United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.K., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

AGENCIES, MITCHEL FIELD COMMISSARY, 

Garden City, NY, Employer

__________________________________________

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Docket No. 18-0091

Issued: April 6, 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 October 16, 2017 appellant filed a timely appeal from an August 24, 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 to consider the merits of the case.

ISSUE

The issue is whether appellant has met his burden of proof to establish a left elbow 

condition causally related to the accepted April 20, 2017 employment incident.

FACTUAL HISTORY

On May 24, 2017 appellant, then a 54-year-old store associate, filed an occupational 

disease claim (Form CA-2) alleging that he injured his arm when placing milk crates on a pallet 

 

1 5 U.S.C. § 8101 et seq.
2

and that he developed left arm tendinitis. He first became aware of his condition on April 20, 2017 

and first attributed his condition to his federal employment on April 21, 2017. Appellant stopped 

work on April 20, 2017. 

In support of his claim, appellant provided a note from R. Galeo, a physician assistant.

In a July 10, 2017 development letter, OWCP requested additional factual and medical 

evidence regarding appellant’s claim. It informed appellant that a physician assistant could not 

provide medical evidence and noted that he should submit a rationalized medical report from a 

physician. Appellant was afforded 30 days to submit the necessary medical evidence.

Appellant provided an August 6, 2017 grievance statement in which he alleged that it was 

raining on April 20, 2017 when his manager dropped a pallet of milk from the forklift onto the 

flooded ground. He began to grab crates of milk from the flooded ground and place the wet crates 

back on the pallet. During this activity, appellant’s elbow popped and his hand slipped off a wet 

crate. He continued to work despite his pain. Appellant woke during the night due to pain in his 

elbow and found that he had developed a golf ball-sized lump on his left elbow. He sought medical 

treatment at the emergency room and received a diagnosis of left elbow tendinitis. 

Dr. Mario Constantino, a Board-certified internist, examined appellant on April 25 and 

May 31, 2017 and provided a series of ICD-10 codes as his diagnoses. These codes of E55.9, I10, 

and M25.522 correlate to the diagnoses of vitamin D deficiency, unspecified, essential 

hypertension, and pain in the left elbow, respectively.

2

 On June 2, 2017 Dr. Joseph Mazzie, an 

osteopath, performed a left elbow sonogram which demonstrated underlying ulnar neuritis. 

Appellant provided additional notes from Christopher Dominique, a physician assistant, dated 

July 3, 2017.

By decision dated August 24, 2017, OWCP denied appellant’s claim. It found that he did 

place milk crates on pallets as part of his duties as a store associate, but that the medical evidence

submitted did not provide a well-reasoned medical opinion as to exactly how the claimed work 

incident of April 20, 2017 either directly caused or aggravated the diagnosed vitamin B deficiency. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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 filed within the applicable time 

limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that 

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

 

2

ICD-10 M25.522; ICD10Data.com available at http://www.icd10data.com/ICD10CM/Codes/M00-M99/M20-

M25/M25-/M25.522.

3 Supra note 1.
3

employment injury. 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.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. There 

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

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

time, place, and in the manner alleged. Second, the employee must submit medical evidence to 

establish that the employment incident caused a personal injury.5

Rationalized medical opinion evidence is generally required to establish causal 

relationship. 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 

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

employment factors identified by the claimant.6

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a left elbow 

condition causally related to the accepted April 20, 2017 employment incident.

It is undisputed that on April 20, 2017 appellant was working as a store associate, and while 

loading milk crates onto a pallet, he felt a pop in his left elbow and alleged left elbow tendinitis

resulted from his employment injury. However, the Board finds that he failed to submit sufficient 

medical evidence to establish that his diagnosed medical condition is causally related to the 

April 20, 2017 employment incident.

Appellant filed a Form CA-2 and described an employment incident on April 20, 2017 of 

lifting milk crates on that date. While he filed a claim for an occupational disease, in fact, his 

claim as made on the Form CA-2 was for a traumatic injury. OWCP defines 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.”

7

 Appellant filed an incorrect claim form as he attributed his injury to a series of 

events or incidents within a single workday or shift.8 The Board finds that his claim for a traumatic 

 

4 A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

5 A.D., id.; T.H., 59 ECAB 388 (2008).

6 A.D., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7 20 C.F.R. § 10.5(ee).

8 See S.S., Docket No. 16-0675 (issued July 15, 2016); Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial 

Development of Claims, Chapter 2.800.7b(1) (June 2011).
4

injury, while made on the wrong form, was clear on its face and was properly developed as a 

traumatic injury by OWCP.

Appellant submitted notes from Dr. Constantino which included the diagnosis of elbow 

pain. The Board has held that the mere diagnosis of “pain” does not constitute the basis for 

payment of compensation.9 While Dr. Constantino also diagnosed a vitamin deficiency, as noted 

by OWCP, the Board finds that appellant has not alleged that he sustained a vitamin deficiency as 

a result of the April 20, 2017 incident. Therefore, Dr. Constantino’s notes are insufficient to 

establish a diagnosed condition which could be causally related to the April 20, 2017 work 

incident.

Appellant submitted a June 2, 2017 report wherein Dr. Mazzie diagnosed left ulnar 

neuritis. Dr. Mazzie’s medical opinion is insufficient to establish the claim as he did not provide 

a history of injury10 or specifically address whether appellant’s employment incident was sufficient 

to have caused or aggravated the diagnosed medical condition.11

The record also contains reports from physician assistants. However, the Board has held 

that reports by a physician assistant are not considered medical evidence as physician assistants 

are not considered physicians under FECA.12

An award of compensation may not be based on surmise, conjecture, or speculation. 

Neither the fact that appellant’s condition became apparent during a period of employment, nor 

the belief that his condition was caused, precipitated, or aggravated by his employment is sufficient 

to establish causal relationship.13 Appellant’s honest belief that the April 20, 2017 employment 

incident caused his medical conditions, however sincerely held, does not constitute the medical 

evidence to establish causal relationship.14 He failed to submit such evidence and therefore he has 

not met 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.

 

9 Robert Broome, 55 ECAB 339 (2004).

10 J.G., Docket No. 17-1217 (issued February 16, 2018); Frank Luis Rembisz, 52 ECAB 147 (2000) (medical 

opinions based on an incomplete history or which are speculative or equivocal in character have little probative value).

11 Id.; A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an 

employee’s condition is of limited probative value on the issue of causal relationship).

12 See M.M., Docket No. 17-1641 (issued February 15, 2018); David P. Sawchuk, 57 ECAB 316, 320 n. 11 (2006) 

(lay individuals such as physician assistants, nurses and physical therapists are not competent to render a medical 

opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, 

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

defined by state law).

13 See J.G., supra note 10; Dennis M. Mascarenas, 49 ECAB 215 (1997).

14 G.E., Docket No. 17-1719 (issued February 6, 2018). 
5

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a left elbow 

condition causally related to the accepted April 20, 2017 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the August 24, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 6, 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