

On appeal, appellant contends that she was pregnant at the time of her injury and was 

advised by her doctors against x-rays. She further contends that there must be some provision 

made for pregnant employees seeking chiropractic treatment after being injured on the job. The 

Board has held that medical opinion, in general, can only be given by a qualified physician.7 

                                                             3

 OWCP regulations 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. Such condition must be caused by external force, 

including stress or strain, which is identifiable as to time and place of occurrence and member or function of the 

body affected. 20 C.F.R. § 10.5(ee). 

4 See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 

1143 (1989). 

5 Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989). 

6 Id. See Gary J. Watling, 52 ECAB 278 (2001). 

7 See Charley V.B. Harley, 2 ECAB 208, 211 (1949); Donald J. Miletta, 34 ECAB 1822 (1983) (medical 

evidence must be in the form of a reasoned opinion by a qualified physician based on a complete and accurate 

factual and medical history of the employee whose claim is being considered). 
4

Pursuant to sections 8101(2) and (3) of FECA8

 the Board has recognized chiropractors as 

physicians to the extent of diagnosing spinal subluxation according to OWCP’s definition9

 and 

treating such subluxation by manual manipulation.10 Appellant’s chiropractor, Dr. Adich, 

diagnosed acute thoracic, cervical, and left lumbar strains with associated subluxation complexes 

and post-traumatic headaches with associated cervical subluxation complexes. He did not obtain 

x-rays because appellant was pregnant. In Debra Cochran,

11 the claimant argued on appeal that 

she was seven months pregnant at the time of her injury and was advised by her chiropractor that 

she should not submit to x-rays due to that condition. In his reports, Dr. Adich diagnosed 

subluxations along with cervical thoracic strain injuries which he opined were related to the 

employment incident. The Board found that appellant’s pregnancy “[did] not mitigate the 

statutory requirement that before a chiropractor can be considered a physician for purposes of 

[FECA] he must utilize x-rays to diagnose a subluxation of the spine.”12 Therefore, the Board 

held that OWCP properly denied the employee’s claim on the basis that the chiropractor’s report 

could not be afforded evidentiary weight in the case. 

As in Cochran,

13 the Board finds that appellant’s pregnancy does not in the instant case 

mitigate the statutory requirement that a chiropractor can only be considered a physician for 

purposes of FECA if he has used x-rays to diagnose a subluxation of the spine. Thus, the Board 

finds that Dr. Adich does not qualify as a physician under FECA because, as he did not diagnose 

spinal subluxation based on x-ray findings. Dr. Adich’s opinion is therefore of no probative 

medical value.14 Moreover, services for “physical therapy” performed by a chiropractor, if 

authorized by appellant’s designated treating physician, may be compensable regardless of 

whether a subluxation by x-ray is diagnosed.15 However, in the instant case, there is no evidence 

                                                             8

 5 U.S.C. §§ 8101(2) and (3). Section 8102(2) of FECA recognizes chiropractors as physicians “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.” 5 U.S.C. § 8101(2). See Marjorie S. Geer, 39 ECAB 

1099, 1101-02 (1988). 

9

 20 C.F.R. § 10.400(e). 

10 See, e.g., Christine L. Kielb, 35 ECAB 1060, 1061 (1984). 

11 Docket No. 00-2330 (issued May 11, 2001). 

12 Id. 

13 Supra note 7. 

14 See Elizabeth R. Rios, Docket No. 94-981 (issued July 2, 1996); Kathleen J. Washpon, Docket No 94-1044 

(issued December 6, 1995). 

15 See Rebecca Ortiz, 42 ECAB 134 (1990). 
5

to establish that appellant was referred by her attending physician to a chiropractor and thus the 

treatments were not authorized.16 

In an April 4, 2014 report, Dr. O’Keefe indicated that appellant was pregnant and advised 

her to wait for x-ray until she delivered her baby. On April 23, 2014 Dr. Mora indicated that 

appellant was involved in a low-speed motor vehicle accident on April 3, 2014 while she was 

pregnant and found good fetal movement, no contractions, no bleeding, and no loss of fluid. 

Dr. O’Keefe and Dr. Mora failed to provide a firm diagnosis. Therefore, the Board finds that the 

reports from Drs. O’Keefe and Mora are insufficient to establish a medical diagnosis in 

connection with the injury and appellant has failed to establish her claim. 

In support of her claim, appellant submitted massage therapy notes dated April 9 to 24, 

2014 from Ms. Willis, a licensed massage practitioner. These documents do not constitute 

competent medical evidence because they lack an opinion supported by 17 rationale from a 

physician.17 The Board finds that appellant did not meet her burden of proof with these 

submissions. 

As appellant has submitted no evidence to support her allegation that she sustained an 

injury related to the April 3, 2014 employment incident, she has failed to meet her burden of 

proof to establish a claim for compensation. 

The Board notes that the employing establishment issued appellant a Form CA-16 on 

April 3, 2014 authorizing medical treatment. The Board has held that where an employing 

establishment properly executes a Form CA-16, which authorizes medical treatment as a result of 

an employee’s claim for an employment-related injury, it creates a contractual obligation, which 

does not involve the employee directly, to pay the cost of the examination or treatment regardless 

of the action taken on the claim.18 Although OWCP denied appellant’s claim for an injury, it did 

not address whether she is entitled to reimbursement of medical expenses pursuant to the Form 

CA-16. Upon return of the case record, OWCP should further address this issue. 

                                                             16 See also Mary E. Verwey, Docket No. 95-1271 (issued March 7, 1997) where OWCP accepted the employee’s 

claim for right hip strain. Following her injury, she received treatment from a chiropractor who diagnosed moderate 

acute lumbar disc herniation and opined that the injury was causally related to the employment incident. The Board 

found that the claimant would be entitled to reimbursement for chiropractic expenses if she could demonstrate that 

she sustained a subluxation of the spine as a result of her employment injury, noting that services rendered by 

chiropractors are payable by OWCP only for manual manipulation to treat a subluxation demonstrated by x-ray to 

exist. The chiropractor diagnosed a subluxation but did not obtain x-rays of the claimant’s spine because she was 

pregnant. Therefore, the Board found that he did not qualify as a physician under FECA and his services rendered 

were not compensable. 

17 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons, 

podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the 

scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. 

Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989). 

18 See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300, 10.304. 
6

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 an injury in 

the performance of duty on April 3, 2014 as alleged. 

ORDER 

IT IS HEREBY ORDERED THAT the January 13, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 15, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board