United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.W., Appellant 

and 

DEPARTMENT OF THE INTERIOR, BUREAU 

OF INDIAN AFFAIRS, Towaoc, CO, Employer 

__________________________________________ 

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Docket No. 15-1191 

Issued: September 8, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 May 4, 2015 appellant filed a timely appeal from a March 26, 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 over 

the merits of the case.2

ISSUE 

The issue is whether appellant met her burden of proof to establish a traumatic injury in 

the performance of duty. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted additional evidence on appeal. However, the Board cannot consider evidence that was not 

before OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On February 3, 2015 appellant, then a 54-year-old correctional officer, filed a traumatic 

injury claim alleging that on January 24, 2015 at 8:30 a.m., she sustained injuries to her left 

shoulder blade, elbow, forearm, and wrist while booking-in and changing-out an intoxicated 

woman. She stopped work on January 30, 2015. The employing establishment indicated that it 

received notice of the claimed injury on February 6, 2015. It also checked a box on the form to 

indicate that the claimed injury occurred in the performance of duty. 

In a January 28, 2015 work status form, Dr. Larry Welling, Board-certified in emergency 

medicine, advised that appellant should not return to work until further notice. He diagnosed left 

upper extremity pain. On the form, Dr. Welling circled “yes” to the question of whether 

appellant’s condition was work related. In a February 11, 2015 work status note, he diagnosed 

persistent left upper extremity pain and again instructed that appellant should not return to duty 

until further notice. 

OWCP, in a February 23, 2015 letter, informed appellant that the evidence of record was 

insufficient to support her claim. It requested that she submit a detailed description of how the 

injury occurred and a medical report containing a physician’s opinion supported by a medical 

explanation as to how work factors caused a diagnosed condition. With regard to the incident, 

OWCP asked that appellant explain where she was and what she was doing at the time that the 

injury occurred. It also asked that she provide statements from others who witnessed the incident 

or had immediate knowledge of it. 

In January 24, 2015 reports, Dr. Jay Johnson, a Board-certified diagnostic radiologist, 

reported that appellant was seen for x-rays “after trauma.” X-rays of appellant’s left elbow, 

humerus, forearm, and shoulder were negative for fracture and otherwise appeared normal. 

X-rays of the thoracic spine exhibited no acute fractures or compression deformities. 

Dr. Johnson diagnosed mild degenerative changes of the thoracic spine, noting a mild convex 

right curvature of the mid thoracic spine, and age appropriate mild degenerative endplate 

changes. Wrist x-rays revealed subtle oblique lucency through the ulnar styloid, suspicious for a 

nondisplaced fracture. Dr. Johnson diagnosed suspected nondisplaced incomplete fracture 

through the ulnar styloid. 

In a medical report dated February 11, 2015, Dr. Welling reported that appellant was seen 

for a follow-up examination for left elbow and shoulder pain. Physical examination revealed 

slight tenderness over the left forearm and distal humerus, fair range of motion in the elbow, 

fairly good range of motion of the shoulder, and a bit of tenderness to palpation in the left 

thoracic and parascapular musculature. Dr. Welling noted that appellant reported nightmares of 

“the incident.” He diagnosed anxiety, and left upper extremity sprain and strain. 

In March 2 and 3, 2015 physical therapy reports, Physical Therapists Rebecca Emmett 

and Anthony Valdez related that appellant presented with an injury that “occurred while trying to 

subdue a combative inmate.” The report stated that appellant injured her left arm, to the shoulder 

blade, while “involved in a combative, intoxicated inmate.” The mechanism of injury was 

recorded as “dealing with a combative inmate” on January 24, 2015. Physical Therapists 

Rebecca Emmett and Anthony Valdez noted findings and diagnosed lateral epicondylitis and 
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adhesive capsulitis. A March 12, 2015 physical therapy report, completed by Physical 

Therapists William Little and Betsy Atchinson, reiterated the history of injury, examination 

findings, and diagnosis provided by the preceding physical therapy reports. 

Dr. Welling noted in a March 9, 2015 report that appellant was seen for a recheck of her 

left shoulder injury. Appellant reported feeling significantly better. She showed decreased 

upper extremity tenderness and a very good range of motion. Dr. Welling diagnosed appellant 

with anxiety and an improving sprain and strain of the left upper extremity. He released 

appellant to light duty, with restrictions on inmate contact and heavy lifting with the left arm. In 

a March 9, 2015 work status note, Dr. Welling reported that appellant could return to partial duty 

with restrictions. He advised against inmate contact. 

