United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.T., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JAMES A. HALEY VETERANS MEDICAL 

CENTER, Tampa, FL, Employer

__________________________________________

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Docket No. 18-0838

Issued: September 19, 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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 13, 2018 appellant filed a timely appeal from a January 4, 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 to 

consider the merits of this case.3

 

1 Appellant also filed a timely request for oral argument in this case. By order dated November 19, 2018, the Board 

denied her request for oral argument as oral argument would further delay issuance of a Board decision and not serve 

a useful purpose. Order Denying Request for Oral Argument, Docket No. 18-0838 (issued November 19, 2018).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. 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 diagnosed lumbar 

conditions causally related to the accepted July 27, 2017 employment incident.

FACTUAL HISTORY

On July 27, 2017 appellant, then a 50-year-old certified nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on that date she sustained back and right leg injuries when 

she was turning a 220-pound patient to place the patient in the overhead lift while in the 

performance of duty. She stopped work on the date of injury. On the reverse side of the form, 

appellant’s supervisor controverted the claim. 

A July 27, 2017 OWCP authorization for examination and/or treatment (Form CA-16) was 

completed by the employing establishment noting that there was doubt as to whether appellant’s 

condition was caused by an injury in the performance of duty. 

In a development letter dated August 1, 2017, OWCP informed appellant that she had not 

submitted sufficient factual or medical evidence to establish her claim. It advised her of the type 

of factual and medical evidence needed and provided a questionnaire for her completion. OWCP 

afforded appellant 30 days to submit the necessary evidence.

In an August 15, 2017 narrative statement, appellant responded to OWCP’s questionnaire 

and described the circumstances surrounding her injury. She reported that on July 27, 2017 she 

was assisting a patient with showering and dressing activities which involved a lot of lifting, 

turning, and rotating of the patient. Appellant noted that the patient was dead weight and had not 

used his lower body from the neck down, weighing approximately 200 pounds, to assist with the 

process. She reported experiencing pain and discomfort in her mid to lower back area, as well as 

a surge down her left leg and pulsation down her right leg. Appellant informed her supervisor on 

the date of the incident and sought treatment with her treating physician. She noted a prior, similar 

injury in March 2017 when she hurt her back while working for the employing establishment and 

was diagnosed with a lumbar injury. 

In support of her claim, appellant submitted August 2 and 16, 2017 x-rays of the lumbar 

spine which revealed no acute bone abnormality and mild multilevel degenerative changes. 

An August 4, 2017 report was also submitted from Dr. Charles W. Rice, a treating 

chiropractor. He diagnosed spinal subluxations at C5, C6, T2, T3, T6, T7, L4, and L5 based upon 

decreased segmental motion and pain. 

In an August 16, 2017 report, Dr. Claire Cascio, an osteopath Board-certified in family

medicine, reported that appellant complained of sudden onset, acute back pain which began on 

July 27, 2017. She diagnosed muscle spasm and low back pain and recommended physical 

therapy. In an August 16, 2017 state workers’ compensation form report, Dr. Cascio diagnosed 

low back pain and lumbar muscle spasm, and checked a box marked “work related.” 
3

By decision dated September 6, 2017, OWCP denied appellant’s claim finding that the 

evidence of record was insufficient to establish a diagnosed medical condition causally related to 

the accepted July 27, 2017 employment incident. 

On September 26, 2017 appellant requested review of the written record before a 

representative of OWCP’s Branch of Hearings and Review. Medical forms, prescription notes, 

and work restrictions dated August 11 through September 26, 2017 were submitted in support of 

her claim. 

In an August 11, 2017 patient visit note, Dr. Michael Wasylik, a Board-certified orthopedic 

surgeon, reported that appellant complained of low back pain from trauma to the back. 

In a September 18, 2017 report, Dr. Cascio diagnosed muscle spasm and low back pain. 

A nurse practitioner completed an attending physician’s report (Form CA-16) on 

September 26, 2017, noting findings of mild multiple level degenerative changes and a diagnosis 

of low back pain. 

A magnetic resonance imaging (MRI) scan of the lumbar spine dated October 9, 2017, was 

interpreted as revealing thoracolumbar dextro scoliosis with lower lumbar levoscoliosis, and 

L3-S1 disc bulge with facet arthropathy. 

In an October 16, 2017 prescription note, Dr. Cascio referred appellant for an orthopedic 

evaluation due to a diagnosis of posterior listhesis at L5-S1 and bulging discs at L3-4 and L4-5. 

In reports dated October 27 and November 27, 2017, Dr. Kwang Tseng, an osteopathic 

physician Board-certified in family medicine, diagnosed intervertebral disc disorder with 

myelopathy of the lumbar region. He noted that appellant’s back pain and symptoms began on 

July 27, 2017. 

By decision dated January 4, 2018, OWCP’s hearing representative affirmed the 

September 6, 2017 decision, as modified, finding that the medical evidence established a firm 

medical diagnosis. However, she denied the claim because the medical evidence of record failed 

to establish that the diagnosed medical conditions were causally related to the accepted July 27, 

2017 employment incident. 

