United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, Corona, NY, 

Employer

__________________________________________

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Docket No. 19-1953

Issued: January 11, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On September 24, 2019 appellant, through counsel, filed a timely appeal from an

August 20, 2019 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.3

 

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.

3 The Board notes that, following the September 19, 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 that the acceptance 

of her claim should be expanded to include the additional condition of lumbar endplate fracture 

(L1) as causally related to her accepted March 9, 2018 employment injury.

FACTUAL HISTORY

On March 12, 2018 appellant, then a 65-year-old internal revenue agent, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained an injury on March 9, 2018 due to a fall that 

occurred while in the performance of duty. She stopped working on the date of injury and then 

returned to work on March 12, 2018.

In a March 12, 2018 narrative statement, appellant indicated that on March 9, 2018 she fell 

while attending a scheduled field appointment after her right-hand slipped while pushing on a door 

and she fell backward onto her buttocks. She noted that she immediately felt dizzy and had an 

extremely sharp pain.

A March 9, 2018 emergency department report confirmed that appellant had been seen on 

that day. Appellant was released without restrictions effective March 12, 2018.

In a March 14, 2018 disability certificate, Dr. Helena M. Tsourounakis, a chiropractor, 

opined that appellant was totally disabled from work for the period March 14 to 28, 2018 due to 

her work-related injury.

In a March 19, 2018 development letter, OWCP advised appellant of the factual and 

medical deficiencies in her claim. It informed her of the type of evidence necessary to establish 

her claim and provided a questionnaire for her completion regarding the facts and circumstances 

of the injury. OWCP afforded appellant 30 days to respond. It also requested information from 

the employing establishment.

Appellant subsequently submitted a report dated March 14, 2018 from Dr. Emanuel N. 

Tsourounakis, a chiropractor, who diagnosed segmental and somatic dysfunction (vertebral) of 

lumbar region, lumbosacral radiculopathy, and muscle spasm of the back. Dr. Tsourounakis 

reported that appellant’s pain had started on March 9, 2018 when she went to open the door and 

her hand slipped off the handle and she landed on her buttock. He indicated that appellant had 

been wearing a back brace since the accident and had not been able to work since the fall due to 

severe pain.

In a March 26, 2018 disability certificate, Dr. Emanuel Tsourounakis opined that appellant 

was partially disabled due to her work-related injury and released her back to light-duty work with 

restrictions of sitting or standing no longer than 20 minutes and lifting or carrying no more than 8 

to 10 pounds.

In two attending physician’s reports (Form CA-20), one undated and one dated March 17, 

2018, Dr. Emanuel Tsourounakis checked a box marked “Yes” indicating his opinion that 
3

appellant’s back condition was caused or aggravated by an employment activity as she fell at work, 

while attempting to open door, causing her back pain.4

In an attending physician’s report (Form CA-20) dated April 20, 2018, Dr. Emanuel 

Tsourounakis diagnosed lumbar segmental dysfunction and lumbosacral radiculopathy due to 

appellant falling on her buttocks while leaving work.

5 He checked a box marked “Yes” indicating 

his opinion that appellant’s back condition was caused or aggravated by an employment activity.

By decision dated April 24, 2018, OWCP denied appellant’s claim finding that the 

evidence of record was insufficient to establish a valid medical diagnosis from a qualified 

physician in connection with her March 9, 2018 employment injury. It concluded, therefore, that 

she had failed to establish the medical component of fact of injury.

On May 2, 2018 appellant, through counsel, requested an oral hearing before a hearing 

representative of OWCP’s Branch of Hearings and Review.

Appellant subsequently submitted diagnostic testing results dated April 13, 2018 which 

consisted of sonographic imaging of the cervical spine, bilateral trapezius, lumbar spine, and 

bilateral sacroiliac joints revealed evidence of articular and/or soft tissue inflammatory changes.

In attending physician’s reports (Form CA-20) dated April 13, May 5, and June 8 and 22, 

2018, Dr. Emanuel Tsourounakis continued to diagnose lumbar segmental dysfunction and 

lumbosacral radiculopathy. He continued to indicate that appellant was disabled from work.

A magnetic resonance imaging (MRI) scan of the lumbar spine dated August 13, 2018 

revealed an inferiority directed Schmorl’s node at the L1 superior endplate associated with an 

endplate fracture and loss of L1 vertebral body height. The report noted a possible correlation for 

history of recent trauma. 

In an August 10, 2018 report, Dr. Peter G. Passias, a Board-certified orthopedic surgeon, 

diagnosed lower back pain and left lower extremity pain due to a March 9, 2018 injury when she 

fell at work.

A telephonic hearing was held before an OWCP hearing representative of the Branch of 

Hearings and Review on September 19, 2018. Appellant provided testimony and the hearing 

representative held the case record open for 30 days for the submission of additional evidence.

Following the hearing appellant submitted a September 24, 2018 progress report from

Dr. Passias who reported that appellant’s back pain was improving and that she used a back brace 

at times. He released appellant to work on June 11, 2018 and indicated that she would be using a 

special ergonomic chair and a sit-to-stand desk.

 

4 On March 16, 2018 Dr. Emanuel Tsourounakis signed a medical necessity form for functional evaluation testing 

and functional assessment for appellant.

5

In an April 19, 2018 disability certificate, Dr. Emanuel Tsourounakis opined that appellant was totally disabled 

from April 19 to May 3, 2018 due to her work-related low back injury. In a May 8, 2018 disability certificate,

Dr. Helena Tsourounakis released appellant to return to work without restrictions effective June 11, 2018.
4

By decision dated October 26, 2018, OWCP’s hearing representative affirmed the 

April 24, 2018 decision, finding that the record remained insufficient to establish a valid medical 

diagnosis from a qualified physician in connection with the accepted March 9, 2018 employment 

injury.

