United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.R., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

HICKAM AIR FORCE BASE, HI, Employer

__________________________________________

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Docket No. 17-1223

Issued: February 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 15, 2017 appellant filed a timely appeal from a November 15, 2016 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 met his burden of proof to establish total disability for the 

period December 11, 2014 through August 31, 2015, causally related to his accepted conditions.

 

1 5 U.S.C. § 8101 et seq. 

2 The Board notes that appellant submitted additional evidence with his appeal to the Board. The Board’s 

jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision. Therefore, the 

Board is precluded from reviewing this evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); P.W., Docket 

No. 12-1262 (issued December 5, 2012). 
2

On appeal appellant asserts that the record establishes that his chiropractor qualifies as a 

physician under FECA and, based on the chiropractor’s opinion, the medical evidence is 

sufficient to establish disability for the claimed period.3

FACTUAL HISTORY

On November 14, 2014 appellant, then a 44-year-old electronic measurement equipment 

mechanic filed a traumatic injury claim (Form CA-1) alleging that on October 10, 2014 he 

injured his lower back when he lifted a heavy piece of equipment. He continued to work until 

November 10, 2014, when his back became too painful.

A job description indicated that appellant’s job entailed frequent unassisted lifting and 

carrying items weighing up to 40 pounds. Assistance was provided for lifting and carrying items 

weighing more than 40 pounds. The job required working in a seated position for extended 

periods along with frequent standing, walking, bending, crouching, reaching, and stooping. 

After OWCP advised appellant of the type of evidence needed to establish his claim, 

appellant submitted reports dated December 8, 2014, from Dr. Lindsey J. Kimura, a chiropractor. 

Dr. Kimura noted that appellant reported injuring his back on October 10, 2014 while lifting 80 

pounds of equipment. He advised that appellant could not work. Dr. Kimura’s examination on 

November 10, 2014 demonstrated marked muscular spasm with marked loss of lumbar spine 

range of motion and moderate range of motion loss in the cervical and thoracic spines. Bilateral 

leg raising test was positive, and appellant had mild paresthesias in the lower extremities 

bilaterally. Dr. Kimura reported that an x-ray demonstrated multiple vertebral subluxations in 

the lumbar, thoracic, and cervical spine. He advised that appellant could not work and was being 

seen two to three times weekly for chiropractic adjustments. On a disability slip dated January 5, 

2015, Dr. Kimura advised that appellant was still totally incapacitated and recommended a 

magnetic resonance imaging (MRI) scan.

By decision dated January 22, 2015, OWCP denied the claim. It found that the 

October 10, 2010 incident occurred at the time, place, and in the manner alleged, but as

Dr. Kimura did not diagnose subluxation by x-ray, he was not considered a physician as defined 

by FECA. OWCP noted that appellant submitted no other medical evidence in support of his 

claim.

On February 25, 2015, by letter postmarked February 20, 2015, appellant requested a 

review of the written record with OWCP’s Branch of Hearings and Review. He submitted a 

February 2, 2015 report in which Dr. Kimura advised that subluxations were present on an 

October 16, 2014 x-ray. The February 2, 2015 report contains an image of the October 16, 2014 

x-ray. Dr. Kimura opined that the image shown demonstrated left lateral shifting, or subluxation, 

in the lumbar spine from L1 to L5. He noted that appellant had a service-connected lumbar spine 

injury prior to beginning employment with the employing establishment. Dr. Kimura opined that 

 

3 The Board notes that the record also contains an April 26, 2017 merit decision in which OWCP denied 

appellant’s January 26, 2017 reconsideration request of a January 21, 2016 acceptance decision. Appellant did not 

file an appeal for Board review of the April 26, 2017 decision.
3

appellant sustained a new injury to his lower back, mid back, and neck on October 10, 2014 and 

was not ready to return to work. 

A February 12, 2015 x-ray of the lumbar spine demonstrated no acute compression 

fracture. In a report of the same date, Dr. Darryl M. Kan, a Board-certified orthopedic surgeon, 

noted a history of an October 10, 2014 incident where appellant lifted an unusually heavy piece 

of equipment. Examination demonstrated to neck, lumbar spine, sciatic notice or sacroiliac joint 

tenderness, and full neck range of motion and full painful range of motion of the trunk. Straightleg raise was positive for pain bilaterally. Extremity strength was 5/5 and sensation was intact to 

light touch. A March 15, 2015 MRI scan of the lumbar spine demonstrated a midline disc bulge 

at L4-5 with facet degeneration and mild canal stenosis.

