United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.H., Appellant 

and 

U.S. POSTAL SERVICE, MORGAN 

PROCESSING & DISTRIBUTION CENTER, 

New York, NY, Employer 

__________________________________________ 

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Docket No. 17-0833 

Issued: September 7, 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 March 6, 2017 appellant, through counsel, filed a timely appeal from a January 17, 

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. 

 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

ISSUE 

The issue is whether appellant has established an injury causally related to the accepted 

March 31, 2013 employment incident. 

FACTUAL HISTORY 

On April 8, 2013 appellant, then a 38-year-old mail handler, filed a recurrence of 

disability claim (Form CA-2a) alleging that on March 31, 2013 she felt a sharp pain and stiffness 

in her neck while opening bags. She reported the date of the original injury as August 30, 2007.3

 

Appellant indicated that she had recovered from the August 30, 2007 injury, but had sustained 

another injury on March 31, 2013. 

In an April 4, 2013 letter, appellant noted that on March 29, 2013 she worked on a sorter 

machine, and loaded tubs and on March 30, 2013 she worked on the sorting machine. On 

March 31, 2013 appellant was opening bags and felt a sharp pain in her back and stiffness in her 

neck. 

By letter dated April 25, 2013, OWCP indicated that the claim would be developed as a 

new injury. It noted that appellant’s claim indicated that she was claiming a new traumatic 

injury on March 31, 2013. 

Appellant submitted a form report dated April 1, 2013 from Dr. Theodore Xenos, a 

chiropractor. Dr. Xenos diagnosed exacerbation of cervical and lumbar radiculopathy, and 

indicated that appellant was disabled. 

In a May 10, 2013 letter, OWCP advised appellant of the evidence needed to support her 

claim. It noted that a chiropractor is considered a physician only if diagnosing a subluxation as 

demonstrated by x-ray. Appellant was afforded 30 days to submit the necessary medical 

evidence. She did not respond within the time allotted. 

By decision dated June 14, 2013, OWCP denied appellant’s claim for compensation. It 

found that she had established that the incident occurred, as alleged, but that she had not 

submitted probative medical evidence of a diagnosed condition causally related to the accepted 

incident. 

On October 1, 2013 appellant requested reconsideration. She submitted an August 19, 

2013 report from Dr. R.C. Krishna, a Board-certified neurologist. Dr. Krishna provided a history 

that appellant was involved in a work accident on March 31, 2013, and was unloading mail for 

three consecutive days. He wrote that appellant presented with neck and low back pain, 

radiating into her upper and lower extremities. Dr. Krishna reviewed results of diagnostic 

 3

 Appellant had a prior claim for a traumatic injury on August 30, 2007 accepted for cervical and lumbar strains, 

assigned OWCP File No. xxxxxx761. 
3

studies and provided results on examination.4

 He reported that appellant’s clinical features were 

consistent with exacerbation of cervical and lumbar injuries, multilevel cervical and lumbosacral 

disc bulges, herniations resulting in radiculopathy, and cervical and lumbar ligamentous 

instability. Dr. Krishna found that appellant was totally disabled and opined that “the incident 

that the patient described is the competent producing medical cause of the injury or illness. The 

patient’s complaints are consistent with the history of injury or illness. The history of the illness 

and injury is consistent with the objective findings.” 

Dr. Krishna also recommended an electromyogram/nerve conduction velocity (EMG/ 

NCV) study to rule out radiculopathy or nerve dysfunction. In a report dated August 27, 2013, 

Dr. Anamilka Jain, a Board-certified physiatrist, reported the EMG/NCV showed left C5-6 

radiculopathy. 

Appellant submitted a narrative report from Dr. Xenos dated April 1, 2013. Dr. Xenos 

provided a history that appellant had been stacking and lifting bags of mail. He provided results 

on examination and diagnosed cervical, thoracic, and lumbar subluxation complex, aggravation 

of previous ligament instability, aggravation of previous disc herniations in the lumbar and 

cervical spine, and aggravation of previous cervical and lumbar radiculopathy. Dr. Xenos opined 

that the events of March 31, 2013 were significant enough to aggravate and potentially reinjure 

previous medical conditions. 

In a report dated October 1, 2013, Dr. Xenos provided results on examination and 

provided diagnoses that included multiple vertebral subluxation complex of the cervical thoracic 

and lumbosacral spine. He also diagnosed cervical disc displacement, neck sprain, brachial 

neuritis or radiculitis, lumbar sprain, and carpal tunnel syndrome. Dr. Xenos opined that 

appellant was disabled from work. 

