United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Waukesha, WI, Employer 

__________________________________________ 

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Docket No. 16-1303 

Issued: December 2, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 6, 2016 appellant filed a timely appeal from a December 7, 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

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish a back injury 

causally related to the November 18, 2014 employment incident; and (2) whether an OWCP 

hearing representative properly denied his request for a subpoena. 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that on appeal appellant submitted new evidence. However, the Board is precluded from 

reviewing evidence which was not before OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1). 
2

On appeal, appellant contends that a letter from his attending chiropractor submitted in 

support of his appeal is sufficient to establish that he sustained a spinal subluxation causally 

related to the November 18, 2014 employment incident. 

FACTUAL HISTORY 

On November 18, 2014 appellant, then a 47-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that his back locked up while he was carrying buckets down a ramp 

at work on that date. He also experienced difficulty with talking and breathing. 

In a November 18, 2014 work/school excuse note, Dr. Laura C. Sukowaty, an attending 

family practitioner, excused appellant from work through November 24, 2014. 

In a November 20, 2014 Family and Medical Leave Act (FMLA) medical certification 

report, Dr. Michelle Stamm, an attending chiropractor, diagnosed disc and nerve irritation 

complicated by a muscle sprain/strain. She advised that appellant would be incapacitated for 

three to four months. Dr. Stamm also advised that he was unable to lift, bend, or twist. 

By letter dated December 30, 2014, OWCP advised appellant of the deficiencies of his 

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

In urgent care medical notes dated November 18, 2014, Megan M. Hollis, a medical 

assistant, and Dave Gay, a registered nurse, examined appellant and provided a history of injury 

that he had experienced back pain for two weeks, that on the date of his examination he was 

carrying an empty bucket down a ramp, and that he had developed spasms in his back and 

numbness and tingling in his hands and feet. Ms. Hollis and Nurse Gay also provided a history 

of appellant’s medical background. They diagnosed lumbago and provided discharge 

instructions and a list of medications prescribed by Dr. Sukowaty. 

In a January 13, 2015 narrative statement, appellant related that he had already unloaded 

and parked his vehicle in its assigned place in the employing establishment’s icy and untreated 

parking lot when his supervisor asked him to go look for N.H., a coworker, on her route because 

she was running very late. He then reloaded his postal vehicle with two white square buckets 

that contained needed supplies. While carrying the buckets down a ramp, appellant felt a big 

spasm in his middle to lower back. Once he arrived at the parking lot, he had to shuffle his feet 

because of the snow and ice in the lot which worsened his back pain. Appellant contended that 

the snow and ice covered ramp probably contributed to his claimed injury. He found N.H. on her 

route and helped deliver her route despite his throbbing back pain. When appellant returned to 

the employing establishment his back condition had worsened and breathing had become 

difficult for him. He finished his work duties and went home. Appellant subsequently sought 

medical treatment from Dr. Sukowaty who placed him off work for four days. He had not 

received any prior mid-back treatment. Appellant noted that he previously had whiplash as a 

result of a 2013 motor vehicle accident for which he received chiropractic treatment for his neck 

and lower back injuries. 

In a January 29, 2015 decision, OWCP accepted that the November 18, 2014 incident 

occurred as alleged. However, it denied appellant’s claim as the medical evidence of record did 
3

not establish a causal relationship between his back condition and the accepted employment 

incident. 

On an appeal request form dated February 15, 2015 and in a letter dated February 16, 

2015, appellant requested a telephone hearing with an OWCP hearing representative. The 

hearing was held on October 6, 2015. 

In progress notes dated November 20, 2014 to March 6, 2015, Dr. Stamm provided a 

history of the accepted November 18, 2014 employment incident and reported findings on 

physical and x-ray of the cervical, thoracic, and lumbar spines. She assessed acute symptoms 

which improved over time. Dr. Stamm later noted that appellant’s condition had entered an 

intermediate stage that was subacute in nature and he had shown acceptable progress. 

In a note dated November 18, 2014, Dr. Sukowaty provided a history of the accepted 

employment incident and appellant’s medical background. She reported physical examination 

findings and diagnosed lumbago. 

By letter dated March 15, 2015, appellant requested that the Branch of Hearings and 

Review subpoena T.L., an acting supervisor who was in charge at the time of his November 18, 

2014 work incident, L.S., a supervisor who completed the employing establishment’s portion of 

his Form CA-1, J.A., a coworker who was the only other person on the dock with appellant on 

the date of injury, N.H., and various documents regarding the work incident. He explained that 

the subpoenas were necessary because the postmaster did not allow information to flow freely. 

T.L. had denied appellant’s request for information regarding his coworkers who were involved 

in events similar and subsequent to his November 18, 2014 work incident. M.B., a supervisor, 

and T.L. did not respond to his request for L.S.’s report concerning this employment incident. 