On November 16, 2018 appellant, through counsel, requested reconsideration and 

submitted two reports dated October 12, 2018 from Dr. Ajay N. Kiri, a family practitioner, who 

indicated that appellant was injured at work on March 9, 2018 while opening a door to a building. 

Dr. Kiri indicated that when she fell forward, she injured her lower back with derangement/sprain 

of ligaments of lumbar spine and a fracture to the endplate at the L1 vertebral level. He opined 

that the injury to her back was causally related to her federal employment.

Appellant further submitted a functional capacity evaluation report dated March 16, 2018 

from Dr. Emanuel Tsourounakis in support of her claim.

By decision dated February 12, 2019, OWCP denied appellant claim, as modified, finding 

that she had submitted a medical diagnosis in connection with her injury, but failed to establish 

causal relationship between her diagnosed conditions and the accepted March 9, 2018 employment 

incident.

On May 29, 2019 appellant, through counsel, requested reconsideration and submitted a 

February 22, 2019 report from Dr. Kiri who clarified that appellant had not fallen forward, but 

backwards and suffered complex injuries and a fracture to her lower back area.

By decision dated August 20, 2019, OWCP accepted the claim for derangement/sprain of 

ligaments of lumbar spine. However, by separate August 20, 2019 decision, it denied the claim 

for the additional condition of lumbar endplate fracture at L1 finding that the medical evidence 

submitted was insufficient to establish that the diagnosed condition was causally related to the 

accepted March 9, 2018 employment injury.

LEGAL PRECEDENT

When an employee claims that a condition not accepted or approved by OWCP was due to 

an employment injury, he or she bears the burden of proof to establish that the condition is causally 

related to the accepted employment injury.6 

To establish causal relationship between the condition as well as any attendant disability

claimed and the employment injury, an employee must submit rationalized medical evidence.7 

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

claimant, 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 factors identified by the claimant.8

 

6 M.M., Docket No. 19-0951 (issued October 24, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).

7 T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 

465 (2004).

8 V.S., Docket No. 19-1370 (issued November 30, 2020); Victor J. Woodhams, 41 ECAB 345 (1989).
5

ANALYSIS

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

acceptance of her claim should be expanded to include the additional condition of lumbar endplate 

fracture (L1) as causally related to her accepted March 9, 2018 employment injury.

Appellant submitted various medical reports by Dr. Kiri who indicated that she was injured 

at work on March 9, 2018 while opening a door to a building. Dr. Kiri opined that when she fell 

backwards, she suffered complex injuries, including a derangement/sprain of ligaments of lumbar 

spine and a fracture to the endplate and the lumbar 1 vertebral level. Although he described 

appellant’s fall on March 9, 2018 and provided an affirmative opinion on causal relationship,

Dr. Kiri did not explain the pathophysiological process of how falling backwards caused or 

contributed to her lumbar L1 endplate fracture, nor did he explain why the fracture was not noted 

on initial diagnostic reports prior to the August 13, 2018 MRI scan report.

9

 The Board has held 

that a medical opinion should reflect a correct history and offer a medically sound and rationalized 

explanation by the physician of how the specific employment incident physiologically caused or 

aggravated the diagnosed conditions.10 Therefore, the Board finds that Dr. Kiri’s reports are 

insufficient to establish appellant’s burden of proof.

In an August 10, 2018 report, Dr. Passias diagnosed lower back pain and left lower 

extremity pain due to a March 9, 2018 injury when she fell at work. While Dr. Passias provided a 

history of the accepted March 9, 2018 employment incident, he failed to provide a firm diagnosis 

or address causation. Lacking a firm diagnosis and rationalized medical opinion regarding causal 

relationship, this report is of no probative value and is therefore insufficient to establish the claim.

11

 

His report is therefore insufficient to establish appellant’s claim.

The Board further finds that none of the chiropractic reports from Drs. Helena and Emanuel

Tsourounakis constitute probative medical evidence, because a chiropractor is only considered a 

physician for purposes of FECA if he or she diagnoses subluxation based upon x-ray evidence.12 

As appellant’s chiropractors did not diagnose a spinal subluxation based upon x-ray evidence, they 

are not considered physicians as defined under FECA and their reports do not constitute competent 

medical evidence.13

 

9

J.C., Docket No. 18-1474 (issued March 20, 2019); M.M., Docket No. 15-0607 (issued May 15, 2015); M.W., 

Docket No. 14-1664 (issued December 5, 2014).

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

11 P.C., Docket No. 18-0167 (issued May 7, 2019).

12 Section 8101(2) of FECA provides that the term physician include chiropractors only if the treatment consists of 

manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2). See 

T.T., Docket No. 18-0838 (issued September 19, 2019); Thomas W. Stevens, 50 ECAB 288 (1999); George E. 

Williams, 44 ECAB 530 (1993).

13 C.S., Docket No. 19-1279 (issued December 30, 2019).
6

Appellant also submitted a lumbar MRI scan dated August 13, 2018. The Board has long 

held that diagnostic studies, standing alone, lack probative value on the issue of causal relationship 

as they do not address whether an employment incident caused the diagnosed condition.14

As noted above, the medical evidence required to establish causal relationship between a 

claimed specific condition and an employment injury is rationalized medical opinion evidence.15 

The Board finds that in this case appellant has not submitted sufficient rationalized medical 

evidence to establish causal relationship between her March 9, 2018 fall at work and her lumbar 

L1 endplate fracture.

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 that the 

acceptance of her claim should be expanded to include the additional condition of lumbar endplate 

fracture (L1) as causally related to her accepted March 9, 2018 employment injury. 

 

14 J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

15 J.C., supra note 9.
7

ORDER

IT IS HEREBY ORDERED THAT the August 20, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 11, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board