United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.I., Appellant 

and 

DEPARTMENT OF THE ARMY, MADIGAN 

ARMY MEDICAL CENTER, WA, Employer 

__________________________________________ 

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Docket No. 15-183 

Issued: March 24, 2015 

Appearances: Case Submitted on the Record

Eric L. Pines, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 4, 2014 appellant, through his attorney, filed a timely appeal from a 

May 8, 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 has established that he sustained an injury on July 18, 

2012 in the performance of duty. 

FACTUAL HISTORY 

On August 14, 2012 appellant, then a 38-year-old licensed practical nurse (LPN), filed a 

traumatic injury claim alleging that on July 18, 2012 he sustained low back pain radiating into 

both legs and numbness of the buttocks in the performance of duty. He stated, “I was attempting 

 1

 5 U.S.C. § 8101 et seq. 
2

to get a catheterized urine specimen from a female patient and was bent over [the] patient to get 

[the] specimen and felt a strain and pop in my lumbar region of my back and instant back pain.” 

Appellant stopped work on July 30, 2012. His supervisor, Eugina Lucero, challenged the claim 

as she did not receive notice of the injury until August 8, 2012. She further indicated that 

appellant’s account of injury differed from what he told her before seeking medical treatment at 

the employing establishment’s clinic. 

By letter dated August 14, 2012, OWCP requested that appellant submit additional 

factual and medical information in support of his claim, including a description of the work 

incident and a comprehensive medical report addressing the relationship between any diagnosed 

condition and the identified employment factor. 

In a form report dated July 30, 2012, received by OWCP on August 22, 2012, Dr. Jason 

Bothwell, who is Board-certified in emergency medicine and works for the employing 

establishment, indicated that appellant sustained an initial injury lifting a patient who had fallen 

in the parking lot on July 6, 2012 and a subsequent injury on July 18, 2012. The description of 

the injury on July 18, 2012 is not legible. Dr. Bothwell diagnosed low back pain and 

recommended further evaluation. He checked “yes” that the condition was caused or aggravated 

by employment, noting that appellant was moving a patient. 

In a statement dated July 31, 2012, received by OWCP on August 22, 2012, Ms. Lucero 

related that on July 30, 2012 she asked appellant why he was limping and he replied that “his 

back had been hurting for quite a while and that he was trying to ‘tough it out.’” Appellant told 

her that he “helped a patient in the coffee shop area approximately three months ago and thought 

he injured his back.” When Ms. Lucero questioned why he had not reported it sooner, he stated 

that it was not bad initially, but had worsened a few weeks ago when he lifted a patient from a 

wheelchair to an examination table. 

On August 1, 2012 Dr. Peter C. Taylor, Board-certified in family medicine, diagnosed a 

work-related lumbar sprain with underlying degenerative disc disease and spondylosis of the 

lumbar spine. He described the injury as occurring at work on July 6, 2012 when appellant 

assisted a patient who fell out of a wheelchair. Subsequently, appellant’s back pain increased. 

Dr. Taylor found that appellant was unable to work July 30 to August 5, 2012. 

In a report dated August 7, 2012, Dr. Taylor noted that a magnetic resonance imaging 

(MRI) scan study showed “severe central canal stenosis and displacement of the cauda equine 

and left S1 nerve root compression by [an] L5-S1 herniated disc.”2

 He referred appellant to 

Dr. Barbara E. Lazio, a Board-certified neurosurgeon, for an urgent consultation. 