On an undated disability slip, Dr. Kimura advised that appellant could not work from 

June 1 to 30, 2015.

By decision dated June 10, 2015, an OWCP hearing representative set aside the 

January 22, 2015 decision and remanded the case to OWCP for further development. She found 

that, based on his February 20, 2015 report, Dr. Kimura was considered a physician under FECA 

and that his reports could be reviewed for consideration of a work-related injury. The hearing 

representative concluded that the reports of Dr. Kimura and Dr. Kan, taken together, were 

sufficient to require further development of the issue of causal relationship. On remand, OWCP 

was to prepare a statement of accepted facts (SOAF) and refer appellant to a Board-certified 

specialist for a second opinion evaluation, to be followed by a de novo decision. 

On a duty status report (Form CA-17) dated August 31, 2015, Dr. Kimura noted that 

appellant could return to modified duty on September 1, 2015 with restrictions of no climbing, 

bending, stooping, twisting, pulling, or pushing, and a five-pound weight restriction. Appellant 

returned to full-time modified duty on September 1, 2015.

OWCP referred appellant to Dr. Paul Fry, III, a Board-certified orthopedic surgeon, for a 

second opinion evaluation. In a September 11, 2015 report, Dr. Fry noted the history of injury 

and his review of the medical evidence, including diagnostic studies. He noted that appellant 

had a previous service-related back injury for which he was treated at a Veterans Administration 

(VA) facility, and that he had returned to modified duty that did not require bending or lifting. 

Physical examination demonstrated some back and buttock tenderness with no spasms. Strength 

was 5/5, and lower extremity sensation was normal to light and sharp testing. Dr. Fry diagnosed 

lumbar degenerative disc disease with musculoligamentous lumbar strain, and advised that the 

October 10, 2014 work incident temporarily aggravated this condition, which would have 

resolved by December 10, 2014, when appellant could have returned to work. He advised that 

appellant needed no further medical treatment, and his prognosis for returning to unrestricted 

duty was poor. On an attached work capacity evaluation (OWCP-5c), Dr. Fry advised that 

appellant could work eight hours daily with permanent restrictions of four hours bending and 

stooping, with lifting restricted to 20 pounds. In a November 19, 2015 supplemental report, he

reiterated his diagnosis and conclusion that the October 10, 2014 work incident aggravated 

appellant’s underlying degenerative disc disease and that he could have returned to modified 

duty on December 10, 2014. Dr. Fry related that the permanent restrictions provided were 

related to a natural progression of appellant’s preexisting conditions.
4

On December 24, 2015 OWCP accepted sprain of ligaments of lumbar spine and 

temporary aggravation of lumbar intervertebral disc degeneration. It modified the acceptance on 

January 21, 2016 to indicate that the temporary aggravation of lumbar disc degeneration had 

resolved as of December 10, 2014.

In January 2016 appellant filed CA-7 forms, claims for compensation for intermittent 

periods beginning October 14, 2014, and for total disability from November 15 to 

December 10, 2014. 

OWCP paid appellant intermittent compensation for the period October 14 through 

November 14, 2014, and total disability compensation for the period November 15 through

December 10, 2014. 

On February 16, 2016 OWCP set aside the January 21, 2016 decision. It proposed to 

terminate appellant’s wage-loss compensation and medical benefits due to the October 10, 2014 

employment injury. OWCP found that the weight of the medical opinion evidence rested with 

the opinion of Dr. Fry who advised that appellant’s work-related conditions had ceased and that 

he was no longer disabled due to the accepted conditions.

In an undated report, Dr. Kimura advised that the lumbar MRI scan that revealed disc 

degeneration and annular tears was consistent with the etiology of appellant’s October 10, 2014 

injury. He opined that that type of disc injury did not resolve within a matter of weeks but could 

take years to heal. Dr. Kimura noted that appellant had returned to modified duty and concluded 

that any opinion that appellant should have been better within a matter of weeks did not have all 

the appropriate information, clinical history, or clinical findings to validate an opinion. He 

attached disability slips dated December 8, 2014 to August 31, 2015 that included notations that 

appellant was totally incapacitated for the period November 10, 2014 to August 31, 2015.4

In a February 25, 2016 disability certificate, Christopher S. Acree, a physician assistant, 

diagnosed degeneration of lumbar intervertebral disc, segmental and somatic dysfunction of 

lumbar region, annular tear of lumbar disc, and facet degeneration of lumbar region. He noted

that appellant’s March 2015 lumbar MRI scan clearly demonstrated much more severe injuries 

than accepted by OWCP. Mr. Acree concluded that the length of disability and treatment 

appellant required was appropriate and necessary.

