United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.B., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, DALLAS/FORT WORTH 

INTERNATIONAL AIRPORT, Coppel, TX, 

Employer 

__________________________________________ 

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Docket No. 16-0904 

Issued: May 2, 2017 

Appearances: Case Submitted on the Record

Jennifer Raymond, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 25, 2016 appellant, through counsel, filed a timely appeal from a January 25, 

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 cervical conditions 

due to her accepted May 10, 2007 employment injury. 

On appeal counsel contends: (1) that OWCP did not properly evaluate all of the medical 

evidence; (2) that it did not resolve the dispute between appellant’s treating physician and 

OWCP’s medical adviser; and (3) that OWCP erred in relying upon the opinion of OWCP’s 

medical adviser. 

FACTUAL HISTORY 

On June 3, 2007 appellant, then a 54-year-old lead transportation security screener, filed 

a traumatic injury claim (Form CA-1) alleging that on May 10, 2007 she was walking from the 

unload end of the conveyor to the load end when she tripped over a tub trolley. She noted that 

she fell to the side of the exit conveyer, landed on her side, and hit her head on the conveyer. 

Appellant listed the nature of her injury as multiple bruises down the side of her body, swollen 

jaw, and pain in her neck and back. 

Appellant received treatment from a nurse at Harris Occupational Health on June 14, 

2007 for the May 10, 2007 incident. At that time, she was asked to mark areas on a diagram as 

to where she hurt, and she shaded both sides of her lower neck, both buttocks, and her right leg 

and foot. The nurse’s notes from the same date indicate that appellant fell on May 10, 2007 and 

injured her neck, lower back, right hip, right foot, and right leg. 

On July 16, 2007 OWCP accepted appellant’s claim for sprain of the lumbar region of the 

back and for thoracic or lumbosacral neuritis or radiculitis. Appellant returned to work in a 

limited-duty capacity until she was released to full duty on August 21, 2007. However, due to a 

change in her medication, the employing establishment was unable to accommodate her new 

restrictions and appellant stopped work on October 14, 2011. Appellant received benefits on the 

supplemental and periodic rolls as of June 20, 2011. 

Appellant began receiving medical treatment for her back shortly after the May 10, 2007 

employment injury from Dr. Daniel Kim, a Board-certified physiatrist. In a July 16, 2007 report, 

Dr. Kim listed his impressions as: (1) low back, right buttock and right leg pain, status post 

work injury on May 10, 2007; (2) probable right lumbar radiculopathy; (3) possible right lumbar 

facet dysfunction; (4) grade 1 L4-5 anterolisthesis; (5) lumbar spinal stenosis; and (6) lumbar 

sprain/strain. Appellant continued to have near-monthly appointments with either Dr. Kim or an 

associate. In a March 23, 2009 progress report, Dr. Kim mentioned that appellant was 

experiencing chronic cervical pain. He noted that appellant complained of chronic neck pain 

before her fall and that she felt it had been inflamed. Dr. Kim noted that cervical flexion and 

extension caused neck pain, and that cervical rotation to the left was more painful than to the 

right. 

Appellant received treatment from the Village Chiropractic Center from March 25 

through April 10, 2008 for sciatica, neuralgia, thoracic subluxation complex, cervical 

subluxation complex, and injury to multiple nerves in the pelvis. 
3

On May 23, 2011 appellant began to receive treatment from an associate of Dr. Kim, 

Dr. R. Jamie Spicer, a Board-certified physiatrist. In his May 23, 2011 report, Dr. Spicer 

diagnosed low back pain due to a work-related injury, right greater than left lumbar radiculitis 

secondary to a work-related injury, and imaging evidence of grade 1 spondylolisthesis at L4-5 

with moderate spinal stenosis at the L4-5 level. In a September 12, 2011 note, he asked that 

appellant be excused from work for a flare up of pain in the lower lumbar region. Dr. Spicer 

noted that she was being treated for lumbago, lumbar radiculopathy, and lumbar spondylosis. In 

a December 5, 2011 report, he advised that appellant had been going to physical therapy for her 

injuries and that it had exacerbated her neck and thoracic pain. In a March 14, 2012 letter, 

Dr. Spicer provided treatment results. He noted that appellant had continued complaints of neck 

pain that were a consequence of the original injury and that the neck pain had earlier been 

described to the initial spine specialist. Dr. Spicer continued to note her complaints of neck pain 

in subsequent reports. 

