United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.W., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Brooklyn, NY, Employer 

___________________________________________

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Docket No. 15-0366 

Issued: April 20, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se, 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 18, 2014 appellant filed a timely appeal from a September 26, 2014 merit 

decision and a November 10, 2014 nonmerit 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.2

ISSUES 

The issues are: (1) whether appellant has met his burden of proof to establish an injury in 

the performance of duty on August 3, 2014; and (2) whether OWCP properly refused to reopen 

appellant’s case for further review of the merits of his claim under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 On appeal, appellant submitted additional evidence. However, the Board has no jurisdiction to review this 

evidence for the first time on appeal. 20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952). 
2

FACTUAL HISTORY 

On August 3, 2014 appellant, then a 39-year-old corrections officer, filed a traumatic 

injury claim (Form CA-1) alleging that on that date while he was in the performance of duty a 

prisoner resisted hand restraints requiring appellant to use force. He sustained cuts on his hand, 

and blood from the prisoner, who was allegedly human immunodeficiency virus (HIV) positive 

and hepatitis C positive, was found “all over his uniform.” Appellant advised that the 

prophylactic medication that he had been prescribed caused side effects, including headaches, 

nausea, and frequent bathroom usage. He did not stop work. The employing establishment 

checked a box marked “yes” on the CA-1 form as to whether the employee was in the 

performance of duty at the time of the injury. 

By letter dated August 22, 2014, OWCP advised appellant that additional factual and 

medical evidence was needed, especially a physician’s opinion causally relating the work 

incident with any diagnosed condition. Appellant was afforded 30 days to submit the requested 

information. No additional documentation was submitted. 

By decision dated September 29, 2014, OWCP denied the claim for failure to establish 

the medical component of fact of injury, as it had not received any medical evidence in support 

of appellant’s claim providing a diagnosis or opinion on causal relationship. 

On October 22, 2014 appellant requested reconsideration and in an attached written 

statement he claimed that he worked long hours outside of the prison in different hospitals 

around the city and as such he may have missed information requests and would be happy to 

have his physician answer OWCP questions. He explained that his injury was not from massive 

injuries, but rather from the side effects of the medications he was taking for 30 days. Appellant 

indicated that he would have a physician provide a detailed explanation. No further medical 

evidence was submitted. 

By decision dated November 10, 2014, OWCP denied appellant’s request for 

reconsideration, finding the evidence of record insufficient to warrant review of the merits of the 

claim. 

LEGAL PRECEDENT -- ISSUE 1 

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 was 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

 3 Supra note 1. 

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). 
3

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.7

Causal relationship is a medical issue and the evidence generally required to establish 

causal relationship is rationalized medical opinion evidence. Rationalized medical opinion 

evidence is evidence which includes a physician’s opinion on the issue of whether there is a 

causal relationship between the claimant’s diagnosed condition and the implicated employment 

factors. 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.8

OWCP regulations pertaining to workplace hazard exposure explain that simple exposure 

to workplace hazard, such as an infectious agent, does not constitute a work-related injury 

entitling an employee to medical treatment under FECA.9 The regulations note that the 

employing establishment may be required under other statues or regulations to provide their 

employees with medical testing and/or other services in situations where workplace exposure has 

been alleged.10 

The Board further notes that OWCP procedure manual provides special procedures for 

high risk employment where an employee is routinely presented with situations which may lead 

to infection by contact with animals, human blood, bodily secretions and other substances. 

Conditions such as HIV infection and hepatitis B more commonly represent a work hazard in 

health care facilities, correctional institutions, and drug treatment centers, among others, than in 

federal workplaces as a whole.11 The procedures further provide: 

“a. Physical Injury and Prophylactic Treatment. For claims based on transmission 

of a communicable disease where the means of transmission and the incubation 

period are medically feasible, the CE [claims examiner] should do the following-- 

(1) If the source of infection is a known or probable carrier of the disease, 

the CE should accept the case for the physical injury involved and 

authorize prophylactic treatment (see FECA PM 3-400.7a). 

 7

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

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

9

 20 C.F.R. § 10.303(a). 

10 Id. at § 10.303(b). 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, High Risk Employment, Chapter 2.805.6 (January 2013). 
4

(2) If the source of infection is unidentified or the source’s status is 

unknown, the CE should accept the claim for the physical injury involved. 

