United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JAMES A. HALEY VA MEDICAL CENTER, 

Tampa, FL, Employer

__________________________________________

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Docket No. 19-1903

Issued: March 25, 2021

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 16, 2019 appellant, through counsel, filed a timely appeal from a March 20, 

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 her burden of proof to establish a medical condition

causally related to the accepted July 17, 2015 employment incident.

FACTUAL HISTORY

On July 21, 2015 appellant, then a 56-year-old food service worker, filed a traumatic injury 

claim (Form CA-1) alleging that on July 17, 2015 she pulled a muscle in her neck, shoulder, and 

head when she picked up a biscuit tray while in the performance of duty. She did not immediately 

stop work.

In an undated statement, appellant indicated that on July 17, 2015 she was working on the 

hot tray line serving breakfast when she grabbed a biscuit tray and felt burning and pain in her 

neck, shoulder, and head. She alerted her supervisor, but continued to work through the end of her 

shift.

In a duty status report (Form CA-17) dated July 23, 2015, Dr. Sara Vizcay, a Boardcertified family practitioner, diagnosed cervical disc syndrome, neuritis, lumbar disc disease, and 

bilateral shoulder tendinitis. She advised that appellant had severe muscle spasm and decreased

range of motion of the bilateral upper and lower extremities and was off work.

In a development letter dated August 4, 2015, OWCP informed appellant that additional 

evidence was needed to establish her claim. It advised appellant of the type of factual and medical 

evidence needed and provided a questionnaire for her completion. OWCP afforded her 30 days to 

submit the necessary evidence.

In a report dated July 23, 2015, Dr. Vizcay noted that she had treated appellant for neck 

pain, bilateral upper extremity radiculitis, bilateral shoulder pain, and weakness, which developed

on July 17, 2015 when she attempted to pull a biscuit tray from a warmer rack, which was located 

on a top shelf while at work. Appellant described a whiplash kind of injury when she twisted her 

trunk in a sudden movement. Findings on physical examination revealed tenderness of the cervical 

spine and both shoulders, spasm of the paraspinal and supraspinatus muscles, decreased range of 

motion of the shoulders, antalgic gait, and diminished sensation in the right leg and foot. 

Dr. Vizcay diagnosed cervical disc disease with myelopathy, bilateral upper and lower extremity

radiculopathy, bilateral shoulder impingement, lumbar disc syndrome with myelopathy, and 

depression and anxiety secondary to chronic pain and work-related injuries. She opined that 

appellant’s whiplash maneuver when reaching for the biscuit rack and attempting to pull a stuck 

tray of biscuits out of the rack caused her to twist her torso in a sudden movement and overstretch 

muscles, tendons, and ligaments causing her injuries. Dr. Vizcay advised that appellant was

temporarily totally disabled.

On July 24, 2015 appellant underwent diagnostic testing. A magnetic resonance imaging 

(MRI) scan of the left shoulder revealed osteophyte from the acromioclavicular (AC) joint, 

tendinosis, tear of the inferior glenohumeral ligament, and tear of the posterior segment of the

glenoid labrum. A cervical spine MRI scan revealed broad-based disc at C5-6 and foraminal 

stenosis at C3-4, C4-5, C5-6, and C6-7 on the left. A right shoulder MRI scan revealed mild 

degenerative change at the AC joint, possible tear or tendinosis of supraspinatus tendon, fluid in 
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the subacromial subdeltoid bursa, tear of the glenohumeral ligament, and anterior segment of the 

glenoid labarum. A lumbar spine MRI scan dated August 13, 2015 revealed bilateral disc 

protrusions at L3-4, broad-based disc bulge at L4-5 and L5-S1, and bilateral foraminal stenosis.

On August 19, 2015 Dr. Kevin Scott, a Board-certified orthopedist, evaluated appellant’s 

shoulders and upper extremities. Appellant reported pulling a tray from a rack at work when she 

felt pain in her neck and both shoulders. Dr. Scott diagnosed cervical disc disease with 

myelopathy, herniated disc, bilateral upper extremity radiculopathy, bilateral shoulder ligament 

tear, bilateral shoulder impingement, lumbar disc syndrome with myelopathy, herniated disc, and 

bilateral lower extremity radiculopathy. He opined that the force and sudden movements of 

appellant in pulling the tray of biscuits from above her shoulders caused her to hurt both shoulders, 

cervical spine, and lumbar spine. In a work capacity evaluation (Form OWCP-5), Dr. Scott

diagnosed cervical disc syndrome, myelopathy, bilateral shoulder and right upper extremity 

radiculitis. He took appellant off work for four weeks.

