United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.H., Appellant

and

DEPARTMENT OF THE ARMY,

INSTALLATION MANAGEMENT 

COMMAND, Fort Drum, NY, Employer

__________________________________________

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Docket No. 19-0599

Issued: January 28, 2020

Appearances: Case Submitted on the Record

Stephanie Leet, 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 January 22, 2019 appellant, through counsel, filed a timely appeal from a July 31, 2018 

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.3

 

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.

3 The Board notes that, following the July 31, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish diagnosed medical 

conditions causally related to the accepted January 6, 2015 employment incident.

FACTUAL HISTORY

On January 21, 2015 appellant, then a 52-year-old Army substance abuse program 

prevention coordinator, filed a traumatic injury claim (Form CA-1) alleging that on January 6, 

2015 she injured her neck, back, ribs, and hip when she slipped on oil near a copier while in the 

performance of duty. She did not fall. The alleged incident was reported to an employing 

establishment supervisor on January 8, 2015. R.G., a coworker, provided an undated witness 

statement noting that he saw appellant slip, but not fall and that she cleaned up oil on the floor. 

Appellant stopped work on January 12, 2015.

Dr. Jason Swaby, an emergency medicine specialist, completed a report on 

January 12, 2015. He noted appellant’s complaint of thoracic and lumbar back pain radiating into 

the right buttock that began about six days prior when she slipped, twisted, and fell at work, without 

striking the ground. Appellant’s physical examination demonstrated mild tenderness over the 

thoracic and lumbar areas of the spine with limited back range of motion. Dr. Swaby reviewed a 

computerized tomography (CT) scan of the thoracic spine that demonstrated mild anterior wedging 

in T6, T7, and T8. A lumbar spine CT scan demonstrated no acute findings. The thoracic spine 

CT scan further demonstrated that the middle and posterior columns were intact, and the thoracic 

vertebrae were properly aligned. Dr. Swaby diagnosed acute mid and low back strain with acute 

sciatica. He prescribed medication and recommended bed rest for two days and not to work for 

seven days.

In a January 21, 2015 report, Dr. Julie Lapointe, a Board-certified internist, noted a history 

that on January 6, 2015 appellant slipped in oil at work and twisted violently in an attempt to keep 

herself from falling and to protect her right hip that had preexisting problems. She reported 

complaints of severe pain of the entire spine radiating into the lower extremities and difficulty 

moving. Dr. Lapointe reviewed the January 12, 2015 thoracic CT scan and indicated that it 

appeared to show a compression fracture at T6-7. Physical examination demonstrated pain over 

the thoracic spine. Dr. Lapointe advised that appellant could return to four hours of work per day 

on January 26, 2015. In a January 29, 2015 report, she noted appellant’s complaint of continued 

pain over the entire spine, radiating into both lower extremities with associated numbness and 

weakness. Dr. Lapointe diagnosed thoracic compression fracture, emotional lability, and back 

strain. In an attached duty status report (Form CA-17), she advised that appellant could work four 

hours of restricted duty daily. 

On February 5, 2015 Dr. Lapointe reported that appellant continued to have constant pain 

and that she was stressed because she was unable to work due to pain. She also indicated that 

appellant’s chronic right hip pain had worsened since the January 6, 2015 incident. In a 

February 5, 2015 duty status report (Form CA-17), Dr. Lapointe advised that appellant could not 

work. On February 9, 2015 she reported that appellant admitted that stress was a significant 

component of her pain and this was much improved since she stopped work. Dr. Lapointe 

continued to advise that appellant could not work.
3

In a February 17, 2015 report, Dr. Howard Huang, Board-certified in physical medicine, 

rehabilitation, and pain medicine, noted a history that appellant slipped at work and contorted her 

upper and lower back. He described her complaint of back pain, especially in the thoracic region. 

Physical examination elicited tenderness over the cervical, thoracic, and lumbar areas of the spine 

with painful neck and back range of motion. Dr. Huang reviewed appellant’s thoracic CT scan 

report and diagnosed cervical and thoracic pain, reported a three-level thoracic compression 

fracture, and lumbar spondylosis, degenerative disc, and pain. He advised that she could not work. 

In a development letter dated March 13, 2015, OWCP noted that, when appellant’s claim 

was first received, it appeared to be a minor injury that resulted in minimal or no lost time from 

work and was therefore administratively approved for payment of a limited amount of medical 

expenses. It reported that the merits of her claim had not been formally considered, and that 

additional factual and medical evidence was necessary to establish her claim. OWCP afforded 

appellant 30 days to provide the necessary factual and medical evidence.4

Appellant thereafter submitted a January 12, 2015 form report in which Dr. Swaby noted 

that she was seen that day for a January 6, 2015 employment injury. Dr. Swaby noted preexisting 

chronic back pain, reported examination findings of pain and abnormal range of motion, and 

diagnosed lumbar and thoracic sprains and sciatica. He advised that appellant could not return to 

work.

