United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.M., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Richmond, VA, Employer 

__________________________________________ 

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Docket No. 15-1650 

Issued: March 18, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 30, 2015 appellant filed a timely appeal from an April 30, 2015 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 met her burden of proof to establish an injury causally 

related to the November 27, 2013 employment incident. 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional evidence following the April 30, 2015 decision. Since the 

Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board 

may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 

126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant to 

5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2). 
2

FACTUAL HISTORY 

On December 9, 2013 appellant, then a 39-year-old revenue officer, filed a traumatic 

injury claim (Form CA-1) alleging that on November 27, 2013 she sustained lower back, neck, 

wrist, elbow, and upper arm stiffness after slipping and falling in the parking lot of the 

employing establishment at 7:45 a.m. Her supervisor noted that her regular work hours were 

from 7:00 a.m. to 5:30 p.m. He also related that appellant left the employing establishment 

building to return to her car to retrieve something when the incident occurred. The record does 

not indicate that appellant stopped work. 

On November 27, 2013 appellant’s supervisor filed an occupational injury report 

indicating that on that date at approximately 7:35 a.m. appellant sustained injuries to her lower 

back, neck, wrists, elbows, and upper arms when she slipped and fell in the parking lot near the 

employee entrance, while walking back to her car. 

In a December 10, 2013 unsigned medical note, the date of injury was recorded as 

December 10, 2013. Diagnoses of headache and neck pain were reported.3

On December 12, 2013 appellant was examined by Dr. Jay J. Jones, a Board-certified 

family practitioner, who related in a report that appellant sustained injuries on November 27, 

2013 when she fell down in a parking lot at work. He reported that he had examined appellant 

on two prior occasions on November 11 and 15, 2013 and had performed occipital nerve blocks. 

Dr. Jones explained that her headaches and upper cervicalgia were markedly improved and under 

control. He reviewed appellant’s history and conducted an examination. Dr. Jones observed 

limited range of motion of appellant’s neck and active trigger points in the upper trapezius 

cervical paraspinal musculature. He also noted tenderness to palpation of the greater and lesser 

occipital nerves bilaterally. 

Examination of appellant’s hips and elbow revealed relatively full and pain-free range of 

motion. Upon examination of the lumbar spine, Dr. Jones observed limited flexion and 

extension. He also noted tenderness over the sacroiliac (SI) joints bilaterally and trigger points. 

Dr. Jones diagnosed exacerbation of occipital neuralgia and upper cervicalgia, right rotator cuff 

tendon contusion, lumbar whiplash with resultant primarily muscle based pain and possible SI 

pain. He opined that appellant had an exacerbation of her upper cervicalgia and cervicogenic 

headache with new symptoms in the posterior lateral acromial area on the right and pain at the 

lumbosacral junction bilaterally. Dr. Jones concluded that appellant’s current clinical situation 

had either been exacerbated by or caused by the fall in the parking lot. He also provided 

handwritten prescription notes recommending a physical therapy consult and a duty status report. 

In a December 16, 2013 report, Dr. Jones noted that appellant’s signs and symptoms were 

unchanged from his December 12, 2013 clinical evaluation. He explained that he was supporting 

appellant’s workers’ compensation claim because he believed that appellant had experienced an 

exacerbation of occipital neuralgia and upper cervicalgia secondary to whiplash, increase in 

myofascial pain syndrome and upper cervical facet syndrome, and right rotator cuff tendon 

contusion. Upon examination, Dr. Jones observed tenderness to palpation of appellant’s bilateral 

greater and lesser occipital nerves and large hard active trigger points in the upper semispinalis 

 3

 Dr. David McClary, a Board-certified family practitioner, was noted as “provider.” 
3

capitis, splenius capitis, bilateral levator scapula, and upper trapezius. He noted preprocedure 

diagnoses of bilateral greater and lesser neuralgia with cervical spine and upper shoulder 

myofascial pain syndrome. Appellant received trigger point injections and nerve blocks. 

Dr. Jones provided a December 16, 2013 attending physician’s report and a work excuse note 

which indicated that appellant was examined on December 16, 2013. 

Appellant submitted various physical therapy reports indicating that she received 

treatment on December 16, 18, and 23, 2013 and January 17 and 22, 2014. 

By letter dated September 11, 2014, OWCP advised appellant that the evidence submitted 

was insufficient to establish her traumatic injury claim. It requested that she respond to an 

attached questionnaire to substantiate the factual elements of her claim and submit medical 

evidence to demonstrate that she sustained a diagnosed condition causally related to the 

November 27, 2013 employment incident. 

On September 22, 2014 appellant responded to OWCP’s development letter. She stated 

that when the alleged injury occurred she was getting something from the car. Appellant noted 

that she was injured in the parking lot, which was managed by the building or property manager. 

She explained that she was required to park there by her employing establishment. 

In a decision dated November 13, 2014, OWCP denied appellant’s claim, finding that the 

November 27, 2013 incident did not occur in the performance of duty. It determined that she 

failed to establish that she was in the performance of her official work duties when the alleged 

November 27, 2013 injury occurred. 

On December 5, 2014 OWCP received appellant’s request for reconsideration. Appellant 

stated that she was in the parking lot because she was retrieving her work cell phone charger 

from her car. She asserted that she fulfilled all of the requirements of her claim and that her only 

error was that she did not state that she was retrieving her work cell phone charger from the car. 

Appellant explained that she assumed her injury was covered because it occurred on work 

premises. 

