United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Las Vegas, NV, Employer

__________________________________________

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Docket No. 19-0930

Issued: June 17, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 27, 2019 appellant, through counsel, filed a timely appeal from a January 28, 

2019 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 has met his burden of proof to establish an injury in the 

performance of duty, as alleged.

FACTUAL HISTORY

On April 7, 2018 appellant, then a 56-year-old transportation security officer (screener), 

filed a traumatic injury claim (Form CA-1) alleging that at 4:30 p.m. on Friday April 6, 2018 he 

sustained a left knee and low back injury when he tripped on torn carpet while in the performance 

of duty.

3

 He notified his supervisor, stopped work, and first received medical treatment on 

April 7, 2018. On the reverse side of the claim form, C.H., appellant’s supervisor, controverted 

the claim, contending that appellant was not in the performance of duty at the time of the alleged 

occurrence. 

In an April 7, 2018 signed statement, appellant reported that his injury occurred at 4:20 

p.m. on Friday, April 6, 2018 at the C Annex Checkpoint underneath the monitors near the 

Metropolitan Police Department podium. He asserted that he was walking to sit down on a chair 

under the departure/arrival monitors when he tripped on the carpet and fell, hitting his left knee 

and also injuring his lower back. Appellant contacted his supervisors on April 7, 2018. He 

explained that, when his injury occurred, he continued to work his shift and did not realize the 

extent of his injuries until he visited urgent care. Appellant reported that no one directly witnessed 

his fall, but he informed his coworkers of his injury. 

An employing establishment incident report documents that appellant called the hotline on 

April 7, 2018 to notify the employing establishment that on April 6, 2018 he tripped and fell, 

injuring his left knee and lower back. It was noted that the injury occurred at 4:20 p.m. 

An April 7, 2018 attending physician’s report (Form CA-20) from Dr. Nickolas Karajohn, 

a family medicine physician, indicated that appellant sought treatment for an April 6, 2018 injury 

when he fell at work. The physician noted a history of prior left knee surgery and diagnosed left 

knee strain and lumbar strain. 

Dr. Sinoneta Soriano, a Board-certified family practitioner, reported that appellant was 

seen on April 7, 2018 for left knee and back injuries which occurred when he tripped and fell on a 

carpet at work. In a hospital encounter form report from Dr. Soriano dated April 7, 2018, 

appellant’s history of injury was recorded as a trip and fall on ripped carpet while walking to C 

Annex Security Checkpoint on April 6, 2018 at 4:25 p.m. 

An April 9, 2018 progress note and work capacity evaluation (Form OWCP-5c) was also 

submitted from Dr. Karajohn documenting treatment and referrals for a magnetic resonance 

imaging (MRI) scan of the left knee. 

The employing establishment issued an authorization for examination and/or treatment 

(Form CA-16) on April 10, 2018, which allowed appellant to obtain treatment at Enterprise Quick 

 

3 Appellant’s regularly scheduled work shift ran Sunday through Thursday from 4:30 p.m. to 1:00 a.m. daily.
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Care for the claimed April 6, 2018 injury. It indicated that there was doubt as to whether his

condition was caused by an injury in the performance of duty. 

In a development letter dated April 27, 2018, OWCP informed appellant that the evidence 

of record was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence necessary and provided a questionnaire for his completion. OWCP afforded appellant 

30 days to submit the necessary evidence. 

Medical reports dated April 9, 2018 documenting x-rays of the left knee and lumbar spine, 

along with form reports and disability slips, were also submitted. 

By letter dated May 25, 2018, the employing establishment challenged the claim after an 

internal fact-finding investigation. It found that review of a 24-hour closed circuit surveillance 

video did not establish that the claimed incident took place. The employing establishment reported 

that appellant made several statements indicating that he was injured on April 6, 2018 before 

clocking in for his shift around 4:30 p.m. at the C Annex Checkpoint when he tripped over loose 

carpet and fell into chairs under the departure/arrival monitors. However, review of video footage 

of appellant at that time, date, and location did not reveal that the incident took place. The 

employing establishment noted that appellant was clearly seen on the surveillance footage at the 

C Annex Security Checkpoint on or about 4:30 p.m. on April 6, 2018. However, the footage did 

not show that appellant experienced a trip on the carpet resulting in his fall to the ground, or 

otherwise, resulting in an injury. Appellant’s manager G.R. reviewed the footage and further 

found that appellant was not seen tripping, stumbling, or bracing himself on the chairs. The 

employing establishment noted that appellant further alleged that he reported the incident to his 

coworkers, but the coworkers he identified had refuted his allegation. Accompanying witness 

statements were provided in support of the claim challenge. 

In an April 7, 2018 statement, supervisor C.H. reported that appellant advised him on that 

date of the April 6, 2018 employment incident at the C Annex Checkpoint. Appellant reported

that he fell down over some chairs up against the wall due to a tear in the carpet square before he 

clocked in to start his shift on April 6, 2018. He demonstrated where he had fallen and informed 

C.H. that he could no longer perform his employment duties. C.H. provided appellant with the 

Form CA-1 packet. 

