United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Milwaukee, WI, Employer

__________________________________________

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Docket No. 18-1813

Issued: April 1, 2019

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 28, 2018 appellant, through counsel, filed a timely appeal from an 

August 20, 2018 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 met her burden of proof to establish an injury causally 

related to the accepted June 5, 2017 employment incident.

FACTUAL HISTORY

On June 6, 2017 appellant, then a 56-year-old carrier, filed a traumatic injury claim (Form 

CA-1) alleging that on June 5, 2017 she stepped into a hole in the pavement and twisted her right 

ankle, knees, and back and sustained cuts on her left knee while in the performance of duty. No 

evidence was submitted with her claim. On the reverse side of the claim form, the employing 

establishment controverted the claim.

In a June 19, 2017 development letter, OWCP informed appellant that the evidence of 

record was insufficient to establish her claim. It advised her of the type of medical evidence 

required. OWCP afforded appellant 30 days to provide the requested information.

OWCP subsequently received a lumbar spine x-ray report dated June 15, 2017 from

Dr. Sushil Sabnis, a Board-certified diagnostic radiologist, who provided an impression of interval 

moderate convex curvature to the left lumbar spine with sclerosis noted adjacent to the left-sided 

facets at L4-5 most compatible with degenerative change. Dr. Sabnis related that, if indicated, 

then correlation of magnetic resonance imaging could be performed. He also provided an 

impression that diffuse lumbar spondylitis changes were noted.

Progress notes dated June 15 and 29, 2017 from Jacob J. Finer, a certified physician 

assistant, were also received.

In a progress note dated July 6, 2017, Dr. Derek J. Orton, a Board-certified orthopedic 

surgeon, noted that appellant presented with a chief complaint of back problem and numbness in 

her left leg. He related a history that following a fall on June 5, 2017 she had worsening back and 

lower extremity symptoms. Dr. Orton noted appellant’s medical, family, and social history, 

provided findings on physical examination, and reviewed diagnostic test results. He diagnosed

lumbar stenosis at L3-4, L4-5, and L5-S1; right L3 radiculopathy; left L4 radiculopathy; sacroiliac 

joint dysfunction; multilevel discogenic low back pain; and lumbar degenerative scoliosis. 

Dr. Orton advised appellant to remain off work with activity modification until she received 

injections.

By decision dated July 20, 2017, OWCP denied appellant’s traumatic injury claim finding 

that the evidence of record was insufficient to establish a medical diagnosis in connection with the 

accepted June 5, 2017 employment incident and, thus, she had not met the requirements for 

establishing an injury under FECA.

OWCP subsequently received a return to work report dated June 13, 2017 from Shannon 

Whitaker, a nurse practitioner.

On January 23, 2018 appellant, through counsel, requested reconsideration of the July 20, 

2017 decision. Appellant submitted additional medical evidence from Ms. Whitaker and
3

Mr. Finer. She also submitted medical evidence from Jazmine Hernandez and Jennifer S. 

Valdivia, medical assistants.

A duplicate copy of Dr. Orton’s July 6, 2017 progress note was resubmitted with the 

addition of diagnoses that included: displacement of lumbar intervertebral disc without 

myelopathy; primary, thoracic, and lumbosacral neuritis; and kyphoscoliosis.

Dr. Sarah E. Reimer, Board-certified in diagnostic radiology and nuclear medicine, 

reported on July 13, 2017 that a right ankle x-ray revealed interval progression of degenerative 

changes and no acute finding.

By decision dated August 20, 2018, OWCP denied modification of its prior decision.

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 filed within the applicable time 

limitation, that an injury was sustained while 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.4 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on 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 first must be determined whether fact of injury has been established. There 

are two components involved in establishing fact of injury. 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. The second component is whether the employment incident 

caused a personal injury and generally can be established only by medical evidence.6 

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

opinion evidence based on a complete factual and medical background, supporting such causal 

relationship.7 The opinion of the physician must be based on a complete factual and medical 

background of the claimant, 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 The weight of medical evidence is 

 

3 Supra note 2.

4 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

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

7 See S.A., Docket No. 18-0399 (issued October 16, 2018).

8 See P.M., Docket No. 18-0287 (issued October 11, 2018).
4

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

The Board finds that appellant has not met her burden of proof to establish an injury

causally related to the accepted June 5, 2017 employment incident.

Appellant submitted Dr. Orton’s July 6, 2017 progress notes in which he related a history 

of the June 5, 2017 employment incident and diagnosed lumbar stenosis at L3-4, L4-5, and L5-S1;

right L3 radiculopathy; left L4 radiculopathy; sacroiliac joint dysfunction; multilevel discogenic 

low back pain; and lumbar degenerative scoliosis. Dr. Orton also diagnosed displacement of 

lumbar intervertebral disc without myelopathy; primary, thoracic, and lumbosacral neuritis, and 

kyphoscoliosis. He removed appellant from work with activity modifications until she received 

injections. The Board finds that Dr. Orton has not provided an opinion as to the cause of the 

diagnosed conditions. The Board has held that medical evidence which does not offer an opinion 

regarding the cause of an employee’s condition is of no probative value on the issue of causal 

relationship.10

Appellant also submitted diagnostic test reports of Dr. Sabnis and Dr. Reimer. The Board 

has long held that diagnostic studies lack probative value as they do not address whether the 

employment incident caused any of the diagnosed conditions.11 These reports are therefore of 

insufficient probative value to establish the claim.

Appellant also submitted reports from Mr. Finer, a physician assistant, Ms. Whitaker, a 

nurse practitioner, and Ms. Hernandez and Ms. Valdivia, medical assistants. The Board has held 

that medical reports signed solely by such health care providers, are of no probative value as they 

are not considered physicians as defined under FECA and therefore are not competent to provide 

a medical opinion.12

As the record lacks rationalized medical evidence establishing causal relationship between 

the June 5, 2017 employment incident and appellant’s diagnosed lumbar and thoracic conditions, 

the Board finds that appellant has not met her burden of proof.

 

9 Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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

12 See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and 

physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued 

May 25, 2018) (physician assistants are not considered physicians under FECA); S.J., Docket No. 17-0783, n.2 (issued 

April 9, 2018) (nurse practitioners are not considered physicians under FECA); Y.T., Docket No. 17-1559 (issued 

March 20, 2018) (medical assistants are not considered physicians under FECA).
5

On appeal counsel contends that OWCP’s August 20, 2018 decision is contrary to fact and 

law. For the reasons set forth above, the Board finds that the medical evidence of record is 

insufficient to establish that appellant sustained an injury causally related to the accepted June 5,

2017 employment incident.

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 her burden of proof to establish an injury 

causally related to the accepted June 5, 2017 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the August 20, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 1, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board