A March 12, 2015 magnetic resonance imaging (MRI) scan of appellant’s cervical spine 

demonstrated cervical spondylosis at C3-4 and C4-5 without spinal cord compression. Acute 

fractures could not be excluded. A March 12, 2015 MRI scan of her thoracic spine demonstrated 

no disc bulge or herniation and old compression fractures of T6 through T8 vertebral bodies with 

minimal loss of height. Acute fractures could not be excluded. A March 12, 2015 MRI scan of 

appellant’s lumbar spine demonstrated a diffuse disc bulge at L4-5 with minimal thecal sac 

compression and acute fractures could not be excluded. There was no change when compared to 

an April 26, 2013 study. 

On March 19, 2015 Dr. Huang reported that appellant had continued complaints and noted 

his examination findings. He reviewed the MRI scan reports and indicated that her thoracic spine 

scan showed no acute compression fracture. Dr. Huang recommended electrodiagnostic testing of 

appellant’s upper extremities and advised that she could not work. In correspondence dated

March 26, 2015, he noted seeing her on February 17 and March 19, 2015. Dr. Huang indicated 

that appellant reported the onset of her conditions when she slipped and twisted at work on 

January 6, 2015, described examination findings, and repeated the MRI scan findings. He

diagnosed: cervical spondylosis, degenerative, rule out herniated disc, and pain; rule out 

radiculopathy; thoracic pain and old compression fracture; lumbar spondylosis, degenerative, rule 

out herniated disc, and pain, rule out radiculopathy. Dr. Huang recommended electrodiagnostic 

testing because appellant’s symptoms extended down her upper extremities. He opined that her

symptoms were more likely than not related to the January 6, 2015 employment incident that 

exacerbated her symptoms related to the above diagnoses. 

In a signed statement dated March 27, 2015, appellant indicated that she immediately felt 

pain through her entire spine following the January 6, 2015 incident. She reported that her pain 

 

4 Appellant filed wage-loss compensation claims (Form CA-7) beginning February 22, 2015 which indicated that 

she had received continuation of pay from January 7 to February 21, 2015. 
4

increased and became unbearable, and that she had not immediately sought medical treatment 

because she did not have a proper form from the employing establishment. Appellant also noted 

that she had experienced low back pain in the past, but it had been stable for many years. 

By decision dated April 15, 2015, OWCP denied the claim finding that the January 6, 2015 

employment incident occurred as alleged, but that the medical evidence submitted was insufficient 

to establish causal relationship.

Appellant requested a hearing before an OWCP hearing representative on May 13, 2015.

In an August 25, 2015 report, Dr. Lapointe noted that appellant continued to have constant 

back pain and could only perform light activity at home. She reviewed appellant’s thoracic CT 

scan findings, provided examination findings, and diagnosed cervical and lumbar spondylosis 

without myelopathy, thoracic sprains and strains, and pathologic vertebrae fractures. Dr. Lapointe 

commented that appellant’s cervical and lumbar spondylosis were aggravated when appellant

slipped and twisted violently at work on January 6, 2015. She explained that appellant had 

developed new thoracic compression fractures, compared to the 2013 radiology reports of record. 

Dr. Lapointe reported that appellant was awaiting an updated MRI scan to assess her status. 

At the hearing, held on January 19, 2016, appellant described two prior injuries including 

an October 1998 assault and a motor vehicle accident in 2013 when her low back was injured. She 

testified that her last treatment for her back was in 2013, when she underwent a lumbar spine MRI 

scan. Appellant indicated that she had returned to part-time work on October 20, 2015 following 

the January 6, 2015 incident. The hearing representative requested that appellant submit copies of 

the 2013 diagnostic studies, and the record was held open for 30 days. The requested studies were 

not submitted.

In a February 4, 2016 report, Dr. Huang described examination findings, reiterated his 

diagnoses, and advised that there had been no change in appellant’s condition. He indicated that 

she could continue to work modified duty for 20 hours per week. 

Following the hearing, counsel submitted a February 13, 2016 pleading in which she 

maintained that the January 6, 2015 employment incident aggravated appellant’s previous 

conditions and caused new conditions and therefore, as supported by the medical evidence of 

record, her claim was compensable.

