United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Macclesfield, NC, Employer

__________________________________________

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Docket No. 18-1434

Issued: February 22, 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 July 18, 2018 appellant, through counsel, filed a timely appeal from a February 9, 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 a back injury 

causally related to the accepted May 27, 2016 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.

On June 2, 2016 appellant, then a 49-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on May 27, 2016, she developed right lower back pain, in the 

performance of duty that was diagnosed as a subluxation. She noted that the pain went down her 

right thigh to her calf area when she tried to turn to her left to move long mail trays that she was 

holding on her lap. Appellant stopped work on the date of injury.

In duty status reports (Form CA-17) dated June 22 and July 1, 2016, Dr. Chawki A. 

Lahoud, a Board-certified internist, noted May 27, 2016 as the date of injury, listed clinical 

findings, and diagnosed muscular contracture and degenerative joint disease due to injury. He also

addressed appellant’s light-duty work capacity.

By decision dated July 21, 2016, OWCP denied appellant’s traumatic injury claim, finding 

that she had not submitted medical evidence from a physician containing a medical diagnosis in 

connection with the accepted May 27, 2016 employment-related incident. As such, fact of injury 

as defined under FECA had not been established. 

A July 25, 2016 medical report by Dr. David Musante, a Board-certified orthopedic 

surgeon, provided examination findings and diagnosed degeneration of a lumbosacral 

intervertebral disc. 

Appellant appealed to the Board on September 26, 2016. By decision dated February 15, 

2017, the Board affirmed OWCP’s July 21, 2016 decision, finding that appellant failed to submit 

rationalized probative medical evidence sufficient to establish a back injury causally related to the 

accepted May 27, 2016 employment incident.4

In a letter received by OWCP on June 28, 2017, appellant, through counsel, requested 

reconsideration. Appellant submitted a progress note dated May 31, 2017 from Chetan D. Kapat, 

a certified physician assistant, who diagnosed left shoulder pain likely from acromioclavicular 

joint arthritis with rotator cuff tendinitis. 

Appellant also submitted a progress note dated June 19, 2017 from Dr. Aaron P. Leininger, 

a Board-certified family practitioner. Dr. Leininger related that appellant reported the history of 

injury as involving trouble she had with her right knee since she stepped in a hole last year. She 

 

3 Docket No. 16-1885 (issued February 15, 2017).

4

Id.
3

also reported a locking feeling and that a bone was catching onto something. Appellant initially 

sought medical treatment in an emergency room and it was suggested that she had a meniscus 

injury. Dr. Leininger reported findings on physical and x-ray examination of the right knee. He 

diagnosed chronic right knee pain. 

By decision dated July 19, 2017, OWCP modified its decision denying appellant’s

traumatic injury claim, finding that the medical evidence of record was sufficient to establish the 

medical component of fact of injury as qualified physicians provided lumbar diagnoses. However, 

it further found that the claim remained denied as the medical evidence of record was insufficient 

to establish causal relationship between appellant’s diagnosed conditions and the accepted May 27, 

2016 employment incident of turning to the left to move long mail trays she had been holding on 

her lap.

In a discharge summary dated July 20, 2017, Dr. Leininger examined appellant and advised 

that she had a complex tear of the medial meniscus and primary osteoarthritis of the right knee. 

In an after visit summary report dated August 1, 2017, Dr. Richard J. Alioto, a Boardcertified orthopedic surgeon, noted that appellant’s right knee pain was likely from a posterior 

medial meniscal tear, cartilage defect on the lateral femoral and tibial condyle, and patellofemoral

mal tracking. He noted her desire to undergo right knee surgery.

