United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Charlotte, NC, Employer

__________________________________________

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Docket No. 17-1138

Issued: October 19, 2017

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 2, 2017 appellant, through counsel, filed a timely appeal from a January 27, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2(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 met his burden of proof to establish an occupational 

disease causally related to the accepted factors of appellant’s federal employment.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 4, 2015 appellant, then a 40-year-old automotive technician, filed a 

traumatic injury claim (Form CA-1) alleging that on October 14, 2015, over the course of two 

days of lifting and reaching over his shoulders, he aggravated a previous injury and sustained a 

strain in his neck.3

In a January 4, 2016 report, Dr. T. Maxwell Kelley, a Board-certified family practitioner, 

noted seeing appellant for a follow up on his cervical condition. He indicated that he had last 

seen appellant in his office on December 23, 2015. Appellant’s symptoms started after an injury 

at work on September 19, 2013 when appellant hit his head on the frame of a truck and that these

symptoms consisted primarily of involuntary titubation of the head and neck. Dr. Kelley noted 

that these symptoms occurred episodically and were typically triggered by overhead movements 

and reaching outward, and that this abnormal movement caused dizziness and sometimes pain. 

On February 2, 2016 Dr. Kelley diagnosed cervical dystonia. 

By letter dated February 8, 2016, OWCP informed appellant that further information was 

necessary to support his claim and afforded him 30 days to submit this information.

Appellant thereafter submitted multiple medical documents that were dated before the 

alleged October 2015 employment injury. From May 23 through June 10, 2014, Dr. T.L. 

Bradley, a chiropractor, treated appellant for cervical segmental dysfunction and cervicalgia. 

Dr. Bradley released appellant to return to work effective December 30, 2014 with restrictions of 

no reaching above shoulders and no reaching beyond length of arms. Appellant submitted notes 

from Novant Health Matthews Medical Center dated September 19, 2013, wherein Dr. Erin 

Smith, an emergency room physician, diagnosed near syncope, benign position vertigo. 

Appellant also submitted multiple progress notes from the Carolinas Health System commencing 

September 24, 2013. These notes described treatment for multiple medical conditions including: 

vertigo, dizziness, cervical segment dysfunction, cervicalgia, hypertension, and chronic 

headaches.

In a March 7, 2016 note, Dr. Bradley noted that a lateral x-ray of appellant’s cervical 

spine revealed loss of normal lordotic curvature with slight reversal apex at C-4. He diagnosed 

cervicalgia and segmental and somatic dysfunction of the cervical region and noted that supine 

adjustment had been performed. Dr. Bradley noted that appellant had made good progress, but 

continued to have muscle tightness with fixation in the cervical and upper thoracic spine. He

indicated that appellant’s neck pain started on September 13, 2014.

By decision dated March 8, 2016, OWCP denied appellant’s claim. It determined that,

although the evidence supported that the events occurred as alleged, the medical component of 

 

3 Appellant had previously filed a claim in OWCP File No. xxxxxx134. He had alleged in the prior claim that on 

September 19, 2013 he sustained a neck injury when he struck his head on the frame of a truck. In a decision dated 

January 6, 2015, OWCP denied appellant’s claim as it determined that he failed to submit medical evidence 

providing a medical diagnosis. It also noted that appellant had not established causal relationship. There is no 

evidence that appellant pursued any form of appeal from the January 6, 2015 decision.
3

fact of injury had not been met. Specifically, appellant failed to submit medical evidence 

containing a medical diagnosis in connection with the accepted factors.

On March 24, 2016 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative.

At the hearing held on November 15, 2016, appellant testified that in his previous job he 

was a mobile mechanic and that most of his duties were performed below waist level. However, 

on October 13 and 14, 2016 the employment establishment placed him in a job that required him 

to lift above his shoulders, and he injured his neck from repeated lifting. Appellant noted that 

when he left and went to the parking lot, his head started shaking like a “bobble head.” He noted 

that he had previously injured his neck in September 2013, when he jumped up from underneath 

a truck and caught his forehead and ripped something in the left side of the neck. Appellant 

described his medical treatment and noted that he was not currently under a physician’s care. 

The hearing representative advised appellant of the importance of submitting medical evidence 

in support of his claim.

