United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BUFFALO VETERANS ADMINISTRATION 

MEDICAL CENTER, Buffalo, NY, Employer

__________________________________________

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Docket No. 19-1096

Issued: November 12, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 19, 2019 appellant filed a timely appeal from a March 18, 2019 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the March 18, 2019 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a right ankle 

condition causally related to the accepted January 29, 2019 employment incident.

FACTUAL HISTORY

On February 5, 2019 appellant, a 52-year-old food service worker, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her right ankle on January 29, 2019 when she stepped 

into a pothole in the employing establishment parking lot while in the performance of duty. On 

the reverse side of the claim form, the employing establishment indicated that she stopped work 

on February 1, 2019 and received medical treatment.

A February 5, 2019 right ankle x-ray revealed avulsion fractures by the medial malleolus.

Dr. Jeffrey L. Lieberman, a radiologist, noted that one of the fractures appeared “old” and the other 

was of “uncertain age.”

In a progress note dated February 6, 2019, an employee occupational health nurse 

practitioner, Chris D. Hull, indicated that on February 1, 2019, appellant presented stating that she 

fell on January 29, 2019 at about 2:05 p.m. in the employee parking lot, twisting her right ankle 

when leaving for the day. She was off work on January 30 and 31, 2019 resting, using ice, and 

elevating her leg. Appellant currently had the same pain level as the initial injury, and she was to 

follow up with her own primary care provider as she had a current ankle/foot issue for which she 

was already receiving treatment. An examination revealed a full, active range of motion with some 

discomfort with lateral and medial motion. Foot flexion and extension was demonstrated without 

difficulty or pain. The bilateral malleolus, both medial and lateral, had point tenderness. She was 

assessed with avulsion fractures closed/inferior and adjacent to the medial malleolus.

In a chart review note dated February 6, 2019, Brian E. Lucas, a physician assistant, 

indicated that his review of the x-rays revealed avulsion fractures, which appeared to be non-acute 

in nature. He wrote that it appeared appellant could be treated as an ankle sprain, which could take 

8 to 12 weeks to fully improve.

In a February 11, 2019 development letter, OWCP requested that appellant submit 

additional evidence in support of her claim. It advised her of the type of factual and medical 

evidence needed and provided a questionnaire for her completion, which inquired as to the 

circumstances of the injury, including details as to the nature and use of the parking lot. OWCP 

also requested that appellant provide a narrative report from her attending physician, to include a 

diagnosis and an explanation as to how the reported work incident either caused or aggravated a 

medical condition. By separate letter of even date, it also requested additional information from 

the employing establishment. OWCP afforded both appellant and the employing establishment 30 

days to respond.

In a February 12, 2019 work restriction note, Mr. Hull indicated that appellant could not 

stand or walk more than 10 minutes at a time. If the employing establishment was unable to 

accommodate this restriction, Mr. Hull advised that she should be sent home.
3

By decision dated March 18, 2019, OWCP denied appellant’s traumatic injury claim. 

While it accepted that the January 29, 2019 employment incident occurred as alleged, OWCP 

found that no valid diagnosis had been produced in connection with the accepted employment 

incident. Thus, appellant had not met the requirements for establishing an injury as defined by 

FECA.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of establishing 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 timely filed within the applicable time 

limitation of FECA,4that an injury was sustained in the performance of duty as alleged, and that 

any disability or medical condition for which compensation is claimed is causally related to the 

employment injury.5 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.6

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.7 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.8 The second component is whether the employment incident caused a personal injury.9 

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.10

Causal relationship is a medical question that generally requires rationalized medical 

opinion evidence to resolve the issue.11 A physician’s opinion on whether there is a causal 

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

 

3 Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. 

Cameron, 41 ECAB 153 (1989). 

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988). 

6 R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990). 

7 E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008). 

8 L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

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

10 J.P., Docket No. 19-0129 (issued April 26, 2019); L.T., Docket No. 18-1603 (issued February 21, 2019); 

Shirley A. Temple, 48 ECAB 404, 407 (1997).

11 E.M., supra note 7; Robert G. Morris, 48 ECAB 238 (1996). 
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based on a complete factual and medical background.12 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).13

ANALYSIS

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

causally related to the accepted January 29, 2019 employment incident.

In his report of February 6, 2019, Brian Lucas, a physician assistant, diagnosed an ankle 

sprain. However, the medical component of fact of injury must be established by a medical report 

from a qualified physician who provides a valid diagnosis of a medical condition in connection to 

the January 29, 2019 employment incident.14 OWCP received various treatment records authored 

by physician assistants and nurse practitioner. As these providers are not considered 

“physician[s]” as defined by FECA, their respective reports are insufficient for purposes of 

establishing entitlement to FECA benefits.15 

Dr. Lieberman, did not mention any link whatsoever between the January 29, 2019 incident 

and the clinical findings of avulsion fractures that he observed on the x-rays of appellant’s right 

ankle.16 Therefore, his report does not establish that appellant sustained a condition connected to 

the accepted employment incident.17

Without medical evidence authored or countersigned by a qualified physician linking the 

accepted incident to a valid diagnosis,

18 the Board finds that appellant has not met her burden of 

 

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

13 Id.

14 Y.N., Docket No. 14-0705 (issued July 2, 2014).

15 5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.

See 5 U.S.C. § 8102(2); M.M., Docket No. 16-1617 (issued January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320 

n.11 (2006) (lay individuals such as nurses, physician assistants, and physical therapists are not competent to render 

a medical opinion under FECA); M.G., Docket No. 19-0918 (issued September 20, 2019 (nurse practitioners are not 

considered physicians under FECA; therefore, their medical findings and/or opinions will not suffice for purposes of 

establishing entitlement to FECA benefits). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. 

Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the 

submission of probative medical evidence from a physician). 

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

17 L.T., Docket No. 18-1603 (issued February 21, 2019).

18 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).
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proof to show that she sustained any medical condition as a result of the accepted January 29, 2019 

employment incident.

19

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 right ankle 

condition causally related to the accepted January 29, 2019 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the March 18, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 12, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

19 E.M., Docket No. 18-1599 (issued March 7, 2019).