United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Columbia, SC, Employer 

__________________________________________ 

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Docket No. 16-1329 

Issued: June 23, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 14, 2016 appellant filed a timely appeal from the May 31, 2016 merit decision of 

the Office of Workers’ Compensation Programs (OWCP) denying his claim. 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. 

ISSUE 

The issue is whether appellant established an injury causally related to the factors of his 

federal employment. 

On appeal appellant alleges that he met his burden of proof as he established an 

aggravation of a preexisting condition through the report of his chiropractor. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 22, 2015 appellant, then a 61-year-old nurse practitioner, filed an 

occupational disease claim (Form CA-2) alleging that he developed arthritis/spondylosis, 

degenerative disc disease, and grade 1 spondylolisthesis L5 on S1 as a result of his federal 

employment duties. He noted that he was required to document medical examinations in 

specialized computer templates. Appellant indicated that on July 14, 2015 he was required to sit 

at the keyboard for at least 6.5 hours, and that during this activity he began to experience 

tightness and spasms with constant pain in his mid-to-lower back. He noted that, on July 15, 

2014, in attempting to perform his duties, the symptoms continued and progressed causing him 

to stop work and seek treatment. 

In an August 17, 2011 note, Dr. Dean McCaughan, a chiropractor, related that appellant 

had presented on December 20, 2007 for a chiropractic evaluation. On that date full spine 

sectional radiographs were taken to further evaluate his spine. Dr. McCaughan noted that the 

lateral cervical projection revealed a moderate loss of the normal cervical lordosis with moderate 

anterior head carriage, and that osteoarthritis was noted at the C6-7 spinal level. He also noted 

that the anterior posterior open mouth cervical spine view (APOM) demonstrated left spinous 

rotation at C2. The lateral lumbar projection revealed osteoarthritis at L2-3 and a grade 1 

spondylolisthesis at L5. Mild pelvic tilt was noted on the anteroposterior projection. 

In an August 3, 2015 attending physician’s report (Form CA-20), Dr. McCaughan 

diagnosed spondylosis with subluxation due to the onset of severe strain with spasm. He noted 

that appellant’s condition was aggravated by his prolonged work activity causing severe spasms 

and pain. Dr. McCaughan checked a box marked “yes” indicating that appellant’s condition was 

caused or aggravated by his employment activity, noting prolonged keyboarding and that 

appellant had not had spasms prior to this activity. 

On September 22, 2015 Dr. McCaughan noted that appellant became his patient on 

December 20, 2007 presenting with symptoms similar to his recent aggravation of his neck and 

back. He stated that appellant’s symptoms began while at the employing establishment, when he 

was required to sit long hours “performing required electronic medical records.” 

Dr. McCaughan further noted that appellant had been diagnosed with spinal subluxation with 

arthritis, degenerative disc disease, and spondylolisthesis. He noted that appellant met with him 

on July 14, 2015 after sitting at work which resulted in his need to leave work. Dr. McCaughan 

stated that appellant severely strained his back with development of severe pain and spasms 

causing unfavorable ankyloses and initially an inability to take deep breaths. He noted that the 

symptoms aggravated his comorbid conditions of subluxation, arthritis, degenerative disc 

disease, and spondylolisthesis grade 1. Dr. McCaughan also found that appellant required urgent 

treatment on September 11, 2015 due to his recurrent chronic injury after sitting up to eight 

hours at work on September 9, 2015. He found severe strain with his underlying conditions, and 

that the x-ray evidence of record already established the subluxation, arthritis, and 

spondylolisthesis. Dr. McCaughan noted that appellant had regular chiropractic adjustments, 

massage therapy, and two times a week physical therapy. He concluded that it was as likely as 

not that the aggravation causing chronic strain was a direct result of appellant’s required 

electronic medical records keyboarding work and the sitting required over 10 years of activity, 
3

noting that appellant had performed prolonged sitting duties for four to seven hours a day for 

over 10 years of full-time employment as a nurse practitioner. 

By decision dated October 26, 2015, OWCP denied appellant’s claim. It determined that, 

although he established that the employment factors occurred as alleged and that a medical 

condition had been diagnosed, the medical evidence failed to demonstrate that the medical 

condition was related to the established employment-related factors. OWCP found that 

Dr. McCaughan’s report could “not be used” because he did not diagnose a subluxation by x-ray 

and, thus, was not a physician under FECA. 

On February 8, 2016 appellant requested reconsideration. He alleged that OWCP had 

failed to consider all evidence of record. 

In a February 1, 2016 report, Dr. McCaughan noted that, in his initial report, he found 

that the APOM x-ray demonstrated left spinous rotation at C2, and a grade 1 spondylolisthesis at 

L5, and that pelvic tilt was noted on the anteroposterior projection. He explained that 

subluxation is defined as a slight misalignment of the vertebrae, regarded in chiropractic theory 

as the cause of many health problems. Dr. McCaughan opined that, without specifically using 

the word subluxation, these are all demonstrations of subluxations as demonstrated by x-ray. He 

indicated that spinous rotation, along with the anterior head carriage, demonstrated misalignment 

in the neck, and the spondylolisthesis and pelvic tilt demonstrated misalignment in the 

lumbopelvic region. 

