United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Philadelphia, PA, 

Employer 

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Docket No. 15-1529 

Issued: December 22, 2015 

Appearances: Case Submitted on the Record

Jason S. Lomax, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 9, 2015 appellant, through counsel, filed a timely appeal of a January 13, 2015 

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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish a traumatic injury 

claim on February 17, 2011 in the performance of duty. 

On appeal, counsel argued that OWCP’s January 13, 2015 decision was incorrect as it 

was based upon flawed findings of fact and conclusions of law. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On April 24, 2012 appellant, then a 46-year-old transportation security officer, filed a 

traumatic injury claim (Form CA-1) alleging that he broke his left foot on February 17, 2011. 

He was walking down the steps and twisted his left foot on a rubber or vinyl mat which was not 

lying flat on the stairwell. Appellant stated, “I grabbed onto the railing after experiencing 

immediate pain.” 

In a letter dated May 16, 2012, OWCP informed appellant that additional factual and 

medical evidence was necessary to meet his burden of proof to establish his traumatic injury 

claim. It requested an additional description of the employment event as well as supporting 

medical evidence. OWCP afforded appellant 30 days to respond. 

The employing establishment controverted appellant’s claim on May 30, 2012. It 

asserted that his employment incident could not have occurred as alleged as the steps were 

covered with nonskid strips. The employing establishment included a photograph of the steps. It 

noted that appellant did not report his injury during the seven weeks that he worked following 

the alleged incident. 

On September 13, 2010 the employing establishment granted appellant’s request for 

leave under the Family Medical Leave Act (FMLA) due to excision of bone secondary to 

osteomyelitis, gas gangrene, fasciotomy, surgical syndactyly, skin graft, and hyponatomia 

rendering appellant incapable of weight bearing on his right lower extremity. Appellant returned 

to full duty with no restrictions from his prior, personal injury on February 17, 2011. 

The employing establishment provided a memorandum dated November 15, 2011 which 

indicated that appellant had used excessive leave due to the diagnosed condition of Charcot’s 

arthropathy of the left foot. It requested medical documentation regarding his ability to perform 

his job duties and noted that a decision would be made regarding his status and his ability to 

work on a full-time basis. 

In an e-mail dated April 11, 2012, the occupational safety and health specialist noted that 

appellant was not sure what caused his broken foot as he had multiple medical issues including 

uncontrolled diabetes. 

On November 21, 2011 Dr. David Millili, a podiatrist, indicated that he first examined 

appellant for a diabetic right foot infection resulting in gas gangrene. This condition required 

reconstructive and limb salvage procedures. Dr. Millili diagnosed appellant with diabetic 

Charcot neuropathic disorder in his left foot in April 2011. He noted that this condition resulted 

in multiple midfoot fractures of appellant’s left lower extremity. Dr. Millili concluded that 

appellant’s conditions had completely resolved as of November 2011 with no work restrictions. 

On March 6, 2012 Dr. Millili noted that appellant was experiencing pain and discomfort 

in his foot as he was not permitted to wear his walker boot at work. He opined that appellant’s 

foot condition was aggravated by wearing only his boots. Dr. Millili did not specify the 

impacted foot, but indicated that appellant could return to work on March 14, 2012. He found 

that on April 17, 2012 appellant was totally disabled awaiting a brace. On June 6, 2012 
3

Dr. Millili noted that appellant could return to work once his lower extremity bracing was in 

place. 

In a decision dated June 15, 2012, OWCP denied appellant’s traumatic injury claim. It 

found that appellant, a federal employee, had filed a timely claim, but had failed to meet his 

burden of proof to establish the factual component of his traumatic injury claim. OWCP stated 

that the evidence of record failed to establish that the described event occurred or occurred as 

appellant had described. It noted that Dr. Millili did not mention the alleged employment 

incident and that appellant had not submitted the requested information to support his claim. 

Appellant submitted a narrative statement dated May 21, 2012, but which OWCP 

received on June 25, 2012. He asserted that on February 17, 2011 at 7:00 a.m. he was walking 

down a stairwell and twisted his left foot due to the fact that the rubber or vinyl matting was not 

lying flat on the stairwell. Appellant grabbed onto the railing and experienced immediate pain. 

His foot then began to swell. Appellant’s supervisor noted his limp as well as everyone else at 

the employing establishment. Appellant iced his foot at home and wrapped it in a bandage. He 

did not report to his doctor because his foot swelled frequently due to his diabetes. Appellant 

sought treatment from Dr. Millili on or about April 8, 2011 and informed him that he had tripped 

at work. He alleged that Dr. Millili informed him that his foot was broken and cast his foot. 