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 timely filed within the applicable 

time limitation period 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 

 

4 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).
4

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 has sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established. 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.7 The second component is whether the employment incident caused a personal injury.8 

Causal relationship is a medical issue and the medical evidence required to establish causal

relationship is rationalized medical evidence.9 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.10

ANALYSIS

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

lumbar conditions causally related to the accepted July 27, 2017 employment incident.

11

 

In support of her claim, appellant submitted multiple medical reports dated August 16

through November 27, 2017 from Drs. Cascio and Tseng. The Board finds that these reports are 

not well rationalized.12 Initially, Dr. Cascio only noted diagnoses of muscle spasm and pain. The 

Board has long held that pain and spasm are symptoms of conditions, not medical diagnoses.13 

While in subsequent reports Dr. Cascio provided medical diagnoses of posterior listhesis at L5-

S1, bulging discs at L3-4 and L4-5, and Dr. Tseng diagnosed intervertebral disc disorder with 

myelopathy of the lumbar region, neither physician provided an opinion regarding the cause of 

appellant’s diagnosed conditions. The Board has held that medical evidence that does not offer an 

 

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 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

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

7 Elaine Pendleton, 40 ECAB 1143 (1989).

8 M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989). 

9 M.K., Docket No. 19-0428 (issued July 15, 2019). 

10 S.S., Docket No. 18-1488 (issued March 11, 2019). 

11 R.V., Docket No. 18-1037 (issued March 26, 2019).

12 R.C., Docket No. 19-0376 (issued July 15, 2019).

13 T.D., Docket No. 18-1190 (issued March 11, 2019). 
5

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

causal relationship.14 These reports, therefore, are insufficient to establish appellant’s claim. 

The remaining medical evidence of record is also insufficient to establish causal 

relationship between appellant’s lumbar injury and the accepted July 27, 2017 employment 

incident. Dr. Wasylik’s August 11, 2017 report is of no probative value as he only noted low back 

pain, but failed to provide a firm medical diagnosis or offer an opinion on the cause of her

condition.15 

OWCP received diagnostic studies. The Board has held that diagnostic studies are of 

limited probative value as they do not address whether the employment incident caused any of the 

diagnosed conditions.

16

 

The record also contains an August 4, 2017 report from Dr. Rice, a chiropractor, who

treated appellant for lumbar subluxations. Under FECA 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. If the 

diagnosis of a subluxation as demonstrated by x-ray is not established, the chiropractor is not a 

physician as defined under FECA and his or her report is of no probative value to the medical issue 

presented.17 As Dr. Rice diagnosed spinal subluxations based upon decreased segmental motion 

and pain, rather than x-ray evidence, he is not considered a physician under FECA and his opinion 

is of no probative medical value.18 

The nursing notes of record are also of no probative value. Nurse practitioners are not 

considered “physician[s]” as defined under FECA.19 Consequently, their medical findings and/or 

opinions will not suffice for purposes of establishing entitlement to FECA benefits.20 

 

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

15 A.B., Docket No. 18-0577 (issued October 10, 2018).

16 E.R., Docket No. 18-0391 (issued August 24, 2018). See also C.P., Docket No. 15-0600 (issued June 2, 2015); 

D.H., Docket No. 11-1739 (issued April 18, 2012).

17 R.P., Docket No. 19-0271 (issued July 24, 2019). 

18 Supra note 19. Section 8101(3) of FECA, which defines services and supplies, limits reimbursable chiropractic 

services to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by xray to exist and subject to regulation by the Secretary. 5 U.S.C. § 8101(3). See K.J., Docket No. 18-1520 (issued 

June 13, 2019).

19 5 U.S.C. § 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical 

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

by State law. 

20 N.B., Docket No. 19-0221 (issued July 15, 2019).
6

The work restriction and appointment notes, as well as progress reports documenting 

treatment are of no probative value as they do not provide evidence that appellant’s current 

conditions were causally related to the July 27, 2017 employment incident.21 

On appeal appellant argues that she had sustained a prior work injury relating to her back 

under OWCP File No. xxxxxx822 which should have been combined with her current claim. The 

Board notes, however, that the issue of whether OWCP should administratively combine 

appellant’s claims is not properly before the Board.22

The Board finds that the record lacks rationalized medical evidence establishing causal 

relationship between the July 27, 2017 employment incident and appellant’s diagnosed lumbar 

conditions.

23

 Thus, appellant has not met her burden of proof.24

Appellant may submit additional evidence, together 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 that her

diagnosed lumbar conditions were causally related to the accepted July 27, 2017 employment 

incident. 

 

21 T.O., Docket No. 18-0139 (issued May 24, 2018).

22 20 C.F.R. § 501.2(c)(1).

23 K.L., Docket No. 18-1029 (issued January 9, 2019).

24 The Board notes that the employing establishment issued an authorization for examination and/or treatment 

(Form CA-16). A completed Form CA-16 authorization may constitute a contract for payment of medical expenses 

to a medical facility or physician, when properly executed. The form creates a contractual obligation, which does not 

involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the 

claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 

608 (2003).
7

ORDER

IT IS HEREBY ORDERED THAT the January 4, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 19, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board