United States Department of Labor 

Employees’ Compensation Appeals Board 

___________________________________________

R.T., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

San Antonio, TX, Employer 

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Docket No. 14-316 

Issued: March 14, 2014 

Appearances: Case Submitted on the Record 

Dr. Anthony Rogers, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On November 25, 2013 appellant, through his representative, filed a timely appeal from 

the November 22, 2013 merit decision of the Office of Workers’ Compensation Programs 

(OWCP) which denied his claim. 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 met his burden of proof to establish that he sustained a 

traumatic injury in the performance of duty on April 30, 2012. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 10, 2012 appellant, then a 51-year-old medical instrument technician, filed a 

traumatic injury claim alleging that on April 30, 2012 he sustained injury to his low back, right 

shoulder, right knee and right ankle in the performance of duty.2 He alleged that a patient 

became combative and he reached over a stretcher to prevent injury to the patient and staff. 

Appellant stopped work on May 7, 2012. The employing establishment controverted the claim 

and alleged that there were different stories about how the injury occurred. It noted that 

appellant was hurt several days earlier at home. The employing establishment noted that on 

April 27, 2012 he was assaulted by a family member and sustained a severe back and right 

shoulder injury. 

In a May 24, 2012 letter, OWCP advised appellant that additional factual and medical 

evidence was needed. It requested that he provide an explanation regarding the date of the injury 

and when he reported it to his supervisor. OWCP explained that a physician’s opinion was 

crucial to his claim and allowed 30 days to submit the requested information. 

In an April 27, 2012 report, appellant advised the employing establishment that he had 

been assaulted by his daughter’s boyfriend with a baseball bat. The administrative officer, Erik 

Zielinski, indicated that appellant lifted up his scrubs to show his bruises from the assault to his 

lower back, upper back and right shoulder. He noted that appellant had been seen by his private 

health care provider and was “just a little sore but could work.” 

In a May 1, 2012 report, appellant notified Mr. Zielinski that he had been injured at work 

the day before and would not come to work that day. Mr. Zielinski noted that he spoke to the 

service chief, Dr. Rogers, who confirmed that he could hear appellant screaming in the hallway 

and was concerned for his safety. He also noted that a progress note was taped to the door of his 

office which indicated that appellant was on light duty and would be reevaluated on 

May 9, 2012. In a May 2, 2012 report, Mr. Zielinski noted that appellant was late for a 

scheduled medical examination. He marked appellant absent without leave. Appellant became 

angry and unprofessional when asked for medical documentation. He began screaming and 

yelling at Mr. Zielinski and stated that he was “beat up by two patients.” 

In a May 2, 2012 treatment note, Dr. Robert Pinter, an employing establishment 

physician Board-certified in internal and occupational medicine, noted that on April 13, 2012 

appellant sustained an injury from pulling a gurney. Appellant reported three new injuries to the 

right shoulder, right low back and right distal lateral leg. Dr. Pinter related a history that two 

days prior a patient was awakening from anesthesia and became confused and kneed appellant a 

few times in the lateral chest at about 1:00 p.m. Later that day, another patient awakening from 

anesthesia grabbed appellant’s right arm while being transferred from the operating room table to 

a gurney, and pulled on his shoulder while trapped between the table and the gurney. Dr. Pinter 

diagnosed right shoulder probable rotator cuff strain, right high ankle sprain/contusion, right 

chest contusion, right low back strain and left low back strain which was “apparently resolved 

but difficult to examine based on several other areas that may detract from the pain there. He 

 2

 The record reflects that appellant has a prior claim for a traumatic injury on August 2, 2001 under File No. 

xxxxxx992 and April 2, 2004 under File No. xxxxxx690. 
3

opined that the “injuries are consistent with but out of proportion to the history as stated.” 

Dr. Pinter released appellant to limited duty. 

In a May 7, 2012 disability certificate, Dr. Helo Chen, an osteopath Board-certified in 

family medicine, advised that appellant was unable to work from May 7 to 9, 2012 but could 

return to work on May 10, 2012. In a May 9, 2012 duty status report, he indicated an April 30, 

2012 date of injury and stated that there were lumbar findings. Dr. Chen advised that appellant 

could work with restrictions. 