On August 8, 2012 appellant informed Ms. Lucero that he needed to file two separate 

claims, one for the person who fell and the second one for when he was assisting with a 

 2

 An MRI scan study of the lumbar spine dated August 3, 2012 showed disc and facet degeneration and a prior L4 

and L5 laminotomy on the right, broad-based disc protrusions at L4-5 with nerve root compression, effacement of 

the right L5 nerve root, stenosis and displacement of the left L5 nerve root and the nerve roots of the cauda equine, 

moderate right and left neural foraminal stenosis, and a disc extrusion at L5 displacing the left S1 nerve root and 

partially effacing the left subarticular recess with moderate facet arthopathy and bilateral neural foraminal stenosis. 
3

catheterization on a patient who kicked him and aggravated the pain in his lower back. On 

August 9, 2012 appellant advised Ms. Lucero of his need for surgery, noted that he had 

significant spinal cord impingement and related, “...that is “why I have been walking with that 

funny gait for the last two weeks since I did that cath specimen....” 

In a statement dated August 8, 2012, Kathleen Walker, an LPN, related that appellant 

helped her obtain a urine sample using a catheter on a developmentally disabled patient. The 

patient was “hysterical, screaming and flailing about....” Appellant had to stop getting the 

specimen until she got one of the patient’s legs out of her pants. He tried again and obtained the 

specimen. 

On August 8, 2012 Dr. Lazio evaluated appellant’s low back and leg pain bilaterally and 

indicated that it was a workers’ compensation injury. She stated, 

“[Appellant] first noted symptoms on July 6, 2012 when he assisted a patient who 

had fallen face first with a facial laceration and became unresponsive. He felt a 

twinge in his low back when he turned the patient over. [Appellant] continued to 

work as an LPN in the family practice clinic. On July 18, 2012 he had to 

catheterize a patient who was blind and somewhat combative [and] the pain 

increased significantly.” 

Appellant’s pain worsened until July 28, 2012, at which time he sought treatment in the 

emergency room. Dr. Lazio noted that he had a history of an L4-5 lumbar discectomy due to a 

2000 employment injury and an L5-S1 discectomy after a motor vehicle accident in 2004. She 

diagnosed a “[l]arge recurrent L4-5 disc extrusion with radiculopathy more likely than not as a 

result of his work-related injuries” on July 6 and 18, 2012. In a disability certificate dated 

August 8, 2012, Dr. Lazio found that appellant should stay off work pending surgery on his 

lumbar spine. 

On August 9, 2012 Dr. Taylor indicated that appellant “injured his back during the course 

of his employment as a nurse.”3

 He diagnosed lumbar degenerative disc disease, lumbago, and 

sciatica with urinary incontinence. 

In a form report dated August 9, 2012, Dr. Lazio opined that on July 6, 2012 appellant 

experienced low back pain after helping a patient who had fallen and on July 18, 2012 

experienced a worsening of the pain with extension into his legs “catheterizing [a] combative 

patient.” She diagnosed a lumbar herniated disc with radiculopathy and checked “yes” that the 

condition was caused or aggravated by employment. 

In a statement dated August 9, 2012, Ms. Lucero related that appellant’s description of 

the injury for which he sought treatment at the employing establishment’s clinic differed from 

what he listed on his claim form. She also noted that he had outside employment, which also 

caused her “to question the validity of his claim.” Ms. Lucero advised that appellant did not 

complain of pain or evidence a limp or movement problems before July 30, 2012. 

 3

 On August 8, 2012 Dr. Taylor advised that appellant was unable to work. 
4

In a form report dated August 10, 2012, Dr. Taylor diagnosed a disc extrusion, sciatica, 

lumbago, degenerative disc disease, and spinal canal stenosis. He provided a history of appellant 

experiencing back pain lifting a patient on July 6, 2012. Dr. Taylor checked “yes” that the 

condition was work related and found that he was totally disabled beginning August 6, 2012. 

In a form report dated September 11, 2012, Dr. Lazio provided a history of appellant 

injuring his back obtaining a catheter specimen.4 She diagnosed a lumbar herniated disc 

secondary to injury and checked “yes” that the condition was caused or aggravated by 

employment. 

By decision dated October 2, 2012, OWCP denied appellant’s claim after finding that he 

did not factually establish the occurrence of the alleged July 18, 2012 work incident. 