By decision dated September 8, 2015, OWCP found that the evidence of record failed to 

establish that the July 17, 2015 employment incident occurred as alleged. It noted that the 

mechanism of injury claimed by appellant was not consistent with that provided by Dr. Vizcay 

and Dr. Scott. OWCP concluded, therefore, that the requirements had not been met to establish 

an injury as defined by FECA.

In a Form OWCP-5c dated September 15, 2015, Dr. Vizcay noted that appellant was 

temporarily totally disabled. In a Form CA-17 report dated November 18, 2015, Dr. Scott also 

found appellant to be temporarily totally disabled.

On September 29, 2015 appellant requested reconsideration of the September 8, 2015 

decision. OWCP continued to receive evidence, including physical therapy notes detailing 

treatment for reduction of pain in appellant’s neck, shoulders, and back. 

By decision dated December 9, 2015, OWCP modified the September 8, 2015 decision, 

finding that appellant had factually established that the incident occurred on July 17, 2015, as 

alleged. It determined, however, that the medical evidence was insufficient to establish that she 

sustained a diagnosed condition causally related to the accepted employment incident.

A September 30, 2016 submission revealed that on August 20, 2015 appellant underwent 

an electromyogram (EMG), which revealed evidence of carpal tunnel syndrome, possible 

cervicobrachial lesions, and ulnar neuropathy.

On December 4, 2015 appellant was treated by Dr. Jay Parekh, an osteopath and specialist 

in anesthesiology, for neck and shoulder pain. She reported that on July 17, 2015 she was 

attempting to pull a large biscuit tray off a shelf using a jerking motion and experienced pain in 

her neck and shoulder blades. Dr. Parekh diagnosed cervical disc disease, cervical facet joint 

syndrome, shoulder impingement, wrist tenosynovitis, left hand injury, anxiety, cervical disc 

herniation, cervicogenic headaches, and cervical spondylosis. He opined, within a reasonable 

degree of medical probability, that appellant suffered an injury to the cervical spine as a result of 

her work-related injury. Dr. Parekh recommended physical therapy and cervical facet injections.

Dr. Vizcay treated appellant on April 6, 2016 and diagnosed cervical disc syndrome with 

myelopathy, bilateral upper extremities radiculopathy, left and right shoulder tendinitis and 
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bursitis, bilateral shoulder tendon tear, and depression and anxiety secondary to chronic pain and 

work-related injuries. She provided her medical opinion that appellant suffered from shoulder 

impingement, tendinitis, and tear of soft tissue, which was caused by forceful exertion of her arm 

when she reached overhead to lift and pull out a stuck industrial food tub filled with biscuits on 

July 17, 2015. Dr. Vizcay further opined that the sudden hyperflexion and hyperextension and 

sudden backward and forward maneuver caused the injuries to the neck and body consistent with 

bulging, protrusion, and herniation in the vertebrae as a result of the work injury on July 17, 2015. 

On May 9, 2016 Dr. Bhanatkumar D. Patel, a Board-certified neurologist, treated appellant 

for chronic neck pain and low back pain. Appellant reported having to forcefully pull an industrial 

food tub filled with biscuits that was located above her shoulders. Dr. Patel opined that, after 

reviewing a picture of a rack tray, reading witness statements, diagnostic studies, and medical 

reports, the sudden movement and back and forth in trying to pull the stuck food tub caused a 

whiplash-type injury to appellant’s cervical spine. He further noted that the sudden twisting of her 

trunk to avoid dropping the food tub caused her lumbar condition.

Appellant requested reconsideration on July 27, 2016. OWCP continued to receive 

evidence, including an August 29, 2016 reexamination report from Dr. Vizcay where she noted 

that appellant continued to have neck, shoulder, and back pain. Dr. Vizcay opined that appellant 

was totally temporarily disabled.

By decision dated October 5, 2016, OWCP again modified its September 8, 2015 decision,

finding that the evidence of record failed to establish that the employment incident occurred on 

July 17, 2015, as alleged. It noted that the mechanism of injury claimed by appellant was not 

consistent with that provided by Drs. Vizcay, Scott, Patel, and Parekh.

In a statement dated July 17, 2015, J.R., appellant’s coworker, noted that appellant reported 

injuring her neck and shoulder while pulling out a pan from a warmer on the top shelf. In a 

statement dated August 12, 2015, J.D., another coworker, noted that on July 17, 2015 she walked 

by appellant who informed her that she injured her shoulders and neck while she was taking out 

biscuits.

