United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.Y., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE 

Charlestown, MA, Employer 

__________________________________________ 

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Docket No. 15-332 

Issued: April 6, 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 November 26, 2014 appellant filed a timely appeal from a September 2, 2014 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 has established an injury in the performance of duty on 

June 8, 2013. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant has submitted additional medical evidence on appeal, but the Board can review only evidence that 

was before OWCP at the time of the September 2, 2014 on appeal. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On August 2, 2013 appellant, then a 48-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on June 8, 2013 she sustained an injury at work when she sidestepped 

a tub of mail and twisted her back. She stated that she felt pain in her lower back and down her 

legs. Appellant did not stop work. 

Appellant submitted an August 1, 2013 report from Dr. Lee Zohn, a chiropractor, who 

provided a history of a June 8, 2013 injury and results on examination. Dr. Zohn diagnosed 

probable reinjury to L5-S1 disc herniation, intermittent spasm, lumbosacral sprain/strain, and 

lumbar segmental joint dysfunction. He indicated that a lumbar magnetic resonance imaging 

(MRI) scan would be requested. 

By letter dated August 12, 2013, OWCP requested that appellant submit additional 

evidence. It noted that a chiropractor was not a physician unless there is a diagnosed spinal 

subluxation as demonstrated by x-ray. 

In a decision dated September 13, 2013, OWCP denied the claim for compensation. It 

found that the medical evidence was insufficient to establish the claim. 

On June 26, 2014 appellant requested reconsideration of her claim. She submitted a 

November 11, 2013 report from Dr. Mark Lapp, a Board-certified orthopedic surgeon, who 

stated that she was seen for chronic back and leg pain. Dr. Lapp stated that appellant had 

reported that she reinjured her back in the summer when she twisted, and her biggest current 

complaint was right leg pain. He reported that x-rays showed degenerative disc disease at L4-5 

and L5-S1, with very slight rotary subluxation at L3-4. Dr. Lapp also stated that an MRI scan 

showed more advanced degenerative disc disease at L4-5. He diagnosed acute chronic low back 

pain, multiple level degenerative disc disease, more recent right leg pain, hip, and low back pain. 

In a report dated February 10, 2014, Dr. Lapp indicated that an electromyogram was 

normal, with an MRI scan showing degenerative disc disease at L3-S1, worse at L4-5. He 

diagnosed acute chronic low back pain, multiple level degenerative disc disease, right leg pain, 

degeneration of intervertebral disc, sciatica, and spinal stenosis. 

Dr. Zohn later diagnosed on February 14, 2014 lumbar disc derangement with 

radiculopathy, spasm, and lumbar joint dysfunction. He opined that the work injury of June 8, 

2013 caused a reinjury to an already compromised lumbar spine. In a report (Form CA-20) 

dated February 14, 2014, Dr. Zohn diagnosed disc herniation with right radiculopathy, leg 

weakness, and intermittent spasm. He checked a box “yes” as to causal relationship with 

employment. 

By decision dated September 2, 2014, OWCP reviewed the case on its merits. It found 

that the medical evidence was insufficient to establish a diagnosed condition as causally related 

to the June 8, 2013 employment incident. 
3

LEGAL PRECEDENT 

FECA provides for the payment of compensation for “the disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.”3

 The 

phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the 

commonly found requisite in workers’ compensation law of “arising out of an in the course of 

employment.”4

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

that he or she sustained an injury while in the performance of duty.5 In order to determine 

whether an employee actually sustained an injury in the performance of duty, OWCP begins with 

an analysis of whether “fact of injury” has been established. Generally, “fact of injury” consists 

of two components which must be considered in conjunction with one another. The first 

component to be established is that the employee actually experienced the employment incident 

which is alleged to have occurred. The second component is whether the employment incident 

caused a personal injury, and generally this can be established only by medical evidence.6

 

OWCP’s procedures recognize that a claim may be accepted without a medical report 

when the condition is a minor one which can be identified on visual inspection.7

 In clear-cut 

traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative 

statement is sufficient and no rationalized opinion on causal relationship is needed. In all other 

traumatic injury claims, a rationalized medical opinion supporting causal relationship is 

required.8 

Rationalized medical opinion evidence is medical evidence that is based on a complete 

factual and medical background, of reasonable medical certainty and supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant. The weight of medical evidence is 

determined by its reliability, its probative value, its convincing quality, the care of the analysis 

manifested and the medical rationale expressed in support of the physician’s opinion.9

5 U.S.C. § 8101(2) provides that 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.”10 

 3

 5 U.S.C. § 8102(a). 

4 Valerie C. Boward, 50 ECAB 126 (1998). 

5 Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115. 

6 See John J. Carlone, 41 ECAB 354, 357 (1989). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013). 

8 Id., Chapter 2.805.3(d) (January 2013). 

9 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

10 5 U.S.C. § 8101(2). See also 20 C.F.R. § 10.5(bb): “Subluxation means an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrable on any x-ray 

film to an individual trained in the reading of x-rays.” 
4

ANALYSIS 

In the present case, appellant alleged that she sustained an injury on June 8, 2013 when 

she twisted while sidestepping a tub of mail. OWCP accepted that the employment incident 

occurred as alleged. The issue is whether there is sufficient medical evidence to establish causal 

relationship between a diagnosed condition and the employment incident. 

Appellant initially sought treatment from Dr. Zohn, a chiropractor on August 1, 2013. 

However, as shown in legal precedent, Dr. Zohn cannot be considered a physician under FECA 

unless he diagnoses a subluxation as demonstrated by x-ray to exist. He did not review x-rays or 

diagnose a subluxation based on those x-rays. The August 1, 2013 and February 14, 2014 

reports did not refer to a review of x-rays and did not provide a subluxation diagnosis.11 Since 

Dr. Zohn did not diagnose a subluxation as demonstrated by x-rays to exist, his reports are of no 

probative value as he is not a physician under FECA.12

The attending orthopedic surgeon, Dr. Lapp, did not provide an opinion on causal 

relationship between a diagnosed condition and the employment incident in either his 

November 13, 2013 or February 10, 2014 reports. In his November 13, 2013 report, he provides 

a brief reference to appellant reinjuring her back during the previous summer, without providing 

a clear description of the June 8, 2013 incident. Dr. Lapp does not provide an opinion, supported 

by sound medical rationale, on causal relationship between a specific diagnosed condition, and 

the employment incident. 

The record does not contain a medical report from a physician with a complete factual 

and medical background, and a medical opinion supported by medical rationale explaining the 

nature of the relationship between a diagnosed condition and the June 8, 2013 employment 

incident. Appellant did not meet her burden of proof this case and OWCP properly denied her 

claim. 

On appeal, appellant states that her claim was initially denied because she did not timely 

notify her supervisor. However, the record reflects that the claim for compensation was denied 

because the medical evidence of record was insufficient to establish the claim. For the reasons 

noted above, the medical evidence of record was insufficient to establish the claim. Appellant 

may submit new evidence or argument with a written application 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 an injury in the performance of duty on 

June 8, 2013. 

 11 The only reference to x-rays was from Dr. Lapp on November 11, 2013. The record does not contain an x-ray 

report, nor is there any indication that Dr. Zohn reviewed the x-rays. 

12 See L.B., Docket No. 14-2005 (issued January 28, 2015); E.B., Docket No. 09-1055 (issued 

December 14, 2009). 
5

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 2, 2014 is affirmed. 

Issued: April 6, 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