United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

RANDOLPH AIR FORCE BASE, CA, Employer 

__________________________________________ 

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Docket No. 13-1821 

Issued: March 26, 2014 

Appearances: Case Submitted on the Record

Max Gest, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 30, 2013 appellant, through counsel, filed a timely appeal of a June 20, 2013 

decision of the Office of Workers’ Compensation Programs (OWCP) concerning the denial of 

his traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant established that he sustained a cervical condition causally 

related to a July 17, 2012 work incident. 

FACTUAL HISTORY 

On July 20, 2012 appellant, then a 54-year-old Assistant Fire Chief, filed a traumatic 

injury claim alleging that on July 17, 2012 he experienced neck pain while throwing a football 

during physical fitness. He stopped work on July 19, 2012. 

 1

 5 U.S.C. § 8101 et seq. 
2

In an August 23, 2012 report, Dr. Dana R. Johnson, a treating Board-certified family 

practitioner, stated that appellant was injured at the job site on July 17, 2012 when he threw a 

football while running around. The diagnosed conditions included: cervical spine stenosis 

without myelopathy and cervical intervertebral disc disorder with myelopathy. The physical 

examination revealed decreased cervical range of motion and positive tenderness at C5-7 on 

palpitation. Dr. Johnson opined that there was “insufficient data to state this is a work-related 

injury and insufficient data to state there is a preexisting contribution.” 

By letter dated August 29, 2012, OWCP informed appellant that the evidence of record 

was insufficient to establish his claim. Appellant was asked to submit additional medical and 

factual evidence. 

In response to OWCP’s request for factual information, appellant noted that physical 

fitness and activity was supported and encouraged by management, but participation was 

optional. In response to whether there was an employing establishment Physical Fitness Plan 

(PFP), he noted that it was not applicable. Appellant stated generally that it was important to 

stay physically fit as a firefighter and that the employing establishment permitted employees to 

engage in activities. He stated that the activity occurred during work hours on the employer’s 

premises and that the employer had areas to support activities. 

In an e-mail dated September 21, 2012, Jeffrey W. Konersman, Chief Fire Emergency 

Services, stated that the position description for firefighters required physical fitness training. 

He noted that there was no employing establishment fitness plan, but employees were 

encouraged to stay physically fit. Appellant’s injury occurred on the premises and during 

working hours. Mr. Konersman noted no equipment or facilities were provided for tossing a 

football around. 

On October 5, 2012 Mr. Konersman responded to questions posed by OWCP. He stated 

that personnel were required to be physically fit, but the type of workout was their choice. The 

employing establishment derived a benefit from appellant’s participation in the activity as it 

maintained his fitness level. As to whether employees were required or permitted to participate 

in the activity, he stated “Yes. All are allowed to workout.” Mr. Konersman noted that appellant 

was the supervisor on duty and he was to “decide if activities are too demanding to be performed 

while on duty.” 

In a September 5, 2012 report, Dr. Laura Gridley, a treating Board-certified family 

practitioner, diagnosed muscle spasm and cervical disc disorder with myelopathy. She reported 

the date of injury as July 17, 2012, but noted under subjective complaints that appellant injured 

himself three days previously at work while running around and throwing a football. Dr. Gridley 

noted that appellant was seen for neck pain and that he had a cervical spinal fusion in 2005 and a 

history of chronic cervical pain. Physical findings included decreased neck range of motion. 

On September 7, 2012 Dr. Johnson reported seeing appellant that day for complaints of 

neck pain. He noted that appellant’s neck pain complaints began on July 17, 2012 while 

throwing a football at work. Diagnoses included: cervical spine stenosis without myelopathy 

and cervical intervertebral disc disorder with myelopathy. A physical examination revealed 
3

decreased cervical range of motion and tenderness on palpation at C5-6. Dr. Johnson stated that 

this was not a workers’ compensation case. 

On November 30, 2012 OWCP received an August 22, 2012 report by Dr. Johnson who 

noted that appellant had C5-6 cervical fusion performed in September 2001 due to a C5-6 

cervical herniated nucleus pulposus causing myelopathy. The diagnosed conditions included: 

cervical spine stenosis without myelopathy and cervical intervertebral disc disorder with 

myelopathy. Dr. Johnson noted that appellant was seen for severe neck pain which began on 

July 17, 2012 as a result of throwing a football at work. Under mechanism of injury, he related 

that “[t]his recent exacerbation is layered upon a long history of chronic residual cervical 

myelopathy. Dr. Johnson conducted a physical examination and reviewed magnetic resonance 

imaging scans and x-ray interpretations. As to the cause of appellant’s neck pain, Dr. Johnson 

opined that there was insufficient data to determine whether it was employment related or due to 

a preexisting contribution. 