Appellant initially returned to work in September 2011 and continued through March 10, 2012 

when he stopped work due to pain. Dr. Millili found that appellant was totally disabled until his 

brace was completed. Appellant submitted additional medical reports from his treating 

physician. 

Dr. Millili treated appellant on April 7, 2011 for an “episode in his left foot” as reported 

by appellant. Appellant indicated that his left foot had become red, hot, and swollen, but denied 

any gross trauma to the area. He denied discomfort. Dr. Millili found that appellant presented 

with clinical findings suspicious for a Charcot neuropathic collapse with overt cellulitis. In a 

note dated April 14, 2011, he noted that he examined appellant on April 7, 2011 due to his left 

foot which was extremely swollen, red, hot, and cellulitic. Dr. Millili opined that appellant’s 

condition was consistent with a Charcot collapse. He examined x-rays and found a complete 

midfoot collapse and fracture. Dr. Millili placed appellant in a cast and directed him to stay off 

his foot. X-rays dated April 8, 2011 demonstrated “Charcot (neuropathic) foot with chronic 

Lisfranc injury.” 

Dr. Millili reexamined appellant on May 5, 2011 and diagnosed a midfoot collapse with 

multiple fractures. He indicated that appellant could begin partial weight bearing, but continued 

to be totally disabled. On June 9, 2011 Dr. Millili diagnosed a Charcot collapse of the left foot. 

He continued to find appellant totally disabled. Dr. Millili examined appellant on July 21 and 

August 4, 2011 diagnosing multiple fractures associated with a Charcot collapse. In a note dated 

September 1, 2011, he again diagnosed complete midfoot Charcot collapse on the left. 

Dr. Millili examined appellant on March 6, 2012 due to increased pain levels in the left 

foot. He noted that appellant denied any recent traumatic event and reported that appellant 

previously had a complete collapse of the midfoot during his working activities. Appellant 

underwent x-rays on March 7, 2012 which demonstrated findings consistent with “mild foot 

neuroarthropathy (diabetic?).” On June 5, 2012 Dr. Millili noted that appellant had an event in 
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February where his foot demonstrated collapse during his working activities at the airport. He 

continued to diagnosed Charcot neuropathic collapse. In a note dated June 26, 2012, Dr. Millili 

indicated that appellant could return to light-duty work. 

OWCP reissued the June 15, 2012 decision on December 5, 2012. Counsel requested an 

oral hearing from the Branch of Hearings and Review on December 11, 2012. 

Appellant testified at the oral hearing on March 14, 2013. He again described the events 

on February 17, 2011 noting that he was walking down the stairwell and tripped on the steps 

which were covered in matting. Appellant testified that he tripped and twisted his left foot under 

instantly feeling pain. He grabbed the handrail to prevent himself from falling all the way down 

the stairs. Appellant limped following this event and his supervisor asked if he needed to write a 

report regarding his injury. He replied that he did not know, as he was not familiar with 

procedures. Appellant testified that he was diabetic and that he first sought medical treatment on 

April 7, 2011 for his left foot condition. He noted that he had just returned to work following his 

right foot surgery for a nonemployment injury. Appellant stated that he was terminated from the 

employing establishment. 

In a decision dated May 30, 2013, OWCP’s hearing representative found that factual 

evidence was insufficient to establish that the alleged incident of February 17, 2011 occurred, as 

alleged. She noted that appellant delayed filing the claim for more than a year, that he continued 

working, and that he did not seek medical attention until two months after the alleged incident. 

The hearing representative further found that the medical records did not provide a history of the 

alleged work incident or indicate that appellant’s left foot condition was due to his employment. 

Counsel requested reconsideration in a letter dated and received by OWCP on 

May 29, 2014. In support of this request, he submitted a report dated March 25, 2014 from 

Dr. Norman B. Stempler, an osteopath who is Board-certified with the American Osteopathic 

Association in orthopedic surgery. Dr. Stempler reported that on February 17, 2011 appellant 

sustained a slip and fall while coming down stairs at work hyperflexing his left ankle and foot. 

He reviewed appellant’s x-rays and diagnosed neuro-Charcot or neuropathic left foot with 

associated chronic Lisfranc tarsometatarsal injury. Dr. Stempler further noted that appellant had 

pes planus of the left foot with deformity. He stated, “It is my professional opinion, within a 

reasonable degree of medical certainty, that there is direct causal relationship between all of 

[appellant’s] complaints, my diagnosis, and the incident related.” 