Prophylactic treatment for the underlying disease will not be an issue, 

since a known carrier is not involved.”12

ANALYSIS -- ISSUE 1 

OWCP accepted that on August 3, 2014 appellant encountered a prisoner who refused to 

be restrained and appellant had to place the hand restraints on the prisoner by force. Appellant 

alleged side effects from the medication he was allegedly prescribed after this incident. 

However, the record does not contain any medical evidence supporting that he was prescribed 

the prophylactic medication or that the work incident or the medication caused an injury or 

illness. Thus, the Board finds that the evidence of record is insufficient to establish the second 

component of fact of injury, that the employment incident caused an injury. 

On August 22, 2014 OWCP advised appellant of the type of factual and medical evidence 

needed to establish the claim, especially a physician’s opinion causally relating the work incident 

with a diagnosed condition. Appellant, however, provided no such evidence prior to the issuance 

of OWCP’s September 26, 2014 decision. Consequently, he failed to meet his burden of proof to 

establish his claim. 

The Board notes that OWCP procedures contain special provisions for high risk 

employment.13 In the case of N.S.,14 the Board found that the employee was not required to 

establish with medical evidence that her exposure to hepatitis C, resulting from being struck by a 

contaminated needle during her employment as a nurse, caused a personal injury. Rather, 

because her employment was considered high risk, she only had to establish that the source of 

the infection was a known or probable carrier of the disease. In this case, however, although 

appellant’s work as a corrections officer may be considered high risk, he has failed to establish 

the factual circumstances surrounding the incident, as to whether the prisoner was positive for 

HIV or hepatitis C or that he had actually been provided prophylactic medication. Thus, the 

Board finds that the special procedures for high risk employment are not applicable in this case. 

Without medical evidence, there is no reasoned explanation of how the specific employment 

incident on August 3, 2014 could have caused or aggravated an injury.15 

An award of compensation may not be based on surmise, conjecture, or speculation.16 As 

there was no probative medical evidence of record demonstrating that the alleged employment 

 12 Id. at 2.805.6(a). 

13 See supra notes 10, 11. 

14 59 ECAB 422 (2008). 

15 See Lillian A. Ferraro, Docket No. 04-1957 (issued December 17, 2004) (where the Board found that appellant, 

a dental hygienist, did not establish that she sustained a compensable injury due to being struck by a dirty dental 

instrument despite claims that she became sick from the post exposure HIV prophylactic treatment; the Board 

specifically held that appellant did not submit any medical evidence containing a diagnosed condition related to the 

incident). See Y.H., Docket No. 09-181 (issued August 17, 2009). 

16 D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965). 
5

incident caused or aggravated a medically diagnosed condition, appellant has not met his burden 

of proof. 

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. 

LEGAL PRECEDENT -- ISSUE 2 

Under section 8128(a) of FECA,17 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal 

regulations, which provides that a claimant may obtain review of the merits if the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence that: 

“(1) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(2) Advances a relevant legal argument not previously considered by OWCP; or 

“(3) Constitutes relevant and pertinent new evidence not previously considered by 

OWCP.”18

Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.19

ANALYSIS -- ISSUE 2 

Appellant disagreed with the denial of his traumatic injury claim and timely requested 

reconsideration on October 22, 2014. The underlying issue on reconsideration is medical in 

nature, whether the August 3, 2014 work incident caused or contributed to an injury. 

On reconsideration, appellant noted that he worked extremely long hours outside of the 

prison in different hospitals around the city. He indicated that he may have missed OWCP’s 

request for information and would be happy to have his physician answer OWCP’s questions. 

Appellant further explained that his injury was from the side effects of the medications he was 

taking. He indicated that he would have a physician provide a detailed explanation. However, 

no medical evidence accompanied appellant’s claim. The Board notes that the underlying issue 

on reconsideration is medical in nature. OWCP denied the claim because there was no diagnosis 

of a medical condition and there was no medical evidence to explain how appellant sustained a 

condition that was caused or aggravated by specific factors of his employment. The Board has 

 17 5 U.S.C. § 8128(a). 

18 20 C.F.R. § 10.606(b). 

19 Id. at § 10.608(b). 
6

held that the submission of evidence which does not address the particular issue involved does 

not constitute a basis for reopening a case.20 

Appellant therefore did not meet the requirements of 20 C.F.R. § 606(b)(3) to warrant a 

merit review. 

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish an injury in 

the performance of duty on August 3, 2014. The Board also finds that OWCP properly refused 

to reopen his case for further review of the merits of his claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the November 10 and September 26, 2014 

decisions of the Office of Workers’ Compensation Programs are affirmed.21

Issued: April 20, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 20 Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000). 

21 James A, Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.