United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.N., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

HAMPTON MEDICAL CENTER, Hampton, VA, 

Employer 

__________________________________________ 

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Docket No. 16-1099 

Issued: December 16, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 28, 2016 appellant filed a timely appeal of a December 10, 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 this case.2

ISSUE 

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

the performance of duty on February 5, 2015, as alleged. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted new evidence with his appeal to the Board. However, the Board may 

only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); 

M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); 

Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

On appeal appellant contends that the evidence is sufficient to establish his claim. 

FACTUAL HISTORY 

On February 18, 2015 appellant, then a 41-year-old medical support assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on February 5, 2015 he sustained a back injury 

when “during a work assignment a veteran assault by grabbing from the back and tried to throw 

from out in front of door.” The incident occurred at the Virginia Beach Chesapeake CommunityBased Outpatient Clinic (CBOC). Appellant stopped work on February 5, 2015. On the back of 

the form the employing establishment checked a box marked “yes” to the question of whether 

appellant was injured in the performance of duty. 

In a progress note/fitness-for-duty report dated May 28, 2015, Dr. John E. Wing, Boardcertified in internal medicine, wrote that appellant was disabled from work for the period May 28 

to August 5, 2015 due to injury. 

Appellant filed claims for wage-loss compensation (Form CA-7) for the periods 

March 23 to April 6, 2015 and April 23 to May 7, 2015. 

By letter dated June 10, 2015, OWCP informed appellant that when his claim was 

received it had been considered to be a minor injury therefore the merits of the claim were not 

adjudicated.3

 It informed him that his claim was being reopened for review on the merits due to 

receipt of claims for wage-loss compensation. OWCP further informed appellant that the 

evidence received failed to establish that the February 5, 2015 injury occurred as alleged, that he 

was in the performance of duty at the time of injury, and that the medical evidence failed to 

provide a firm medical diagnosis with an opinion that the injury was caused by the work 

incident. OWCP requested additional factual and medical evidence. It requested appellant 

complete a questionnaire in order to substantiate the factual basis of his claim and submit a 

medical report from his attending physician including a diagnosis, history of the injury, and a 

physician’s opinion on causal relationship supported by medical rationale. The questionnaire 

requested that he explain the circumstances surrounding the incident, including the location of 

the injury, what activities he was engaged in at the time of the injury, how the injury occurred, a 

statement regarding who grabbed whom, the location of each person involved, a description of 

the injury, and statements from any persons who witnessed the injury or had immediate 

knowledge of it. Appellant was afforded 30 days to provide the requested information. 

In response to OWCP’s June 10, 2015 request for additional evidence, the following 

medical evidence was received. 

A February 6, 2015 lumbar x-ray, interpreted by Dr. Lyn Bergren, a Board-certified 

diagnostic radiologist, revealed no significant disc disease or spinal canal narrowing. The report 

indicated that the diagnostic test was performed because appellant experienced back pain 

following an altercation with a patient. 

 3

 By letter dated June 9, 2015, OWCP informed appellant that it had combined OWCP File Nos. xxxxxx916 and 

xxxxxx290 and he was to use the latter number on future correspondence. These two file numbers are duplicates. 
3

Dr. Wing, in a March 3, 2015 progress note, related that appellant was seen for a followup visit for severe back pain. He reported that approximately a month previously appellant had 

injured his back following a patient assault as he was trying to restrain a patient. In an attached 

disability note, Dr. Wing indicated that appellant was disabled from work due to injury. 

In a March 31, 2015 progress note, Dr. Wing reported that appellant was seen for 

continuing low back pain, which had not improved since the last visit. Appellant related that he 

continued to have severe back pain while walking, stretching in sitting, and bending. Dr. Wing 

reviewed a magnetic resonance imaging (MRI) scan, which revealed normal findings. In an 

attached disability note, he indicated that appellant continued to be disabled from work due to 

injury. 

In a May 28, 2015 progress note, Dr. Wing related that appellant was seen for low back 

pain due to a February work injury. He reported that appellant continued to have difficulty with 

any back movement and bending. A physical examination revealed paraspinal muscle 

tenderness and low back pain. Dr. Wing reviewed a lumbar MRI scan, which revealed normal 

findings and recommended a thoracic MRI scan be performed. He continued to opine that 

appellant was currently disabled due to his injury. 

A June 1, 2015 thoracic x-ray was interpreted by Dr. Kermit B. Ashby, a nuclear 

radiologist, as showing no acute abnormality. 