In statements dated May 10, 2012, appellant described the incidents of April 30, 2013. 

At approximately 11:30 a.m., he was assisting a physician transferring a patient from the 

operating room when the patient tried to get off of the stretcher. Appellant tried to restrain the 

patient, who became combative. He noted that, despite a code green, help never came. At 4:00 

p.m. a patient who just had a laminectomy was in the prone position and his arm dropped 

between the operating room table and the stretcher. Appellant attempted to help the patient, who 

woke up and turned to the right side while their arms were still trapped. The patient extubated 

himself and became combative and appellant was injured while trying to restrain him. Appellant 

alleged that he was placed in two dangerous positions in one day and that, as a result, he had a 

severe back injury and was seeking medical care. 

A May 18, 2012 lumbar spine magnetic resonance imaging (MRI) scan report by 

Dr. Douglas K. Smith, a Board-certified diagnostic radiologist, revealed broad-based disc bulges 

with annular tearing at L2-3 and L3-4, broad-based disc herniations at L4-5 and L5-S1 with 

abutment of both L5 and S1 nerve roots. In a May 18, 2012 right knee MRI scan, Dr. Smith 

noted ill-defined midsubtance anterior cruciate ligament (ACL) differential fibers, probably 

functional deficiency of the ACL but no pivot shift on contusions identified. A short segment 

horizontal cleavage tear of the mid-third segment of the medial meniscus and no unstable 

meniscal tears were identified. OWCP received disability certificates from a physician’s 

assistant and a May 24, 2012 treatment form from a nurse. 

In a letter dated May 24, 2012, the employing establishment advised appellant’s treating 

physician, Dr. Chen, that on April 27, 2012 appellant sustained significant bruises after being 

assaulted on the lower back, upper back and right shoulder. It noted that appellant described 

being struck with a baseball bat by his daughter’s boyfriend. 

In a May 24, 2012 addendum, Dr. Pinter reviewed an April 27, 2012 report which 

revealed that appellant was off work due to being hit with a baseball bat. He noted that appellant 

was battered in the right shoulder, lower and upper back and ecchymoses were seen by the 

supervisor in these areas. Dr. Pinter noted that the battery occurred before appellant’s May 2, 

2012 visit and could have contributed to or been greatly responsible for the findings on physical 

examination as they were in the same areas in which appellant had complaints. It helped to 

explain why appellant’s injuries seemed out of proportion to the alleged incidents. Dr. Pinter 

placed appellant on light duty. 

In a June 18, 2012 report, Dr. Chen noted appellant’s history of injury and treatment and 

advised that he initially presented on May 7, 2012 for evaluation of low back pain, right knee 

pain, right ankle and right shoulder pain incurred from a traumatic work accident. Appellant 
4

stated that, while at work on April 30, 2012, he had to restrain a combative patient who was 

coming out of anesthesia. Dr. Chen noted that appellant complained of pain on a level of 6 or 7 

on a 10-point scale. His pain increased with certain activities, including pushing and pulling, 

overhead movement, coughing or sneezing, and necessary lifting and bending, along with 

prolonged standing and walking. Dr. Chen stated that appellant’s past medical history was 

reviewed and was noncontributory to his present condition. Appellant had a previous injury to 

his right ankle which resolved. Dr. Chen received correspondence from a nurse, who asserted 

that appellant’s injuries stemmed from a beating by his daughter’s boyfriend; but when he 

questioned appellant, “he vehemently denied that this took place along with his daughter’s 

boyfriend, who gave a statement over the phone. They actually seemed to find this somewhat 

comical in addition to being offensive.” Dr. Chen examined appellant and diagnosed a lumbar 

herniated nucleus pulposus (HNP), left medial meniscus tear; right shoulder unspecified site of 

sprain/strain and right ankle sprain. He opined that the injury occurred in one single work shift 

during an identifiable time and place with an identifiable body part affected. Dr. Chen found that 

appellant was injured while attempting to restrain a combative patient prematurely coming out of 

anesthesia. The mechanism of injury supported the diagnosis. Dr. Chen advised that appellant 

could not return to modified duty and his activities of daily living were limited. 