By decision dated April 28, 2016, OWCP terminated appellant’s wage-loss compensation 

effective September 11, 2015, and his medical benefits effective April 15, 2016. It noted that 

 

4 Appellant also submitted medical reports from Dr. James K. Okamoto, a family physician, Dr. Ira Zunin, Boardcertified in preventive medicine, and Dr. Zehra Siddiqui, an osteopath and family practitioner, dated January 4 to 

February 25, 2016, after the period of claimed disability. The physicians noted appellant’s continued complaints of 

persistent lumbar pain and his medical treatment. A March 30, 2016 claim for leave buy back (Form CA-7b) for the 

period October 14 to 27, 2014 was granted by OWCP. In an April 15, 2016 decision, OWCP denied appellant’s 

claim for continuation of pay for the period October 11 to November 9, 2014. In response to an OWCP inquiry, VA 

forwarded a rating decision dated February 25, 2014. This noted that appellant had a service-connected 10 percent 

disability for lumbar strain and 10 percent disability for right hip joint sacroiliitis. In correspondence dated April 18, 

2016, the VA requested a copy of OWCP medical records for treatment of a lumbar strain to ascertain if appellant 

was receiving concurrent benefits.
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appellant’s physicians attributed his disability to conditions that were not employment related 

and found that the weight of the medical evidence rested with the opinion of Dr. Fry.5

On May 13, 2016 appellant filed a claim for compensation (Form CA-7), for the period 

December 11, 2014 to August 31, 2015. The employing establishment indicated that he had 

returned to work on September 1, 2015.

By letter dated May 23, 2016, OWCP informed appellant of the evidence needed to

support his disability claim.

Mr. Acree submitted a second disability certificate dated June 16, 2016 in which he 

diagnosed thoracic degenerative disc disease, degeneration of lumbar intervertebral disc, annular 

tear of lumbar disc, facet degeneration of lumbar region, lumbar canal stenosis, and sprain of 

lumbar region. He maintained that, due to appellant’s intractable pain, physical examination 

findings, and his diagnosed conditions, he was totally disabled from November 10, 2014 to 

August 31, 2015. Mr. Acree concluded that appellant suffered a significant injury that precluded 

work for the above time, and “to surmise that his condition would improve in 60 days is 

inappropriate and unreasonable.”

By decision dated November 15, 2016, OWCP denied appellant’s claim for 

compensation for the period December 11, 2014 to August 31, 2015. It found that the evidence 

submitted from Mr. Acree was not probative because a physician assistant’s report must be 

countersigned by a physician, and further found that Dr. Kimura was not a physician under 

FECA because an x-ray dated February 12, 2015 showed no evidence of subluxation.

LEGAL PRECEDENT

Under FECA the term “disability” means the incapacity, because of an employment 

injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus 

not synonymous with physical impairment, which may or may not result in an incapacity to earn 

wages. An employee who has a physical impairment causally related to a federal employment 

injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the 

time of injury, has no disability as that term is used in FECA.6 Furthermore, whether a particular 

injury causes an employee to be disabled for employment and the duration of that disability are 

medical issues which must be proved by a preponderance of the reliable, probative and 

substantial medical evidence.7

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

causal relationship is rationalized medical evidence.8 The opinion of the physician must be 

 

5 OWCP initially issued a termination decision on April 15, 2016. The April 28, 2016 decision superseded the 

April 15, 2016 decision.

6 See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

7 Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
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based on a complete factual and medical background of the claimant, 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 employee.9 Neither the mere fact that a disease or condition manifests itself during a period 

of employment nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish causal relationship.10

Under section 8101(2) of FECA, 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 and subject to regulation 

by the Secretary.11 Implementing regulations indicate that the diagnosis of spinal subluxation 

must appear in the chiropractor’s report, and a chiropractor may interpret his or her x-rays to the 

same extent as any other physician.12

ANALYSIS

The Board initially finds that Dr. Kimura is considered a physician under FECA because, 

in his February 22, 2015 report, Dr. Kimura included an image of an October 16, 2014 x-ray and 

explained that it demonstrated subluxations from L1 to L5. Moreover, on June 10, 2015 an 

OWCP hearing representative found that Dr. Kimura qualified as a physician under FECA.

