United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.P., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Fort Myers, FL, Employer 

__________________________________________ 

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Docket No. 16-1313 

Issued: April 18, 2017 

Appearances: Case Submitted on the Record

Martin Kaplan, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 9, 2016 appellant, through counsel, filed a timely appeal of a January 20, 2016 

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. 

 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

ISSUE 

The issue is whether appellant met his burden of proof to establish a traumatic injury in 

the performance of duty on April 3, 2015, as alleged. 

On appeal counsel argues that the medical evidence is sufficient to establish appellant’s 

claim. 

FACTUAL HISTORY 

On April 14, 2015 appellant, then a 55-year-old transportation security officer, filed a 

traumatic injury claim (Form CA-1) alleging that while on a break on April 3, 2015 he sustained 

neck, bilateral shoulder, bilateral knee, and bilateral hand injuries when he tripped over a curb 

and landed on both his hands while heading to respond to a bag jam. He also explained that he 

scraped both knees as a result of the fall and experienced bleeding of the left knee. Appellant 

stopped work on April 14, 2015. On the back of the form, appellant’s supervisor indicated that 

the alleged incident occurred on April 10, 2015. She noted that appellant injured his knees when 

he tripped on a curb. 

In an April 23, 2015 attending physician’s report (Form CA-20), Carolyn L. Hoffman, 

advanced registered nurse practitioner, noted an injury date of April 10, 2015 and diagnosed 

cervical and trapezius strains. She checked a box marked “yes” to the question of whether the 

diagnosed conditions had been caused or aggravated by the employment activity. Appellant 

related that the injury occurred due to his tripping over an irregularity in the sidewalk and falling 

on his hands and knees. 

In an April 14, 2015 report, Dr. Christopher L. Loutzenhiser, an osteopath specializing in 

family practice, reported that appellant was seen for neck and shoulder pain. He reported 

April 10, 2015 as the date of the work injury. Physical examination findings were provided and 

a cervical x-ray was ordered. 

In a report dated April 16, 2015, Ms. Hoffman again indicated that appellant was seen for 

neck pain. She reported that he sustained a neck injury on April 10, 2015 and that an April 16, 

2015 x-ray interpretation showed no acute cervical abnormality. 

On April 24 and May 8, 2015 Dr. Paul Fortier, a Board-certified internist, reported that 

appellant was seen for neck pain. He provided physical examination findings which included 

left neck and trapezius tenderness and restricted neck range of motion. Dr. Fortier diagnosed 

cervical and trapezius muscle strains and provided work restrictions. In the May 8, 2015 report, 

Dr. Fortier noted it had been four weeks since appellant had fallen onto his hands and knees. 

In a June 22, 2015 report, Dr. David W. Krueger, a Board-certified physiatrist and pain 

medicine physician, noted that appellant was seen for neck pain. Under history of illness, he 

reported that appellant has had chronic arm and neck pain for over 10 years and that he recently 

tripped over a curb and fell at work. A physical examination revealed no tenderness on palpation 

of the shoulder muscles, tenderness on palpation of the cervical spine, or abnormal cervical range 
3

of motion. Diagnoses included cervical disc degeneration, cervical spondylosis, mild-to-severe 

multilevel foraminal stenosis at C3-4, C4-5, and cervical radiculopathy. 

By letter dated July 9, 2015, OWCP informed appellant that at the time his claim had 

been received that it appeared to be a minor injury with no lost time and the merits of the claim 

were not adjudicated. It informed appellant that his claim had been reopened as it had received a 

claim for wage-loss compensation. OWCP further advised appellant that the evidence of record 

was insufficient to establish his claim. It noted that documentation submitted was insufficient to 

establish both the factual and medical parts of his claim. OWCP noted that appellant claimed 

that the incident occurred on April 3, 2015, but the evidence of record was insufficient to 

establish that he experienced the incident alleged to have caused the injury or that the incident 

occurred in the performance of duty. OWCP advised that since the evidence of record indicated 

that the alleged incident occurred while appellant was on break, he should provide additional 

information as to his activities during his break and a further description as to why the fall 

occurred. Appellant was advised as to the medical and factual evidence required and afforded 30 

days to provide this information. He did not respond to OWCP’s request for further factual 

information regarding his claim. OWCP did receive additional medical evidence. 

On July 29, 2015 OWCP received a May 5, 2015 magnetic resonance imaging (MRI) 

scan diagnosing multiple levels of spinal stenosis with early cord compression at C3-4 and a disc 

bulge of indeterminate age. 