In office visit reports dated May 31, 2016 to August 11, 2017, Dr. James Carraher, a 

chiropractor, related a history of the May 27, 2016 employment incident and reported examination 

findings regarding appellant’s pelvic, lumbar, and cervical regions. He diagnosed nonallopathic 

lesions of the thoracic and hip regions, sacroiliac joint somatic dysfunction, displacement of 

lumbar intervertebral disc without myelopathy (disorder), cervico-occipital neuralgia, myalgia, 

and contracture of muscle, multiple sites. Dr. Carraher initially advised that appellant’s prognosis 

was guarded because she had not received sufficient treatment to determine a prognosis. 

Subsequently, he advised that her prognosis was fair because she was responding well to 

chiropractic therapy.

In office visit reports dated June 1 to 24, 2016, Dr. Collin Kurtz, a chiropractor, provided 

examination findings regarding appellant’s lumbar, cervical, and thoracic spines. He initially 

advised that her prognosis was guarded, but subsequently advised that appellant’s prognosis was 

fair because she was responding well to chiropractic therapy. 

On November 16, 2017 appellant, through counsel, requested reconsideration of OWCP’s 

July 19, 2017 decision. She submitted a letter dated November 5, 2017 in which Dr. Alioto noted 

that appellant reported a 2016 work injury for which he assisted in the care of her shoulder and 

knee. Dr. Alioto also noted that commencing in May 2017 she was treated by his physician 

assistant, Mr. Kapat, for left shoulder pain that began in 2015 and resulted from repeated use of 

her shoulder while delivering mail. He listed Mr. Kapat’s left shoulder diagnosis and medical 

treatment administered. Dr. Alioto indicated that appellant was treated in June 2017 by his partner,

Dr. Leininger, for a right knee injury sustained approximately one year prior to her evaluation

when she stepped in a hole. He related that there was no description of how and when the injury 

occurred. Dr. Alioto noted Dr. Leininger’s right knee diagnostic findings. Based on appellant’s 

history and his own examination findings, he found that her right knee symptoms were related to 
4

a form of medial meniscus and patellofemoral pathology. Dr. Alioto indicated that she underwent 

arthroscopy of the knee with partial medial meniscectomy and patellofemoral chondroplasty on 

September 13, 2017. Appellant was progressing well postsurgery and undergoing physical 

therapy. Dr. Alioto advised that the pathology discovered in her knee in the September 2017 

surgery most certainly was the result of chronic changes that were present, but was also likely a 

mechanical-type injury such as what would occur when someone stepped in a hole and twisted a 

knee. He maintained that since there was brief documentation of appellant’s injury, he could not 

corroborate that this was the same injury described during her course of employment as a postal 

carrier. Dr. Alioto indicated that her knee injury was the type that should recover in time though 

the preexisting status of those joints could certainly affect the long-term outcome.

OWCP, by decision dated February 9, 2018, denied modification of its July 19, 2017 

decision, finding that the medical evidence submitted was insufficient to establish causal 

relationship between a diagnosed medical condition and the accepted May 27, 2016 employment 

incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has 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. 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.6

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 and place, and in the manner alleged.7 Second, the employee must submit medical evidence 

to establish that the employment incident caused a personal injury.8

Rationalized medical opinion evidence is generally required to establish causal 

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

background, 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 incident identified by the claimant.9 This medical opinion must include an accurate 

 

5 Supra note 2.

6 A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

7 A.D., id.; T.H., 59 ECAB 388 (2008).

8

Id.

9 A.D., supra note 6; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
5

history of the employee’s employment injury and must explain how the condition is related to the 

incident. The weight of 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.10

ANALYSIS

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

causally related to the accepted May 27, 2016 employment incident.

OWCP accepted that the May 27, 2016 employment incident occurred as alleged. The 

issue is whether appellant established that the accepted incident caused a back condition. By 

decision dated February 15, 2017, the Board affirmed OWCP’s denial of appellant’s claim. 

Findings made in the prior Board decision are res judicata absent any further review by OWCP 

under section 8128 of FECA.11 The Board will, therefore, not review the evidence addressed in 

the prior appeal.

