United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________ 

L.G., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

LONG ISLAND MACARTHUR AIRPORT, 

Ronkonkoma, NY, Employer 

___________________________________________

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Docket No. 16-1065 

Issued: October 13, 2016 

Appearances: Case Submitted on the Record 

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 26, 2016 appellant, through counsel, filed a timely appeal of a February 26, 

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 over 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 her burden of proof to establish a traumatic injury 

causally related to a December 24, 2014 employment incident. 

FACTUAL HISTORY 

On December 31, 2014 appellant, then a 57-year-old supervisory transportation security 

officer, filed a traumatic injury claim (Form CA-1) alleging that on December 24, 2014 she was 

working with checked baggage and caught a bag that was rolling off of a “CT-80” machine, 

injuring her neck, right shoulder, and right arm. The employing establishment checked the box 

marked “yes” in response to whether appellant was injured in the performance of duty and in 

response to whether the knowledge of the facts about the injury agreed with the statements of the 

employee. Appellant stopped work on December 28, 2014. 

On December 31, 2014 the employing establishment completed an authorization for 

examination or treatment (Form CA-16) for a period of 60 days. 

In January 5 and 12, 2015 reports, Dr. Ronald Fagan, a Board-certified internist, advised 

that the date of injury was December 24, 2014 and occurred while appellant was working in 

checked baggage, loading baggage onto the belt. He indicated that she pulled her back and right 

arm catching a piece of luggage at work and diagnosed cervical lordosis, cervical degenerative 

disc disease, cervical muscle spasm, lumbar sacral spasm and strain and radiculopathy of the 

right leg. OWCP received doctor’s progress reports on State of New York Workers’ 

Compensation Board Forms C-4.2 dated January 12 and 30, 2015 from Dr. Fagan who diagnosed 

L5 and C-S spondylosis and exacerbation of degenerative disc disease. 

In a January 5, 2015 treatment note, Dr. Stuart Horowitz, an osteopath, Board-certified in 

family medicine, advised that appellant was under treatment for workers’ compensation which 

prevented a return to work. In a January 12, 2015 disability certificate and a physician work 

capacity statement of the same date, he advised that appellant was being treated for exacerbation 

of degenerative disc disease and traumatic injury. Dr. Horowitz noted that the “prognosis was 

unknown.” 

Dr. Fagan saw appellant on February 20, 2015 for follow up and recommended physical 

therapy and keeping appellant off work for an additional three weeks. On March 13, 2015 he 

recommended additional therapy and referral to an orthopedist. 

In a March 19, 2015 report, Dr. Brett Spain, an osteopath, Board-certified in orthopedics 

and sports medicine, noted that appellant reported an injury at work on December 24, 2014. He 

advised that appellant related that her coworker tossed a suitcase on the conveyor belt which 

rolled off and she tried to catch it. Appellant indicated that it caused a forceful pulling of the 

right arm/shoulder and neck. Dr. Spain related that appellant indicated that her pain was mostly 

in the neck into the right shoulder and she was currently not working. 

OWCP received several physical therapy notes and prescriptions. 
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In a letter dated April 1, 2015, OWCP noted that appellant’s claim initially appeared to 

be a minor injury that resulted in minimal or no lost time from work and because the employing 

establishment did not controvert continuation of pay or challenge the merits of the case, 

appellant’s claim was administratively handled to allow a limited amount of medical expenses. 

However, appellant’s claim was now being reopened because a claim for wage loss was 

received. OWCP informed appellant of the type of evidence needed to support her claim and 

afforded her 30 days to submit such evidence. 

Dr. Spain provided attending physician’s reports (Form CA-20) dated April 7 

and 8, 2015. He indicated that appellant had back and right arm neck pain. Dr. Spain diagnosed 

cervical lordosis, exacerbation of cervical disc disease, and L5 and C-S spondylosis. He checked 

the box marked “yes” in response to whether he believed the condition was caused or aggravated 

by an employment activity and filled in that appellant pulled her back and cervical spine with 

luggage. Regarding appellant’s ability to work, Dr. Spain indicated that appellant saw an 

orthopedist and would decide disability. OWCP also received additional physical therapy 

reports. 