By decision dated August 20, 2015, OWCP denied appellant’s claim. It found that the 

alleged incident occurred on April 10, 2015, but denied the claim as the medical evidence was 

insufficient to establish causal relationship. 

In an August 26, 2015 report, Dr. Krueger noted that appellant was seen for a follow-up 

visit for his neck pain and that appellant continued to work light duty. Appellant related having 

preexisting conditions, but believed the fall caused his current symptoms. Physical examination 

findings and diagnoses were unchanged from the prior June 22, 2015 report. Dr. Krueger 

reported that the fall appeared to have aggravated appellant’s preexisting condition and he was to 

continue in light-duty work until his arm symptoms improved. 

In a report dated September 24, 2015, Dr. Fortier reported that appellant was first seen by 

Dr. Loutzenhiser on April 14, 2015 and that he had evaluated appellant in April and May for his 

April 10, 2015 employment injury. He summarized findings from prior medical evaluations and 

provided a description of the April 10, 2015 incident when appellant tripped over a sidewalk 

irregularity and fell. Dr. Fortier reported a history of neck pain from a motor vehicle accident 10 

years prior. A cervical spine MRI scan revealed spinal stenosis at multiple levels with cord 

compression, as well as a disc bulge of indeterminate age. Dr. Fortier opined that the April 10, 

2015 fall at work aggravated appellant’s underlying chronic cervical degenerative disc disease as 

he had been doing well prior to the fall. 

In a letter dated October 27, 2015, counsel requested reconsideration and submitted 

medical evidence including a June 24, 2015 report by Dr. Anthony Hall, a neurosurgeon. 
4

In the June 24, 2015 report, Dr. Hall noted that on April 10, 2015 appellant had sustained 

a slip and fall injury at work. Appellant informed Dr. Hall that he fell because his legs went out 

on him while walking at work. In addition, he noted that he was unconscious for an 

indeterminate period of time and that he had lost his glasses. Appellant also explained that he 

was unable to recall all of the details regarding the incident. Dr. Hall noted appellant’s other 

injuries including a motor vehicle accident 10 years ago in which appellant sustained cervical 

whiplash injury and had received epidurals and treatment. According to appellant, his last 

epidural took place in April 2014. A physical examination revealed tenderness on palpation in 

the mid and lower cervical region and mild left deltoid and triceps weakness. A sensory 

examination revealed a slight cervical decline. A review of a May 15, 2015 MRI scan showed 

spinal stenosis, cervical disc herniations and tears, C3-4 central herniation, and cord indentation 

and displacement. Dr. Hall diagnosed cervical spine and head injuries and loss of consciousness 

due to the work injury and recommended surgery. 

Dr. Krueger, in a report dated September 30, 2015 and amended on October 6, 2015, 

opined that appellant’s work injury exacerbated his preexisting cervical stenosis as it had not 

been painful or restrictive at the time of injury. 

By decision dated January 20, 2016, OWCP denied modification. It noted that appellant 

reported the injury date as April 3, 2015 on his claim form, but subsequently claimed his 

preexisting condition had been aggravated by an April 10, 2015 fall. OWCP found that there 

were inconsistencies in the factual evidence of record as to whether the alleged incident occurred 

at the time, place, and in the manner alleged. It also found that the medical evidence was 

insufficiently rationalized to establish a causal relationship between the diagnosed medical 

condition and the employment incident. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3

 has the burden of proof to establish 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.4

 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.5

 

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

performance of duty it must first be determined whether fact of injury has been established.6

 

First, the employee must submit sufficient evidence to establish that he actually experienced the 

 3 Id.

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

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

6 B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4. 
5

employment incident at the time, place, and in the manner alleged.7 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.8

 

An employee has the burden of proof to establish the occurrence of an injury at the time, 

place, and in the manner alleged, by a preponderance of the reliable, probative, and substantial 

evidence. An injury does not have to be confirmed by eyewitnesses in order to establish the fact 

that an employee sustained an injury in the performance of duty, as alleged, but the employee’s 

statements must be consistent with surrounding facts and circumstances and his subsequent 

course of action.9

 An employee has not met his burden of proof to establish the occurrence of an 

injury when there are such inconsistencies in the evidence as to cast serious doubt upon the 

validity of the claim.10

ANALYSIS 

On April 14, 2015 appellant filed a traumatic injury claim alleging that on April 3, 2015 

he sustained a neck, bilateral shoulder, bilateral knee, and bilateral hand injuries as a result of 

tripping over a curb and landing on both his hands while heading to respond to a bag jam. The 

Board finds that appellant has failed to substantiate that he sustained an injury while tripping 

over a curb on April 3, 2015. There are inconsistencies in the factual evidence which cast 

serious doubt on the validity of his claim. 