In an April 7, 2018 employing establishment report form, M.G., a supervisory reporting 

officer, related that she assisted appellant with filing his Form CA-1. Appellant had advised that 

he had fallen on some loose carpet near the podium behind C Annex Checkpoint at approximately 

4:20 p.m. on April 6, 2018. 

In an April 12, 2018 statement, C.M., a coworker, reported that on April 6, 2018 he came 

to work and sat down underneath the departure board at C Annex Checkpoint near the Metropolitan 

Police Department podium as he waited to clock in for his shift. Appellant walked up to him and 

sat down beside him around 4:20 p.m. C.M. reported that appellant was walking fine and they 

both stood up and clocked in at 4:25 p.m. He further stated that appellant did not talk to him about 

any injury that occurred on April 6, 2018 and did not say anything about an injury to him. 
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An April 13, 2018 statement was submitted from manager G.R. who had a telephone 

conversation with appellant on April 10, 2018 to inquire about what transpired on April 6, 2018 

when he was injured. He found that the allegations and statements made by appellant were not 

supported after reviewing the April 6, 2018 surveillance video. G.R. noted that review of the video 

footage revealed that appellant never walked directly towards the row of chairs under the monitors 

next to the podium as appellant had stated, and not once was he observed tripping, stumbling, or 

bracing himself on the chairs. He further reported that review of the surveillance footage showed 

that at no time was appellant limping after getting up from the chair when he walked to the time 

clock, clocked-in, and proceeded to the C Annex breakroom. G.R. further noted that appellant 

alleged that another employee, C.M., was sitting in the chairs when the injury took place, though 

he was looking down and did not witness the incident. Appellant had asserted that after he sat 

down, he advised C.M. of what had just transpired and told him that his knee hurt a lot. However, 

C.M. had provided a statement refuting these assertions. 

In e-mail correspondence dated May 4, 2018, the employing establishment requested that 

appellant provide information pertaining to his work-related injury by responding to a series of 

questions. Appellant responded to the e-mail stating that his injury occurred on April 6, 2018 at 

approximately 4:20 p.m. at C Annex Security Checkpoint near the bypass doors and the Metro 

podium. He reported that, immediately prior to the incident, he was walking from the breakroom 

to sit down on the chairs prior to clocking in. The incident occurred when appellant was walking 

and tripped on the carpet, and when he tripped, he hit his left knee on the front of the row of chairs. 

Immediately, after the incident, he mentioned the injury to his coworkers, C.M. and D.B.

By decision dated May 29, 2018, OWCP denied appellant’s claim finding that the evidence 

of record was insufficient to establish that the April 6, 2018 employment incident occurred as 

alleged. It noted that he had not responded to the April 27, 2018 development questionnaire to

substantiate the factual element of his claim and evidence had shown that the April 6, 2018 

employment incident did not occur in the manner alleged. OWCP concluded therefore that the 

requirements had not been met to establish an injury as defined by FECA. 

On June 5, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. A hearing was held on November 13, 2018. During the hearing, 

appellant testified that his injury actually occurred on April 5, 2018 and he mistakenly had written 

the date down as April 6, 2018. He explained that he was injured on April 5, 2018 at the C Annex 

Security Checkpoint in McCarran Airport. Appellant noted that he had a preexisting injury two 

and one-half years ago, but he had been doing well and his low back and left knee were fine when 

he started his shift on that day. While walking to the checkpoint, he was looking up at the flight 

monitors and tripped on a loose piece of carpet, causing him to bang his knee on the row of 

permanent steel leather chairs beneath the flight monitors. Appellant reported stumbling, but not 

falling to the ground, causing him to also injure his back as he tried to catch himself from falling 

backwards. He explained that the incident occurred early in his shift and he continued to finish

his workday. Appellant was not aware of any eyewitnesses and no one came forward as a witness 

to the event. He explained that, on the date of injury, he sent a text message to E.R., a coworker,

informing her of his injury with pictures of the carpet and his left knee. Appellant also reported 

speaking to D.S. and I.S. about his injury after they asked him why he was limping. He explained 

that he did not report the injury on the day it happened because all of his supervisors had called 

off work and that there was no supervisor on duty that he could report the incident to. Appellant
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did not seek medical treatment on the following date, April 6, 2018, because they were 

shorthanded at work and he did not feel that his pain was severe enough. He finished his shift on 

April 6, 2018 and noted that there were also no supervisors on duty to inform them of his injury. 

On April 7, 2018 appellant reported his injury, filed a Form CA-1, and sought treatment at an 

urgent care facility. He discussed his course of medical treatment and explained that he had made 

a Freedom of Information Act request for the surveillance videos which were reviewed by the 

employing establishment. Appellant was provided 1 hour and 15 minutes of video coverage on 

April 6, 2018 and approximately 30 minutes of video coverage on April 5, 2018. He reported that 

he did not see the tripping incident or any evidence of injury in the April 5, 2018 video footage. 

Appellant further stated that he did not see the tripping incident in the April 6, 2018 video, but did 

see evidence of the injury. He explained that the April 6, 2018 footage from the day after the 

injury showed him coming down the escalators in a lot of pain and limping down the stairs onto 

the checkpoint as he was starting his shift. OWCP’s hearing representative advised appellant that 

the record would be held open for 30 days to submit additional evidence. 