In a letter dated December 29, 2016, M.A., a manager for health and resource 

management for the employing establishment, contended that appellant did suffer a serious 

injury on September 19, 2013 and again on October 14, 2015. She argued that the medical 

evidence established that appellant had a traumatic injury to his neck which had now resulted in 

a diagnosis of cervical dystonia, which was also called spasmodic torticollis. M.A. noted that, in 

meeting with appellant, she has witnessed the spasmodic attacks, and that it was evident that 

appellant experienced incredible pain and uncontrollable shaking of his head. She also stated 

that appellant did not receive the support and guidance he was entitled to from the employing 

establishment. M.A. requested that OWCP accept appellant’s claims.

By decision dated January 27, 2017, the hearing representative affirmed the March 8, 

2016 decision as appellant had not submitted medical evidence of a diagnosis in connection with 

the accepted employment factors.

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 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.4 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.5

 

4 Elaine Pendleton, 40 ECAB 1143 (1989).

5 Victor J. Woodhams, 41 ECAB 345 (1989).
4

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

an analysis of whether fact of injury has been established.6 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.7

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 

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

specific employment factors identified by the claimant.8

ANALYSIS

The only issue before the Board is whether appellant sustained an injury due to his work 

activities of October 13 and 14, 2015. There is no dispute that the employment events occurred 

as alleged. However, the Board finds that appellant has failed to submit medical evidence to

establish a medically-diagnosed condition as a result of these employment factors. 

The medical evidence indicates that, at the time of the alleged October 2015 employment 

injury, appellant had already been treated for cervical segment dysfunction and cervicalgia. 

Appellant has not submitted any medical evidence after the October 2015 employment factors 

that establish an employment injury.

Appellant submitted a January 4, 2016 narrative medical report by Dr. Kelley, as well as 

a February 2, 2016 progress report. Dr. Kelley treated appellant for cervical dystonia. He

indicated that appellant’s symptoms of involuntary titubation of the head and neck started after 

the work injury of September 19, 2013. Dr. Kelley never addressed the alleged October 2015 

employment factors. As previously noted, to establish an occupational disease claim, the 

claimant must submit medical evidence establishing that the employment factors identified by 

the claimant were the proximate cause of the condition for which compensation is claimed or, 

stated differently, medical evidence establishing that the diagnosed condition is causally related 

to the employment factors identified by the claimant.9 Dr. Kelley’s reports did not address how 

 

6

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

7

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

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 4. 

9

See George G. Wilk, Docket No. 03-0453 (issued May15, 2003). 
5

the accepted October 2015 employment factors caused the diagnosed condition. As such, his 

reports are of limited probative value.

Appellant also submitted a March 7, 2016 report wherein his chiropractor, Dr. Bradley, 

diagnosed cervicalgia and segmental and somatic dysfunction of the cervical region based on 

cervical x-rays. Dr. Bradley performed spinal manipulation.10 However, he also noted that these 

conditions started on September 13, 2014, and did not address the October 2015 employment 

factors. As such, his report is of limited probative value.11

Finally, the Board notes the statement and argument from M.A., a manager of the 

employing establishment, in support of appellant’s claim. However, because causal relationship 

is a medical issue, it can only be proven by probative medical opinion evidence.12 Lay persons 

are not competent to render medical opinion.13

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

appellant’s belief of causal relationship.14 Appellant has failed to submit rationalized medical 

evidence to meet his burden of proof on causal relationship.

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 did not meet his burden of proof to establish an 

occupational disease causally related to the accepted factors of his federal employment. 

 

10 5 U.S.C.§ 8101(2) of FECA provides that the term “physician” includes chiropractors only to the extent that 

their reimbursable services were limited to treatment consisting of manual manipulation of the spine to correct a 

subluxation as demonstrated by x-ray to exist. Dr. Bradley is a physician pursuant to this definition. 

11 Supra note 7. 

12 S.C., Docket No. 16-1322 (issued January 18, 2017). 

13 James A. Long, 40 ECAB 538, 542 (1989).

14 John D. Jackson, 55 ECAB 465 (2004); William Nimitz ̧30 ECAB 57 (1979).
6

ORDER

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

Compensation Programs dated January 27, 2017 is affirmed.

Issued: October 19, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board