United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.A., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ORLANDO VA MEDICAL CENTER, 

Orlando, FL, Employer

__________________________________________

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Docket No. 22-0869

Issued: July 3, 2023

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 17, 2022 appellant, through counsel, filed a timely appeal from an April 21, 2022

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 to consider the merits of this case.

ISSUE

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

causally related to the accepted November 20, 2020 employment incident.

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.
2

FACTUAL HISTORY

On November 26, 2020 appellant, then a 48-year-old medical supply aide and technician, 

filed a traumatic injury claim (Form CA-1) alleging that on November 20, 2020 he sustained a 

back injury when a coworker struck the chair he was sitting in with a moving cart, causing his 

chair to spin in a jolting action, while in the performance of duty. He stopped work on the date of 

injury.

In support of his claim, appellant submitted medical evidence. In a November 20, 2020 

disability certificate, Dr. William F. Rodriguez, an employing establishment physician Boardcertified in emergency and sports medicine, advised that appellant was unable to work through 

November 27, 2020.

In a November 25, 2020 letter, Dr. David M. Durkin, an attending chiropractor, excused 

appellant from work from November 30 through December 2, 2020 and advised that he could 

return to work with no restrictions on December 4, 2020. 

OWCP, by development letter dated January 8, 2021, informed appellant of the 

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

afforded appellant 30 days to respond.

OWCP subsequently received additional medical evidence. A cervical spine x-ray report 

dated November 20, 2020, from Dr. Hugh McSwain, a Board-certified diagnostic radiologist and 

neuroradiologist, provided an impression of no acute fracture or subluxation. A lumbar spine xray of even date also provided an impression of no acute fracture or subluxation. 

In a November 20, 2020 employing establishment emergency department note,

Dr. Rodriguez noted appellant’s history that on that day he was jolted and twisted while seated. 

He also noted his complaints of low back pain and numbness of the hands. Dr. Rodriguez listed 

appellant’s diagnoses as back pain/sciatica, cervical strain/cervical radiculopathy, and carpal 

tunnel syndrome (CTS). An employing establishment discharge report dated November 20, 2020 

provided diagnoses of lumbar radiculopathy (sciatica) and CTS.

Dr. Durkin, in reports dated November 24 and 25, 2020, noted that appellant presented 

with a chief complaint of cervical, upper thoracic, right and left cervical dorsal, lumbar, left 

buttock, left posterior leg, left calf, left foot, right buttock, right posterior leg, right calf, and right 

foot discomfort. He provided his examination findings and assessed appellant’s condition as 

lumbosacral and sacroiliac joint irritation. In a December 4, 2020 letter, Dr. Durkin excused 

appellant from work through December 8, 2020 and advised that he could return to work with no 

restrictions on December 9, 2020. 

On December 16, 2020 Craig A. Brown, a registered nurse, indicated that appellant 

presented for a follow-up evaluation of his low back pain.

On December 16, 2020 appellant reiterated his history of injury on November 20, 2020 

and diagnosis of CTS. 

In a December 18, 2020 progress note, Dr. Daniel E. Banks, a Board-certified internist and 

pulmonologist, indicated appellant’s complaints of neck and lower back pain. He discussed his 

findings on physical examination and reviewed a March 2, 2018 nerve conduction velocity (NCV) 
3

study which revealed right CTS and sensorimotor neuropathy of the lower extremities. Dr. Banks 

provided assessments of diabetic neuropathy, right CTS, and uncontrolled diabetes mellitus. In a 

December 22, 2020 progress note, he planned to order an electromyogram (EMG)/NCV study and 

x-ray to get an update on appellant’s left wrist CTS. 

Dr. Banks’ December 30, 2020 x-ray reports provided impressions of unremarkable right 

and left wrists. 

In reports dated December 22, 2020, Dr. Chichuan Y. Kaminski, a Board-certified 

diagnostic radiologist, indicated that x-rays of the right and left wrists were unremarkable.

On January 14, 2021 Dr. Namik Erdag, a Board-certified diagnostic radiologist, performed 

a computerized tomography (CT) scan of the lumbar spine and provided impressions of bilateral 

sacroiliitis, mild posterior disc bulge at L5-S1, and no spinal stenosis.