In a March 12, 2015 report, Dr. Kim noted cervical extension more painful than cervical 

flexion. In a June 17, 2015 report, he noted that appellant was in the performance of her 

regularly assigned duties as a lead transportation security screener on May 10, 2007, when she 

injured her neck and low back when she twisted her spine after tripping over a tub trolley and 

hitting her head on the exit conveyer ramp. Dr. Kim noted that this injury was clearly noted in 

her claim, on the initial report at Harris Occupational Health on June 14, 2007 and in her 

treatment notes from her chiropractor. He concluded that it was well documented that as a result 

of appellant’s work injury on May 10, 2007 she experienced a swollen jaw, multiple bruises 

down the left side of her body, and painful injuries to her back and neck, causing radicular 

symptoms on her left side. Dr. Kim noted that her recent physical examination findings which 

confirmed her persistent cervical injury included cervical extension more painful than cervical 

flexion, severe left cervical paraspinal tenderness and left upper trapezius spasms, reduced trace 

left biceps reflex compared to 1+ right biceps reflex, mildly decreased sensation to light touch in 

the left hand, and Spurling’s test mildly positive for radicular symptoms in her left upper 

extremity on the left side. He opined that appellant’s fall of May 10, 2007 caused cervicalgia, 

left cervical facet dysfunction, and left cervical radiculopathy. 

In a June 17, 2015 letter to OWCP captioned “Request to Upgrade Conditions,” 

appellant, through counsel, requested an upgrade to include an injury to her cervical spine. 

On July 15, 2015 OWCP asked its medical adviser to determine whether these additional 

conditions were caused by the work injury of May 10, 2007. On July 28, 2015 Dr. H. Mobley, 

an internist and OWCP medical adviser, reviewed the medical record and determined that it 

failed to support the contention that appellant had significantly injured her cervical spine at the 

time of the initial fall. He noted that her neck complaints started several years afterwards and 

were complicated by the presence of fibromyalgia. Dr. Mobley also noted that the suggested 

diagnoses of facet dysfunction and cervical radiculopathy were lacking in diagnostic 

confirmation. 

On August 3, 2015 another OWCP medical adviser, Dr. Michael M. Katz, a Boardcertified orthopedic surgeon, indicated that while Dr. Kim was correct that the mechanism of 

injury on May 10, 2007 included appellant’s head striking the conveyer belt, and that there was a 

complaint of neck pain at the time of the initial visit to Harris Occupational Health in 2007, the 
4

subsequent records, including multiple visits with Dr. Kim, make no reference to any cervical or 

upper extremity radicular complaints. He noted it was not until December 5, 2011, more than 

four years following the work-related injury of May 10, 2007, that Dr. Spicer noted cervical 

complaints. Dr. Kim opined that while appellant may have struck her head at the time of the 

initial injury and sustained a cervical strain, based on the records within the database including 

many visits addressing her ongoing lumbar complaints, but none addressed ongoing 

cervical/neck complaints, any potential cervical injury sustained in 2007 was self-limited. He 

concluded that the subsequent complaints beginning in 2011 and the diagnoses proposed by 

Dr. Kim were not supported, even in part, via a causal link to the work-related injury of 2007. 

In a decision dated September 3, 2015, OWCP denied appellant’s request to expand the 

accepted conditions, as the medical evidence failed to establish that cervicalgia, left cervical 

facet dysfunction, and left cervical radiculopathy were due to the accepted work injury of 

May 10, 2007. 

On December 14, 2015 appellant, through counsel, requested reconsideration. Counsel 

asked that OWCP either accept appellant’s claim for cervicalgia, left cervical facet dysfunction, 

and left cervical radiculopathy or further develop the evidence. 

In support of her reconsideration request, appellant submitted a statement dated 

September 24, 2015. She detailed her injury history from the date of the employment injury, 

May 10, 2007, to the present. Appellant noted that during the weeks after her employment 

injury, her back and neck hurt, but that the pain that began to occur in her calf and radiated in her 

knee and foot became excruciating. She explained that this pain in her leg was so intense that 

she was not thinking about her cervical condition much at that time. Appellant indicated that she 

could not receive treatment from a physician for her cervical condition because it was not an 

accepted condition, but that her chiropractor was treating her cervical issues. She noted that both 

Drs. Kim and Spicer would tell her that her cervical condition was not covered. Appellant 

indicated that she stopped seeing her chiropractor because it became financially difficult. 

In further support of the reconsideration request, counsel submitted a December 8, 2015 

medical report wherein Dr. Kim reiterated appellant’s medical history and restated his earlier 

conclusions regarding appellant’s cervical conditions. Dr. Kim responded to the medical reports 

by OWCP’s medical advisers. He noted that the reason that there was no reference to appellant’s 

cervical spine or upper extremity radicular complaints during her early visits was because her 

cervical spine injury was not included or covered in her workers’ compensation injury claim 

when she was referred to his office. Dr. Kim noted that financial difficulty caused her to stop 

paying for the chiropractor who was treating her cervical condition, and that is why she 

mentioned the worsening cervical spine condition to Dr. Spicer, who started documenting her 

neck complaints in his office note dated December 5, 2011. He concluded that, based on the 

objective findings, it was his medical conclusion, with reasonable medical certainty, that the way 

appellant fell on her head and the resulting impact to her neck from the work-related injury on 

May 10, 2007 caused cervicalgia, left cervical facet dysfunction, and probable left cervical 

radiculopathy. 

