United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

O’Fallon, IL Employer 

__________________________________________ 

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Docket No. 15-1249 

Issued: November 18, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 13, 2015 appellant, through counsel, filed a timely appeal from a February 25, 

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 the case. 

ISSUE 

The issue is whether appellant has established an injury in the performance of duty on 

February 13, 2010, as alleged. 

Appellant’s counsel contends on appeal that OWCP’s decision is contrary to fact and law. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board on two occasions. The facts as set forth 

in the Board’s prior decision2

 and order3 are incorporated herein by reference. The relevant facts 

follow. 

On February 22, 2010 appellant, then a 45-year-old mail carrier, filed a traumatic injury 

claim alleging that, on February 13, 2010 due to weather conditions, he slipped and fell on 

concrete injuring his head and hip. In a September 9, 2011 decision, the Board affirmed 

OWCP’s October 20, 2010 denial of his claim. The Board found that, although appellant had 

established an employment-related incident he had failed to establish that an injury resulted from 

the fall.4

 

Following the Board’s decision, on December 22, 2011 appellant submitted a 

November 12, 2011 report by Dr. William H. Thorn, a physician Board-certified in 

anesthesiology and pain medicine, who discussed appellant’s medical history, including 

objective tests, and the history of his employment incident of February 13, 2010. Dr. Thorn also 

discussed the results of appellant’s physical examination. He diagnosed appellant with acute 

upon chronic lumbar radiculopathy, lumbar disc herniation, spinal stenosis, accidental fall out of 

building, late effects of accidental fall, myalgia/myospasm, lumbago, pain in limb, sacroilitis, 

disturbance of skin sensation, and pain in thoracic spine. Dr. Thorn noted that it was his 

professional medical opinion that the work incident was the direct and proximate cause of the 

listed diagnoses based on a reasonable degree of medical certainty. He noted that some of 

appellant’s findings are chronic in nature and there may be additional causes of his symptoms 

and medical conditions, but one of the primary causes of the occurrence, progression, and 

persistence of his symptoms was clearly the work incident as described by appellant. 

In a letter received by OWCP on January 13, 2012, counsel advised that he was 

submitting “medical documentation to support the claim.” He submitted an undated report by 

Dr. Rob Fast, a chiropractor. Dr. Fast noted that he first saw appellant on April 3, 2010. He 

described appellant’s employment incident, subjective complaints, findings on physical 

examination, and the mechanical tests performed. Dr. Fast diagnosed appellant with lumbar 

sprain/strain, lumbar disc degeneration, lumbar disc bulge, lumbar facet syndrome, lumbar 

radiculitis, cervical sprain/strain, headache, and cervical disc degeneration. He opined that the 

facts of injury are the direct and proximate cause of appellant’s diagnoses based on reasonable 

medical probability. Dr. Fast further noted that there may be other causes for these medical 

problems, but one of the causes was clearly the activities of work described by appellant. 

By letter dated February 21, 2012, appellant, through counsel, requested reconsideration. 

He submitted subsequent requests inquiring into the status of the reconsideration request. 

 2

 Docket No. 11-321 (issued September 9, 2011). 

3 Order Remanding Case, Docket No. 14-1041 (issued November 10, 2014). 

4 See supra note 1. 
3

By decision dated March 5, 2014, OWCP denied modification of the decision after 

conducting a merit review. It noted earlier reports of Dr. Thorn that were previously of record 

and had been reviewed by the Board. OWCP found that Dr. Fast did not provide rationale to 

support causal relationship. 

Appellant appealed to the Board on March 27, 2014. In a November 10, 2014 Order 

Remanding Case, the Board found that OWCP had not reviewed all the medical evidence and 

remanded the case for further consideration by OWCP. The Board noted that, in addition to 

Dr. Fast’s report, appellant had submitted a new November 12, 2011 report by Dr. Thorn.5

 

By decision dated February 25, 2015, OWCP considered the additional medical evidence 

and denied modification, finding that neither Dr. Fast nor Dr. Thorn established a causal 

relationship between the diagnosed conditions and the February 13, 2010 employment incident. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of establishing 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, that an injury was sustained in the performance of duty as alleged and that any 

disabilities and/or specific conditions for which compensation is claimed are causally related to 

the employment injury.6

 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.7 

Whether an employee actually sustained an injury in the performance of duty begins with 

an analysis of whether fact of injury has been established.8 To establish fact of injury in an 

occupational disease claim, an employee must submit: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the employee.9 