A mostly illegible EMG/NCV study received by OWCP on February 1, 2021was abnormal 

with borderline evidence suggestive of right CTS.

By decision dated February 11, 2021, OWCP accepted that the November 20, 2020 

incident occurred as alleged, but denied the claim, finding that the medical evidence of record was 

insufficient to establish causal relationship between appellant’s diagnosed conditions and the 

accepted employment incident. 

On February 16, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

May 11, 2021. 

By decision dated July 1, 2021, OWCP’s hearing representative affirmed the February 11,

2021 decision. However, she directed that OWCP administratively combine OWCP File Nos. 

xxxxxx568, xxxxxx137, xxxxxx010, and xxxxxx661 upon return of the case record.3

Upon return of the case record, OWCP administratively combined OWCP File Nos. 

xxxxxx568, xxxxxx137, xxxxxx010, and xxxxxx661, with OWCP File No. xxxxxx137 serving as 

the master file.

OWCP thereafter received a January 26, 2022 medical report from Dr. John W. Ellis, a 

Board-certified family practitioner. Dr. Ellis provided a history of injury that on November 20, 

2020 appellant felt immediate pain in his lower back that radiated down into appellant’s hands and 

feet with associated numbness and tingling sensations when an office chair he was sitting in at 

work was hit from behind by a large cart that was pushed by a coworker. When appellant’s chair 

3

In OWCP File No. xxxxxx137, OWCP, by decision dated May 19, 2021, denied his occupational disease claim 

(Form CA-2) for right-hand carpal tunnel syndrome. By decision dated October 21, 2021, an OWCP hearing 

representative affirmed the May 19, 2021 decision. In OWCP File No. xxxxxx010, OWCP, by decision dated May19, 

2021, denied appellant’s occupational disease claim for a right shoulder injury. An OWCP hearing representative, in 

an October 22, 2021 decision, affirmed as modified the May 19, 2021 decision, finding that appellant’s occupational 

disease claim should be treated as a traumatic injury claim (Form CA-1) and the evidence of record established that a 

February3, 2021 employment incident occurred as alleged. However, the claim remained denied as the medical 

evidence of record was insufficient to establish causal relationship between the diagnosed medical conditions and the

accepted February 3, 2021 employment incident. In OWCP File No. xxxxxx661, OWCP accepted appellant’s 

August 21, 2018 traumatic injury claim for right elbow strain, initial encounter. 
4

was hit, it spun abruptly in a jolting and twisting motion. Dr. Ellis also provided a history of 

appellant’s medical treatment and recounted appellant’s current complaints of pain in his cervical 

and lumbar spines and cervical spine that radiated to his upper and lower extremities and shoulders.

He reviewed medical records in the instant claim under OWCP File No. xxxxxx568, appellant’s 

prior claims under OWCP File Nos. xxxxxx661, xxxxxx568, and xxxxxx662, and the disability 

claim that he filed with the employing establishment. Dr. Ellis reported his examination findings. 

He diagnosed spondylosis and radiculopathy, cervical region; other intervertebral disc 

degeneration and radiculopathy, lumbosacral region, and traumatic arthritis of the right and left 

hip. Dr. Ellis cited Board precedent and opined that appellant’s diagnosed conditions arose out of 

and in the course of his employment and were contributed to, aggravated and/or caused by his 

employment factors and work duties. He described the cause and symptoms of lumbosacral 

radiculopathy, noting, in part, that radiculopathy is caused by compression or irritation of the nerve 

as it exits the spine. Dr. Ellis noted that, in appellant’s case, the sudden jerk of the chair he was 

sitting in on November 20, 2020 resulted in a jolting and twisting-like motion that was very similar 

to a slip without a fall. He referenced prior imaging studies and indicated that many of the 

degenerative changes noted in these studies were consistent with the natural degenerative changes 

occurring to the vertebra. However, Dr. Ellis indicated that radicular symptoms were not 

associated with these types of degenerative changes. Therefore, he opined that appellant had 

sustained injuries to his lumbar and cervical spine with associated radiculopathies and bilateral 

hips, “causally connected to the above-described accident or within a reasonable degree of medical 

certainty.” Dr. Ellis related that appellant had continuing symptoms that were supported by 

clinical examination findings. He concluded that, if appellant could not be placed in a suitable 

light-duty position within appellant’srestrictions, then he was disabled from work as a direct result 

of his work-related injury.