By decision dated August 18, 2015, OWCP denied appellant’s claim finding that the 

evidence of record failed to establish an injury in the performance of duty. OWCP found that he 

had failed to establish fact of injury because he had not responded to the request for additional 

factual information surrounding the incident. 

On August 26, 2015 appellant requested reconsideration and submitted additional 

evidence. 

In an August 11, 2015 report, Dr. Wing provided a history of the injury as reported by 

appellant. Appellant informed Dr. Wing that on February 5, 2015 he was attacked by a patient 

whom he subsequently had to restrain. Dr. Wing noted that appellant injured his back while in 

the process of trying to physically restrain the patient. Appellant was seen on March 3, 2015 for 

complaints of severe low back pain radiating into the lower extremities. Dr. Wing opined that 

the February 5, 2015 incident aggravated appellant’s preexisting myofascial syndrome. He noted 

that a March 6, 2015 lumbar MRI scan contained unremarkable findings with no evidence of disc 

herniations, and a thoracic MRI scan revealed a small T5-6 disc herniation. Appellant continued 

to have low back pain complaints when he was seen on March 31, May 28, and July 30, 2015. 

In an October 1, 2015 disability note, Dr. Wing checked a box showing his opinion that 

appellant was unable to work at this time. 

By decision dated December 10, 2015, OWCP denied modification. It found that 

appellant had not responded to the request for additional factual information surrounding the 

incident. OWCP noted that while Dr. Wing had provided a history of the February 5, 2015 

incident, there was no personal statement from appellant explaining how the injury occurred. 
4

LEGAL PRECEDENT 

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his 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 a federal employee has sustained a traumatic injury in the 

performance of duty it must first be determined whether a fact of injury has been established.7

 

First, the employee must submit sufficient evidence to establish that he actually experienced the 

employment incident at the time, place, and in the manner alleged.8

 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.9

To establish that an injury occurred as alleged, the injury need not be confirmed by 

eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and 

circumstances and his subsequent course of action.10 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.11 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.12

ANALYSIS 

The Board finds that appellant failed to establish an injury in the performance of duty on 

February 5, 2015, as alleged. 

 4 Supra note 1. 

5 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006). 

6 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 

7 B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5. 

8 D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005). 

9 C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra

note 5. 

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

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

12 Gregory J. Reser, 57 ECAB 277 (2005). 
5

Appellant alleged that on February 5, 2015 he sustained a back injury during a work 

assignment when “a veteran assault by grabbing from the back and tried to throw from out in 

front of door.” He has not provided sufficient detail necessary to establish that the incident 

occurred in the manner alleged, and in the performance of duty.13 Appellant’s description fails 

to adequately detail the alleged work incident, as required in a traumatic injury claim.14 

Appellant’s description is vague. It does not relate with specificity the circumstances of the 

injury, or identify the actual cause.15 While appellant vaguely mentioned being grabbed from the 

back, he did not identify which body part was grabbed. Furthermore his statement “tried to 

throw from out in front of door” is so vague that it is incomprehensible. Appellant did not 

identify the patient in question and he did not precisely state what the patient did to cause an 

injury.16 

While Dr. Wing provided additional details of how the injury allegedly occurred in his 

August 1, 2015 report, it remains unclear as to whether his report was based on an accurate 

history of injury. The Board is unable to consider the accuracy of Dr. Wing’s recitation of the 

history of injury as appellant has not provided details as to how the injury occurred. Thus, 

appellant did not meet his burden of proof. Given that appellant did not establish an employment 

incident in the performance of duty, further consideration of the medical evidence is 

unnecessary.17

On appeal appellant argues that he provided a detailed description of how the injury 

occurred to the employing establishment and that it submitted an incomplete claim form. The 

Board’s jurisdiction is limited to review of the evidence contained in the record and reviewed by 

OWCP.18 OWCP advised appellant in a June 10, 2015 letter that the evidence was insufficient to 

establish the factual portion of his claim and provided a questionnaire for him to complete. 

Appellant did not submit a completed questionnaire or provide a written statement detailing how 

the February 5, 2015 incident occurred. As discussed above, the Board found the evidence of 

record insufficient to establish the factual portion of his claim. 

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 his burden of proof to establish a traumatic 

injury in the performance of duty on February 5, 2015, as alleged. 

 13 Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). 

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

15 L.W., Docket No. 15-1191 (issued September 8, 2015). 

16 Id. 

17 See Bonnie A. Contreras, supra note 5. 

18 See supra note 2. 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated December 10, 2015 is affirmed. 

Issued: December 16, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board