United States Department of Labor

Employees’ Compensation Appeals Board

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T.F., Appellant

and

U.S. POSTAL SERVICE, RUGBY POST 

OFFICE, Brooklyn, NY, Employer

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Docket No. 21-0384

Issued: August 25, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On January 24, 2021 appellant filed a timely appeal from an October 13, 2020 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 to consider the merits of this case.2

ISSUE

The issue is whether appellant has met his burden of proof to establish a diagnosed medical 

condition causally related to the accepted August 28, 2020 employment incident.

 

1 5 U.S.C. § 8101 et seq. 

2 The Board notes that appellant submitted additional evidence to OWCP following the October 13, 2020 decision.

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

FACTUAL HISTORY

On September 4, 2020 appellant, then a 32-year-old truck driver, filed a traumatic injury 

claim (Form CA-1) alleging that on August 28, 2020 he sustained a left rotator cuff tear, right 

elbow contusion, and neck pain when exiting his delivery vehicle which was struck by another 

vehicle while in the performance of duty. He stopped work on August 28, 2020. 

In a development letter dated September 8, 2020, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence needed and 

provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the 

necessary evidence.

In response, appellant submitted a September 23, 2020 attending physician’s report (Form 

CA-20) by Dr. David Kesselman, a chiropractor. Dr. Kesselman noted the August 28, 2020 

employment incident and diagnosed cervical segmental dysfunction, cervical radiculitis, and 

muscle spasm of the left shoulder. He checked a box marked “No” indicating that he did not 

believe that the diagnosed conditions were caused by the August 28, 2020 employment incident.

Dr. Kesselman indicated that he provided spinal manipulation, trigger point therapy, manual 

traction, massage, and chiropractic adjustment.

By decision dated October 13, 2020, OWCP accepted that the August 28, 2020 

employment incident occurred as alleged. However, it denied appellant’s traumatic injury claim, 

finding that he had not submitted medical evidence containing a diagnosis in connection with the 

accepted employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA3has the burden of proof to establish the 

essential elements of his or her claim, including 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 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. First, 

 

3 Supra note 1. 

4 V.L., Docket No. 20-0884 (issued February 12, 2021); F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., 

Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989). 

5 C.H., Docket No. 20-1212 (issued February 12, 2021); L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 

59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).

6 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

Delores C. Ellyett, 41 ECAB 992 (1990). 
3

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. Second, the employee must 

submit sufficient evidence to establish that the employment incident caused a personal injury.7

The medical evidence required to establish causal relationship is rationalized medical 

opinion evidence.8 The opinion of the physician must be based on a complete factual and medical 

background of the employee, 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 incidents identified by the employee.9

ANALYSIS

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

medical condition causally related to the accepted August 28, 2020 employment incident.

The record contains a September 23, 2000 Form CA-20 report from Dr. Kesselman, a 

chiropractor, diagnosing cervical segmental dysfunction, cervical radiculitis, and muscle spasm of 

the left shoulder. Chiropractors, however, are only considered physicians for purposes of FECA 

if they diagnose spinal subluxation based upon x-ray evidence.

10

 Dr. Kesselman did not indicate 

that he obtained or reviewed x-rays of the cervical spine. Therefore, his report is of no probative 

value and is insufficient to establish the claim. 

As appellant has not submitted rationalized medical evidence establishing causal 

relationship between a diagnosed medical condition and the accepted August 28, 2020 

employment incident, the Board finds that he has not met his burden of proof to establish his claim.

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.

 

7 T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989). 

8 S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G. 

Morris, 48 ECAB 238 (1996). 

9 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10 Section 8101(2) of FECA provides that 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 regulations by the Secretary. 5 U.S.C. § 8101(2); K.W., Docket No. 

20-0230 (issued May 21, 2021); J.D., Docket No. 19-1953 (issued January 11, 2021); George E. Williams, 44 ECAB

530 (1993).
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CONCLUSION

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

medical condition causally related to the accepted August 28, 2020 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the October 13, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 25, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board