Appellant also submitted the March 2, 2018 EMG/NCV study of his right upper and lower 

extremities from Dr. Michael Hoffmann, a neurologist.

OWCP also received November 20, 2020 x-ray reports. Appellant’s lumbosacral x-ray 

findings revealed no acute fracture or subluxation, mild degenerative changes of the bilateral hips. 

Cervical x-rays of even date revealed no acute fracture or subluxation, cervical spondylosis most 

evident at C5-6.

On March 10, 2021 Dr. Adam S. Fenichal, a Board-certified orthopedic surgeon, ordered 

electrodiagnostic testing to determine whether appellant had a presumptive diagnosis of ulnar 

neuropathy at the elbow (cubital).

In a March 22, 2021 electrodiagnostic consultation report, Dr. Colleen M. Zittel, a Boardcertified physiatrist, provided impressions of electrodiagnostic evidence for moderate right CTS, 

which was neurapraxic in nature, without chronic changes; no clear evidence for acute or chronic 

cervical radiculopathy, ulnar neuropathy, other focal neuropathy, or for peripheral polyneuropathy 

involving the right upper extremity; and chronic reinnervation confined to the right abductor 

digiti inimi is of unclear significance that could be seen in chronic right ulnar neuropathy which 

was unable to be localized, versus a chronic right C8 or T1 radiculopathy or a normal variant, in 

isolation, this finding was insufficient for a definitive diagnosis or localization. A detailed 

comparison was made to appellant’s prior EMG/NCV test performed on the right upper extremity 

on January 19, 2021 and revealed a significant increase in the right median motor and sensory

latencies consistent with significant progression in severity of the right CTS. This was previously 

borderline and is now moderate.
5

Appellant resubmitted Dr. Rodriguez’ November 20, 2020 employing establishment 

emergency department note and Dr. Durkin’s November 24, 2020 report.

OWCP, by decision dated April 21, 2022, denied modification of the July 1, 2021 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has 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,5that 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.6 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.7

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. There 

are two components involved in establishing fact of injury. The first component is whether the 

employee actually experienced the employment incident at the time and place, and in the manner 

alleged. The second component is whether the employment incident caused a personal injury and 

can be established only by medical evidence.8

The medical evidence required to establish causal relationship between a claimed specific 

condition and an employment incident is rationalized medical opinion evidence. 9 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 factors 

identified by the employee.10

4

Supra note 2.

5 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989).

6 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

7 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).

8 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989). 

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April24, 2019); RobertG. 

Morris, 48 ECAB 238 (1996).

10 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).
6

ANALYSIS

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

condition causally related to the accepted November 20, 2020 employment incident.

In a January 26, 2022 report, Dr. Ellis opined that appellant’s spondylosis and 

radiculopathy, cervical region; other intervertebral disc degeneration and radiculopathy, 

lumbosacral region; and traumatic arthritis of the right and left hip were caused, or contributed to, 

or aggravated by the accepted November 20, 2020 employment incident. He indicated that the

sudden jerk of the chair appellant was sitting in on November 20, 2020 resulted in a jolting and 

twisting-like motion that was very similar to a slip without a fall. While he provided an affirmative 

opinion on causal relationship, Dr. Ellis did not offer any medical rationale sufficient to explain 

how and why he believed the November 20, 2020 employment incident could have resulted in or 

contributed to appellant’s diagnosed conditions. The Board has held that a medical opinion must 

reflect a medically-sound and rationalized explanation by the physician of how the specific 

employment incident physiologically caused or aggravated the diagnosed conditions.11 Without 

explaining how being struck by a moving cart while sitting in a chair physiologically caused or 

contributed to appellant’s diagnosed conditions, Dr. Ellis’ January 26, 2022 medical report is of 

limited probative value.12 As such, the Board finds that this evidence is insufficient to establish 

appellant’s claim.