The June 19, 2017 progress note and July 20, 2017 discharge summary of Dr. Leininger 

and August 1 and November 5, 2017 reports of Dr. Alioto related a history of injury as appellant

stepping in a hole in 2016. Dr. Leininger diagnosed pain, a complex tear of the medial meniscus, 

and primary osteoarthritis of the right knee. Dr. Alioto initially diagnosed right knee pain that was 

likely from a posterior medial meniscal tear, cartilage defect on the lateral femoral and tibial 

condyle, and patellofemoral mal tracking. He subsequently found that appellant’s symptoms were 

related to a form of medial meniscus and patellofemoral pathology for which she underwent 

arthroscopic surgery on September 13, 2017. Dr. Alioto attributed the pathology discovered in her

right knee surgery to present chronic changes and stepping in a hole in 2016. 

The Board finds that the progress note and reports of Dr. Leininger and Dr. Alioto are 

insufficient to establish appellant’s claim for a May 27, 2016 employment injury. The subject of 

OWCP’s decision presently before the Board, i.e., OWCP’s February 9, 2018 decision, is whether 

appellant established a traumatic injury causally related to the accepted May 27, 2016 employment 

incident which involved turning to the left to move long mail trays she had been holding on her 

lap. The matter of employment-related medical conditions sustained in 2016 due to stepping in a 

hole is not currently before the Board. A medical opinion should reflect a correct history and offer 

a medically sound explanation by the physician of how the accepted employment incident 

physiologically caused or aggravated the diagnosed conditions.12 The reports of Dr. Leininger and

Dr. Alioto are of no probative value on the relevant issue of the present case because neither 

 

10 S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

11 See E.L., 16-0635 (issue November 7, 2016); R.L., Docket No. 15-1010 (issued July 21, 2015). See also A.P.,

Docket No. 14-1228 (issued October 15, 2014).

12 See J.M., Docket No. 17-1002 (issued August 22, 2017). 
6

physician provided an opinion that appellant sustained a diagnosed condition due to the accepted

May 27, 2016 employment incident.

13

 

The reports dating from May 31, 2016 to August 11, 2017 from appellant’s chiropractors,

Dr. Carraher and Dr. Kurtz, have no probative value on the issue of causal relationship. 

Chiropractors are not considered physicians as defined under FECA unless it is established that 

there is a spinal subluxation as demonstrated by x-ray to exist.

14

 Neither Dr. Carraher nor

Dr. Kurtz diagnosed subluxation based on the results of an x-ray. Therefore, their reports have no 

probative value.15

The May 31, 2017 progress note from Mr. Kapat, a certified physician assistant, is also of 

no probative value. The Board has held that medical reports signed solely by a physician assistant 

are of no probative value as a physician assistant is not considered a physician as defined under 

FECA and therefore is not competent to provide a medical opinion.16

The Board finds that appellant has not submitted rationalized, probative medical evidence 

sufficient to establish a back injury causally related to the May 27, 2016 employment incident. 

Appellant therefore has not met her burden of proof.

On appeal counsel contends that OWCP’s February 9, 2018 decision finds conflict in the 

evidence when there is none. For the reasons explained above, the Board finds that the evidence 

of record is insufficient to meet appellant’s burden of proof.

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 a back injury 

causally related to the accepted May 27, 2016 employment incident.

 

13 See F.A., Docket No. 17-0468 (issued June 15, 2018).

14 See 5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, 

clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as 

defined by State law. The term physician includes chiropractors 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 

to exist and subject to regulation by the secretary. See M.B., Docket No. 17-1378 (issued December 17, 2018); 

Merton J. Sills, 39 ECAB 572, 575 (1988).

15 M.B., id.; P.T., Docket No. 17-1189 (issued December 27, 2017).

16 Supra note 14 at § 8101(2). See C.C., Docket No. 18-1099 (issued December 21, 2018); 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).
7

ORDER

IT IS HEREBY ORDERED THAT the February 9, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 22, 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