By decision dated April 30, 2015, OWCP affirmed the November 13, 2014 denial 

decision with modification. It accepted that appellant was in the performance of duty on 

November 27, 2013 when she slipped and fell in the employing establishment parking lot. 

OWCP, however, denied the claim finding insufficient medical evidence to establish that she 

sustained a diagnosed condition causally related to the accepted event. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4

 has the burden of proof to establish the 

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

evidence5

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

 4 Supra note 1. 

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

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

that employment injury.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.7 

There are two components involved in establishing the fact of injury. First, the employee must 

submit sufficient evidence to establish that she actually experienced the employment incident at 

the time, place, and in the manner alleged.8 Second, the employee must submit evidence, 

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

incident caused a personal injury.9 An employee may establish that the employment incident 

occurred as alleged but fail to show that her disability or condition relates to the employment 

incident.10

Whether an employee sustained an injury in the performance of duty requires the 

submission of rationalized medical opinion evidence.11 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.12 The weight of the medical evidence is determined by its reliability, its probative 

value, its convincing quality, the care of analysis manifested, and the medical rationale expressed 

in support of the physician’s opinion.13

ANALYSIS 

Appellant alleged that on November 27, 2013 she sustained injuries when she slipped and 

fell down in the parking lot at work, while returning to her car to retrieve her work cell phone 

charger. OWCP accepted that the November 27, 2013 incident occurred as alleged and that it 

occurred in the performance of duty, but denied her claim finding insufficient medical evidence 

to establish that she sustained a diagnosed condition causally related to the accepted incident.14 

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

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

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

9

 David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989). 

10 T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006). 

11 See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005). 

12 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

13 James Mack, 43 ECAB 321 (1991). 

14 The activity of retrieving an item such as a cell phone from an automobile is not in the performance of duty if it 

does not occur during work hours and as a requirement of employment. Cf., B.B., Docket No. 13-1730 (issued 

January 13, 2014), wherein the Board determined that the retrieval of a personal cellphone from an automobile an 

hour before the employee was required to be on duty benefited him not his employer. 
5

The Board finds that appellant did not meet her burden of proof to establish her traumatic injury 

claim. 

Appellant submitted reports of Dr. Jones dated December 12 and 16, 2013. Dr. Jones 

noted that he had examined appellant on two prior occasions and provided occipital nerve 

blocks. He reported that on November 27, 2013 appellant sustained injuries when she fell down 

in a parking lot at work. Upon examination of appellant’s lumbar spine, Dr. Jones observed 

tenderness over the SI joint bilaterally and trigger points. He diagnosed exacerbation of occipital 

neuralgia and upper cervicalgia, right rotator cuff tendon contusion, lumbar whiplash with 

resultant primarily muscle based pain, and possible SI pain. Dr. Jones indicated that appellant 

sustained an exacerbation of her upper cervical and cervicogenic headache with new symptoms. 

He explained that appellant’s current clinical situation had either been exacerbated by or caused 

by the fall in the parking lot. In a December 16, 2013 report, Dr. Jones confirmed that he 

supported appellant’s workers’ compensation claim because he believed that appellant had 

experienced an exacerbation of occipital neuralgia and upper cervicalgia secondary to whiplash, 

increase in myofascial pain syndrome and upper cervical facet syndrome, and right rotator cuff 

tendon contusion. 

Dr. Jones accurately described the November 27, 2013 incident and provided 

examination findings and a diagnosed condition. He opined that appellant sustained an 

exacerbation of her occipital neuralgia and upper cervicalgia, myofascial pain syndrome, upper 

cervical facet syndrome, and right rotator cuff tendon contusion due to the November 27, 2013 

slip and fall at work. Although Dr. Jones provided an opinion on causal relationship, he did not 

offer any rationalized medical explanation to support his opinion. The Board has held that a 

medical report is of limited probative value on the issue of causal relationship if it contains a 

conclusion regarding causal relationship which is unsupported by medical rationale.15 A 

rationalized medical opinion is particularly needed in this case as appellant was receiving 

medical treatment for preexisting conditions. Dr. Jones did not adequately explain how 

appellant’s current conditions resulted from the November 27, 2013 incident as opposed to her 

previous conditions. 

Appellant also submitted an unsigned medical note dated December 10, 2013. While this 

note indicated that appellant’s provider was Dr. McClary, there is no indicia on the note that it 

was prepared by Dr. McClary. This note is therefore of no probative value.16 

OWCP also received a number of physical therapy records. These physical therapy 

records are of no probative value regarding the issue of causal relationship because FECA does 

not recognize physical therapists as physicians.17 

 15 T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009). 

16 Merton J. Sills, 39 ECAB 572 (1988) (unsigned medical evidence with no adequate indication that it was 

completed by a physician is not considered probative medical evidence); see also T.B., Docket No. 15-1 (issued 

July 1, 2015). 

17 See 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. Physical therapists are not physicians under FECA, see S.S., Docket 

No. 15-780 (issued September 3, 2015). 
6

On appeal appellant alleges that Dr. Jones reported on two occasions that she suffered 

whiplash because of the fall at work. As noted above, Dr. Jones failed to adequately explain, 

based on medical rationale, how appellant sustained a diagnosed condition causally related to the 

November 27, 2013 employment incident. Causal relationship is a medical question that must be 

established by probative medical opinion from a physician.18 Because appellant has not provided 

such probative medical evidence in this case, the Board finds that she did not meet her burden of 

proof to establish her claim. 

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 her burden of proof to establish an injury 

causally related to the November 27, 2013 employment incident. 

ORDER 

IT IS HEREBY ORDERED THAT the April 30, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 18, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 18 W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005).