United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.B., Appellant 

and 

DEPARTMENT OF JUSTICE, ALCOHOL, 

TOBACCO, FIREARMS & EXPLOSIVES, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 14-1914 

Issued: June 4, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 4, 2014 appellant filed a timely appeal from a July 28, 2014 merit decision 

of the Office of Workers’ Compensation Programs1

 (OWCP). Pursuant to the Federal 

Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.3

 

 1

 Following the issuance of the July 28, 2014 OWCP decision, appellant submitted new evidence. The Board is 

precluded from reviewing evidence which was not before OWCP at the time it issued its final decision. See 20 

C.F.R. § 501.2(c)(1). 

2

 5 U.S.C. § 8101 et seq. 

3

 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). After exercising its discretion, by order dated April 24, 2015, the Board denied the request as 

appellant’s arguments on appeal could be addressed adequately in a decision based on a review of the case as 

submitted on the record. Order Denying Request for Oral Argument, Docket No. 14-1914 (issued April 24, 2015). 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish an injury in the 

performance of duty on December 5, 2013, as alleged. 

On appeal, appellant contends that her attending physicians diagnosed lumbago, 

cervicalgia, and knee injury in connection with her claim and requests payment of her medical 

bills and restoration of 56 hours of sick leave. 

FACTUAL HISTORY 

On December 20, 2013 appellant, then a 62-year-old industry operations intelligence 

specialist, filed a traumatic injury claim (Form CA-1) alleging an injury on December 5, 2013 

due to a work-related motor vehicle accident. She reported that, as she was driving to conduct a 

weapons inventory in a government issued vehicle, she was rear-ended by another vehicle at a 

red traffic light. Appellant stated that she was wearing a seat belt, but her head jerked forward, 

almost to the windshield, and back again. She hit her right knee on the console, as well. 

In a January 16, 2014 letter, OWCP notified appellant of the deficiencies of her claim as 

she had failed to submit any documentation to support her claim and afforded her 30 days to 

submit evidence and respond to its inquiries. 

Appellant therefore submitted a narrative statement and hospital records dated 

December 5, 2013 from Einstein Medical Center in Philadelphia, Pennsylvania. Dr. Che Ward, a 

Board-certified emergency medicine physician, diagnosed musculoskeletal pain. He explained 

that appellant was rear-ended in a motor vehicle accident without airbag deployment and 

presented with back pain on the right lumbar area. Dr. Ward reported that appellant denied 

dizziness, chest pain, shortness of breath, nausea, vomiting, numbness, tingling, or weakness in 

the upper and lower extremities, but that appellant had mild lower lumbar muscle tenderness on 

the right side. There was no cervical spine tenderness, full range of motion of the hip, and an 

x-ray of the hip joint showed no acute fracture. Appellant was able to ambulate in the 

emergency department and her pain had decreased before discharge. 

In a reports dated December 11 and 19, 2013, Dr. Judy Chertok, a Board-certified family 

practitioner and appellant’s attending physician, indicated that appellant had a doctor’s 

appointment and required time off due to persistent pain after her car accident. On January 29, 

2014 she diagnosed “muscle spasm and pain in relation to a car accident she sustained [on] 

December 5, 2013 where she reported being rear-ended at a stop light.” Dr. Chertok stated that 

appellant’s initial examination was significant for “diffuse muscle spasm and tenderness, left 

posterior calf (not in area of tenderness) with small grape-sized swelling without ecchymosis or 

erythema.” Appellant’s follow-up examination was essentially normal and Dr. Chertok noted 

that her back had no tenderness to palpation along the spine, mild paraspinal tenderness in the 

cervical and lumbar regions, and normal gait. Dr. Chertok found “full range of motion [of] both 

knees without effusion or signs of trauma.” She reiterated her diagnosis of “muscle spasm 

related to motor vehicle accident” and recommended medication and physical therapy. 
3

By decision dated February 20, 2014, OWCP denied appellant’s claim on the basis that 

the medical evidence submitted failed to establish a diagnosis causally related to the employment 

incident. 

On March 10, 2014 appellant requested an oral hearing before an OWCP hearing 

representative, which was held on June 9, 2014. 

Appellant submitted additional hospital records dated December 5, 2013 and physical 

therapy notes dated January 8 through March 14, 2014 from James Blakely, a physical therapist, 

who diagnosed lower back pain “consistent with lumbar sprain/strain.” 

In a December 19, 2013 report, Dr. Chertok stated that appellant was seen after motor 

vehicle accident and initially presented with neck and leg pain and indicated that appellant’s pain 

was worsening in the lower back and anterior right knee. She diagnosed muscle pain and 

explained that appellant was having a limited schedule at work because her pain was worse after 

prolonged sitting. 

By decision dated July 28, 2014, an OWCP hearing representative affirmed the 

February 20, 2014 decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4

 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an “employee of 

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

applicable time limitation period of FECA, that an injury5 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.6 

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, the employee must submit 

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

time, place, and in the manner alleged. Second, the 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.7

 

 4

 5 U.S.C. § 8101 et seq. 

5

 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). 

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

1143 (1989). 

7 Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989). 
4

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.8

 

ANALYSIS 

OWCP has accepted that the employment incident of December 5, 2013 occurred at the 

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

result. The Board finds that appellant did not meet her burden of proof to establish an injury 

related to the December 5, 2013 employment incident. 

On December 5, 2013 Dr. Ward, the emergency room physician, noted that appellant was 

rear-ended in a motor vehicle accident and diagnosed musculoskeletal pain. The Board finds 

that Dr. Ward’s diagnosis of musculoskeletal pain is a description of a symptom rather than a 

clear diagnosis of the medical condition.9 Thus, the reports from Dr. Ward are insufficient to 

establish a medical diagnosis in connection with the injury as required. 

Similarly, in her reports, Dr. Chertok diagnosed muscle spasm and muscle pain related to 

appellant’s December 5, 2013 motor vehicle accident. In a December 19, 2013 report, she 

indicated that appellant’s pain was worsening in the lower back and anterior right knee. The 

Board finds that Dr. Chertok’s diagnoses of muscle spasm and muscle pain are description 

symptoms rather than a clear diagnosis of a medical condition.10 The Board further finds that 

Dr. Chertok’s indication of worsening lower back pain and anterior right knee pain is also not 

firm diagnoses. Therefore, the reports from Dr. Chertok are insufficient to establish a medical 

diagnosis in connection with the injury. 

Appellant further submitted physical therapy notes dated January 8 through March 14, 

2014 from a physical therapist who diagnosed lower back pain “consistent with lumbar 

sprain/strain.” These documents are of no probative value as a physical therapist is not a 

physician under FECA.11 

On appeal, appellant contends that her attending physicians diagnosed lumbago, 

cervicalgia, and knee injury in connection with her claim and requests payment of her medical 

bills and restoration of 56 hours of sick leave. The Board finds that the evidence of record fails 

to establish any of these medical diagnoses and their relationship to the employment incident. 

As appellant has not submitted any evidence to support her allegation that she sustained any 

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

9

 The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S., 

Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008). 

10 See id. 

11 Barbara J. Williams, 40 ECAB 649 (1989). 
5

injury related to the December 5, 2013 employment incident, she has failed to meet her burden of 

proof. 

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 December 5, 2013, as alleged. 

ORDER 

IT IS HEREBY ORDERED THAT the July 28, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 4, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board