The Board, however, finds that the medical evidence of record is insufficient to establish 

disability for the period December 11, 2014 through August 31, 2015 due to the accepted 

conditions of sprain of ligaments of lumbar spine and temporary aggravation of lumbar 

intervertebral disc degeneration, resolved as of December 10, 2014. Appellant received wageloss compensation from the date he stopped work on November 15 through December 10, 2014.

The issue of disability from work can only be resolved by competent medical evidence.13 

Whether a claimant’s disability is related to an accepted condition is a medical question which 

must be established by a physician who, on the basis of a complete and accurate factual and 

medical history, concludes that the disability is causally related to employment factors and 

supports that conclusion with sound medical reasoning.14 A physician’s opinion on causal 

relationship between a claimant’s disability and an employment injury is not dispositive simply 

because it is rendered by a physician. To be of probative value, the physician must provide 

 

9 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10 Dennis M. Mascarenas, 49 ECAB 215 (1997).

11 5 U.S.C. § 8102(2); see D.S., Docket No. 09-860 (issued November 2, 2009).

12 20 C.F.R. § 10.311(b), (c).

13 R.C., 59 ECAB 546 (2008).

14 See Sandra D. Pruitt, 57 ECAB 126 (2005).
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rationale for the opinion reached. Where no such rationale is present, the medical opinion is of 

diminished probative value.15 

Appellant submitted several reports from Mr. Acree, a physician assistant. The Board 

has long held that physician assistants are not “physicians” as defined under FECA, and their 

opinions are of no probative value.16 Thus, Mr. Acree’s reports are insufficient to meet 

appellant’s burden of proof.

As to Dr. Kimura, on December 8, 2014, he reported that on October 10, 2014 appellant 

injured his back lifting heavy equipment and provided physical examination findings from a 

November 10, 2014 examination. He advised that appellant could not work. Appellant, 

however, received wage-loss compensation through December 10, 2014. While Dr. Kimura 

advised on a January 5, 2015 disability slip that appellant was totally disabled, and on 

February 4, 2015 reported continued disability, he did not fully explain the processes by which 

the accepted October 10, 2014 employment-related lifting injury caused appellant’s continued 

disability, especially in light of appellant’s service-related back condition and the MRI scan 

findings.17 A physician’s opinion on causal relationship between a claimant’s disability and an 

employment injury is not dispositive simply because it is rendered by a physician. To be of 

probative value, the physician must provide rationale for the opinion reached. Where no such 

rationale is present, the medical opinion is of diminished probative value.18

In his February 12, 2015 report, Dr. Kan did not offer an opinion on disability. The 

Board will not require OWCP to pay compensation for disability in the absence of medical 

evidence directly addressing the specific dates of disability for which compensation is claimed.19

The Board notes that Dr. Fry, an OWCP referral physician, completed a September 11, 

2015 report noting appellant’s service-related back injury and the accepted October 10, 2014 

employment-related lifting injury.

20

 He described his review of the medical evidence and 

examination findings. Dr. Fry diagnosed lumbar degenerative disc disease with 

musculoligamentous lumbar strain and advised that the October 10, 2014 employment injury 

temporarily aggravated appellant’s preexisting condition, which would have resolved by 

December 10, 2014. While he provided permanent restrictions of four hours bending and 

stooping in an eight-hour day, with lifting restricted to 20 pounds, he advised that these were

related to a natural progression of appellant’s preexisting conditions. Dr. Fry found no basis 

upon which to attribute any disability after December 10, 2014 to the accepted work injury.

 

15 Thaddeus J. Spevack, 53 ECAB 474 (2002).

16 Roy L. Humphrey, 57 ECAB 238 (2005). Section 8101(2) of FECA provides that “physician” includes 

surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners 

within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2).

17 See G.R., Docket No. 16-0928 (issued February 14, 2017).

18 Supra note 15.

19 Amelia S. Jefferson, 57 ECAB 183 (2005).

20 Supra note 4.
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As appellant did not submit sufficient rationalized medical opinion evidence to establish 

that he was disabled for work during the period December 11, 2014 through August 31, 2015 due 

to the accepted employment-related conditions, he failed to meet his burden of proof. He was 

thus not entitled to wage-loss compensation for this period.21

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 his burden of proof to establish total disability

for the period December 11, 2014 through August 31, 2015 causally related to an October 10, 

2014 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the November 15, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 6, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

21 N.R., Docket No. 14-114 (issued April 28, 2014).