By decision dated March 26, 2015, OWCP denied appellant’s claim, finding the evidence 

insufficient to demonstrate that the employment incident occurred on January 24, 2015, as 

alleged. It also found that she failed to submit medical evidence establishing a causal 

relationship between the alleged incident and a diagnosed condition. 

LEGAL PRECEDENT 

An employee seeking compensation under FECA has the burden of establishing the 

essential elements of his or her claim by the weight of reliable, probative, and substantial 

evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or 

she filed his or her claim within the applicable time limitation.4 The employee must also 

establish that he or she sustained an injury in the performance of duty as alleged and that his or 

her disability for work, if any, was causally related to the employment injury.5

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

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

There are two components involved in establishing 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. Second, the employee must submit 

evidence, in the form of medical evidence, to establish that the employment incident caused a 

personal injury.6

An employee’s statement 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.7

 

Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement, 

however, must be consistent with the surrounding facts and circumstances and his subsequent 

 3

 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968). 

4 R.C., 59 ECAB 427 (2008). 

5 Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

6

 T.H., 59 ECAB 388 (2008). 

7 R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005). 
4

course of action. An employee has not met his or her burden 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. Circumstances such 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 statement 

in determining whether a prima facie case has been established.8

ANALYSIS 

On February 6, 2015 appellant filed a claim alleging that she sustained an injury to her 

left wrist, forearm, elbow, and shoulder while booking-in and changing-out an intoxicated 

female on January 24, 2015. On February 23, 2015 OWCP requested that she provide a detailed 

description of the claimed injury. Appellant did not respond prior to the March 26, 2015 

decision. The Board finds that the factual evidence is insufficient to establish that the 

January 24, 2015 employment incident occurred as alleged. 

Appellant, on her claim form, indicated that she was injured at 8:30 a.m. on January 24, 

2015, but she did not report the employment incident until February 6, 2015. On the claim form, 

she alleged that she was injured while “booking-in and changing-out an intoxicated female.” 

Appellant’s description fails to adequately detail the alleged work incident, as required in a 

traumatic injury claim.9 Her description is vague. It does not relate with specificity the 

circumstances of the injury, or identify the actual cause.10 Appellant has not identified the 

inmate in question and she had not precisely stated what the inmate did to cause a left arm injury. 

Physical therapy notes dated March 2, 3, and 12, 2015, relate that appellant was injured 

while processing an intoxicated inmate. While this statement is consistent with appellant’s 

account it is also vague, failing to elucidate the particular mechanism of injury. The history of 

injury contained in other medical reports also does not clarify how appellant injured her arm 

while subduing the female inmate. As noted, OWCP requested that appellant provide a detailed 

description of how the injury occurred and to submit statements from persons who witnessed the 

injury or who had immediate knowledge of it. Appellant did not submit a responsive statement 

or supporting factual evidence.11 

On appeal, appellant indicates that OWCP denied her claim because she did not file the 

traumatic injury claim in a timely fashion. While late notification is a pertinent factor,12 the 

Board looks at the totality of evidence to determine if an employment incident occurred as 

alleged. In this case, the vague nature of the factual evidence, together with appellant’s failure to 

respond to OWCP’s request for a detailed description of the incident, casts serious doubt on 

 8 Betty J. Smith, 54 ECAB 174 (2002). 

9 See S.W., Docket No. 15-0396 (issued June 19, 2015); V.H., Docket No. 12-1621 (issued December 21, 2012). 

10 See id. 

11 S.W., supra note 9; see Q.D., Docket No. 14-1468 (issued December 23, 2014). 

12 See supra note 8. 
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whether the employment incident occurred as alleged. Therefore, the Board finds that OWCP 

properly denied appellant’s claim.13

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 did not meet her burden of proof to establish that she 

sustained a traumatic injury in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the March 26, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 8, 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 

 13 As appellant did not meet her burden to establish the occurrence of an employment incident, it is unnecessary 

to consider the medical evidence with regards to causal relationship. See Bonnie A. Contreras, 57 ECAB 

364 (2006).