On appellant’s claim form he noted that he was on a break when he tripped over curbing 

heading to respond to a bag jam on April 3, 2015 and that he fell on his hands and scraped his 

knees, causing bleeding of the left knee. On the back of the form, his supervisor noted that the 

alleged incident occurred on April 10, 2015, not April 3, 2015. The medical evidence of record 

also notes April 10, 2015 as the date appellant fell, not April 3, 2015. Appellant has not 

explained why he listed April 3, 2015 as the date of the incident on his claim form and informed 

his supervisor and physicians that the incident occurred on April 10, 2015. OWCP advised 

appellant in a July 9, 2015 letter that the medical and factual evidence was insufficient to support 

his claim. It provided a questionnaire for appellant to complete and noted that the date of injury 

on his claim form was April 3, 2015. Appellant was specifically advised that the evidence was 

insufficient to establish that he experienced the incident alleged, and that the incident occurred 

while he was performing a duty of his employment. 

In addition Dr. Hall’s report casts doubt as to appellant’s account of how the April 10, 

2015 incident occurred. His description of the incident as reported to him by appellant is 

different than the history provided on the claim form. Dr. Hall’s description of the incident is 

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

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

note 4. 

9 See Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued 

March 9, 1995). 

10 See K.B., Docket No. 15-1527 (issued March 15, 2016). 
6

that appellant’s legs went out while walking at work along with a period of indeterminate 

unconsciousness. On his claim form, appellant noted scraping his knees, and bleeding of his left 

knee, but he did not relate a history of indeterminate unconsciousness. Dr. Hall also reported a 

preexisting cervical injury due to a motor vehicle accident 10 years prior, which included 

treatment for the injury as recent as April 2014. The Board notes that Dr. Hall’s report provides 

a history of injury and medical history, both significantly inconsistent with regard to the 

circumstances of the alleged incident as to appellant’s account reported on the claim form. 

As the evidence of record indicated that appellant was on break when the alleged incident 

occurred, appellant was also asked to explain what he was doing on break, and what caused the 

alleged fall. There was no response from appellant, as he failed to submit the requested 

evidence.11 Therefore, not only does it remain unclear as to when the alleged incident occurred, 

it remains unclear as to whether appellant was in the performance of duty at the time of the 

incident as he has not provided a statement fully describing his activities while on break and how 

and where his fall occurred. Whether an injury occurs at the time, place, and in the manner and 

in the performance of duty is a preliminary issue before the merits of the claim are adjudicated.12 

Given the inconsistencies in the evidence of record the Board finds that there is insufficient 

evidence to establish that the incident occurred in the performance of duty on April 3, 2015, as 

alleged.13

On appeal counsel argues that Dr. Krueger’s opinion is sufficiently rationalized to 

establish that appellant sustained an aggravation of an underlying condition by the incident. In 

the alternative, he argued the opinion is sufficient to warrant further development of the record. 

The Board, however, finds the evidence of record insufficient to establish that the incident 

occurred as alleged or in the performance of duty. As the Board finds that appellant failed to 

establish the factual aspect of his claim, it is unnecessary for the Board to consider the medical 

evidence.14

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. 

 11 P.J., Docket No. 16-1018 (issued September 1, 2016). Appellant did not respond to OWCP’s request for 

further information as to how the alleged incident occurred and did not establish that the alleged incident occurred as 

alleged. 

12 See P.L., Docket No. 16-631 (issued August 9, 2016). 

13 See Alvin V. Gadd, 57 ECAB 172 (2005) (appellant failed to submit sufficient factual evidence supporting his 

traumatic injury claim); Mary Joan Coppolino, 43 ECAB 988 (1992) (the Board found that discrepancies and 

inconsistencies in appellants statements describing the injury created serious doubts that the injury was sustained in 

the performance of duty). 

14 B.W., Docket No. 13-244 (issued May 13, 2013); S.P., supra note 5; Bonnie A. Contreras, supra note 4; Paul 

Foster, 56 ECAB 208 (2004). 
7

CONCLUSION 

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

injury in the performance of duty on April 3, 2015, as alleged. 

ORDER 

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

Compensation Programs dated January 20, 2016 is affirmed, as modified. 

Issued: April 18, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board