United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Jersey City, NJ, Employer

__________________________________________

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Docket No. 17-1139

Issued: November 16, 2017

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 2, 2017 appellant, through counsel, filed a timely appeal from a February 9, 

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 a traumatic injury 

causally related to the accepted February 3, 2015 employment incident. 

 

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 May 1, 2015 appellant, then a 57-year-old tractor trailer operator, filed a traumatic 

injury claim (Form CA-1) alleging that on February 3, 2015 he slipped on ice and fell backwards 

while he was walking out from the rear of a trailer. He noted that when he attempted to get up,

he fell on his knees. Appellant listed the nature of his injury as soreness to his back and both 

knees. He did not stop work. 

Appellant was treated by multiple chiropractors at the Jersey City Rehabilitation Clinic 

from February 23 through April 3, 2015, including Dr. John Bortolussi, Dr. Louis Stimmel,

Dr. James Prette, and Dr. Charles Collins. These chiropractors treated appellant for neck pain 

and stiffness in both shoulders, upper and lower back pain, pain radiating into both legs, and pain 

in both knees. Appellant was treated with traction, moist heat cryotherapy, and vibratory 

massage therapy. 

On March 31, 2015 appellant underwent a magnetic resonance imaging (MRI) scan of the 

right knee that was interpreted by Dr. Alkies Lapas, a diagnostic neuroradiologist and osteopath, 

as showing horizontal cleavage tear at the posterior horn of the medial meniscus, and 

osteochondral erosions at the posterior aspect of the medial femoral condyle and at the medial 

femoral trachlear surface. 

OWCP also received physical therapy notes from the Jersey City Rehabilitation Clinic 

dated April 8, 2015.

By letter dated June 25, 2015, OWCP informed appellant that further factual and medical 

evidence was necessary to support his claim, and afforded him 30 days to submit the requested

information. Appellant did not respond within the allotted time.

In a decision dated August 7, 2015, OWCP denied appellant’s claim. It found that,

although appellant had established that an incident occurred as alleged, he failed to submit 

medical evidence containing a medical diagnosis in connection with the incident. 

On September 1, 2015 appellant requested a telephonic hearing before an OWCP hearing 

representative. OWCP received additional medical evidence on January 7, 2016. 

Appellant was treated at the emergency department of Christ Hospital on 

February 4, 2015. He reported that, while at work the day before, he slipped and fell onto the 

ice, landing on his upper back. Appellant noted that he then jumped up quickly and fell forward, 

landing on his knees. He complained of pain in his upper back, neck and bilateral knee pain. 

Dr. Tania A. Afonso, an osteopath and emergency medicine physician, diagnosed sprain of the 

knee and whiplash injury to the neck. On the same date Dr. Supreet Singh, a Board-certified 

radiologist, interpreted an x-ray of appellant’s cervical spine as evincing no fracture or joint 

dislocation.

On November 17, 2015 weight bearing x-rays were taken of both knees and Dr. Nina L. 

Brogle, a Board-certified radiologist, found moderate osteoarthrosis, right greater than left, and 

enthesopathy. She found no acute fracture or dislocation. 
3

An MRI scan of the right knee taken on December 11, 2015 was interpreted by

Dr. Stacey Siegel, a Board-certified radiologist, as showing tear posterior horn and body medial 

meniscus with irregularity along the inferior articular surface; interstitial tear anterior cruciate 

ligament; abnormal signal low on T1 with increased signal on the T2 weighted images at the 

anterior and lateral aspect of the medial femoral condyle which may represent a cyst or chondral 

lesion; bone marrow edema anterior aspect of the medial femoral condyle; and osteoarthritis 

medial to lesser extent lateral tibiofemoral joint space, and small joint effusion. 