Dr. Rodriguez’ November 20, 2020 employing establishment emergency department note 

and disability certificate diagnosed back pain/sciatica, cervical strain/cervical radiculopathy, and 

carpal tunnel syndrome, and found that appellant was unable to work from November 20 

through 27, 2020. Dr. Banks’ December 18 and 22, 2020 progress notes, provided his 

examination findings and provided assessments of diabetic neuropathy, right CTS, and 

uncontrolled diabetes mellitus. In his December 30, 2020 reports, Dr. Banks advised that x-rays 

of appellant’s bilateral wrists were unremarkable. Neither physician, however, offered an opinion 

relative to the causal relationship between the diagnosed conditions and the accepted employment 

incident. 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. 13 For 

this reason, the medical evidence from Dr. Rodriguez and Dr. Banks is insufficient to establish 

appellant’s claim.

Appellant also submitted diagnostic reports dated March 2, 2018 through March 22, 2021. 

The Board has held that diagnostic test reports, standing alone, lack probative value as they do not 

provide an opinion on causal relationship between the employment incident and a diagnosed 

condition.14

11 T.G., Docket No. 21-0175 (issued June 23, 2021); J.D., Docket No. 19-1953 (issued January 11, 2021);see K.W., 

Docket No. 19-1906 (issued April 1, 2020).

12 See M.M., Docket No. 20-1538 (issued December 27, 2022); J.K., Docket No. 22-0945 (issued December 16, 

2022); A.P., Docket No. 19-0224 (issued July 11, 2019).

13 See J.K.(nee R.),Docket No. 22-0945 (issued December 16, 2022); S.J., Docket No. 19-0696 (issued August 23, 

2019); M.C., Docket No. 18-0951 (issued January 7, 2019);L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., 

Docket No. 17-1549 (issued July 6, 2018).

14 See L.M.,Docket No. 22-0667 (issued November 1, 2022); T.H.,Docket No. 18-1736 (issued March 13, 2019).
7

In reports and letters dated November 24 and 25 and December 4, 2020, Dr. Durkin, a 

chiropractor, provided assessments of lumbosacral and sacroiliac joint irritation and placed 

appellant off work for intermittent disability from work from November 30 through 

December 8, 2020. The Board notes that section 8101(2) of FECA15 provides that the term 

physician, as used therein, 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 regulation by the Secretary.16 OWCP’s implementing 

federal regulation at 20 C.F.R. § 10.5(bb) defines subluxation as an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae, which must be 

demonstrated on x-ray. As Dr. Durkin did not diagnose a subluxation as demonstrated by x-ray, 

he is not considered a physician under FECA and his reports and letters do not constitute probative 

medical evidence.17 Thus, this evidence is insufficient to establish appellant’s claim.

The remaining medical evidence consists of a December 16, 2020 progress note from

Mr. Brown, a registered nurse. The Board has consistently held that certain healthcare providers 

such as registered nurses are not considered physicians as defined under FECA.18 Consequently, 

their medical findings and/or opinions will not suffice for purposes of establishing entitlement to 

FECA benefits.19

As the medical evidence of record is insufficient to establish a medical condition causally 

related to the accepted November 20, 2020 employment incident, the Board finds that appellant 

has not met his burden of proof. 

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 November 20, 2020 employment incident

15 5 U.S.C. § 8101(2).

16 Id.; 20 C.F.R. § 10.311.

17 See L.M., supra note 14; T.H.,Docket No. 17-0833 (issued September 7, 2017); Robert H. St. Onge, 43 ECAB 

1169 (1992).

18 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

19 Id. at § 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. 

Id. at § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, 

Chapter 2.805.3a(1) (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 G.F., Docket No. 23-0114 (issued May 12, 2023) (registered nurses are not considered qualified physicians as 

defined under FECA); M.M., Docket No. 20-1649 (issued January 4, 2023) (registered nurses are not considered 

physicians under FECA).
8

ORDER

IT IS HEREBY ORDERED THAT the April 21, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 3, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board