United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.H., Appellant

and

DEPARTMENT OF JUSTICE, EXECUTIVE 

OFFICE OF IMMIGRATION REVIEW, 

Falls Church, VA, Employer

__________________________________________

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Docket No. 21-0183

Issued: December 7, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 15, 20201 appellant filed a timely appeal from a February 18, 2020 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal 

1 Under the Board s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from February18, 2020, the date of OWCP’s last decision was 

August 16, 2020. As this fell on a Sunday, appellant had until the following business day, Monday, August 17, 2020 

to file the appeal. Since using August 20, 2020, the date the appeal was received by the Clerk of the Appellate Boards 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. 

Postal Service postmark is August 15, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 Appellant submitted a timely oral argument request before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, he asserted that oral argument should be granted because his physicians 

have failed to provide the necessary paperwork. The Board, in exercising its discretion, denies appellant’s request for 

oral argument because the arguments on appeal can adequately be addressed in a decision based on a review of the 

case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve a useful 

purpose. As such, the oral argument request is denied and this decision is based on the case record as submitted to 

the Board.
2

Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.4

ISSUE

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

causally related to the accepted October 18, 2019 employment incident.

FACTUAL HISTORY

On October 30, 2019 appellant, then a 51-year-old legal assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on October 18, 2019 he experienced pain in his knee and back 

and numbness in his back and legs when his left knee gave out and he fell down the stairs while in 

the performance of duty. He explained that he twisted his right knee and rolled onto his shoulder 

and back when he fell. Appellant stopped work on October 18, 2019. The employing 

establishment indicated that he was in the performance of duty at the time of the alleged incident.

On November 20, 2019 Dr. Eric Schadler, an internist, advised that appellant should be 

excused from work on November 19, 2019 and could return to work as tolerated on 

November 25, 2019. An after visit summary of even date indicated that appellant had received 

treatment for lumbar pain after a fall on stairs. 

A magnetic resonance imaging (MRI) scan of the lumbar spine dated November 22, 2019 

showed mild degenerative changes in the lower lumbar spine and mild neural foraminal stenosis 

on the left at L4-5 and on the right at L5-S1. In a November 22, 2019 note, Dr. Schadler reviewed 

the MRI scan and advised that appellant had degenerative changes in his low back likely causing 

his sciatic nerve pain. 

An after visit summary dated November 27, 2019 provided that appellant had been seen 

on that date for right lower leg arthralgia, lumbar spinal stenosis, possible neurogenic claudication, 

and chronic midline low back pain with bilateral sciatica. 

Appellant submitted physical therapy reports dated November and December 2019. 

An MRI scan of the right knee dated December 4, 2019 revealed a complex tear of the 

medial meniscus. In a December 4, 2019 note, Dr. Juan Alban, an internist, indicated that the MRI 

scan showed a complex tear.

In a development letter dated January 2, 2020, OWCP requested that appellant submit 

additional factual and medical information in support of his claim, includinga detailed report from 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that,following the February 18, 2020 decision, OWCP received additional evidence. Appellant 

also 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.
3

his attending physician explaining how the identified employment incident caused or aggravated 

a diagnosed condition. It afforded him 30 days to provide the requested information.

Thereafter, OWCP received a December 11, 2019 computerized tomography (CT) scan of 

appellant’s head and neck showing mild degenerative changes of the cervical spine with moderatedisc narrowing at C4-5. 

In an nerve conduction velocity (NCV) study and electromyogram (EMG) dated 

December 30, 2019 Dr. Shuja Sheikh, a neurologist, and Dr. Helene Rubeiz, a Board-certified 

neurologist, obtained a history of appellant experiencing chronic low back pain since 2000 

radiating into the lower extremities that had worsened after surgery on appellant’s left knee in 

February 2019. The physicians noted that appellant had also experienced neck pain radiating into 

his upper extremities bilaterally after a fall in October 2019. Dr. Sheikh and Dr. Rubeiz diagnosed 

likely bilateral distal deep peroneal neuropathies that might be an incidental finding and mild 

chronic neurogenic changes possibly representing bilateral mild chronic lower cervical 

radiculopathy.

