United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, El Segundo, CA, Employer

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Docket No. 18-1553

Issued: February 8, 2019

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 30, 2018 appellant filed a timely appeal from a February 1, 2018 merit decision of 

the Office of Workers’ Compensation Programs (OWCP).1 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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from the February 1, 2018 decision, was July 31, 2018. Because using 

August 6, 2018, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of 

appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark 

is July 30, 2018, rendering the appeal timely filed. 20 C.F.R. § 501.3(f)(1).

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish a lumbar condition 

causally related to the accepted September 4, 2017 employment incident.

FACTUAL HISTORY

On December 18, 2017 appellant, then a 36-year-old federal air marshal, filed a traumatic 

injury claim (Form CA-1) alleging that after a long international flight on September 4, 2017 he 

experienced low back pain while bending over to retrieve his luggage. He stopped work on 

December 18, 2017.

In a December 22, 2017 development letter, OWCP notified appellant that it had not 

received any other documentation in support of his claim. It advised him of the type of factual and 

medical evidence needed to establish his claim, including a report from a qualified physician 

containing a medical diagnosis. OWCP afforded appellant 30 days to submit the necessary 

evidence.

A November 22, 2017 lumbar magnetic resonance imaging (MRI) scan revealed a four

millimeter disc protrusion at L4-5 with central canal and biforaminal stenosis. 

In a form report dated December 12, 2017, Dr. Misagh Zaker, a chiropractor, advised that 

appellant could not participate in physical conditioning, defensive tactics, aircraft tactical training, 

or certain aspects of firearms training. In a treating physician’s status report dated December 14, 

2017, he diagnosed radiculopathy of the lumbosacral region. Dr. Zaker noted that appellant’s 

history was significant for low back pain due to nerve impingement at L4, L5, and S1. He

recommended physical therapy, stretching, myofascial therapy, decompression therapy, and 

cryotherapy. Dr. Zaker noted that appellant was off duty for 45 days. He indicated that appellant 

could not sit for long periods of time due to nerve inflammation at L4-5. On December 15, 2017

Dr. Zaker returned him to light duty beginning February 1, 2018. Appellant was not permitted to 

participate in physical conditioning, defensive tactics, and aircraft tactical training. Dr. Zaker 

noted restrictions of no sitting for extended periods of time, no answering the telephone while in a 

seated position, no computer use while in a seated position, no greeting visitors, and no signing 

for light deliveries.

By decision dated February 1, 2018, OWCP denied appellant’s traumatic injury claim, 

finding that the medical evidence of record was insufficient to establish causal relationship

between the accepted September 4, 2017 incident and the diagnosed lumbar condition.

LEGAL PRECEDENT

A claimant seeking benefits under FECA3 has the burden of proof to establish the essential 

elements of his or her claim by the weight of the reliable, probative, and substantial evidence, 

 

3

Id.
3

including that an injury was sustained in the performance of duty as alleged, and that any specific 

condition or disability claimed is causally related to the employment injury.4

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established.5 Generally, fact of 

injury consists of two components that must be considered in conjunction with one another. The 

first component is whether the employee actually experienced the employment incident that 

allegedly occurred.6 The second component is whether the employment incident caused a personal 

injury.7 An employee may establish that an injury occurred in the performance of duty as alleged, 

but fail to establish that the disability or specific condition for which compensation is being 

claimed is causally related to the injury.8

Causal relationship is a medical question that generally requires rationalized medical 

opinion evidence to resolve the issue.9 A physician’s opinion on whether there is causal 

relationship between the diagnosed condition and the implicated employment factor(s) must be 

based on a complete factual and medical background.10 Additionally, the physician’s opinion must 

be expressed in terms of a reasonable degree of medical certainty, and must be supported by 

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

appellant’s specific employment factor(s).11

Certain healthcare providers such as physician assistants, nurse practitioners, physical 

therapists, and social workers are not considered “physician[s]” as defined under FECA.12 

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing 

entitlement to FECA benefits.13 Additionally, chiropractors are considered physicians 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.14

 

4 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5 D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

6 D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

7 B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

8 D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9 T.H., supra note 5; Robert G. Morris, 48 ECAB 238 (1996).

10 M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11 Id.

12 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

13 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician 

assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician. 

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

14 5 U.S.C. § 8101(2); see Kathryn Haggerty, 45 ECAB 383, 389 (1994).
4

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a lumbar 

condition causally related to the September 4, 2017 employment incident.

Appellant submitted a November 22, 2017 lumbar MRI scan that revealed a disc protrusion 

at L4-5. Diagnostic studies lack probative value as they do not address whether the employment 

incident caused a diagnosed condition.15 For this reason, appellant’s November 22, 2017 lumbar 

MRI scan is insufficient to meet his burden of proof as to causal relationship. 

Appellant was treated by Dr. Zaker, a chiropractor, who diagnosed lumbosacral 

radiculopathy. Dr. Zaker attributed appellant’s low back pain to nerve impingement at L4-5, L5, 

and S1. Although he referred appellant for the November 22, 2017 lumbar MRI scan, he did not 

specifically reference the diagnostic findings in his December 14, 2017 treating physician status 

report. Dr. Zaker also did not reference the September 4, 2017 employment incident or otherwise 

address the cause of appellant’s lumbar condition. As noted, chiropractors are considered 

physicians 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.16 As case 

record, however, does not contain x-rays of appellant’s spine and Dr. Zaker did not indicate a 

diagnosis of spinal subluxations, The Board finds that Dr. Zaker is not considered a physician 

within the meaning of FECA and his reports do not constitute probative medical evidence.17

The Board finds that because appellant has not submitted reasoned medical opinion 

evidence explaining how his lumbar condition is causally related to his accepted employment 

incident, he has not met his burden of proof to establish his claim.

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 lumbar 

condition causally related to the accepted September 4, 2017 employment incident.

 

15 See J.S., Docket No. 17-1039 (issued October 6, 2017). 

16 See supra note 14.

17 5 U.S.C. § 8101(2), A.L., Docket No. 18-0420 (issued August 21, 2018); Kathryn Haggerty, 42 ECAB 121, 

126 (1990).
5

ORDER

IT IS HEREBY ORDERED THAT the February 1, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board