In a form report dated September 4, 2012, received by OWCP on December 31, 2012, 

Dr. Lazio diagnosed lumbar spondylosis and a lumbar herniated nucleus pulposis. She listed a 

history of injury as appellant getting “kicked by a patient while trying to get a foley-catheter 

specimen.” Dr. Lazio checked “yes” that the condition was caused or aggravated by 

employment, and provided “see above” as a rationale. 

On October 17, 2012 appellant requested reconsideration. He submitted August 28 and 

October 30, 2012 reports from Gregory B. Raappana, a physician assistant. 

On January 16, 2013 appellant again requested reconsideration. He indicated that he 

sought treatment at the employing establishment’s emergency room but was referred to his 

primary care physician for an MRI scan study because the emergency room’s equipment was not 

working. In a statement dated January 17, 2013, appellant described his injury on July 18, 2012. 

He stated, “I was getting a catheter specimen of urine from a very ill and combative patient who 

was noncompliant and thrashing and kicking the entire procedure and I was kicked numerous 

times.” Appellant asserted that an MRI scan study performed in October 2004 did not show an 

injury at L4-5 but that his August 3, 2012 MRI scan study showed an L4-5 condition requiring 

surgery.5

By decision dated March 8, 2013, OWCP denied modification of its October 2, 2012 

decision. It determined that there were inconsistencies regarding whether the July 18, 2012 work 

injury occurred as alleged. OWCP noted that the August 1, 2012 medical report, the first of 

record, did not mention a July 18, 2012 injury but instead discussed an injury on July 6, 2012. 

Appellant submitted reports from Mr. Raappana dated March 28, 2012, July 2 and 23, 

2013, and January 28, 2014. 

 4

 On August 16, 2012 Dr. Lazio performed a lumbar laminectomy at L4-5. In a progress report dated 

September 11, 2012, Dr. Taylor noted that appellant underwent surgery on his lumbar spine three weeks earlier. He 

diagnosed “[l]umbar degenerative disc disease and disc herniations status postsurgical treatment....” In a report 

dated January 10, 2013, Dr. Lazio diagnosed status post exploration of a laminectomy and discectomy at L4-5 with 

postoperative symptoms. 

5

 In an undated statement received by OWCP on February 8, 2013, appellant related that his injury occurred 

taking a catheter sample from a “combative patient who kicked me during [the] procedure.” 
5

In a September 16, 2013 addendum to her previous statement regarding the July 18, 2012 

work incident, Ms. Walker related that she was holding the patient’s left leg and that her right leg 

was not restrained. She stated: 

“While trying to obtain catheterized urine specimen the patient was thrashing and 

flailing around and unwilling to cooperate with [the] procedure. [Appellant] was 

bent over at almost a 90-degree angle over [the] patient’s side to try and find [her] 

urethra for [the] urine specimen. Due to [the] patient’s excessive flatus I kept the 

patient’s left leg restrained while [appellant] attempted catheterization but turned 

my head away due to the continuous flatus the patient was releasing....” 

In a statement signed November 12, 2013, appellant related that he underwent a lumbar 

discectomy and laminectomy in July 2003 after a work injury and had surgery in December 2004 

for a herniated disc at L5-S1 after a motor vehicle accident. On July 6, 2012 an elderly patient 

fell from his wheel chair into the street. Appellant turned him over and felt “a twinge of pain in 

my lumbar spine.” The pain was not severe and required no additional pain management. On 

July 18, 2012 appellant related that he was trying to get a urine sample from a mentally impaired 

but strong patient. He stated, “The procedure was made incredibly difficult due to her 

combativeness and unwillingness to disrobe at all for the procedure and she was physically and 

verbally resistant and morbidly obese.” Appellant bent over at an 80- to 90-degree angle trying 

to find the patient’s urethra. He stated: 

“she was getting very agitated and started thrashing around and then had to be 

restrained by her mother on her arms and Ms. Walker on her left leg. I inserted 

the catheter to obtain the urine specimen, but I could not hold down her right leg 

and knee at the same time. During this time, the patient kicked me with her right 

knee in the stomach several times, and she began to pass excessive amounts of 

bowel gas, which lasted until the procedure ended. The patient once kicked me so 

hard she almost lifted me off the floor.” 