By decision dated July 5, 2012, OWCP denied appellant’s claim. It found that the 

medical evidence did not support that his claimed conditions were caused by the work incident. 

On July 24, 2012 appellant’s representative requested reconsideration. 

By decision dated August 8, 2012, OWCP denied appellant’s request for reconsideration 

finding that the evidence submitted was insufficient to warrant further merit review. 

By letter dated September 16, 2012, appellant’s representative requested reconsideration. 

He argued that the employing establishment did not advise appellant that it was contesting the 

claim based on an injury at home. Appellant’s representative argued that the claim form was 

signed by a workers’ compensation manager, not by appellant’s supervisor and that it was 

misleading. OWCP received documentation pertaining to appellant’s request for 

accommodations under the Americans with Disability Act (ADA). It received reports previously 

submitted and a July 11, 2012 report from the employing establishment pertaining to an incident 

in which appellant was told to leave a laboratory. 

By decision dated December 10, 2012, OWCP denied modification of its prior decision. 

In a November 28, 2012 disability certificate, Dr. Chen advised that appellant could 

return to full duty. In a November 20, 2012 duty status report, he noted that appellant reported 

working with a combative patient. Dr. Chen indicated that appellant had lower back and 

shoulder findings and could return to work with no physical restrictions. 

Appellant’s representative asked that appellant be returned to light-duty work and 

questioned his proposed termination because he filed a claim. 

On August 15, 2013 appellant requested reconsideration. In an August 15, 2012 report, 

Dr. Chen noted that appellant’s injury was the result of two traumatic incidents at work which 

occurred as he was attempting to restrain combative patients on April 30, 2012. The patients 
5

were disoriented and became aggressive while awakening from anesthetics. Dr. Chen advised 

that appellant’s right arm and low back were injured during the first incident and the second 

incident injured his right shoulder, right knee and right ankle. The injuries were the result of 

restraining two physically aggressive patients while performing his work duties. Dr. Chen noted 

that the employing establishment suggested that appellant had been assaulted with a baseball bat 

prior to his workplace injury, but he did not have any documentation regarding that incident. He 

noted that appellant denied any prior physical assault and stated that the question of preexisting 

conditions was irrelevant. 

By decision dated November 22, 2013, OWCP denied modification of its prior decisions. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3

 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 timely filed within the applicable time 

limitation period of FECA4

 and that an injury was sustained in the performance of duty.5 These 

are the essential elements of each compensation claim, regardless of whether the claim is 

predicated upon a traumatic injury or an occupational disease.6

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether the fact of injury has been established. 

There are two components involved in establishing the fact of injury. First, the employee must 

submit sufficient evidence to establish that he or she actually experienced the employment 

incident at the time, place and in the manner alleged.7 Second, the employee must submit 

sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.8 

Rationalized medical opinion evidence is generally required to establish causal 

relationship. The opinion of the physician must be based on a complete factual and medical 

background, must be one of reasonable medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant.9

 3

 5 U.S.C. §§ 8101-8193. 

4 Joe D. Cameron, 41 ECAB 153 (1989). 

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

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

7 Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of 

Injury, Chapter 2.803.2a (June 1995). 

8 See John J. Carlone, 41 ECAB 354 (1989). For a definition of the term “traumatic injury,” see 20 C.F.R. 

§ 10.5(ee). 

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

ANALYSIS 

Appellant alleged that on April 30, 3012 he was injured in two separate incidents at work 

due to physical interactions with two postsurgical patients. The evidence supports that the 

claimed incidents occurred. Therefore, the Board finds that the claimed traumatic incidents 

occurred in the performance of duty. The medical evidence, however, is insufficiently 

rationalized to establish the employment incidents caused an injury. 