By decision dated January 13, 2015, OWCP denied modification of its May 30, 2013 

decision, finding that appellant had not established an employment incident as alleged due to 

factual inconsistencies in the record. 

LEGAL PRECEDENT 

OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific 

event or incident, or series of events or incidents, within a single workday or shift. Such 

condition must be caused by external force, including stress or strain which is identifiable as to 
5

time and place of occurrence and member or function of the body affected.”2 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.3 The second component is whether the employment incident 

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

With respect to the first component of fact of injury, the employee has the burden of 

establishing the occurrence of an injury at the time, place, and in the manner alleged, by a 

preponderance of the reliable, probative, and substantial evidence. An injury does not have to be 

confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in 

the performance of duty, but the employee’s statements must be consistent with the surrounding 

facts and circumstances and his subsequent course of action. An employee has not met his or her 

burden of proof of 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. Such circumstances as late 

notification of injury, lack of confirmation of injury, continuing to work without apparent 

difficulty following the alleged injury and failure to obtain medical treatment may, if otherwise 

unexplained, cast sufficient doubt on an employee’s statements in determining whether a 

prima facie case has been established. However, an employee’s statement alleging that an injury 

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

refuted by strong or persuasive evidence.4

ANALYSIS 

The Board finds that appellant has failed to meet his burden of proof to establish that he 

sustained a traumatic injury on February 17, 2011, as alleged. 

Appellant filed his claim for a February 17, 2011 traumatic injury on February 24, 2012. 

He stated that he injured his foot walking on stairs at the employing establishment. There are no 

witnesses to this alleged incident. Appellant’s statement that he sustained a traumatic injury on 

February 17, 2011, although entitled to great weight, is contradicted by his subsequent actions. 

He did not seek medical treatment until April 7, 2011 almost two months after the alleged 

traumatic injury. Appellant did not file his Form CA-1 for over a year, on February 24, 2012. 

He alleged that his supervisor was aware of his left foot injury, but there is no evidence in the 

record of such notification.5

 Furthermore, there is no supported explanation in the record for 

appellant’s delay in seeking medical attention or failing to file the claim. Finally, Dr. Millili, 

appellant’s attending physician, indicated that appellant described an “episode in his left foot” 

during his initial examinations in April 2011. Appellant informed Dr. Millili that his left foot 

 2

 20 C.F.R. § 10.5(ee). 

3 Elaine Pendleton, 40 ECAB 1143 (1989). 

4 D.B., 58 ECAB 464, 466-67 (2007). Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, 

Chapter 2.803.3 (August 2012). 

5 P.T., Docket No. 09-2289 (issued August 16, 2010). 
6

had become red, hot, and swollen, but denied any gross trauma to the area. Dr. Millili 

consistently diagnosed Charcot neuropathic collapse due to appellant’s underlying diabetes. It 

was not until March 6, 2012 that Dr. Millili suggested that appellant’s left foot condition had 

occurred during his working activities. This delayed suggestion in the medical evidence that 

appellant’s left foot condition arose at work is not sufficiently detailed to support appellant’s 

allegation of a work-related traumatic incident. 

Appellant submitted a report dated March 25, 2014 from Dr. Stempler who listed 

appellant’s history of a slip and fall at work on February 17, 2011 coming down stairs which 

hyperflexed his left ankle and foot. Dr. Stempler diagnosed neuro-Charcot or neuropathic left 

foot with associated chronic Lisfranc tarsometatarsal injury. This report was written almost three 

years after the alleged employment incident and cannot provide the contemporaneous medical 

evidence to support that the employment incident occurred as alleged. 

The Board finds that circumstances surrounding appellant’s account of an employment 

incident, including his delay in reporting the incident and his delay in seeking medical attention 

cast doubt on his claim.6 Appellant has failed to establish fact of injury as he did not submit 

sufficient evidence to establish that he actually experienced an employment incident at the time, 

place, and in the manner alleged.7 The Board finds that appellant has not established the first 

component of fact of injury in a traumatic injury claim, that the employment incident occurred as 

alleged, and that as he did not establish the factual aspect of his claim, it is not necessary to 

discuss the probative value of the medical reports.8

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(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant failed to meet his burden of proof to establish a traumatic 

injury in the performance of duty on February 17, 2011. 

 6 C.B., Docket No. 14-0671 (issued August 24, 2015). 

7 P.T., Docket No. 09-2289 (issued August 16, 2010). 

8 Tracey P. Spillane, 54 ECAB 608 (2003). 
7

ORDER 

IT IS HEREBY ORDERED THAT the January 13, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 22, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board