In progress notes dated May 11 and 21, 2015, Dr. David K. Dedianous, a physiatrist, 

noted a history of the accepted November 18, 2014 employment incident and a history that 

appellant had a new job driving a mail truck, which caused mid-back pain. He diagnosed 

mechanical back pain, lumbar strain, and myofascial syndrome. In letters also dated May 11 and 

June 11, 2015, Dr. Dedianous reiterated his diagnoses of mechanical back pain, lumbar strain, 

and myofascial syndrome. He released appellant to return to work with restrictions on May 12 

and June 11, 2015. 

In progress notes dated June 8 to 25, 2015, appellant’s occupational therapist and 

physical therapists addressed the treatment of his back condition. 

By letter dated September 18, 2015, an OWCP hearing representative denied appellant’s 

request for the issuance of subpoenas. She found that the attendance and testimony from 

employing establishment personnel would not assist in his claim as the issue in the case was 

medical in nature and the record did not reflect a dispute regarding the reported cause of his 

claimed injury. The hearing representative further found that a subpoena was not the best way to 

obtain the requested documents and recommended that appellant request a copy of his case 

record from OWCP. 

In a December 7, 2015 decision, the same OWCP hearing representative affirmed the 

January 29, 2015 decision. She found that the medical evidence of record was insufficient to 
4

establish a causal relationship between appellant’s back condition and the accepted 

November 18, 2014 employment incident. The hearing representative also found that appellant’s 

subpoena request was properly denied as the issue under consideration was medical in nature and 

OWCP had accepted that the November 18, 2014 incident occurred as alleged. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of proof to establish the 

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

evidence3

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

specific condition or disability for work for which compensation is claimed is causally related to 

that employment injury.4

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.5

 

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

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

the time, place, and in the manner alleged.6 

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

generally can be established only by medical evidence.7 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.8 The belief of the claimant that a condition was caused or aggravated by the 

employment incident is insufficient to establish a causal relationship.9

ANALYSIS -- ISSUE 1 

The Board finds that appellant has not met his burden of proof to establish that he 

sustained a traumatic injury causally related to the accepted November 18, 2014 employment 

incident. Appellant failed to submit sufficient medical evidence to establish that he sustained a 

back injury causally related to the accepted employment incident. 

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

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

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

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

7 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). 

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

9 Kathryn Haggerty, 45 ECAB 383, 389 (1994). 
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Dr. Sukowaty’s November 18, 2014 note reported a history of the accepted employment 

incident and appellant’s medical background. She reported findings on physical examination 

and diagnosed lumbago. Dr. Sukowaty did not provide a medical opinion addressing whether 

the accepted November 18, 2014 employment incident caused or aggravated appellant’s 

diagnosed condition. Medical evidence that does not offer any opinion regarding the cause of an 

employee’s condition is of limited probative value.10 Dr. Sukowaty’s November 18, 2014 

work/school excuse note addressed appellant’s total disability for work through November 24, 

2014, but is of limited probative value as it did not provide a firm diagnosis of a particular 

medical condition11 or offer a specific opinion as to whether the accepted employment incident 

caused or aggravated his claimed condition and resultant disability.12 

Similarly, Dr. Dedianous’ May 11 and 21, and June 11, 2015 progress notes and reports 

are of limited probative value. He provided a history of appellant’s injury, examination findings, 

and a diagnosis of mechanical back pain, lumbar strain, and myofascial syndrome. 

Dr. Dedianous also addressed appellant’s work capacity and restrictions. However, he did not 

offer any medical opinion addressing whether the diagnosed conditions and prior disability from 

work were caused or aggravated by the accepted November 18, 2014 employment incident.13

The remaining reports of record are of no probative value on the issue of causal 

relationship. The FMLA medical certification report dated November 20, 2014 and progress 

notes dated November 20, 2014 to March 6, 2015 from Dr. Stamm, an attending chiropractor, 

addressed appellant’s history of injury, spinal condition, disability from work, and physical 

restrictions. Although she obtained x-rays, Dr. Stamm did not diagnose a spinal subluxation 

based upon x-ray evidence.14 Without a diagnosis of a subluxation from x-ray, Dr. Stamm is not 

considered a physician as defined under FECA and, thus, her report and progress notes do not 

have any probative medical value. 

The urgent care reports dated November 18, 2014 from Ms. Hollis, a medical assistant, 

and Mr. Gay, a registered nurse, and progress notes dated June 8 to 25, 2015 from appellant’s 

occupational and physical therapists are of no probative medical value. Medical assistants, 

 10 See C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); 

A.D., 58 ECAB 149 (2006). 

11 See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that, in the absence of a medical report 

providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident, 

appellant did not meet her burden of proof). 