Following the hearing, appellant submitted additional medical reports documenting 

treatment for his lumbar and left knee injury. 

Appellant also submitted a September 1, 2018 statement from R.E., a coworker, who 

reported that, on or about April 6, 2018, she received a text message from him with pictures of an 

injury to his knee. He informed her that he had tripped and fallen near the back of his duty station 

because of a torn carpet and sent her pictures of the carpet. R.E. reported that she had no reason 

not to believe appellant’s claim as she had previously expressed concerns about the carpet. 

In an October 22, 2018 statement, appellant reported that on April 5, 2018 he was ill due 

to migraines and cluster headaches. He reported that he tripped on an old worn carpet at C Annex 

Security Checkpoint which caused injury to his left knee and low back. At the time of the incident

appellant did not think that his injuries were very serious. He worked through that shift and also 

the next shift, while limping and in severe pain. Appellant stated that he could not get his trousers 

over his swollen left knee, causing him to seek treatment at an urgent care facility where he had 

x-rays administered. He was advised not to walk on his left knee and to follow up with a left knee 

MRI scan. On April 7, 2018 appellant called OWCP, notified his supervisors, and filed a Form 

CA-1. 

By decision dated January 28, 2019, OWCP’s hearing representative affirmed the May 29, 

2018 denial of the claim, finding that the evidence of record was insufficient to establish that the 

employment incident occurred as alleged. 

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 filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 
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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 occupational disease.5

In order to determine whether an employee actually sustained an injury in the performance 

of duty, OWCP begins with an analysis of whether fact of injury has been established.6 Fact of 

injury consists of two components which must be considered in conjunction with one another. The 

first component to be established is that the employee actually experienced the employment 

incident which is alleged to have occurred.7 The second component is whether the employment 

incident caused a personal injury. 

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, but the employee’s statements must 

be consistent with the surrounding facts and circumstances and his subsequent course of action.8 

The employee has not met his burden of proof to establish the occurrence of an injury when there 

are inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.9 Such 

circumstances as late notification of injury, lack of confirmation of injury, continuing to work 

without apparent difficulty following the alleged injury, and failure to obtain medical treatment 

may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining 

whether a prima facie case has been established. An employee’s statements alleging that an injury 

occurred at a given time and in a given manner is of great probative value and will stand unless 

refuted by strong or persuasive evidence.10

ANALYSIS

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

Appellant filed a Form CA-1 on April 7, 2018 alleging that he had sustained a left knee 

injury which occurred the previous day, April 6, 2018, when he tripped on torn carpet at 

approximately 4:30 p.m. before clocking in for his shift at the C Annex Security Checkpoint. 

Following OWCP’s initial denial of the claim, a hearing was held on November 13, 2018. 

Appellant testified that his injury occurred on April 5, 2018 and not April 6, 2018 as previously 

alleged. He reported that he mistakenly wrote April 6, 2018 as the date of injury which actually 

occurred on April 5, 2018 at the C Annex Security Checkpoint early in his work shift. 

 

4 E.A., Docket No. 17-0330 (issued December 12, 2018); Gary J. Watling, 52 ECAB 278 (2001).

5 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Michael E. Smith, 50 ECAB 313 (1999).

6 D.B., Docket No. 18-1348 (issued January 4, 2019).

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J.M., Docket No. 17-0284 (issued February 7, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

8 M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

9 See V.J., Docket No. 19-1600 (issued March 13, 2020); E.C., Docket No. 19-0943 (issued September 23, 2019).

10 See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).
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Given that appellant clarified his date of injury to April 5, 2018, the Board finds that the 

case must be remanded to request additional information from the employing establishment 

concerning the April 5, 2018 incident, including a description of the location, duration, and details 

depicted in surveillance video. Although the employing establishment provided a detailed review 

of the April 6, 2018 surveillance footage, after appellant clarified his date of injury to April 5, 2018 

at the November 13, 2018 hearing, OWCP failed to request information from the employing 

establishment regarding surveillance video footage for the April 5, 2018 date of injury as it had 

done for the initial April 6, 2018 date of injury. 

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

OWCP shares responsibility in the development of the evidence, particularly when such evidence 

is of the character normally obtained from the employing establishment or other governmental 

source.11 Without additional information from the employing establishment pertaining to the 

alleged April 5, 2018 employment incident, OWCP has failed to procure the evidence necessary 

to determine whether the April 5, 2018 employment incident occurred as alleged. On remand, the 

employing establishment shall confirm whether surveillance video from April 5, 2018 established

that appellant was injured at the time, place, and in the manner alleged. It shall also provide a 

copy of the surveillance video to OWCP, if available. Following this and any other further 

development deemed necessary, OWCP shall issue a de novo decision.12

CONCLUSION

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

 

11 See L.L., Docket No. 12-194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008).

12 The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization 

may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed. 

The form 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. See 20 C.F.R. § 10.300(c); J.G., Docket No. 

17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003). 
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ORDER

IT IS HEREBY ORDERED THAT the January 28, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: June 17, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board