United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Holtsville, NY, Employer

__________________________________________

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Docket No. 17-0079

Issued: January 25, 2018

Appearances: Case Submitted on the Record

Thomas S. Harkins, 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 October 17, 2016 appellant, through counsel, filed a timely appeal from an April 28, 

2016 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 to consider the merits of the 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 met her burden of proof to establish that she sustained 

subluxation complexes as a result of her accepted January 4, 2013 employment incident.

On appeal counsel contends that there is an unresolved conflict of medical opinion 

evidence which requires referral to an impartial medical examiner.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts set forth in the Board’s prior 

decision are incorporated herein by reference. The relevant facts are as follows.

On January 4, 2013 appellant, then a 67-year-old contact representative, filed a traumatic 

injury claim (Form CA-1) alleging on that date she fell on the transition from a rug pathway to a 

tiled floor at 11:35 a.m. She stated that her feet slipped out from under her and she fell to the 

ground with force. Appellant reported that she was experiencing pain in her right knee, hip, side,

and back. On the reverse side of the claim form appellant’s supervisor indicated that appellant

was in the performance of duty when she fell.

Dr. Kimberly A. Romaine, a chiropractor, examined appellant on January 10, 2013 and 

noted that appellant sustained a work injury on January 4, 2013 when she slipped and fell on her 

right side when walking onto a tiled floor. She stated that appellant’s feet went out from under 

her. On January 17, 2013 Dr. Romaine diagnosed low back pain and right mid-back and neck 

pain. She completed a form report on January 17, 2013 and stated that appellant stepped off of a 

rug onto the floor. Appellant’s feet went behind her and she fell forward, twisting to avoid 

hitting her face. Dr. Romaine indicated with checking a box marked “yes” that appellant’s 

condition was due to her employment activity. She stated that appellant was totally disabled. 

Dr. Romaine diagnosed sprain/strain of the full spine, lumbar, thoracic, and neck with muscle 

spasms.

Dr. Romaine referred appellant to Dr. Richard Rosenberg, a Board-certified radiologist, 

for x-rays. On January 29, 2013 Dr. Rosenberg conducted x-rays including three views of 

appellant’s ribs, lateral, anterior, and posterior views of the lumbosacral, thoracic, and cervical 

spine. He found that appellant’s lumbar spine x-ray demonstrated degenerative disc disease at 

L2-3 with levoscoliosis and a slightly exaggerated lordotic curve. Dr. Rosenberg noted that xrays of her thoracic spine demonstrated degenerative changes and disc space narrowing 

throughout. Appellant’s cervical spine demonstrated C5-7 spondylosis as well as arthritis of 

Luschka’s joints, but no fracture or spondylolisthesis.

Dr. Romaine examined appellant on March 14, 2013 and diagnosed sprain/strain of the 

full spine and muscle spasm. She stated that x-rays demonstrated degenerative disc disease L2-3 

with levoscoliosis and spondylosis C5 to 7. Dr. Romaine stated that appellant’s condition was 

employment related as she was walking at work and fell.

 

3 Docket No. 15-0398 (issued July 24, 2015).
3

In a letter dated April 11, 2013, OWCP requested additional factual and medical 

information in support of appellant’s claim. It stated that Dr. Romaine was not considered a 

physician under FECA unless there was a diagnosed spinal subluxation demonstrated by x-ray. 

OWCP defined a subluxation as “an incomplete dislocation, off-centering, misalignment, 

fixation, or abnormal spacing of the vertebrae anatomically which must be demonstrable on any 

x-ray film to individuals trained in the reading of x-rays.”

Dr. Romaine completed a report dated April 30, 2013 and noted appellant’s history of 

injury on January 4, 2013 as stepping off of a rug onto the floor. Appellant’s feet fell behind her 

and she fell forward, twisting to avoid hitting her face. She sought treatment on January 10, 

2013 due to pain in her lower back, mid-back, and ribs. Dr. Romaine reviewed the x-rays taken 

on January 29, 2013 and diagnosed subluxation complexes at C1-2, C4-5, C5-6, and C6-7. She 

found a rotational subluxation at T4 and subluxation complexes at L1-2, L2-3, L3-4, and L4-5 

with left body rotation. Dr. Romaine diagnosed sprain/strain of the lumbar spine, sprain/strain of 

the thoracic spine, and muscle spasm. She opined that appellant was totally disabled and could 

not perform sitting as required by her usual work duties.

By decision dated May 16, 2013, OWCP denied appellant’s claim, finding that she failed 

to submit medical evidence containing a medical diagnosis. It found that the x-rays of record did 

not support Dr. Romaine’s diagnoses of spinal subluxations and as such that she was not 

considered a physician for the purposes of FECA.

On June 7, 2013 appellant requested a review of the written record before an OWCP 

hearing representative. In a note dated June 24, 2013, Dr. Romaine stated that appellant 

sustained an additional fall up the front steps and hurt her lower back.

In a decision dated September 10, 2013, an OWCP hearing representative found that as

Dr. Romaine diagnosed a subluxation by x-rays she was considered a physician under FECA. 

She found, however, that Dr. Romaine did not provide the medical reasoning necessary to 

establish that the diagnosed subluxations were related to appellant’s accepted employment 

incident and noted that appellant had preexisting spondylosis and degeneration.

Counsel requested reconsideration on May 13, 2014 and argued that appellant had 

submitted sufficient medical opinion evidence to establish her traumatic injury claim.