At the hearing held on April 13, 2016, appellant testified that he had been a tractor/trailer 

driver for 10 years, that on February 3, 2015 he had a slip and fall at work and landed on ice, and 

that in the process of trying to get up he fell onto his knees. He noted that he finished his shift on 

the day he fell, but went to the hospital the next day. Appellant testified that he was still having 

trouble with his back and both of his knees. He noted that in November 2014, prior to his 

employment injury, he had surgery to fix a tear in his right medial meniscus. Appellant indicated 

that the problem recurred after the fall. 

By decision dated May 18, 2016, the hearing representative affirmed the August 7, 2015

decision. He noted that the file was devoid of medical evidence in which a physician provided 

an accurate history of injury and an unequivocal medical opinion addressing causal relationship 

between the accepted employment incident and a definitive diagnosis supported by medical 

rationale.

On December 28, 2016 appellant, through counsel, requested reconsideration.

Appellant submitted progress notes from the Veterans Administration (VA) Medical 

Center in East Orange New Jersey dated from December 28, 2006 through November 30, 2016. 

In an MRI scan of the right knee taken on June 18, 2014, Dr. Joan K. Kowalec, a Boardcertified internist, found a tear of the posterior horn and body medial meniscus with irregularity 

along the inferior articular surface, interstitial tear anterior cruciate ligament, abnormal signal 

low on T1 with increased signal on the T2, bone marrow edema anterior aspect of the medial 

femoral condyle, osteoarthritis medial to lesser extent lateral tibiofemoral joint space, and small 

joint effusion. 

In a March 10, 2015 note, Dr. Alycia N. Antoine, an internist, noted that on February 3, 

2015 appellant fell and injured his back and both knees. She stated that appellant was 

experiencing swelling in his legs at the end of the day. 

In a July 27, 2015 note, Dr. Rashima Jain-Ahuja, a Board-certified family practitioner,

listed appellant’s active problems as tear of the medial meniscus of knee (August 11, 2014), 

essential hypertension, chronic hepatitis C, osteoarthritis, and open angle glaucoma. She also 

noted that he had a history of right knee diagnostic arthroscopy and medial meniscus partial 

meniscectomy on November 15, 2014. Dr. Jain-Ahuja further indicated that appellant had a fall 

at work on February 3, 2015 at which time he sustained injuries to his back and both knees. 

With regard to assessment/plan for this chronic right knee pain, she indicated that she 

encouraged appellant to follow up with workers’ compensation and ambulate with a cane. 
4

Appellant underwent an MRI scan of his knees on November 4, 2015 that was interpreted 

by Dr. Brogle as showing no acute fracture or dislocation in either knee and moderate

osteoarthritis, right greater than left. 

On July 13, 2016 Dr. Jain-Ahuja noted right knee pain and ankle pain.

Numerous x-rays were taken on October 30, 2016 and were interpreted by Dr. Joey 

Philip, a radiologist. X-rays of knees showed no significant interval change, mild 

tricompartmental degenerative changes of the knee, no acute osseous abnormality, and 

generalized osteopenia of the visual bony structures. X-rays of the left shoulder showed no acute

osseous abnormality, mild degenerative osteoarthritic changes suspected in the left 

acromioclavicular joint, generalized osteopenia of the visualized bony structures, and prominent 

subacromial osteophytic spurring suspected which may clinically contribute to impingement of 

the rotator cuff. X-rays of cervical spine showed moderate degenerative spondylitic changes at 

C5-6 level, generalized osteopenia of the visualized bony structures, no definite acute displaced

fracture or subluxation, and straightening of the normal cervical lordotic curvature. X-rays of the 

lumbar spine showed mild grade 1 retrolisthesis of the L5 with respect to L4, mild multilevel 

degenerative spondylotic changes in the lumbosacral spine, no acute fracture or subluxation, 

generalized osteopenia of the visualized bony structures, moderate-to-severe facet degenerative

changes suspected in the lower lumbosacral spine bilaterally, and straightening of the normal 

lumbar lordotic curvature.