12 See cases cited supra note 10. 

13 Id.

14 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, 

clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as 

defined by State law. See Roy L. Humphrey, 57 ECAB 238 (2005). 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. See Mary A. Ceglia, 55 ECAB 626 (2004) (in assessing 

the probative value of chiropractic evidence, the initial question is whether the chiropractor is a physician as defined 

under 5 U.S.C. § 8101(2); a chiropractor is not considered a physician under FECA unless it is established that there 

is a spinal subluxation as demonstrated by x-ray to exist). 
6

registered nurses, physical therapists, and occupational therapists are not considered physicians 

as defined under FECA.15 

Therefore, the Board finds that the medical evidence of record is insufficient to establish 

that appellant sustained a back injury causally related to the accepted November 18, 2014 

employment incident. 

On appeal, appellant contends that a letter from his attending chiropractor submitted in 

support of his appeal is sufficient to establish that he sustained a spinal subluxation causally 

related to the November 18, 2014 work incident. However, as stated, the Board cannot consider 

new evidence on appeal as its jurisdiction is limited to the evidence that was before OWCP at the 

time it issued its final decision.16

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. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8126 of FECA provides that the Secretary of Labor, on any matter within his 

jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of 

witnesses within a radius of 100 miles.17 The implementing regulations provide that a claimant 

may request a subpoena, but the decision to grant or deny such a request is within the discretion 

of the hearing representative, who may issue subpoenas for the attendance and testimony of 

witnesses and for the production of books, records, correspondence, papers, or other relevant 

documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained 

by other means and for witnesses only where oral testimony is the best way to ascertain the 

facts.18 In requesting a subpoena, a claimant must explain why the testimony is relevant to the 

issues in the case and why a subpoena is the best method or opportunity to obtain such evidence 

because there is no other means by which the testimony could have been obtained.19 Section 

10.619(a) of the implementing regulations provide that a claimant may request a subpoena only 

as a part of the hearings process and no subpoena will be issued under any other part of the 

claims process. 

 15 5 U.S.C. § 8101(2); J.J., Docket No. 15-0727 (issued July 16, 2015) (reports from an occupational therapist 

have no probative medical value as an occupational therapist is not a physician as defined under FECA); see also 

G.A., Docket No. 09-2153 (issued June 10, 2010) (evidence from a registered nurse has no probative medical value 

as a nurse is not a physician as defined under FECA); A.C., Docket No. 08-1453 (issued November 18, 2008) 

(records from a physical therapist has no probative medical value as a physical therapist is not physician as defined 

under FECA). 

16 Supra note 2. 

17 5 U.S.C. § 8126(1). 

18 20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001). 

19 Id. 
7

To request a subpoena, the requestor must submit the request in writing and send it to the 

hearing representative as early as possible, but no later than 60 days (as evidenced by postmark, 

electronic marker or other objective date mark) after the date of the original hearing request.20 

The hearing representative retains discretion on whether to issue a subpoena. The function of the 

Board on appeal is to determine whether there has been an abuse of discretion.21 Abuse of 

discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of 

judgment or actions taken which are clearly contrary to logic and probable deduction from 

established facts.22

ANALYSIS -- ISSUE 2 

In the present case, appellant requested that OWCP’s hearing representative issue a 

subpoena to obtain testimony from supervisors and a coworker and various documents regarding 

the accepted November 18, 2014 employment incident. The hearing representative denied the 

request, finding that the attendance and testimony from employing establishment personnel were 

not relevant to the medical issue in his case and the record did not reflect a dispute regarding the 

reported cause of his claimed back injury. Further, she found that the best way for appellant to 

obtain the requested documents was by requesting a copy of his case record from the district 

office. 

The Board finds that OWCP’s hearing representative did not abuse her discretion in 

denying appellant’s subpoena request. Appellant argued that the testimony from his supervisors 

and coworker and requested that documents were necessary because the postmaster did not allow 

T.L. to provide him with information regarding his coworkers who were involved in events 

similar and subsequent to his November 18, 2014 work incident or M.B. and T.L. to provide him 

with L.S’s report concerning this incident. However, he did not clearly explain why a subpoena 

was the best method to obtain further evidence concerning the November 18, 2014 work 

incident, particularly since OWCP had accepted that the incident occurred as alleged. Moreover, 

the hearing representative reasonably determined that testimony regarding the occurrence of the 

November 18, 2014 incident was irrelevant to the medical issue of causal relationship in this case 

and that the requested documents could be obtained from the district office. There was no 

evidence presented that subpoenas were necessary with respect to the development of the 

relevant evidence in this case. The Board therefore finds no abuse of discretion related to the 

denial of a subpoena request.23

CONCLUSION 

The Board finds that appellant has failed to meet his burden of proof to establish a back 

injury causally related to the November 18, 2014 employment incident. The Board further finds 

that an OWCP hearing representative properly denied appellant’s request for a subpoena. 

 20 20 C.F.R. § 10.619(a)(1). 

21 See Gregorio E. Conde, supra note 18. 

22 Claudio Vazquez, 52 ECAB 496 (2001). 

23 D.O., Docket No. 15-1368 (issued October 22, 2015). 
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ORDER 

IT IS HEREBY ORDERED THAT the December 7, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 2, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board