Dr. Romaine completed a report dated May 27, 2014 and described appellant’s employment 

incident of a fall on a tiled floor. She noted that appellant underwent x-rays and stated, “Without 

the trauma of [appellant’s] work-related injury, the symptoms she experienced due to the 

degenerative changes and spondylosis would not be evident at this time.” Dr. Romaine stated 

that, prior to her fall at work, appellant did not experience back pain. Appellant currently 

utilized a cane. Dr. Romaine stated that appellant had incurred a permanent partial disability as a 

result of her employment injury and experienced frequent back pain as a result of chronic 

subluxation complexes in her lumbar and sacroiliac spine.

By decision dated July 11, 2014, OWCP found that Dr. Romaine had not reviewed her 

own x-rays and interpreted them to find spinal subluxations. It, therefore, concluded that

Dr. Romaine was not considered a physician under FECA and that her reports did not constitute 

medical evidence. Appellant appealed this decision to the Board and on July 24, 2015, the Board 
4

found that Dr. Romaine had diagnosed subluxation of the spine as demonstrated on her x-rays 

and she was, therefore, considered a physician under FECA. The Board remanded the case for 

OWCP to fully consider the medical evidence and issue a de novo decision on the merits of her

claim.4

Following the Board’s July 24, 2015 decision, OWCP referred a statement of accepted 

facts (SOAF) to OWCP’s medical adviser and requested that he review the medical evidence and 

determine whether appellant sustained a subluxation as a result of the work injury. In a report 

dated April 13, 2016, OWCP’s medical adviser, Dr. Michael M. Katz, a Board-certified 

orthopedic surgeon, reviewed appellant’s history of injury and x-rays. He opined that the 

degenerative changes found on appellant’s x-rays by Dr. Rosenberg preexisted her January 4, 

2013 employment incident and did not result from it. Dr. Katz found, “It is my further opinion 

that, while Dr. Romaine chooses to describe multiple subluxations throughout the spine, it is my 

opinion that instability is not demonstrated on the diagnostic radiology reports.” He disagreed 

with Dr. Rosenberg’s findings. Dr. Katz diagnosed possible aggravation of preexisting lumbar 

and thoracic degenerative disc disease and cervical spondylosis. He opined that this aggravation 

was permanent.

By decision dated April 28, 2016, OWCP denied appellant’s traumatic injury claim,

finding that the evidence of record was insufficient to establish that her diagnosed medical 

condition was causally related to the accepted January 4, 2013 employment incident. It found, 

“The medical evidence of record fails to provide a well-reasoned rationalized opinion as to how 

[appellant’s] slip and fall caused any of [the] diagnoses.”

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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, 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 of 

FECA, that an injury was sustained in the performance of duty as alleged, and that any disability 

or specific condition for which compensation is claimed is causally related to the employment 

injury.6 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.7

OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific 

event or incident, or series of events or incidents, within a single workday or shift. Such 

condition must be caused by external force, including stress or strain which is identifiable as to 

time and place of occurrence and member or function of the body affected.”

8

 To determine 

 

4

Id.

5 Supra note 2.

6 Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

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

8 20 C.F.R. § 10.5(ee).
5

whether a federal employee has sustained a traumatic injury in the performance of duty, it must 

first be determined whether 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 and place, and in the manner alleged.9 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.10 A medical report is of limited probative value on a given 

medical question if it is unsupported by medical rationale.11 Medical rationale includes a 

physician’s detailed opinion on the issue of whether these is a causal relationship between the 

claimant’s diagnosed condition and the implicated employment activity. The opinion of the 

physician must be based on a complete factual and medical background of the claim, 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 specific employment activity or 

factors identified by the claimant.12

When there are opposing reports of virtually equal weight and rationale, the case will be 

referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides 

that, if there is disagreement between the physician making the examination for the United States 

and the physician of the employee, the Secretary shall appoint a third physician who shall make 

an examination and resolve the conflict of medical evidence.13 This is called a referee 

examination and OWCP will select a physician who is qualified in the appropriate specialty and 

who has no prior connection with the case.14

ANALYSIS

The Board finds that this case is not in posture for a decision.

The Board has previously found that appellant’s attending physician, Dr. Romaine, a 

chiropractor, was a physician for the purposes of FECA. Dr. Romaine diagnosed subluxation 

complexes at C1-2, C4-5, C5-6, and C6-7 as demonstrated by x-rays to exist. She attributed 

these conditions to appellant’s January 4, 2013 fall at the employing establishment. 

In accordance with the Board’s instructions on remand, OWCP undertook additional 

development of the medical evidence and referred appellant’s x-rays to Dr. Katz, OWCP’s 

medical adviser. Dr. Katz opined that the changes found on appellant’s x-rays by Dr. Rosenberg 

preexisted her January 4, 2013 employment incident and did not result from the January 4, 2013 

employment incident. 

 

9

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

10 J.Z., 58 ECAB 529 (2007).

11 T.F., 58 ECAB 128 (2006).

12 A.D., 58 ECAB 149 (2006).

13 5 U.S.C. § 8123(a); M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

14 R.C., 58 ECAB 238 (2006).
6

The Board finds that there remains a conflict of medical opinion between appellant’s 

physician, Dr. Rosenberg, and Dr. Katz, an OWCP medical adviser, on whether the diagnosed 

condition of subluxation complexes result of her accepted January 4, 2013 employment incident. 

On remand OWCP shall refer appellant to an appropriate Board-certified physician for an 

impartial medical examination to determine whether appellant’s subluxation complexes were 

causally related to the accepted employment incident.

15

 After this and such other development 

as OWCP deems necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for a decision.

ORDER

IT IS HEREBY ORDERED THAT April 28, 2016 decision of the Office of Workers’

Compensation Programs is set aside. The case is remanded for further proceedings consistent 

with this opinion of the Board.

Issued: January 25, 2018

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

 

15 S.W., Docket No. 10-0607 (issued January 24, 2011); George E. Reilly, 44 ECAB 458 (1993) (Groom, M., 

concurring).