United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.R., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Pembroke Pines, FL, Employer 

__________________________________________ 

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Docket No. 14-1436 

Issued: October 14, 2014 

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 HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 13, 2014 appellant filed a timely appeal of a February 27, 2014 Office of 

Workers’ Compensation Programs’ (OWCP) merit decision denying his 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met his burden of proof in establishing that he 

sustained an injury on November 14, 2013 in the performance of duty, as alleged. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On November 17, 2013 appellant, then a 36-year-old customs and border patrol officer, 

filed a traumatic injury claim alleging that he experienced a sharp intense pain in his elbow on 

November 14, 2013 while opening a container door and over extending his right arm. 

Appellant submitted a report dated December 18, 2013 from Dr. Michael Surdis, Jr., a 

chiropractor, finding constant pain and swelling in appellant’s right elbow region and diagnosing 

medial epicondylitis. Dr. Surdis attributed appellant’s diagnosed condition to his employment 

incident. 

In a letter dated January 21, 2014, OWCP noted that appellant’s claim initially appeared 

to be a minor injury and that a limited amount of medical expenses were administratively 

approved. It reopened appellant’s claim for consideration as he had not returned to full duty. 

OWCP advised him that Dr. Surdis’ report was not considered medical evidence as he was not a 

physician under FECA in regard to the treatment of extremities since he did not diagnose a spinal 

subluxation as demonstrated by x-ray to exist. It requested medical evidence in support of 

appellant’s claim. 

Appellant submitted an additional form report from Dr. Surdis dated January 23, 2014. 

He also submitted physical therapy notes. 

By decision dated February 27, 2014, OWCP denied appellant’s traumatic injury claim 

on the grounds that he failed to submit the necessary medical evidence to establish that he 

sustained a condition as a result of the November 14, 2013 employment incident. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA2 has the burden of establishing the essential 

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

including the fact that the individual is an “employee of the United States” within the meaning of 

FECA and 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 or 

specific condition for which compensation is claimed is causally related to the employment 

injury.3

 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.4

OWCP defines 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.”5 To determine 

 2

 5 U.S.C. §§ 8101-8193. 

3 Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989). 

4 Victor J. Woodhams, 41 ECAB 345 (1989). 

5

 20 C.F.R. § 10.5(ee). 
3

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. 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.6

 Second, the employee must submit 

sufficient evidence, generally only in the form a medical evidence, to establish that the 

employment incident caused a personal injury.7

ANALYSIS 

OWCP determined that appellant established that the November 14, 2013 incident 

occurred as alleged. It denied his claim as it found that he did not establish that a medical 

condition resulted from the accepted employment incident. 

Appellant submitted reports from his attending chiropractor, Dr. Surdis, who did not 

indicate that appellant’s spine was implicated by his injury, did not diagnose a subluxation of the 

spine and did not provide x-rays demonstrating such a subluxation of the spine. The Board finds 

that Dr. Surdis does not qualify as a physician under FECA.8 Dr. Surdis’ reports are not 

considered probative medical evidence to establish a causal connection between a diagnosed 

medical condition and the accepted employment incident. 

Appellant also submitted physical therapy notes signed by a physical therapist. The 

additional physical therapy reports and treatment notes are likewise insufficient to establish 

appellant’s claim because physical therapists are not physicians as defined by FECA. Therefore 

their medical opinions regarding diagnosis and causal relationship are of no probative value.9

An award of compensation may not be based on surmise, conjecture or speculation. 

Neither the fact that appellant’s claimed condition because apparent during a period of 

employment, nor his belief that his condition was caused by his employment is sufficient to 

establish causal relationship.10 As appellant did not submit any medical opinion evidence to 

establish a diagnosed condition as a result of his accepted medical activities, he did not meet his 

burden of proof. 

 6 John J. Carlone, 41 ECAB 354 (1989). 

7 J.Z., 58 ECAB 529 (2007). 

8

 Section 8101(2) of FECA provide as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors and osteopathic practitioners with the scope of their practice as defined by 

State law. 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. See Merton J. Sills, 39 ECAB 572, 575 (1988); P.R., Docket No 14-

1007 (issued August 13, 2014). 

9

 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005); S.P., Docket No. 14-900 (issued August 8, 2014). 

10 P.R., supra note 8; Walter D. Morehead, 31 ECAB 188 (1986). 
4

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 established that he sustained an injury in the 

performance of duty on November 14, 2013, as alleged. 

ORDER 

IT IS HEREBY ORDERED THAT the February 27, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 14, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board