By decision dated December 5, 2012, OWCP denied appellant’s claim. It found that the 

medical evidence was insufficient to establish that his neck condition had been caused or 

aggravated by the July 17, 2012 employment incident. 

On January 3, 2013 appellant requested an oral hearing before an OWCP hearing 

representative, which was changed to a request for review of the written record. Counsel argued 

that appellant’s claim should have been developed as an occupational disease claim instead of a 

traumatic injury claim. He contended that appellant’s neck condition had been aggravated over 

time by his strenuous employment duties and that the July 17, 2012 incident was a catalyst. 

In an April 7, 2013 statement, appellant disagreed with Dr. Johnson’s opinion that his 

neck condition was not employment related. 

In a July 21, 2012 report, Dr. Gridley provided physical findings and noted a history of 

chronic neck pain and cervical spine fusion in 2005. On July 21, 2012 she noted that appellant 

suddenly felt neck pain three days prior while running and throwing a football. Dr. Gridley 

reviewed objective evidence and conducted a physical examination, which revealed normal 

findings. She diagnosed muscle spasm and cervical intervertebral disc disorder without 

myelopathy. 

On July 27, 2012 Dr. Gridley noted that appellant was seen for complaints of neck pain, 

which had been significantly exacerbated while he was throwing a football at work as a 

firefighter on July 17, 2012. Diagnoses included: muscle spasm and cervical intervertebral disc 

disorder without myelopathy. 

In an August 1, 2012 addendum, Dr. Todd M. Goldenberg, a treating Board-certified 

neurological surgeon, related that appellant was seen in September 2001 for treatment of a C5-6 

herniated nucleus pulposus with cervical myelopathy and that he has had chronic neck pain since 

his surgery. Currently appellant related having severe neck pain following an incident at work 

on July 17, 2012 after throwing a football. Appellant stated that he believed that “he tweaked his 

neck” due to throwing the football. Dr. Goldenberg reviewed objective tests and conducted a 

physical examination. He diagnosed cervical spine stenosis with cervical myelopathy due to 
4

C5-6 herniated disc and recommended surgery to prevent a worsening of his neurologic 

condition. 

In an August 21, 2012 report, Dr. Goldenberg noted appellant’s cervical history and that 

his neck pain began on July 17, 2012 at work while throwing a football. He related that 

appellant believed that “he tweaked his neck.” Dr. Goldenberg diagnosed cervical spine stenosis 

with cervical myelopathy due to C5-6 herniated disc and recommended surgery to prevent a 

worsening of his neurological condition. 

In a March 19, 2013 report, Dr. Jacob E. Tauber, an examining Board-certified 

orthopedic surgeon, performed a physical examination and reviewed medical evidence. He 

included status post cervical surgery for myelopathy. Appellant related that on July 17, 2012 he 

developed neck pain due to throwing a football at work. A physical examination revealed 

diffuse weakness and sensory deficits, hyperreflexia and positive bilateral Hoffman’s signs. 

Under discussion, Dr. Tauber opined that appellant’s firefighter duties contributed to his cervical 

degeneration. He also opined that the throwing of a football as part of his training program 

aggravated this condition. Specifically, Dr. Tauber opined that appellant had a traumatic 

aggravation, but that the cervical condition itself was due in part to his employment duties as a 

firefighter. In concluding, he opined that a cervical condition should be accepted as employment 

related as “his years of work contributed to this condition and the specific incident aggravated 

his underlying condition.” 

By decision dated June 20, 2013, OWCP’s hearing representative affirmed the 

December 5, 2012 decision. She found that OWCP properly developed appellant’s claim as a 

traumatic injury claim based on his allegation of a specific injury occurring during a single work 

shift. The hearing representative further found that the medical evidence failed to explain how 

the July 17, 2012 employment incident caused or aggravated appellant’s neck and head 

condition. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA2 has the burden of establishing the essential 

elements of his 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; that 

an injury was sustained while in the performance of duty as alleged and that any disability and/or 

specific condition for which compensation is claimed are causally related to the employment 

injury.3

 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.4

Section 8102(a) of FECA provides for payment of compensation for disability or death of 

an employee resulting from personal injury sustained while in the performance of his or her 

 2

 5 U.S.C. § 8101 et seq. 

3 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006). 