In a December 15, 2016 report, Dr. David B. Basch, a Board-certified orthopedic 

surgeon, noted that appellant slipped and fell on ice on February 3, 2015 and injured his neck 

and lower back as well as his knees. He noted that appellant continued to experience persistent

neck and lower back pain with occasional numbness and tingling throughout his bilateral upper

extremities. Dr. Basch noted that appellant was also experiencing a sense of instability in his 

knees. He diagnosed chronic cervical and lumbar strains (whiplash injury), rule out internal disc 

disruption and disc herniation; and bilateral knee internal derangement with horizontal cleavage 

tear of the posterior horn of the medial meniscus with osteochondral lesion to the posterior 

aspect of the medial femoral condyle and the medial femoral trochlear surface. 

By decision dated February 9, 2017, OWCP modified the May 18, 2016 decision. It

determined that the evidence now established the factors of employment and that a medical 

condition had been diagnosed, but that the claim remained denied because the evidence of record 

did not establish causal relationship between the accepted employment incident and the 

diagnosed conditions of cervical and lumbar strains and bilateral knee internal derangement with 

horizontal cleavage tear to the posterior horn of the medial meniscus. Thus, an injury “within the 

meaning of ... (FECA) has not been demonstrated.” 

LEGAL PRECEDENT

An employee seeking benefits under FECA3has 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 

 

3

Id.
5

time limitation period of FECA, that an injury was caused in the performance of duty as alleged, 

and that any disability and/or specific condition 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

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether a fact of injury has been established. 

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.6 Second, the 

employee must submit sufficient evidence, generally only in the form of medical evidence, to 

establish that the employment incident caused a personal injury.7

The opinion of the physician must be based on a complete factual and medical 

background of the employee, 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.8 The weight of the 

medical evidence is determined by its reliability, its probative value, its convincing quality, the 

care of analysis manifested, and the medical rationale expressed in support of the physician’s 

opinion.9

ANALYSIS

OWCP accepted that the employment incident occurred as alleged and that appellant 

established a medical diagnosis. However, it denied his claim as the medical evidence failed to 

establish that the diagnosed medical conditions were causally related to the accepted 

employment incident.

The Board finds that appellant has failed to submit a rationalized medical opinion 

establishing causal relationship between the accepted February 3, 2015 incident and any medical 

diagnosis. 

Causal relationship is a medical question that must be established by probative medical 

opinion from a physician.10 In support of his claim, appellant submitted multiple notes from 

chiropractors at the Jersey City Rehabilitation Clinic, including Drs. Bortolussi, Stimmel, Prette, 

 

4

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

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

6

John J. Carlone, 41 ECAB 354 (1989).

7

Id. 

8

I.J., 59 ECAB 408 (2008); supra note 5. 

9

James Mack, 43 ECAB 321 (1991). 

10 C.S., Docket No. 17-0399 (issued June 19, 2017).
6

and Collins. A chiropractor is considered a physician as defined by section 8101(2) of FECA 

only if his or her services consist of manual manipulation of the spine to correct a subluxation as 

demonstrated by x-ray to exist.11 No chiropractors of record indicated that x-rays showed a 

spinal subluxation. Accordingly, these chiropractors are not considered physicians under FECA 

and their opinions do not constitute competent medical evidence.12 

OWCP also received a report from appellant’s physical therapist. However, reports by a 

physical therapists have no probative value as a physical therapists are not considered 

physicians.

13

 Therefore, the reports from appellant’s physical therapist are insufficient to meet 

appellant’s burden of proof.