On April 7, 2015 OWCP received a statement from appellant. Appellant explained that 

she was in checked baggage loading bags when her injury occurred. She noted that a coworker 

lifted a heavy bag and dropped it on the belt, but it rolled toward her and she instinctively caught 

the bag. Appellant explained that the momentum pulled her right arm, neck, and lower back, and 

she immediately felt pain. In a separate April 7, 2015 statement, she noted that the employing 

establishment had a video of the injury and that she requested a copy, but her request was denied. 

Appellant denied having any similar injuries. 

By decision dated May 11, 2015, OWCP denied appellant’s claim as she had not 

established a claimed medical condition causally related to the established work-related event. 

A May 19, 2015 magnetic resonance imaging (MRI) scan read by Dr. Katya Shpilberg, a 

Board-certified diagnostic radiologist, revealed multilevel degenerative disc disease with mild 

spinal canal stenosis at C3-4 and C6-7 and up to moderate foraminal stenosis at C5-6 on the right 

with no cord compression. 

On September 22 and 30, 2015 counsel for appellant requested reconsideration. He 

argued that the medical evidence of record established that appellant’s condition was causally 

related to the December 24, 2014 work incident. Counsel also submitted new medical evidence. 

In a May 28, 2015 report, Dr. Luis Alejo, a Board-certified physiatrist, noted that 

appellant related being injured at work on December 24, 2014, when her coworker tossed a 

suitcase on the conveyor belt and she tried to catch it. He advised that she pulled her right 

arm/shoulder and neck. Dr. Alejo indicated that appellant was currently not working. He 

examined her and diagnosed cervical radiculopathy (brachial neuritis or radiculitis). In a 

separate May 28, 2015 report, Dr. Alejo checked a box marked “yes” in response to whether the 

incident appellant described was the competent cause of the injury or illness. He also checked a 

box marked “yes” in response to whether appellant’s complaints were consistent with the history 

of the injury/illness and with the objective findings. Dr. Alejo indicated that appellant was 100 

percent totally disabled. He saw appellant again on August 18, 2015 and repeated the history of 
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injury. Dr. Alejo examined appellant and noted that MRI scans revealed herniated nucleus 

pulposus at C5-6 and C6-7 with multiple bulges. He diagnosed cervical radiculopathy (brachial 

neuritis or radiculitis). Dr. Alejo opined “[i]n my opinion the accident is causally related to her 

current painful condition.” 

Dr. Horowitz, in a June 29, 2015 report, noted appellant’s history of injury on 

December 24, 2014, where she caught a large bag that was falling off of the conveyor belt and 

pulled her right arm, neck, and back. He related that appellant reported the incident and 

attempted to keep working, but the pain increased and major headaches developed. 

Dr. Horowitz advised that she was seen on January 5, 2015 and taken off work. He explained 

that objective findings included spasm, tenderness, range of motion (ROM) loss, muscle 

guarding, and some upper extremity weakness. Dr. Horowitz diagnosed cervical and lumbar 

pain with spasm and signs of radiculopathy. He indicated that appellant underwent physical 

therapy. Dr. Horowitz advised that appellant subsequently had a cervical spine MRI scan and 

the results showed degenerative disc disease and stenosis affecting the right greater than the left. 

An EMG was pending. Dr. Horowitz noted that appellant had a prior history of umbilical hernia, 

with surgical repair and mesh in 2011. He opined that appellant had no history of prior injury to 

those areas and it was “more than reasonable to find these current injuries as causally related to 

the work incident” and “to conclude that the incident described above was the proximate cause 

of the described medical condition.” Dr. Horowitz advised that appellant had a good, but 

guarded recovery and she remained on full temporary disability. 

OWCP also received a July 9, 2015 report from Dr. Aristide Burducea, Board-certified in 

anesthesiology and pain medicine, who noted seeing appellant for evaluation of the cervical 

spine. Dr. Burducea noted that the locale of the injury was in the workplace. He examined 

appellant and diagnosed cervical radiculopathy. OWCP continued to receive physical therapy 

reports. 

By decision dated February 26, 2016, OWCP denied modification of the May 11, 2015 

decision. It explained that appellant’s treating physicians did not provide a sufficiently 

rationalized medical opinion on how catching a falling bag caused or aggravated the diagnosed 

neck and arm condition. OWCP noted that there were no objective findings or an explanation to 

show how the event caused, contributed to, or aggravated the diagnosed conditions. 

