United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Dublin, GA, Employer 

__________________________________________ 

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Docket No. 14-924 

Issued: November 3, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On March 11, 2014 appellant, through her attorney, filed a timely appeal from a 

January 6, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant sustained an injury on June 14, 2013 in the performance of 

duty. 

FACTUAL HISTORY 

On June 20, 2013 appellant, then a 54-year-old practical nurse, filed a traumatic injury 

claim alleging that on June 14, 2013 she sustained pain in her neck, the upper right side of her 

 1

 5 U.S.C. § 8101 et seq. 
2

back, right shoulder and right arm in the performance of duty. She described her injury as 

occurring when a patient with dementia became combative and struck the left side of her neck 

and shoulder area with his fist several times. Appellant stopped work on August 14, 2013. The 

employing establishment controverted the claim based on wilful misconduct, noting that she did 

not follow its proper procedures in “trying to lift the patient from the floor.” 

In a report of contact form dated June 14, 2013, appellant related that on that date a 

demented patient grew agitated when she tried to make him sit in a Broda chair. The patient hit 

her about six times with his fist on her left shoulder and the left side of her neck. Appellant 

stated, “When I attempted to stop patient from hitting me, he started to sit in the floor pulling me 

down with him causing my clothes to tear.” She described her complaints of pain down the left 

side of her neck into her left arm, pain and numbness in her right arm and hand and burning 

between her shoulder blades. 

In a report of contact dated June 14, 2013, Joan Revels, a registered nurse and charge 

nurse that day, related that on June 14, 2013 she saw appellant trying to get a patient to sit in a 

Broda chair. When he refused appellant tried to make him sit and took his left arm. The patient 

slipped onto a foot rest and she tried to lift him by herself. Appellant stated that she had ripped 

her pants. Ms. Revels maintained that appellant verbally abused the patient. 

Appellant sought treatment in the emergency room on June 14, 2013. She provided a 

history of being hit six times by a patient on “the left shoulder and left neck and then pulled 

down to the floor....” In response to the question, “Where is your pain?” appellant responded 

“down neck and between shoulder blades.” In a duty status report dated June 14, 2013, a 

physician found that appellant could perform light duty pending further evaluation. 

A magnetic resonance imaging (MRI) scan study of the cervical spine, obtained on 

June 14, 2013 revealed postsurgical and chronic degenerative changes and moderate spinal 

stenosis with bilateral foraminal narrowing and near entrapment of the cord possibly resulting in 

radiculopathy. An MRI scan study of the scapula revealed subacromial and subdeltoid bursal 

fluid. 

In a statement dated June 15, 2013, Jimmie Stone, a coworker, related that on that date a 

sitter (later identified as appellant) yelled and cursed at a patient and tried to get him to sit in a 

work chair with rolling wheels, rather than the wheelchair that he requested. She telephoned for 

assistance. Appellant yelled at the patient to get away from her and to get off her and the patient 

stated, “what did I do, I’m sorry, I’m sorry.” She told the patient that she did not come to work 

to “get beat up and kick on by a person like you....” 

In another statement dated June 15, 2013, Beatrice James, a coworker, related that 

Ms. Stone telephoned her for assistance. When Ms. James arrived, appellant was cursing at a 

patient and telling him that she did not come to work to get kicked and he should get out of her 

way. The patient was apologizing for something and appellant stated that she was leaving 

because she was injured. 

Dr. Laurence O.F. Harris, a Board-certified internist, indicated that on June 14, 2013 he 

evaluated appellant after she was hit by a patient with dementia multiple times in the back and 
3

neck. He noted that she felt that she had “exacerbated neck and shoulder pain from an old 

injury.” Dr. Harris diagnosed scapular pain. 

In a statement dated June 20, 2013, Renay Godfrey, a coworker, related that on June 14, 

2013 she heard appellant tell a nurse to bring a patient a sedative. Appellant told the patient not 

to hit her and that he had ripped her pants. She verbally abused the patient and tried to shove 

him into a chair. 

An employing establishment incident report form, signed on June 20, 2013 by Teen 

Clemons, a supervisor, and on June 25, 2013 by Christopher Mimbs, a safety official, provided 

that on June 14, 2013 appellant was attempting to make a patient with dementia sit in a chair. 

While she held his left hand, the patient pushed her three times with his palm open on her left 

shoulder. The form stated, “[Appellant] was seen by [the] charge nurse trying to lift [the] patient 

alone and stated [that] her pants had ripped.” The safety official indicated that she did not follow 

procedures and that it was investigating allegations that she verbally abused the patient. 

By letter dated July 1, 2013, OWCP requested additional factual and medical information 

from appellant, including a detailed report from her attending physician addressing the cause of 

any diagnosed condition and its relationship to the identified work incident. 