OWCP received an incident report which noted that on July 17, 2015 appellant was in the 

canteen and while reaching over to get a tray she sprained her neck. It was noted that appellant

provided several versions of the incident and did not immediately report the incident to her 

supervisor.

Appellant received physical therapy treatment from December 29, 2016 to June 14, 2017.

On March 10, 2017 Dr. Vizcay continued to treat appellant for injuries sustained at work 

on July 17, 2015.

In an appeal request form dated September 13, 2017, received by OWCP on September 19, 

2017, appellant, through counsel, requested reconsideration of the October 5, 2016 decision.

By decision dated December 20, 2017, OWCP modified the October 5, 2016 decision, 

finding that appellant had factually established that the incident occurred as alleged on

July 17, 2015. It determined, however, that the medical evidence was insufficient to establish that 

she sustained a diagnosed condition causally related to the accepted employment incident.
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On December 20, 2018 appellant requested reconsideration. She submitted an October 14, 

2015 report from Dr. Scott who evaluated appellant’s bilateral shoulders and upper extremity. 

Dr. Scott diagnosed cervical disc disease with myelopathy, herniated disc, bilateral upper 

extremity radiculopathy, bilateral shoulder ligament tear, bilateral shoulder impingement, lumbar 

disc syndrome with myelopathy, herniated disc, and bilateral lower extremity radiculopathy and 

advised that appellant was totally disabled.

By decision dated March 20, 2019, OWCP denied modification of the decision dated 

December 20, 2017.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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,4that 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.5 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.6

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established.7 There are two 

components that must be considered in conjunction with one another. The first component is 

whether the employee actually experienced the employment incident that allegedly occurred.8 The 

second component is whether the employment incident caused a personal injury.9

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.10 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment incident must be based on a 

complete factual and medical background.11 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

 

3

Id.

4 S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 

ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);

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

6 T.E., Docket No. 18-1595 (issued March 13, 2019); 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).

7 S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8 E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9 E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10 S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

11 C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
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rationale, explaining the nature of the relationship between the diagnosed condition, and 

appellant’s specific employment incident.12

ANALYSIS

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

In her report dated July 23, 2015, Dr. Vizcay opined that appellant’s whiplash maneuver,

when reaching for the biscuit rack and attempting to pull a stuck tray of biscuits out of the rack,

on the date of injury caused her to twist her torso in a sudden movement and overstretch muscles, 

tendons, and ligaments resulting in her diagnosed conditions. Similarly, on April 6, 2016

Dr. Vizcay further opined that the sudden hyperflexion and hyperextension and sudden backward 

and forward maneuver caused the injuries to the neck and body consistent with bulging, protrusion, 

and herniation in the vertebrae as a result of the work injury on July 17, 2015. 

The Board finds that the July 23, 2015 and April 6, 2016 reports from Dr. Vizcay, are 

sufficient to require further development of the medical evidence. Dr. Vizcay provided an

understanding of the medical record and case history. Her reports indicates a pathophysiological 

explanation as to how appellant, by pulling a tray of biscuits from above her shoulders in a sudden 

movement resulted in a diagnosis of a shoulder, neck, and/or head injuries. The Board has long 

held that it is unnecessary that the evidence of record in a case be so conclusive as to suggest causal 

connection beyond all possible doubt. Rather, the evidence required is only that which is necessary 

to convince the adjudicator that the conclusion drawn is rational, sound, and logical.13 

Accordingly, Dr. Vizcay’s medical opinions are therefore, sufficient to require further 

development of appellant’s claim.14

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

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

responsibility in the development of the evidence.15 OWCP has an obligation to see that justice is 

done.16

On remand OWCP shall refer appellant to a specialist in the appropriate field of medicine, 

along with the case record and a statement of accepted facts. Its referral physician shall provide a 

well-rationalized opinion as to whether her diagnosed conditions of shoulder, neck, and/or head 

injuries were causally related to or aggravated by the accepted July 17, 2015 employment incident. 

If the physician opines that the diagnosed conditions are not causally related, he or she must 

 

12 Id.

13 D.S., Docket No. 20-1060 (issued December 22, 2020); E.M., Docket No. 11-1106 (issued December 28, 2011);

Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.

14 J.H., supra 5; D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 

2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

15 See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 

223 (1999).

16 See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 

2010); John J. Carlone, 41 ECAB 354 (1989).
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explain with rationale how or why the opinion differs from the opinions of Dr. Vizcay. After this 

and other such further development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the March 20, 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: March 25, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board