Causal relationship is a medical issue and the evidence generally required to establish 

causal relationship is rationalized medical opinion evidence. Rationalized medical opinion 

evidence is evidence which includes a physician’s opinion on the issue of whether there is a 

causal relationship between the claimant’s diagnosed condition and the implicated employment 

factors. The opinion of the physician must be based on a complete factual and medical 

background, must be one of reasonable medical certainty and must be supported by medical 

 5 See supra note 3. 

6 Elaine Pendleton, 40 ECAB 1143 (1989). 

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

8 See S.P., 59 ECAB 184, 188 (2007). 

9 See Roy L. Humphrey ̧ 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011). 
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rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant.10

ANALYSIS 

The Board finds that appellant did not meet his burden of proof to establish an 

employment-related injury as a result of the February 13, 2010 accident. The Board finds that 

neither Dr. Fast nor Dr. Thorn submitted a well-rationalized opinion explaining how appellant’s 

specific medical diagnoses were caused or aggravated by the accepted employment incident. 

Dr. Thorn discussed appellant’s employment, medical history, objective tests, and the 

results of his physical examination. He diagnosed appellant with multiple conditions including 

chronic lumbar radiculopathy, lumbar disc herniation, spinal stenosis, myalgia/myospasm, 

lumbago, and pain in the thoracic spine. Dr. Thorn opined that the facts of appellant’s injury 

were the direct and proximate cause of the diagnoses. He noted that although there might have 

been additional causes of appellant’s medical conditions, one of the primary causes of the 

occurrence, progression, and persistence of his symptoms was clearly the activities at work as 

described by appellant. However, Dr. Thorn did not provide a rationalized opinion explaining 

how the mechanism of appellant’s fall on February 13, 2010 caused the diagnosed conditions. 

Dr. Fast also described the employment incident, subjective complaints, findings on 

physical examination, and the mechanical tests, and diagnosed appellant with multiple conditions 

including lumbar sprain/strain, lumbar disc degeneration lumbar disc bulge, lumbar facet 

syndrome, and cervical sprain, strain. He also opined that the facts of appellant’s work injury 

were the direct and proximate cause of appellant’s diagnoses based on reasonable probability. 

However, the Board notes that section 8101(2) of FECA 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.11 If a diagnosis of a subluxation as demonstrated by x-ray is not established, the 

chiropractor is not a physician as defined under FECA and his or her report is of no probative 

value to the medical issue presented.12 Because Dr. Fast has not provided a diagnosis of 

subluxation demonstrated by x-ray evidence, he is not a physician as defined under FECA. 

Accordingly, his report lacks probative value and is insufficient to establish appellant’s traumatic 

injury claim. 

A medical diagnosis and an opinion on causal relation must be based on rationalized 

medical opinion evidence.13 A physician must accurately describe appellant’s work duties and 

medically explain the process by which these duties would have caused or aggravated his 

 10 I.J., 59 ECAB 408 (2008); supra note 7. 

11 5 U.S.C. § 8101(2). 

12 See Jack B. Wood, 40 ECAB 95, 109 (1988); see also F.W., Docket No. 15-1435 (issued September 15, 2015). 

13 M.E., Docket No. 14-1064 (issued September 29, 2014). 
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condition.14 An award of compensation may not be based on surmise, conjecture, or speculation. 

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

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

establish causal relationship.15 Because appellant has not provided medical opinion evidence 

clearly explaining how his accepted employment incident resulted in a specific medical 

diagnosis, thereby resulting in an employment injury, he failed to meet his 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 established that he sustained an injury in the 

performance of duty on February 13, 2010, as alleged. 

 14 Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors 

identified by the claimant to claimant’s condition, with stated reasons by a physician). See also V.S., Docket No. 

14-2028 (issued June 3, 2015). 

15 D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965). 
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ORDER 

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

Compensation Programs dated February 25, 2015 is affirmed.16

Issued: November 18, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 16 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.