By decision dated December 24, 2013, OWCP reviewed the merits of appellant’s claim, 

but denied modification. 

On April 2, 2014 appellant again requested reconsideration of her claim. She submitted a 

March 5, 2014 report from Dr. Krishna. Dr. Krishna provided a history describing appellant’s 

work duties from March 29 to 31, 2013. He provided results on examination. Dr. Krishna again 

wrote that the incident that the patient described was the competent-producing medical cause of 

the injury or illness. He also opined that appellant’s complaints were consistent with the history 

of injury or illness, and the history was consistent with the objective findings. 

Appellant also submitted additional medical evidence from Dr. Xenos and another 

chiropractor, Dr. Gabriel Nadel. In reports dated January 21, February 10 and 20, and March 24, 

2014, the diagnoses again included multiple vertebral subluxation complex of the cervical 

thoracic and lumbosacral spine. 

 4

 The record contains a June 5, 2013 magnetic resonance imaging (MRI) scan of the lumbar spine, finding disc 

bulges at L4-5 and L5-S1. A June 5, 2013 cervical MRI scan found multilevel disc bulges. The reports were 

prepared by Dr. Satish Chandra, a radiologist. 
4

By decision dated June 30, 2014, OWCP reviewed the merits and denied modification. It 

found the additional medical evidence submitted was insufficient to establish causal relationship. 

On December 3, 2014 appellant again requested reconsideration. She submitted a 

November 13, 2014 note from Dr. Krishna.5

 Dr. Krishna wrote that appellant was not hurt over 

a period of three days, but was injured on March 31, 2013. He opined that the incident that the 

patient described is the competent-producing medical cause of the injury or illness, and her 

complaints were consistent with the history of injury or illness. In a November 19, 2014 report, 

Dr. Krishna provided results on examination. He again wrote that the clinical features were 

consistent with exacerbation of cervical and lumbar injuries, multilevel cervical and lumbosacral 

disc bulges, herniations resulting in radiculopathy, and cervical and lumbar ligamentous 

instability. Dr. Krishna opined that, based on the history and his review of medical records, the 

symptoms and injuries outlined above were causally related to the March 31, 2013 employment 

incident. Appellant also submitted October 17, 20, and 30, 2014 reports from Dr. Xerxes 

Oshider, another chiropractor, who diagnosed multiple vertebral subluxations of the cervical, 

thoracic, or lumbar spines. He concluded that appellant was disabled from work due to the 

March 31, 2013 employment incident. 

Additionally, appellant submitted November 6 and 26, and December 3 and 10, 2014 

reports from Dr. Xenos, who diagnosed multiple vertebral subluxations. Dr. Xenos too 

concluded that appellant remained disabled from work due to the March 31, 2013 employment 

incident. 

By decision dated February 19, 2015, OWCP reviewed the merits of the claim, but 

denied modification. It reviewed the medical evidence and found it was insufficient to establish 

the claim. 

On February 16, 2016 appellant again requested reconsideration. She submitted 

additional reports from Dr. Krishna dated January 21, August 19, and October 21, 2015 and 

January 20, 2016. In the January 20, 2016 report, Dr. Krishna again wrote that the symptoms 

and diagnosed conditions sustained by appellant were causally related to the March 31, 2013 

employment incident, and that appellant was totally disabled. Appellant also submitted 

additional chiropractor reports. 

By decision dated May 16, 2016, OWCP reviewed the merits of the claim, but denied 

modification. It found the medical evidence of record insufficient to establish the claim for 

compensation. OWCP explained that the reports from Dr. Krishna lacked medical rationale and 

therefore did not establish causal relationship. 

On November 7, 2016 appellant, through counsel, again requested reconsideration. The 

medical evidence submitted included a September 7, 2016 report from Dr. Krishna, who 

provided results on examination. Dr. Krishna repeated comments in earlier reports. Appellant 

also submitted an April 27, 2016 report from Dr. Xenos. Dr. Xenos discussed a number of 

orthopedic tests performed, such as Spurling’s test and straight leg raising. In a report dated 

November 2, 2016, Dr. Gonzalo Corridori, a chiropractor, provided results on examination and 

 5

 The note was included as an addendum to an April 4, 2013 report. 
5

diagnosed multiple vertebral subluxations of the cervical, lumbar, and thoracic spines. He 

opined that the mechanism of injury as described by appellant was the competent cause of the 

reported injuries. Dr. Corridori did not discuss x-ray results. 