By decision dated March 29, 2016, OWCP denied modification of its October 26, 2015 

decision. It determined that although the new evidence contained a diagnosis of subluxation 

from a chiropractor, the evidence of record did not contain any x-ray findings demonstrating the 

presence of subluxation, and since appellant had not submitted an x-ray report demonstrating a 

spinal subluxation, Dr. McCaughan was not considered a physician under FECA and his opinion 

addressing appellant’s medical condition had no probative value. 

On April 19, 2016 appellant requested reconsideration. He alleged that the decision was 

made by an unlicensed examiner and ignored a licensed chiropractor who read the x-ray and 

found subluxation meeting the standards. Appellant argued that Dr. McCaughan’s finding of 

subluxation was consistent with his previous explanations contained in his x-ray reports. 

Appellant also submitted an October 17, 2013 report of an x-ray taken on October 17, 

2013 that was interpreted by Dr. Robin Daum Kowalski, a Board-certified diagnostic radiologist, 

as evincing bilateral L5 spondylolysis with grade 1 spondylolisthesis L5-S1 with disc bulge and 

facet arthropathy at L5-S1; disc bulge, central protrusion and facet arthropathy L4-5; disc bulge, 

facet hypertrophy and right foraminal annular tear L3-4; and disc bulge with retrolisthesis L2-3. 

By decision dated May 31, 2016, OWCP denied modification of its prior decisions. 

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 
4

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.2

 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.3

 

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

an analysis of whether fact of injury has been established.4

 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.5 

Under FECA, a chiropractor is a physician only to the extent that the reimburseable 

services are limited to treatment consisting of manual manipulation of the spine to correct a 

subluxation as demonstrated by x-ray to exist.6

 OWCP regulations define subluxation as an 

incomplete dislocation, off centering, misalignment, fixation, or abnormal spacing of the 

vertebrae which must be demonstrable on an x-ray file to an individual trained in the reading of 

x-rays.7 Section 10.311(c) states: 

“A chiropractor may interpret his or her x-rays to the same extent as any other 

physicians. To be given any weight, the medical report must state that x-rays 

support the findings of spinal subluxation. OWCP will not necessarily require 

submittal of the x-ray or a report of the-ray, but the report must be available for 

submittal on request.”8

ANALYSIS 

OWCP determined that appellant experienced the employment factors as alleged. 

However, it denied his claim, finding that appellant had failed to provide a physician’s opinion 

 2 Elaine Pendleton, 40 ECAB 1143 (1989). 

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

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

5 See Roy L. Humphrey ̧ 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011). 

6

 Section 8101(2) of FECA provide as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

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

by State law. 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 xray to exist and subject to regulation by the Secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988); P.R., Docket 

No. 14-1007 (issued August 13, 2014). 

7

 20 C.F.R. § 10.5(bb). 

8 Id. at § 10.311(c). 
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establishing a causal relationship between the accepted factors of employment and an injury. 

OWCP determined that Dr. McCaughan, a chiropractor, was not a physician under FECA. The 

Board finds that this case is not in posture for decision. 

OWCP regulations provide that a chiropractor may interpret x-rays to the same extent as 

any other physician and do not require that an x-ray film or x-ray report be submitted. Instead 

the regulations provide that the x-ray or a report of the x-ray be made available for submittal 

upon request.9

 Although Dr. McCaughan made no reference to the existence of subluxation as 

demonstrated by x-ray, he explained that the terms he did use in his February 1, 2016 report, that 

the APOM x-ray demonstrated left spinous rotation at C2, that there was a grade 1 

spondylolisthesis at L5, and that the pelvic tilt was noted on the anteroposterior projection, were 

terms which described a slight misalignment of the vertebrae or a subluxation and that the x-rays 

had demonstrated these misalignments. 

The Board finds that Dr. McCaughan did diagnose a subluxation based upon x-ray 

evidence, he therefore was a physician for the purpose of FECA as he diagnosed subluxation of 

the spine as demonstrated by x-rays.10 OWCP procedures do not require that the x-ray itself be 

of record, but rather that it be available upon request. OWCP did not request that 

Dr. McCaughan submit the x-ray for further evaluation.11

As the Board finds that Dr. McCaughan is a physician under 5 U.S.C. § 8101(2), the case 

will be remanded for further development as OWCP deems necessary, and a de novo decision on 

the merits of appellant’s claim. 

CONCLUSION 

The Board finds that this case is not in posture for decision. 

 9 Id.; see also R.S., Docket No. 11-355 (issued May 25, 2011). 

10 See D.G., Docket No. 12-0374 (issued August 24, 2012). 

11 Id. 
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ORDER 

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

Compensation Programs dated May 31, 2016 is set aside and the case is remanded for further 

development consistent with this decision. 

Issued: June 23, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board