By decision dated January 25, 2016, OWCP determined that the evidence submitted on 

reconsideration was insufficient to modify the decision of September 3, 2015, because the 
5

medical evidence of record did not support that appellant’s cervicalgia, left cervical facet 

dysfunction, and cervical radiculopathy were related to the employed-related injury of 

May 10, 2007. 

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 employment injury.3

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

causal relationship is rationalized medical opinion evidence. Rationalized medical opinion 

evidence is evidence which includes a physician’s opinion on the issue of whether there is a 

causal relationship between the claimant’s diagnosed condition and the implicated employment 

factors. 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.4

ANALYSIS 

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

OWCP accepted that appellant had a lumbar sprain and thoracic/lumbosacral 

radiculopathy causally related to the accepted May 10, 2007 employment injury. Appellant 

asked that this claim be expanded to include acceptance of her cervical conditions, i.e., 

cervicalgia, left cervical facet dysfunction, and probable left cervical radiculopathy. OWCP 

denied expansion of the claim to accept these conditions. 

When appellant filed her claim on June 3, 2007, she mentioned her neck pain. Appellant 

also described neck pain at the time of her initial treatment with Harris Occupational Health on 

June 14, 2007 and shaded a diagram to indicate neck pain. She also received chiropractic 

treatment for her neck in 2008. The first mention by a physician of neck pain was by Dr. Kim in 

his March 23, 2009 progress report. Dr. Spicer noted on March 14, 2012 that, in reviewing 

appellant’s record, appellant complained of neck pain with the initial injury and that she had 

continued to complain of neck pain subsequent to this injury. Dr. Kim noted in his June 17, 

2015 report that the way appellant fell on her head on May 10, 2007 caused cervicalgia, left 

cervical facet dysfunction, and left cervical radiculopathy. 

OWCP referred appellant’s case to OWCP medical advisers, but neither Dr. Mobley nor 

Dr. Katz believed that her cervical conditions were causally related to the May 10, 2007 

employment injury. Dr. Mobley indicated that her neck complaints started several years after the 

employment injury and were complicated by the presence of fibromyalgia. Dr. Katz noted that, 

 3 Jaja K. Asaramo, 55 ECAB 200 (2004); see also M.R., Docket No. 15-1181 (issued January 29, 2016). 

4 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989). 
6

although appellant did initially note neck pain in 2007, subsequent records, including reports by 

Dr. Kim, make no reference to any cervical or upper extremity radicular complaint and that the 

first reference of a cervical injury was not until December 5, 2011, more than four years 

following the employment-related injury of May 10, 2007. However, Dr. Kim clearly noted in a 

March 23, 2009 progress report that appellant was experiencing chronic cervical pain. 

Therefore, the opinions of OWCP’s medical advisers contradicting the reports of Drs. Kim and 

Spicer are not based on an accurate medical history, do not represent the weight of the medical 

evidence, are insufficient to deny appellant’s claim for compensation for her cervical conditions. 

Dr. Kim reviewed the reports of OWCP’s medical adviser and, in a December 8, 2015 

report, described appellant’s employment incident noting that she clearly had indicated on her 

claim form and in her first medical appointment after the May 10, 2007 incident that she had 

neck pain. He explained that neck pain was not discussed in his earlier reports because her 

cervical spine injury was not covered by her workers’ compensation injury claim. Dr. Kim also 

noted that appellant had received treatment for this condition from her chiropractor, but that 

when she stopped seeing him due to financial difficulties, Dr. Spicer started documenting 

cervical complaints. Dr. Kim concluded that, based on his objective findings, it was his medical 

conclusion that she fell on her head on May 10, 2007 and the resulting impact to her neck from 

the employment-related injury on May 10, 2007 caused cervicalgia, left cervical facet 

dysfunction, and probable left cervical radiculopathy. 

Dr. Kim and Dr. Spicer submitted medical opinions linking appellant’s cervicalgia, left 

cervical facet dysfunction, and probable left cervical radiculopathy, to appellant hitting her head 

on the exit conveyer ramp on May 10, 2007. They noted her history of injury, that she 

complained of neck pain shortly after the injury, and that she was treated for neck pain by her 

chiropractor. 

The Board finds that the opinions of Dr. Spicer and Dr. Kim are sufficient to require 

further development of the record. 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. It 

has the obligation to see that justice is done.5

On remand OWCP should submit a statement of accepted facts to a second opinion 

physician in order to obtain a rationalized opinion as to whether appellant’s current cervical 

condition is causally related to her accepted employment injury of May 10, 2007. Following this 

and any other development deemed necessary, OWCP shall issue a de novo decision. 

CONCLUSION 

The case is not in posture for decision as further development of the medical evidence is 

necessary. 

 5 L.T., Docket No. 16-0172 (issued July 13, 2016); see also Jimmy A. Hammons, 51 ECAB 219 (1999); Marco A. 

Padilla, 51 ECAB 202 (1999). 
7

ORDER 

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

Compensation Programs dated January 25, 2016 is set aside and this case is remanded for further 

action consistent with this decision. 

Issued: May 2, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board