In a report dated July 19, 2013, Dr. William Maxwell Duke, Board-certified in family 

medicine, indicated that appellant related that approximately four weeks ago a patient hit her in 

the neck causing numbness of the right arm and pain in her neck. She had previously undergone 

surgery on her cervical spine in 2004 and had a history of a fall “many months ago.” An MRI 

scan study showed “spinal stenosis secondary to osteophytes in the lower cervical spine.” 

Dr. Duke diagnosed stenosis of the cervical spine and found that appellant could work with 

restrictions. 

In a form report also dated July 19, 2013, Dr. Duke diagnosed cervical spinal stenosis. 

He provided a history of appellant being hit by a patient four weeks earlier and a fall “many 

months ago.” Dr. Duke checked “yes” in response to the question of whether the diagnosed 

condition was caused or aggravated by employment and provided as an explanation that it was 

“possibly aggravated.” 

By letter dated July 30, 2013, the employing establishment controverted the claim, 

arguing that appellant had not factually established that the incident occurred or that she 

sustained a medical condition as a result of the incident. It stated: 

“[Appellant’s] versions of events differ from the eye witness statement that 

watched this incident take place. [She] stated that the patient became combative 

when she attempted to get patient to sit in [a] [B]roda chair. The witness, 

Ms. Revels, stated that [appellant] was trying to force [the] patient to sit in [a] 

[B]roda chair. Another inconsistency includes [appellant’s] statement that the 

patient struck her six times with a closed fist on the left shoulder and the left side 

of her neck. Ms. Revels states that [appellant] was pushed by the veteran three 

times of the left shoulder with the palm of his hand.” 
4

The employing establishment noted that it had submitted three other witness statements 

and provided its interpretation of the medical evidence. 

In a decision dated August 9, 2013, OWCP denied appellant’s claim after finding that she 

had not established that the incident occurred at the time, place and in the manner alleged. It 

further found that the medical evidence did not provide a diagnosis. 

In an e-mail addendum to her statement, received by OWCP on August 15, 2013, 

appellant related that there were no witnesses around when the patient attacked her even though 

she called for assistance.2

 She asserted that Ms. Clemons wrote her statement based on 

Ms. Revels report and that Ms. Revels was not present at the incident but provided her 

“assumption of what occurred.” Appellant further noted that Ms. Godfrey was not present at the 

time of the incident. She contended that she was not trying to make the patient sit as described 

by Ms. Revels but instead holding onto his arms to stop him from hitting. Appellant related that 

Ms. Revels did not arrive until “after the two nursing assistants had put the patient to bed and 

restrained his wrists with soft wrist restraints.” She maintained that he did not slip onto the 

footrest of the Broda chair and that she did not attempt to lift the patient. Appellant stated, 

“What did occur when the patient sat in the floor and I was holding both of his forearms to 

prevent from being hit again by him; as he sat down, I was pulled over into a bending at the 

waist position, which caused my uniform pants to rip in the seam from the crotch almost to the 

back waistband....” She loudly called “damn” when her pants ripped but this was not directed at 

the patient. Appellant described medically how she could have pain on the right side of her neck 

through her right arm after being hit on the left side. 

In a report dated September 27, 2013, Dr. David L. Tate, Board-certified in family 

practice, evaluated appellant for neck and shoulder symptoms. He noted that her condition had 

recently worsened after she began using the telephone while working as a secretary. Dr. Tate 

diagnosed cervical radiculopathy, cervical degenerative disc disease and cervical spinal stenosis. 

He recommended that appellant be evaluated by a spinal surgeon either through workers’ 

compensation or privately and advised that her condition remained “related to her neck 

problems.” 

On October 17, 2013 appellant, through her attorney, requested reconsideration.3

 

Counsel contended that a claimant’s statement that an incident occurred must be rebutted by 

strong evidence. He also reviewed the definition of disability under FECA. 

By decision dated January 6, 2014, OWCP modified the August 9, 2013 decision to 

reflect that the medical evidence provided a diagnosed condition. It found, however, that 

appellant had not established the occurrence of the alleged June 14, 2013 work incident and thus 

denied her claim after finding that she had not established fact of injury. OWCP additionally 

 2

 In a July 22, 2013 e-mail, received by OWCP on August 15, 2013, appellant responded to the employing 

establishment’s allegations of verbal abuse. 

