United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.B., Appellant

and

DEPARTMENT OF AGRICULTURE, 

Fort Morgan, CO, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1378

Issued: December 17, 2018

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On June 5, 2017 appellant, through counsel, filed a timely appeal from an April 17, 2017 

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 met her burden of proof to establish a diagnosed medical 

condition causally related to the accepted February 24, 2017 employment incident.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this addition evidence for the first time on 

appeal. Id.; P.W. Docket No. 12-1262 (issued December 5, 2012).
2

FACTUAL HISTORY

On March 2, 2017 appellant, then a 41-year-old food safety inspector, filed a traumatic 

injury claim (Form CA-1) alleging that, on February 24, 2017, she injured the right side of her 

back in the performance of duty. On the reverse side of the claim form, appellant’s supervisor

checked a box marked “yes” indicating that appellant was injured in the performance of duty. The 

employing establishment also asserted that appellant engaged in willful misconduct because she 

performed procedures that were not part of the required inspection procedures. It indicated that 

she was pulling and representing “entire viscera repetitively.” 

In a February 27, 2017 statement, which was submitted with her Form CA-1, appellant 

indicated that on February 24, 2017, while she was working, she reached for a meat product she 

was to inspect and felt a muscle pull on the right side of her back. She informed her supervisor 

that she pulled the muscle immediately following the incident.

OWCP also received a February 28, 2017 statement from a coworker, T.R., who confirmed 

that the inspectors had to reach across the table, lift product, or have company personnel retrieve 

product that was not present or visible when it should have been. T.R. indicated that product was 

on the wrong side of the table or out of reach at times causing the inspectors to have to reach for 

the product to perform proper inspections. 

By development letter dated March 7, 2017, OWCP informed appellant of the type of 

evidence needed to establish her claim. It requested that she complete a questionnaire setting forth 

the factual basis of her claim. OWCP also noted that the medical portion of appellant’s claim was 

reviewed and was found to be insufficient. It requested a narrative report from appellant’s 

attending physician, including an explanation of how appellant’s alleged February 24, 2017 

employment incident caused or aggravated a medical condition. OWCP afforded her 30 days to 

submit such evidence. 

The employing establishment, on March 7, 2017, completed an authorization for 

examination and treatment (Form CA-16) for purposes of treating appellant’s muscle strain. 

In a March 16, 2017 response to the development questionnaire, appellant noted that she 

had experienced a throbbing pain in her right mid-back and she immediately informed her 

supervisor. She denied that she had any prior similar conditions.

OWCP received February 28 and March 3, 7, 14, 16, and 30, 2017 reports from physician 

assistants and chiropractors. In a March 3, 2017 report, Dr. Josef Planansky, a chiropractor,

described the incident as related by appellant and noted that she indicated that she was standing at 

her workstation where she inspected meat. Appellant advised that as a piece of meat came through 

on the belt, she had to reach over to pull it closer to her, which caused pain and discomfort in her 

back on the right side of her ribs. Dr. Planansky examined appellant and diagnosed pain of the 

thoracic spine, pleurodynia, and cramps and spasms. 

In a March 9, 2017 report, Dr. Nathan Ginn, a chiropractor, noted that appellant’s chief 

complaint was throbbing and intermittent right mid-back side pain. He examined her and 

diagnosed pain in the thoracic spine, pleurodynia, and cramps and spasms. In a March 14, 2017 
3

report, Dr. Planansky examined appellant and indicated that she could return to work with mild 

restrictions. Dr. Ginn saw appellant on March 16 and 29, 2017, and diagnosed pain in the thoracic 

spine and cramps and spasms. 

In a February 28, 2017 note, Siegfried Emme, a nurse practitioner, assessed a back muscle 

strain and recommended that appellant be placed on work restrictions with no reaching out with 

the right arm. OWCP also received February 28 and March 7, 2017 work restrictions and nurses 

reports. 

By decision dated April 17, 2017, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish that a medical condition had been diagnosed in 

connection with the claimed injury and or events. It noted in its decision that medical evidence 

from a nurse, nurse practitioner, or physician assistant lacked probative value as those health care 

providers are not considered physicians under FECA. OWCP also noted that a chiropractor is only 

considered a physician if there is a diagnosed spinal subluxation and it is demonstrated by x-ray 

to exist.

LEGAL PRECEDENT

A claimant 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 evidence, 

including that an injury was sustained in the performance of duty as alleged and that any specific 

condition or disability claimed is causally related to the employment injury.3

To determine if an employee sustained a traumatic 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 that must be considered in conjunction with one another. The 

first component is whether the employee actually experienced the employment incident that 

allegedly occurred.4 The second component is whether the employment incident caused a personal 

injury.5 An employee may establish that an incident occurred in the performance of duty as 

alleged, but fail to establish that the disability or specific condition for which compensation is 

being claimed is causally related to the injury.6

 

3 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4 Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires 

rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s 

opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment 

factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345, 

352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical 

certainty, and must be supported by medical rationale, explaining the nature of the relationship between the diagnosed 

condition and appellant’s specific employment factor(s). Id.

6 Shirley A. Temple, 48 ECAB 404, 407 (1997).
4

Certain healthcare providers such as physician assistants, nurse practitioners, physical 

therapists, and social workers are not considered physician[s]” as defined under FECA.7 

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing 

entitlement to FECA benefits.8

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a diagnosed 

medical condition causally related to the accepted February 24, 2017 employment incident.

The Board notes that OWCP received reports from nurses dating from February 28 to 

March 10, 2017. However, nurses are not considered physicians under FECA and are not 

competent to render a medical opinion.9 Their reports are therefore of no probative value.

The record also contains treatment notes from physician assistants dating from February 28

to March 30, 2017. Under FECA the term “physician” includes surgeons, podiatrists, dentists, 

clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope 

of their practice as defined by the applicable state law.10 Consequently, the physician assistant’s 

treatment notes have no probative value as the records provided cannot be considered medical 

evidence.

The record also contains reports from chiropractors. They included reports dated March 3 

and 14, 2017, from Dr. Planansky and reports dated March 9, 16, and 29, 2017, from Dr. Ginn. 

Section 8101(2) of FECA11 provides that the term physician, as used therein, 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.12 Without a diagnosis of a subluxation from x-ray, a 

chiropractor is not a physician under FECA and his or her opinion on causal relationship does not 

constitute competent medical evidence.13

 

7 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

8 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician 

assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician. 

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

9 Supra note 12; S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (nurse practitioners are not considered 

physicians under FECA).

10 See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that 

a medical opinion, in general, can only be given by a qualified physician).

11 5 U.S.C. § 8101(2).

12 See 20 C.F.R. § 10.311. 

13 Jay K. Tomokiyo, 51 ECAB 361, 367-68 (2000).
5

The Board thus finds that appellant has not met her burden of proof as there is no medical 

evidence of record to establish a diagnosed medical condition causally related to the accepted 

February 24, 2017 employment incident.

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 a diagnosed 

medical condition causally related to the accepted February 24, 2017 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the April 17, 2017 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: December 17, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board