4 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 
5

duty.5

 This phrase is regarded as the equivalent of the coverage formula commonly found in 

workers’ compensation laws; namely, arising out of and in the course of employment.6

 Whereas 

arising out of the employment addresses the causal connection between the employment and the 

injury, arising in the course of employment pertains to work connection as to time, place and 

activity.7

 For the purposes of determining entitlement to compensation under FECA, arising in 

the course of employment, i.e., performance of duty must be established before arising out of the 

employment, i.e., causal relation, can be addressed.8

 

With regards to recreational or social activities, the Board has held that such activities 

arise in the course of employment when: (1) they occur on the premises during a lunch or 

recreational period as a regular incident of the employment; or (2) the employer, by expressly or 

impliedly requiring participation, or by making the activity part of the service of the employee, 

brings the activity within the orbit of employment; or (3) the employer derives substantial direct 

benefit from the activity beyond the intangible value of improvement in employee health and 

morale that is common to all kinds of recreation and social life.9

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

performance of duty it must first be determined whether a fact of injury has been established.10 

First, 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.11 Second, the 

employee must submit sufficient evidence, generally only in the form of medical evidence, to 

establish that the employment incident caused a personal injury.12

The claimant has the burden of establishing by the weight of reliable, probative and 

substantial evidence that the condition for which compensation is sought is causally related to a 

specific employment incident or to specific conditions of employment.13 An award of 

compensation may not be based on appellant’s belief of causal relationship. Neither the mere 

fact that a disease or condition manifests itself during a period of employment nor the belief that 

 5

 5 U.S.C. § 8102(a). 

6 See Bernard E. Blum, 1 ECAB 1 (1947). See also J.J., Docket No, 12-947 (issued March 11, 2013). 

7 See Robert J. Eglinton, 40 ECAB 195 (1988). See also G.W., Docket No, 12-1416 (issued January 16, 2013). 

8 Kenneth B. Wright, 44 ECAB 176 (1992). 

9 S.B., Docket No. 11-1637 (issued April 12, 2012); R.P., Docket No. 10-1173 (issued January 19, 2011); 

Ricky A. Paylor, 57 ECAB 568 (2006); Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); Kenneth B. Wright supra

note 8; William D. Zerillo, 39 ECAB 525 (1988). See also A. Larson, The Law of Workers’ Compensation

§ 22.00 (2012). 

10 B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3. 

11 D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005). 

12 C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra

note 3. 

13 Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996). 
6

the disease or condition was caused or aggravated by employment factors or incidents is 

sufficient to establish a causal relationship.14 

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.15 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is a causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.16 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 the specific employment factors identified by the employee.17

ANALYSIS 

Appellant alleged that he sustained neck pain on July 17, 2012 as the result of throwing a 

football in the performance of duty during physical fitness. OWCP accepted that the incident 

occurred as alleged, but denied the claim on the grounds that the medical evidence of record was 

insufficient to establish that the cervical condition was causally related to the July 17, 2012 work 

incident. 

The Board finds that OWCP did not fully develop the issue of whether appellant was in 

the performance of duty at the time of the alleged injury. OWCP began development of this 

issue by requesting additional information from both appellant and the employing establishment. 

Appellant responded generally that the employing establishment derived a benefit from his 

participation in sports and was encouraged by management. Mr. Konersman responded that 

personnel were required to be physically fit. He did not respond to whether there was an agency 

PFP or submit any such material to the record. While both Mr. Konersman and appellant stated 

that he was required to stay physically fit for his job, neither have presented any evidence 

showing how playing football constituted a benefit to the employer or how it fit within the 

physical fitness training for the position of firefighters. 

The Board will set aside OWCP’s June 20, 2013 decision and remand the case for further 

factual development to determine whether the July 17, 2012 incident was within the performance 

of duty. After such further development as may become necessary, OWCP shall issue a de novo 

decision on whether appellant’s injury arose in the course of employment. 

On appeal appellant’s counsel contends that OWCP erred in failing to develop appellant’s 

claim as an occupational instead of a traumatic injury claim. He argued that the evidence clearly 

establishes that appellant’s 31 years performing duties as a firefighter caused or aggravated his 

 14 P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997). 

15 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006). 

16 J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006). 

17 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989). 
7

cervical condition. The Board notes that appellant did not file an occupational disease claim; 

rather he attributed his neck pain to throwing a football at work on July 17, 2012. The claim was 

properly adjudicated as a traumatic injury claim. If appellant believes that his duties as a 

firefighter over the years caused or aggravated his cervical condition, then he may file an 

occupational disease claim. 

CONCLUSION 

The Board finds that this case is not in posture for decision. Further development of the 

evidence is warranted. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 20, 2013 is set aside and the case remanded for further 

development consistent with the above opinion. 

Issued: March 26, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board