A February 10, 2020 after visit summary indicated that Dr. Aravind Athiviraham, a Boardcertified orthopedic surgeon, had evaluated appellant for a complex tear of the right medial 

meniscus. 

By decision dated February 18, 2020, OWCP denied appellant’s traumatic injury claim. It 

found that he had not submitted evidence sufficient to establish that he sustained the diagnosed 

condition of a complex tear of the right medial meniscus causally related to the accepted 

October 18, 2019 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 of FECA,6that 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.7 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. 8

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether f act of injury has been established.9 

5

Supra note 3.

6

S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

7 T.H., Docket No. 18-1736 (issued March 13, 2019); R.C., 59 ECAB 427 (2008).

8 T.E., Docket No. 18-1595 (issued March 13, 2019); DeloresC. Ellyett, 41 ECAB 992 (1990).

9

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388 (2008).
4

Generally, 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.10 The second component is whether the employment incident 

caused a personal injury.11

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.12 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the accepted employment incident must be based on a 

complete factual and medical background.13 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 the 

specific employment incident.14

ANALYSIS

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

condition causally related to the accepted October 18, 2019 employment incident.

Appellant has not submitted medical evidence establishing causal relationship between a 

diagnosed condition and the accepted October 18, 2019 employment incident. A December 30, 

2019 report by Dr. Sheikh and Dr. Rubeiz included a history of the accepted employment incident 

and interpreted the results of electrodiagnostic testing. The physicians noted that appellant had 

experienced neck pain and radiculopathy into the upper extremities after an October 2019 fall. 

Dr. Sheikh and Dr. Rubeiz interpreted an EMG/NCV study performed on that date as showing 

bilateral distal deep peroneal neuropathies and mild chronic neurogenic changes possibly showing 

mild chronic lower cervical radiculopathy bilaterally. While the physicians provided a history of 

the accepted employment incident, they failed to sufficiently address the cause of the diagnosed 

conditions. The Board has held that medical evidence that does not offer an opinion regarding the 

cause of an employee’s condition is of no probative value on the issue of causal relationship. 15

On November 20, 2019Dr. Schadler found that appellant could not work on November 19, 

2019 and could resume work on November 25, 2019. As he failed to provide a diagnosis or 

address causation, his opinion is of no probative value and is insufficient to establish the claim. 16

10 E.M., Docket No. 18-1599 (issued March 7, 2019); BonnieA. Contreras, 57 ECAB 364 (2006).

11 Id.

12 E.G., Docket No. 20-1184 (issued March 1, 2021); T.H., supra note 9.

13 M.V., Docket No. 18-0884 (issued December 28, 2018).

14 B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

15 C.S., Docket No. 18-1633 (issued December 30, 2019); R.C., Docket No. 19-0376 (issued July 15, 2019).

16 T.S., Docket No. 19-0717 (issued May 22, 2020); J.H., Docket No. 19-0838 (issued October 1, 2019); L.B., 

Docket No. 18-0533 (issued August27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
5

Appellant submitted after visit summaries from Dr. Schadler and Dr. Alban including 

physical examination findings and results of diagnostic testing. However, these reports did not 

contain an opinion relative to causal relationship between the accepted October 18, 2019 

employment incident and the diagnosed conditions. Therefore, these reports have no probative 

value and are insufficient to establish appellant’s traumatic injury claim.17

Appellant submitted physical therapy reports dated November and December 2019. 

However, reports signed solely by a physical therapist are of no probative value as physical 

therapists are not considered physicians as defined under FECA. 18 These notes are, therefore,

insufficient to establish appellant’s traumatic injury 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.

CONCLUSION

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

condition causally related to the accepted October 18, 2019 employment incident.

17 Id.

18 Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists, 

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

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3(e) (January 2013); DavidP. 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); see also R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical therapists are not 

considered physicians under FECA).
6

ORDER

IT IS HEREBY ORDERED THAT the February 18, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 7, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board