Furthermore, there was no differentiation from symptoms of any preexisting neck condition. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA 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 timely filed within the 

applicable time limitation period of FECA,3 and that an injury was sustained in the performance 

                                                             3 Joe D. Cameron, 41 ECAB 153 (1989). 
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of duty.4

 These are the essential elements of each compensation claim, regardless of whether the 

claim is predicated upon 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 first must be determined whether the fact of injury has been established. 

There are two components involved in establishing the fact of injury. First, the employee must 

submit sufficient evidence to establish that she actually experienced the employment incident at 

the time, place, and in the manner alleged.6 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.7

 

Rationalized medical opinion evidence is generally required to establish causal 

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

background, 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

ANALYSIS 

In this case, appellant alleged that she sustained injuries to her neck, right shoulder, and 

right arm on December 24, 2014 while catching a bag that was rolling off the conveyor belt 

while in the performance of duty. There is no dispute that the claimed event occurred, as 

alleged. 

The Board finds that, while the medical evidence is insufficiently rationalized to establish 

that appellant sustained a work-related condition, the medical reports from Dr. Horowitz and 

Dr. Alejo are supportive of causal relationship and sufficient to require further development of 

the case record by OWCP. 9 The most relevant report is the June 29, 2015 report from 

Dr. Horowitz. The Board notes that he documented appellant’s history of injury on 

December 24, 2014, where she caught a large bag that was falling off the conveyor belt and 

pulled her right arm, neck, and back. Dr. Horowitz related that she reported the incident and 

attempted to keep working, but her symptoms increased. He noted diagnostic test results 

provided examination findings which included spasm, tenderness, ROM loss, muscle guarding, 

and some upper extremity weakness. Dr. Horowitz diagnosed cervical and lumbar pain with 

spasm with signs of radiculopathy. He opined that appellant had no prior history of injury in 

those areas and it was “more than reasonable to find these current injuries as causally related to 

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

5 Delores C. Ellyett, 41 ECAB 992 (1990). 

6 Julie B. Hawkins, 38 ECAB 393, 396 (1987). 

7 Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee). 

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

9 See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978). 
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the work incident” and “to conclude that the incident described above was the proximate cause 

of the described medical condition.” 

Dr. Alejo also provided May 28 and August 18, 2015 reports which noted the history of 

the December 24, 2014 work incident and diagnosed cervical radiculopathy. He opined in these 

reports that the work incident caused appellant’s condition and that she was totally disabled. 

The Board finds that these reports support that appellant’s condition was caused or 

aggravated by the December 24, 2014 work incident. While these reports are not completely 

rationalized, the physicians are consistent in indicating that appellant sustained an employmentrelated condition. The Board further notes that the employing establishment has not controverted 

the claim and there is no contradictory medical evidence. 

Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested 

arbiter. While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence to see that justice is done.10

On remand, OWCP should refer appellant, the case record, and a statement of accepted 

facts to an appropriate Board-certified specialist for an evaluation and a rationalized medical 

opinion regarding whether the December 24, 2014 work incident caused or contributed to 

appellant’s diagnosed conditions. After such further development of the case record as OWCP 

deems necessary, a de novo decision shall be issued. 

The Board also notes that the employing establishment issued an authorization for 

medical treatment (Form CA-16) on December 31, 2014. Where an employing establishment 

properly executes a Form CA-16, which authorizes medical treatment as a result of an 

employee’s claim for an employment-related injury, the Form CA-16 creates a contractual 

obligation, which does not involve the employee directly, to pay for the cost of the examination 

or treatment regardless of the action taken on the claim.11 The period for which treatment is 

authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated 

earlier by OWCP.12 In this case, it is unclear whether OWCP paid for the cost of appellant’s 

examinations. On return of the case record, OWCP should further address this matter as 

appropriate.

CONCLUSION 

The Board finds that this case is not in posture for decision. 

                                                             10 William J. Cantrell, 34 ECAB 1223 (1983). 

11 A.B., Docket No. 15-1002 (issued August 14, 2015); Tracey P. Spillane, 54 ECAB 608 (2003). 

12 20 C.F.R. § 10.300(c). 
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ORDER 

IT IS HEREBY ORDERED THAT the February 26, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further action consistent with 

this decision. 

Issued: October 13, 2016 

Washington, DC 

 

 Christopher J. Godfrey, 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