By decision dated January 17, 2017, OWCP reviewed the merits of the claim, but denied 

modification. It again found that the medical evidence of record did not establish the claim for 

compensation. OWCP noted that Dr. Krishna had not explained, with supporting medical 

rationale, how the employment incident caused a diagnosed condition. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA6 has the burden of proof to establish that he 

or she sustained an injury while in the performance of duty.7 In order to determine whether an 

employee actually sustained an injury in the performance of duty, OWCP begins with an analysis 

of whether fact of injury has been established. Generally, fact of injury consists of two 

components which must be considered in conjunction with one another. The first component to 

be established is that the employee actually experienced the employment incident, which is 

alleged to have occurred. The second component is whether the employment incident caused a 

personal injury, and generally this can be established only by rationalized medical evidence.8

 

Rationalized medical opinion evidence is medical evidence that includes an opinion 

based on a complete factual and medical background of reasonable medical certainty and 

supported by medical rationale explaining the nature of the relationship between the diagnosed 

condition and the specific employment factors identified by the claimant. The weight of medical 

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

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

opinion.9

ANALYSIS 

Appellant has alleged that she sustained an injury on March 31, 2013, when she was 

opening bags of mail and felt a sharp pain and stiffness in neck. OWCP has accepted that the 

employment incident occurred as alleged. The Board finds, however, that appellant has not 

established that the diagnosed conditions were causally related to the accepted employment 

incident. 

In reviewing the medical evidence, the Board notes that appellant has submitted 

numerous reports from Drs. Xenos, Oshider, and Corridori, chiropractors. As OWCP advised 

appellant, under FECA, a chiropractor is a physician only to the extent that their reimbursable 

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

 6 Supra note 2. 

7 Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115. 

8 See John J. Carlone, 41 ECAB 354, 357 (1989). 

 9 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 
6

subluxation as demonstrated by x-ray to exist.10 While the chiropractor reports include 

diagnoses of multiple vertebral subluxation complex of the cervical thoracic and lumbosacral 

spine, they do not reference any x-rays. The chiropractor must not only diagnose a subluxation, 

but establish that the diagnosis was based on x-ray evidence.11 The Board, therefore, finds the 

evidence from Drs. Xenos, Oshider, and Corridori are of no probative value to the issue 

presented. 

Appellant also submitted numerous reports from Dr. Krishna, but it is not the number of 

reports, but the care of analysis manifested and the medical rationale provided in the reports that 

determines the probative value of the evidence.12 Dr. Krishna provided several diagnoses: 

exacerbation of cervical and lumbar injuries; multilevel cervical and lumbosacral disc bulges; 

herniations resulting in radiculopathy; and cervical and lumbar ligamentous instability. To 

establish causal relationship between a diagnosed condition and the March 31, 2013 employment 

incident, the physician must explain how the employment incident affected appellant’s neck or 

back.13 If there is an aggravation, an opinion with respect to aggravation must differentiate 

between the effects of the work-related injury or disease and the preexisting condition.14 The 

Board has held that the physician must clearly explain the nature and extent of any aggravation, 

including whether temporary or permanent.15 While Dr. Krishna opined that the employment 

incident was a competent cause of the diagnosed conditions, he did not offer a rationalized 

medical explanation as to how physiologically opening bags of mail would have caused the 

various diagnosed conditions. Without explaining how physiologically the movements involved 

in the employment incident caused or contributed to the diagnosed conditions, Dr. Krishna’s 

opinion is of limited probative value.16

The Board accordingly finds that appellant has not established an injury causally related 

to a March 31, 2013 employment incident. The record does not contain a rationalized medical 

opinion based on a complete background. It is appellant’s burden of proof, and the Board finds 

that appellant has not met her burden of proof. 

On appeal counsel argues that relevant medical evidence was provided. For the reasons 

discussed, the Board finds that the evidence of record is insufficient to establish the claim. 

 10 5 U.S.C. § 8101(2). 

11 Robert H. St. Onge, 43 ECAB 1169 (1992). 

12 See Connie Johns, 44 ECAB 560 (1993). 

13 The physician should explain how the employment incident, and the forces and stresses of the incident, affected 

the claimant and caused or aggravated a specific condition. See E.G., Docket No. 16-0242 (issued October 14, 

2016) 

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) (January 2013). 

15 See R.H., Docket No. 15-1785 (issued January 29, 2016). 

16 See T.G., Docket No. 14-751 (issued October 20, 2014). 
7

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 established an injury causally related to the 

accepted March 31, 2013 employment incident. 

ORDER 

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

Compensation Programs dated January 17, 2017 is affirmed. 

Issued: September 7, 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