14

Appellant submitted the results of multiple diagnostic studies, including x-rays 

interpreted by Dr. Brogle, Dr. Singh, and Dr. Philip, and MRI scans interpreted by Dr. Lapas,

Dr. Siegel, and Dr. Brogle. These diagnostic studies are of limited probative value as they do not 

address whether the February 3, 2015 work incident caused any of the diagnosed conditions.15

The reports of the remaining physicians also do not establish a medical diagnosis causally 

related to the February 3, 2015 accepted work injury. Appellant received treatment at the 

emergency department by Dr. Alfonso on February 4, 2015. Dr. Alfonso described the work 

incident and diagnosed a sprain of the knees and whiplash injury to appellant’s neck. However, 

the mere fact that a disease or condition manifests itself during a period of employment does not 

raise an inference of causal relationship between the condition and the employment.16 A 

physician must provide a reasoned opinion on whether the employment incident described had 

caused or contributed to appellant’s diagnosed medical conditions.

17

 As Dr. Alfonso offered no 

opinion regarding the cause of appellant’s diagnosed conditions, her report was of limited 

probative value. 

Appellant also submitted multiple progress notes from the VA Medical Center. These 

reports show that appellant had preexisting issues with his right knee as evidenced by the MRI 

scan by Dr. Kowalec taken on June 18, 2014, and the fact that appellant underwent a right knee 

diagnostic arthroscopy and medial meniscus partial meniscectomy on November 15, 2014. 

These reports are of limited probative value as none of the physicians from the VA Medical 

 

11 5 U.S.C. § 8101(2). 

12 See Jay K. Tomokiyo, 51 ECAB 361 (2000). 

13 The term 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. § 8102(2); J.G., 

Docket No. 15-251 (issued April 13, 2015); A.C., Docket No. 08-1453 (issued November 18, 2008) (records from a 

physical therapist do not constitute competent medical opinion in support of causal relation, as physical therapists 

are not considered physicians as defined under FECA).

14 L.W., Docket No. 16-1317 (issued June 21, 2017).

15 G.M., Docket No. 14-2057 (issued May 12, 2015). 

16 K.W., Docket No. 17-0205 (issued June 12, 2017).

17 John W. Montoya, 54 ECAB 306 (2003). 
7

Center provided a rationalized opinion explaining how the February 3, 2015 accepted 

employment incident caused an injury. Dr. Jain-Ahuja mentioned appellant’s employment 

incident, noted active problems including osteoarthritis, and noted the prior surgery of 

November 15, 2014. Although Dr. Jain-Ahuja indicated that appellant sustained injuries to his 

back and knees during the February 3, 2015 fall, she did not provide any rationalized medical 

opinion explaining causal relationship. A conclusion without the necessary rationale explaining 

how and why the physician believes that a claimant’s accepted employment incident could result 

in a diagnosed condition is not sufficient to meet a claimant’s burden of proof.18 Dr. Antoine 

noted the employment incident and injury to appellant’s knees, but offered no firm medical 

diagnosis and no opinion regarding causal relationship. Lacking a firm diagnosis and medical 

rationale on the issue of causal relationship, Dr. Antoine’s report is insufficient to establish that 

appellant sustained an employment-related injury.19

Finally, Dr. Basch, in his December 15, 2016 report, notes the February 3, 2015 

employment incident and diagnoses of chronic cervical and lumbar strains and bilateral knee 

internal derangement. However, he provided no rationalized opinion on causal relationship, and 

his opinion is, therefore, insufficient to establish that the February 3, 2015 fall caused or 

aggravated a medical diagnosis.20

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

appellant’s belief of causal relationship.21 Appellant has failed to submit rationalized medical 

evidence sufficient to meet his burden of proof to establish an employment-related injury.

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 a traumatic

injury causally related to the accepted February 3, 2015 employment incident.

 

18 J.S., Docket No. 14-818 (issued August 7, 2014). 

19 See E.S., Docket No. 16-0267 (issued May 17, 2016). 

20 Id.

21 John D. Jackson, 55 ECAB 465 (2004); William Nimitz ̧ 30 ECAB 57 (1979).
8

ORDER

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

Compensation Programs dated February 9, 2017 is affirmed.

Issued: November 16, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board