3

 In a duty status report dated August 8, 2013, received by OWCP on November 19, 2013, a physician diagnosed 

a shoulder condition and checked “yes” that the history of injury provided by appellant corresponded to that on the 

form of her injuring her left shoulder working at a computer desk. 
5

determined that the medical evidence did not contain a reasoned opinion relating the diagnosed 

condition to the alleged employment incident. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4

 has the burden of establishing 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 and/or specific condition for which compensation is claimed are 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 on a traumatic injury or an occupational disease.6

To determine whether an employee sustained a traumatic injury in the performance of 

duty, OWCP must determine whether “fact of injury” is established. First, an employee has the 

burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged, 

by a preponderance of the reliable, probative and substantial evidence.7 Second, the employee 

must submit sufficient evidence, generally only in the form of medical evidence, to establish a 

causal relationship between the employment incident and the alleged disability and/or condition 

for which compensation is claimed.8

 An employee may establish that the employment incident 

occurred as alleged, but fail to show that his or her disability and/or condition relates to the 

employment incident.9

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. Generally, 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.10 An injury 

does not have to be confirmed by eyewitnesses in order to establish 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 or her subsequent course of action.11 An employee 

has not met his or her burden of proof in establishing the occurrence of an injury when there are 

such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.12 

 4 See supra note 1. 

5 Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003). 

6 See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004). 

7 David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999). 

8 Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997). 

9 Id.

10 See Louise F. Garnett, 47 ECAB 639 (1996). 

11 See Betty J. Smith, 54 ECAB 174 (2002). 

12 Id. 
6

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 doubt on an employee’s statements in determining 

whether a prima facie case has been established.13 However, an employee’s statement regarding 

the occurrence of an employment incident is of great probative force and will stand unless 

refuted by strong or persuasive evidence.14

ANALYSIS 

Appellant alleged that she injured her neck, the right side of her upper back, her right 

shoulder and right arm on June 14, 2013 after being repeatedly struck on the left side of her neck 

and shoulder by a patient. She maintained that a patient with dementia hit her with his fist 

around six times. When appellant attempted to stop him by holding his arms, he sat down on the 

floor pulling her with him and ripping her pants. She immediately informed a supervisor, 

Ms. Clemons, of the incident and sought treatment at the emergency room that date when her 

neck, right shoulders, and right arm began hurting and her right hand grew numb. 

The employing establishment controverted the claim, arguing that the statements of 

witnesses did not support that the June 14, 2013 incident occurred as alleged. In a statement 

dated June 14, 2013, Ms. Revels related that on that date appellant tried to force a patient to sit in 

a chair after he did not comply with her instructions. Patient slipped down on a footrest and 

appellant tried to lift him. Appellant told Ms. Revels that her pants had ripped. In an incident 

report signed June 20, 2013, Ms. Clemons indicated that appellant was trying to make a patient 

with dementia sit in a chair. While appellant held his left hand, the patient pushed her with an 

open palm three times on the left shoulder. Ms. Clemons stated that a charge nurse witnessed 

appellant attempting to lift him without assistance. On June 15, 2013 Ms. Stone related that 

appellant was yelling at a patient and trying to get him to sit in a chair.15 Appellant told him that 

she did not come to work to get beat up. In another statement dated June 15, 2013, Ms. James 

related that she witnessed appellant cursing at a patient and telling him that she did not come to 

work to get kicked. Appellant indicated that she was leaving because she was injured. In a 

June 20, 2013 statement, Ms. Godfrey asserted that she heard appellant tell a patient not to hit 

her and that he had made her pants rip. 

The Board finds that the evidence does not contain sufficient inconsistencies sufficient to 

cast serious doubt on whether an incident occurred on June 14, 2013. While the Board takes 

seriously the assertions of patient abuse, such assertions have not been proven for the reasons set 

forth herein.16 Appellant immediately reported the incident to her supervisor and sought 

treatment on that date in the emergency room. She provided a sufficiently consistent history of 

injury to her physicians, the employing establishment and OWCP. An employee’s statement 

 13 See Linda S. Christian, 46 ECAB 598 (1995). 

14 See Gregory J. Reser, 57 ECAB 277 (2005). 

15 Ms. Stone provided the date of the incident as June 15, 2013. 

16 Although alleged by the employing establishment, OWCP made no finding of wilful misconduct under section 

8102(a) of FECA. Morris Reminger, 18 ECAB 341 (1966); see Theresa B.L. Grissom, 18 ECAB 193 (1966). 
7

regarding the occurrence of an employment incident is of great probative force and will stand 

unless refuted by strong or persuasive evidence.17 Not only is there no strong evidence 

contradicting appellant’s statement regarding how the incident occurred, there is considerable 

evidence supporting her statement. The employing establishment did not dispute that she was 

involved in an incident with a patient on June 14, 2013. The incident report prepared by the 

employing establishment provided that the patient pushed appellant with an open palm three 

times on the left shoulder. Ms. Godfrey overheard appellant tell the patient not to hit her and that 

he had ripped her pants. Ms. Stone and Ms. James heard appellant tell him that she did not come 

to work to get beat up or kicked. Ms. Revels witnessed that appellant told a patient to sit in a 

chair, that he slipped to a foot rest and that her pants ripped when she tried to lift the patient.18 

While the number of times that the patient hit appellant, whether his fist was open or closed and 

whether he pulled her down to the floor or whether she was trying to lift him are disputed, it is 

not contested that the patient struck her and that her pants ripped while she was in a bent over 

position. Under the circumstances of this case, the Board finds that appellant’s allegations have 

not been refuted by strong or persuasive evidence and there are insufficient inconsistencies to 

cast serious doubt on whether an incident occurred.19 Consequently, appellant has established 

the occurrence of the June 14, 2013 work incident. 