In a June 18, 2012 report, Dr. Chen noted appellant’s history of injury and treatment at 

work on April 30, 2012. Appellant had to restrain a combative patient who was coming out of 

anesthesia. Dr. Chen stated that appellant’s past medical history was “noncontributory.” He 

received correspondence from a nurse, who asserted that appellant’s injuries stemmed from a 

beating by his daughter’s boyfriend but appellant had vehemently denied that such incident took 

place along with the daughter’s boyfriend, who gave a statement over the telephone. Dr. Chen 

diagnosed a lumbar herniated nucleus pulposus, left medial meniscus tear; right shoulder 

sprain/strain and right ankle sprain. He opined that appellant was injured while attempting to 

restrain a combative patient. In an August 15, 2012 report, Dr. Chen opined that appellant’s 

injury was the result of two traumatic work incidents that occurred as he attempted to restrain 

combative patients on April 30, 2012. He advised that appellant’s right arm and low back were 

injured during the first incident and the second incident injured his right shoulder, right knee and 

right ankle. Dr. Chen opined that the injuries resulted from appellant’s work duties. While the 

employing establishment suggested that appellant was previously assaulted with a baseball bat, 

Dr. Chen did not have any documentation regarding the incident and appellant denied a prior 

assault. The Board finds that the opinion of Dr. Chen is of diminished probative value as it is 

based upon an inaccurate history of injury. Although the two incidents at work involving the 

patients are not contradicted, the record contains an April 27, 2012 report of Mr. Zielinski who 

noted that appellant sought leave following a domestic assault on or about April 26, 2012. 

Appellant showed bruises on his lower back, upper back and right shoulder. This report predates 

the claim of injury on April 30, 2012 that appellant filed on May 10, 2012. The most 

contemporaneous evidence of record, the April 27, 2012 report, supports that the battery 

occurred.10 It is well established that medical reports must be based on a complete and accurate 

factual and medical background, and medical opinions based on an incomplete or inaccurate 

history are of diminished probative value.11 Dr. Chen did not record a proper factual history or 

otherwise provide a reasoned explanation of how the work incidents caused or contributed to the 

diagnosed conditions in view of the assault on appellant with a baseball bat. The other reports 

from Dr. Chen do not specifically address how the work incidents caused or contributed to the 

diagnosed medical conditions. 

The Board also notes that Dr. Pinter examined appellant on May 2, 2012 and related that 

appellant indicated that two days ago he was in altercations on two separate incidents with 

patients awakening from anesthesia. Dr. Pinter diagnosed right shoulder probable rotator cuff 

strain, right high ankle sprain/contusion, right chest contusion, right low back strain and left low 

 10 The Board has held that contemporaneous evidence is entitled to greater probative value than later evidence. 

S.S., 59 ECAB 315 (2008). 

11 Douglas M. McQuaid, 52 ECAB 382 (2001). 
7

back strain, that were “apparently resolved.” At that time, he opined that the “injuries are 

consistent with but out of proportion to the history as stated.” In a May 24, 2012 addendum, 

Dr. Pinter noted reviewing the April 27, 2012 report and opined that he believed the battering 

occurred before appellant’s May 2, 2012 visit and indicated that the findings could have 

contributed to or been greatly responsible for his findings on physical examination as they were 

in the same areas that appellant had complaints. He noted that it helped to explain why his 

injuries seemed out of proportion to the alleged incidents. 

Consequently, there is no reasoned medical evidence, based on an accurate factual 

history, which explains why any of appellant’s diagnosed conditions were caused or aggravated 

by his encounters with patients on April 30, 2012, and why they were not instead attributable to 

the baseball bat assault noted in the April 27, 2012 report of contact. For these reasons, appellant 

has not established that the April 30, 2012 employment incidents caused or aggravated a specific 

injury. 

On appeal, appellant’s representative made several arguments related to a request for a 

reasonable accommodation under ADA. However, the Board’s jurisdiction is limited to matters 

arising under FECA for which OWCP has issued a final decision.12 The only issue on appeal is 

whether appellant met his burden of proof in establishing that he sustained a traumatic injury in 

the performance of duty on April 30, 2012. Since appellant’s claim, as explained, has not been 

established, there is no basis for any work restrictions attributable to an employment injury under 

FECA. His representative also submitted additional evidence on appeal. However, the Board 

may not consider such evidence for the first time on appeal.13

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

within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 

through 10.607. 

CONCLUSION 

The Board finds that appellant did not meet his burden of proof in establishing that he 

sustained a traumatic injury in the performance of duty on April 30, 2012. 

 12 20 C.F.R. § 501.2(c). 

13 See id. 
8

ORDER 

IT IS HEREBY ORDERED THAT the November 22, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 14, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board