Appellant informed Ms. Walker that his back hurt, that he could not breathe and that he 

had to leave the room. His back pain worsened for 10 days until his supervisor sent him to the 

employing establishment’s health clinic. Appellant stated, “Because I had had two different 

injuries, I was initially a bit confused about the cause of my back pain.” He related that on 

July 31, 2012 he told Dr. Taylor that the “primary incident was the injury of July 6, 2012 but also 

explained the July 18th incident.” Appellant indicated that on August 7, 2012 he filed traumatic 

injury claims for the incidents occurring on July 6 and 18, 2012. Regarding Ms. Walker’s 

statements, he stated: 

“The problem with [the statements] is that Ms. Walker was highly distracted by 

what she herself had to do (restrain the patient’s left leg while talking to her), the 

lack of clean air in the room and her need to turn her head away from the patient 

to breath. In additional, while the kicks from the patient’s right knee shifted and 

jarred me, I did not know at that point the degree of damage down to my spine, 

although I felt very, very achy, with radiating pain down both legs and a severe 

limp. 
6

“I should note here that due to the highly intense, unpleasant, sensitive and 

difficult nature of the conditions surrounding the July 18, 201[2] incident, not to 

mention the anguish it has caused me, I have found it very difficult to relate this 

incident, write or talk about it. Ms. Walker has experienced similar issues. This 

is the first time I have really been able to put the information down in writing. In 

any case, the hospital never actually controverted my injury, which is shown in 

their MSPB [Merit Systems Protection Board] brief as uploaded. I do not see 

why accepting my word should be so difficult for OWCP. The bottom line is that 

while I had injuries on July 6 and July 18, 2012, the July 18, 2012 injury has been 

overwhelmingly more painful and problematic than the July 6, 2012 injury. I am 

therefore not appealing the July 6, 2012 injury, because it ceased to be a principal 

issue after July 18, 2012.” 

Appellant submitted an August 27, 2013 MSPB settlement agreement. The employing 

establishment agreed to accept his “voluntary resignation for medical reasons,” cancel its 

removal action, and change his absent without leave status from October 2, 2012 until April 1, 

2013 to leave without pay. 

On February 27, 2014 appellant requested reconsideration. In a decision dated May 8, 

2014, OWCP denied modification of its March 8, 2013 decision. It found that he had not 

established the occurrence of the alleged July 18, 2012 employment incident. OWCP further 

determined that the medical evidence submitted was from a physician assistant and thus of no 

probative value. 

On appeal appellant’s counsel describes his history of prior work injuries, the July 18, 

2012 work incident, and his subsequent medical treatment. He argues that Ms. Walker did not 

witness all of the events on July 18, 2012 because she turned her head away. Counsel relates that 

appellant was initially unclear whether the July 6 or 18, 2012 work incident resulted in his 

condition. He notes that a statement from a claimant that an injury occurred is of significant 

probative value. Counsel further contends that the medical evidence is sufficient to establish an 

injury due to the July 18, 2012 employment incident. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA6

 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.7 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.8

 6

 5 U.S.C. § 8101 et seq. 

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

8 See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004). 
7

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.9

 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.10 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.11

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.12 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.13 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.14 

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 time, place, and manner have been established.15 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.16

ANALYSIS 

Appellant alleged that he injured his lower back on July 18, 2012 catheterizing a 

combative patient. He related that in 2003 he had a lumbar discectomy and laminectomy and in 

2004 he underwent back surgery for a herniated L5-S1 disc after a motor vehicle accident. On 

July 6, 2012 at work appellant helped a patient who had fallen from his wheelchair and felt slight 