As appellant has established that a June 14, 2013 incident occurred at the time, place and 

in the manner alleged, the issue is whether the medical evidence establishes that she sustained an 

injury as a result of this incident. 

On June 14, 2013 appellant received treatment in the emergency room for complaints of 

pain after being hit in the left shoulder and neck by a patient. In a duty status report dated 

June 14, 2013, a physician described the clinical findings as reduced right upper extremity motor 

strength and determined that she should work limited duty. The physician did not, however, 

provide a diagnosis or address causation and thus his report is of little probative value.20

In a report dated June 15, 2013, Dr. Harris related that he evaluated appellant on June 14, 

2013 after she was hit by a patient with dementia in her neck, back and shoulders. He noted that 

she believed that she had aggravated preexisting pain in her neck and shoulders. Dr. Harris 

diagnosed scapular pain. The Board has held that pain is generally a description of a symptom 

and not considered a firm medical diagnosis.21 Dr. Harris did not provide a firm diagnosis or 

 17 See Gregory J. Reser, supra note 14. 

18 It is unclear whether Ms. Revels witnessed the entire incident that occurred between appellant and the patient. 

Appellant maintained that Ms. Revels was not a witness. 

19 See D.S., Docket No. 11-634 (issued October 5, 2011); M.H., 59 ECAB 461 (2008). 

20 See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion 

regarding the cause of an employee’s condition is of diminished probative value on the issue of causal relationship). 

21 See H.A., Docket No. 13-1872 (issued February 26, 2014); B.P., Docket No. 12-1345 (issued 

November 13, 2012). 
8

directly relate the scapular pain to the June 14, 2013 work incident. Without a firm diagnosis 

supported by medical rationale, the report is of little probative value.22 

On July 19, 2013 Dr. Duke discussed appellant’s history of an injury four weeks ago 

when a patient hit her in the neck causing right arm and neck numbness. He noted that she had a 

prior history of a fall and surgery on her cervical spine in 2004. Dr. Duke diagnosed stenosis of 

the cervical spine due to osteophytes as seen by MRI scan study and found that appellant could 

work with restrictions. As he did not attribute the diagnosed condition of cervical spine stenosis 

to the June 14, 2013 work incident, his opinion is insufficient to meet her burden of proof. 

In a form report dated July 19, 2013, Dr. Duke indicated that appellant had a history of 

being hit by a patient four weeks earlier and a fall months earlier. He diagnosed cervical spinal 

stenosis and checked “yes” in response to the question of whether the diagnosed condition was 

caused or aggravated by employment, providing as a rationale that the condition was “possibly 

aggravated.” Dr. Duke’s finding that the work incident “possibly aggravated” the diagnosed 

condition of spinal stenosis is speculative in nature and thus of little probative value.23 

On September 27, 2013 Dr. Tate discussed appellant’s complaints of continued neck and 

shoulder symptoms that worsened after she began working as a secretary. He diagnosed cervical 

radiculopathy, degenerative cervical disc disease and cervical spinal stenosis. Dr. Tate opined 

that appellant’s symptoms continued to be due to her neck condition and advised her to see a 

spinal specialist either through workers’ compensation or privately. He did not, however, 

reference the June 14, 2013 work incident or attribute any diagnosed condition to her altercation 

with a patient on that date. A physician must provide a narrative description of the employment 

incident and a reasoned opinion on whether the employment incident described caused or 

contributed to appellant’s diagnosed medical condition.24

An award of compensation may not be based on surmise, conjecture, speculation or upon 

appellant’s own belief that there is a causal relationship between her claimed condition and her 

employment.25 Appellant must submit a physician’s report in which the physician reviews those 

factors of employment identified by her as causing her condition and, taking these factors into 

consideration as well as findings upon examination and the medical history, explain how 

employment factors caused or aggravated any diagnosed condition and present medical rationale 

in support of his or her opinion.26 She failed to submit such evidence and therefore failed to 

discharge her burden of proof. 

 22 See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease 

was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship). 

23 Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need 

not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be 

expressed in terms of a reasonable degree of medical certainty). 

24 John W. Montoya, 54 ECAB 306 (2003). 

25 D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001). 

26 See D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004). 
9

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not established that she sustained an injury on June 14, 

2013 in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the June 14, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed, as modified. 

Issued: November 3, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board