5

By decision dated April 4, 2016, an OWCP hearing representative affirmed the April 12, 

2015 decision finding that the medical evidence of record was insufficient to meet appellant’s 

burden of proof because it had not differentiated, with objective findings, between the conditions 

related to the accepted January 6, 2015 employment incident and her multiple preexisting 

conditions. The hearing representative further noted that, although Dr. Lapointe diagnosed 

thoracic compression fractures due to the January 6, 2015 employment incident, the March 12, 

2015 MRI scan indicated that the fractures were old and Dr. Huang had noted on March 19, 2015 

that there was no acute compression fracture. 

 

5 Counsel also referenced an April 26, 2013 lumbar MRI scan that, as noted, is not found in the record before the 

Board.
5

On February 24, 2017 appellant, through counsel, requested reconsideration. Appellant 

again submitted Dr. Lapointe’s August 25, 2015 report, and a June 21, 2016 statement in which

Dr. Huang commented: “The activity that [appellant] was doing when she sustained the 

compensable injury was being upright. The onset was a slip occurring while at work and she 

reports that she slipped ... and ended up contorting her back on January 6, 2015.”

By decision dated May 22, 2017, OWCP found the medical evidence insufficient to 

establish appellant’s burden of proof and denied modification of its prior decisions. 

On July 5, 2017 appellant, through counsel, again requested reconsideration asserting that 

the medical evidence was sufficient to establish causal relationship. She submitted evidence 

previously of record and a June 16, 2017 report from Dr. Huang. In this new report, Dr. Huang

noted that he previously treated appellant for low back injuries in 1998 and for hip injuries after a 

car accident in 2012, for which she had surgery. He advised that appellant’s back was 

asymptomatic until her work injury of January 6, 2015. Dr. Huang noted that she reported a 

history that, while at work that day, she slipped on an oily substance, twisted suddenly, and caught 

herself from falling. He indicated that this sudden motion during the slip caused the injuries to her 

neck and back as appellant’s spine was twisted and contorted, and this caused the vertebral body 

to suffer a crush or wedging injury which resulted in the compression fracture at T6-8. Dr. Huang

further indicated that the “slip and fall” at work also caused undue stress on her neck and back and 

resulted in pressure at the central core of the discs at L4-5, C3-4, and C5-6 to shift out of their 

normal position and to bulge which placed pressure on the nearby nerves thus aggravating her 

underling condition and caused sciatica. He related that appellant’s diagnoses from the January 6,

2015 incident were compression fracture at T6-8, sciatica, disc bulges at L4-5 and C3-4, and 

protruding disc at C4-5. Dr. Huang concluded that, based on his review of her medical records, xrays, MRI scans, and physical examinations, it was his medical opinion that the cervical and 

thoracic diagnoses were more likely than not caused or aggravated by the January 6, 2015 incident, 

and that the preexisting disc bulge at L4-5 and sciatica were aggravated by this incident. 

By decision dated September 26, 2017, OWCP denied modification of its prior decisions. 

It noted that Dr. Huang’s June 16, 2017 report was inconsistent because he reported both a slip 

and twist and a slip and fall. OWCP found his report insufficient to meet appellant’s burden of 

proof. 

On May 8, 2018 appellant, through counsel, requested reconsideration asserting that the 

medical evidence of record contained sufficient rationale to establish the claim. Counsel also 

submitted a February 27, 2018 report in which Dr. Huang reiterated that appellant’s current 

diagnoses of compression fracture T6-8, disc bulge at C3-4, protruding disc at C4-5, and 

aggravation to disc bulge at L4-5 were, to a reasonable degree of medical certainty, caused by the 

injury that occurred at work on January 6, 2015 when appellant slipped on an oily substance, 

twisted suddenly, and caught herself from falling. Dr. Huang maintained that this sudden motion 

during the slip caused the injuries to her neck and back which resulted in the above diagnoses as 

her spine was twisted and contorted. He again explained that the incident caused a vertebral body 

to suffer a crush or wedging injury which resulted in the compression fracture at T6-8, and the 

contortion also caused undue stress on appellant’s neck and back which resulted in pressure at the 

central core of the discs at C3-4 and C5-6 to shift out of their normal bulge, placing pressure on 

the nearby nerves. Dr. Huang opined that the slip at work also caused the bulging disc at L4-5 to 

intensify, causing her sciatica. He reiterated that there was a functional difference in appellant’s

condition before and after the January 6, 2015 incident, indicating that he had ended treatment for 
6

her low back pain in 2013, and her back was asymptomatic until January 6, 2015. Dr. Huang

indicated that, when last seen, she did not have an injury to the cervical or thoracic spines, noting 

that x-rays after her motor vehicle accident in 2013 showed no injuries to the cervical or thoracic 

spine and no change to the preexisting disc bulge at L4-5. He concluded that to a reasonable 

degree of medical certainty, based on review of medical records, x-rays, MRI scans, and physical 

examinations, appellant’s current cervical, thoracic, and lumbar spine conditions were a result of 

the January 6, 2015 slip at work.