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

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

11 Id.

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

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

14 Id. 

15 Linda S. Christian, 46 ECAB 598 (1995). 

16 Gregory J. Reser, 57 ECAB 277 (2005). 
8

lumbar pain. On July 18, 2012 he attempted to obtain a urine sample using a catheter on a 

mentally impaired patient who was flailing around and needed to be restrained. Appellant bent 

over at an 80- or 90-degree angle and tried to hold one of her legs down to get the specimen but 

she kicked him in the stomach multiple times. He experienced back pain that worsened with 

time. Appellant indicated that when he sought medical treatment on July 31, 2012 he described 

both the July 6 and 18, 2012 incidents to Dr. Taylor. 

The employing establishment controverted the claim. In a statement dated July 31, 2012, 

Ms. Lucero, appellant’s supervisor, related that on July 30, 2012 she asked him why he was 

limping and he told her that he injured his back helping a patient in the coffee shop about three 

months earlier. Appellant also told her that the back pain increased after he lifted a patient onto 

an examination table. In a statement dated August 9, 2012, Ms. Lucero related that appellant did 

not limp or complain of back pain prior to July 30, 2012. 

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

serious doubt on appellant’s version of the employment incident. At the time appellant sought 

treatment at the employing establishment’s clinic on July 31, 2012, he related a history of work 

injuries on both July 6 and 18, 2012. On August 1, 2012 he advised Dr. Taylor that he injured 

his back on July 6, 2012 helping a patient who had fallen out of a wheelchair. Appellant did not 

mention the July 18, 2012 injury. He subsequently explained, however, that he was initially 

uncertain which injury caused his back pain. The medical reports from Dr. Lazio contain a 

detailed history of the July 18, 2012 work incident. On August 8, 2012 appellant advised 

Ms. Lucero that he sustained injuries when he helped a patient who fell and assisted at a 

catheterization. On August 9, 2012 he told her that he had walked with an unusual gait in the 

two weeks since obtaining the catheterization specimen because he had impingement on his 

spinal cord. 

As discussed, 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 and 

persuasive evidence.17 While appellant did not inform his supervisor on July 30, 2012 of the 

circumstances surrounding his injury, in a subsequent statement he related that he found the 

incident difficult to discuss due to its unpleasant nature. There is further considerable evidence 

supporting the occurrence of the July 18, 2012 work incident. In a statement dated August 8, 

2012, Ms. Walker, a coworker, related that appellant obtained a urine specimen from a patient 

who was thrashing about and hysterical. On September 16, 2013 she confirmed that appellant 

was bent over trying to get the urine specimen from the combative patient. Ms. Walker indicated 

that she restrained one of the patient’s legs but kept her head turned away from the 

catheterization because of the patient’s excessive flatulence. The employing establishment did 

not dispute that appellant catheterized an uncooperative patient on July 18, 2012. Under the 

circumstances of this case, the Board finds that his allegations have not been refuted by strong or 

persuasive evidence.18 The Board, therefore, finds that the evidence is sufficient to establish that 

the July 18, 2012 incident occurred at the time, place, and in the manner alleged. 

 17 D.S., Docket No. 11-634 (issued October 5, 2011); Allen C. Hundley, 53 ECAB 551 (2002). 

18 See M.H., 59 ECAB 461 (2008). 
9

As OWCP denied appellant’s claim on the grounds that he did not establish the 

occurrence of the July 18, 2012 employment incident, it did not fully consider the medical 

evidence.19 The case will be remanded to OWCP for evaluation of the medical evidence to 

determine whether he sustained a medical condition and disability due to the July 18, 2012 work 

incident. After such further development as deemed necessary, it should 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 May 8, 2014 decision of the Office of Workers’ 

Compensation Programs is set aside and the case remanded for further proceedings consistent 

with this decision of the Board. 

Issued: March 24, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 19 OWCP noted its May 8, 2014 decision that the chiropractor’s reports were of no probative value. It did not 

consider the other medical evidence of record.