By decision dated July 31, 2018, OWCP denied modification of the prior decisions finding 

that causal relationship had not been established.

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,6that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

to the employment injury.7 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8 

To determine if an employee has sustained an injury in the performance of duty, OWCP 

begins with an analysis of whether fact of injury has been established. 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. The second component is whether the employment incident caused a 

personal injury and generally can be established only by medical evidence.9

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

relationship is rationalized medical evidence.10 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 incident.11

 

6 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

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

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

9 K.L., Docket No. 18-1029 (issued January 9, 2019).

10 M.K., Docket No. 19-0428 (issued July 15, 2019). 

11 S.S., Docket No. 18-1488 (issued March 11, 2019).
7

ANALYSIS

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

In his reports dated June 16, 2017 and February 27, 2018, Dr. Huang advised that 

appellant’s back was asymptomatic until her employment injury of January 6, 2015 when she 

reported that she slipped on an oily substance, twisted suddenly, and caught herself from falling. 

He indicated that this sudden motion during the slip caused injuries to her neck and back as her 

spine was twisted and contorted, and this caused the vertebral body to suffer a crush or wedging 

injury, which resulted in the diagnosed compression fracture at T6-8. Dr. Huang explained that 

the employment incident also caused undue stress on appellant’s neck and back which resulted in 

pressure at the central core of the discs at L4-5, C3-4, and C5-6 and caused them to shift out of 

their normal position and to bulge, and this placed pressure on the nearby nerves, thus aggravating 

her underlying condition and caused sciatica. He reported that appellant’s diagnoses from the 

January 6, 2015 incident were compression fracture at T6-8, sciatica, disc bulge at C3-4, 

protruding disc at C4-5, and aggravation to disc bulge at L4-5. Dr. Huang concluded that, based 

on his review of her medical records, x-rays, MRI scans, and physical examinations, it was his 

medical opinion that appellant’s cervical and thoracic diagnoses were more likely than not caused 

or aggravated by the January 6, 2015 employment incident, and that the preexisting disc bulge at 

L4-5 and sciatica had been aggravated by this incident. 

The Board finds that Dr. Huang’s reports, when read together, contain a complete factual 

history of the January 6, 2015 employment incident which appellant claimed had caused her 

conditions, accurately note the medical history of preexisting spinal conditions, identify detailed 

findings upon examination, and provide medical rationale to explain how the employment incident

on January 6, 2015 had resulted in the diagnosed cervical and lumbar spinal conditions. In his 

reports, Dr. Huang explained that the slipping incident had exerted pressure on her spine, thus 

causing her current cervical and lumbar conditions. While Dr. Huang initially failed to diagnose 

compression fractures of the thoracic spine, he later provided such a diagnosis and explained how 

a crush or wedging injury had resulted in compression fractures at T6-8. To the extent that an 

inconsistency remains as to whether a diagnosis of compression fractures from T6-8 is correct, 

that is an issue to address through further development of the medical record.12 The Board finds 

that Dr. Huang’s opinion, while not of sufficient rationale to meet appellant’s burden of proof, is 

sufficient, given the absence of opposing medical evidence, to require further development of the 

record as to whether appellant’s cervical, thoracic, and lumbar spine conditions are causally related 

to the accepted employment incident.13

It is well established that proceedings under FECA are not adversarial in nature, and that 

while appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence. OWCP has an obligation to see that justice is 

 

12 J.J., Docket No. 19-0789 (issued November 22, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Causal Relationship, Chapter 2.810.9.b(1) (June 2015) (a claims examiner should refer a claimant to a second opinion 

specialist if he or she has gathered all the medical information and evidence from the attending physician and does 

not have an adequately reasoned opinion about causal relationship to accept the case, but does have sufficient evidence 

to suggest that the claimant might be entitled to benefits).

13 G.M., Docket No. 19-0657 (issued September 13, 2019); see also John J. Carlone, 41 ECAB 354 (1989); Horace 

Langhorne, 29 ECAB 820 (1978).
8

done.14 The nonadversarial policy of proceedings under FECA is reflected in OWCP’s regulations 

at section 10.121.15

The case will therefore be remanded to OWCP for further development of the medical 

evidence and a referral to an appropriate medical specialist for an examination and opinion on the 

issue of whether appellant sustained the diagnosed spinal conditions on January 6, 2015 when she 

slipped and twisted at work. After such further development as OWCP deems necessary, it shall 

issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the July 31, 2018 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: January 28, 2020

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

 

14 S.C., Docket No. 19-0920 (issued September 25, 2019).

15 20 C.F.R. § 10.121.