United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.R., Appellant 

and 

DEPARTMENT OF THE INTERIOR, UPPER 

COLORADO REGION, Salt Lake City, UT, 

Employer 

__________________________________________ 

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Docket No. 14-1870 

Issued: January 13, 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 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On August 25, 2014 appellant filed an appeal from a July 7, 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.2

ISSUE 

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

the performance of duty on July 24, 2013. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence following the July 7, 2014 decision. Because the 

Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board 

may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 

126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration. 
2

FACTUAL HISTORY 

On August 1, 2013 appellant, then a 39-year-old engineering equipment operator, filed a 

traumatic injury claim (Form CA-1) alleging that at 3:00 p.m. on July 24, 2013, he was operating 

a backhoe loading trucks at the employing establishment and the resulting bouncing and jerking 

motions caused lower back pain. He stopped work on July 31, 2013. 

In a note dated August 5, 2013, Dr. Ravi Bhasker, Board-certified in family medicine, 

stated that appellant had reinjured his back. He stated that “[appellant’s] last MRI [magnetic 

resonance imaging] [scan] in May 2013 showed the lower back to have L1-L2 and L5-S1 with 

subtle minimal disc bulges. [Appellant] continues to have pain that radiates down both legs.” 

Dr. Bhasker recommended that appellant try to retire and stated that he should have 40 days off 

“to try to help him settle the pain and the radiculopathy.” Appellant also submitted a note signed 

by a physician’s assistant dated July 31, 2013. 

On September 4, 2013 Dr. Bhasker stated that appellant had injured his back several 

years prior but that he had recently injured his back in July 2013. Appellant was given six 

months to reach maximum medical improvement and a recommendation for physical therapy. 

Dr. Bhasker noted that he would be following appellant on a monthly basis and recommended 

that he return to regular duty on September 16, 2013. 

In a progress note dated October 2, 2013, Dr. Bhasker stated that appellant injured 

himself while working on heavy equipment and that he had a history of low back pain, herniated 

discs, and degenerative discs. He stated that appellant was working. 

Dr. Bhasker stated in a November 5, 2013 report that appellant had a herniated disc in his 

lower back at L4-L5 with radiculopathy and sciatic impingement syndrome. He noted that 

appellant continued to work full time. 

In a note dated December 4, 2013, Dr. Bhasker stated that appellant was a heavy 

equipment operator who injured his back at work. On examination, he observed tenderness at 

L3-L4 with limited flexion and extension, as well as a positive left leg raise sign. 

Dr. Bhasker noted on January 8, 2014 that appellant continued to perform light duty 

while loading heavy equipment, but that he was not using the heavy equipment himself. He 

reported that appellant had severe low back pain from his herniated disc. 

In a progress note dated February 11, 2014, Dr. Bhasker stated that appellant was 

contemplating retirement due to persistent pain. He noted that appellant should continue 

medium duty. 

Upon examination on February 19, 2014, Dr. Bhasker diagnosed a herniated disc and 

degenerative arthritis. He noted that appellant “has not been operating equipment anymore and 

usually is driving equipment to one place or another for the company that he works for. I am 

giving him a note stating that he can do medium-duty work but no heavy equipment operating, 

but, he can go ahead and drive a semi that will take loaded equipment to different parts of the 

state.” 
3

In a note dated March 11, 2014, Dr. Bhasker stated that appellant had a long history of 

low back pain and a herniated disc. He stated that appellant was “attempting to work where he is 

a driver for heavy equipment and he does operate heavy equipment, but we have given him a 

note that he should only drive at his own pace.” 

On April 22, 2014 Dr. Bhasker stated that appellant had “chronic low back pain with 

radiculopathy secondary to his work-related job.” He noted that appellant complained on this 

visit of mid-epigastric pain that radiated to the back. 

By letter dated June 2, 2014, OWCP advised appellant of the deficiencies in his claim. It 

stated that his claim had been reopened for consideration because medical bills had exceeded 

$1,500.00. OWCP noted that appellant had not provided sufficient evidence to establish that he 

actually experienced an incident alleged to have caused injury, and asked that he submit a 

response to its questionnaire to substantiate the factual elements of his claim. Appellant was 

asked to provide a detailed description of how his injury occurred, the immediate effects of his 

injury, and a description of his condition between the date of injury and the date he first received 

medical attention. OWCP also asked him to submit medical evidence in support of his claim. It 

afforded appellant 30 days to submit this additional evidence. Appellant did not respond. 

An additional progress note from Dr. Bhasker, dated May 21, 2014, stated that appellant 

continued to have low back pain, and that he had degenerative arthritis of his low back with 

radiculopathy into the left leg. 

By decision dated July 7, 2014, OWCP denied appellant’s claim on the grounds that the 

evidence submitted was not sufficient to establish the factual component of fact of injury, as he 

had not responded to its inquiries. It stated that the evidence did not support that the injury or 

event occurred as described. 

LEGAL PRECEDENT 

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 is an “employee of the United 

States” within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, that an injury4

 was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally 

related to the employment injury.5

 3

 5 U.S.C. §§ 8101-8193. 

4

 OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident, 

or series of events of incidents, within a single workday or shift. Such condition must be caused by external force, 

including stress or strain, which is identifiable as to time and place of occurrence and member or function of the 

body affected. 20 C.F.R. § 10.5(ee). 

5 T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40 

ECAB 1143, 1145 (1989). 
4

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. 

A fact of injury determination is based on two elements. 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 sufficient 

evidence, generally only in the form of medical evidence, to establish that the employment 

incident caused a personal injury. An employee may establish that the employment incident 

occurred as alleged but fail to show that his or her condition relates to the employment incident.6

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.7

 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 or her subsequent course of action.8

 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.9

 

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.10 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.11

ANALYSIS 

Appellant must establish all of the elements of his claim in order to prevail. He must 

prove his employment; the time, place, and manner of injury; a resulting personal injury, and that 

his injury arose in the performance of duty.12 Appellant alleged that he sustained a back injury 

on July 24, 2013 as a result of bouncing and jerking motions while operating a backhoe loading 

trucks. The Board finds that appellant has not met his burden of proof to establish that the 

incident of July 24, 2013 occurred as alleged because he has not sufficiently described the time, 

place, and manner of his injury. 

 6 Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989). 

7 William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979). 

8 Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984). 

9 Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988). 

10 Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984). 

11 D.B., 58 ECAB 464, 466-67 (2007); Robert A. Gregory, 40 ECAB 478, 483 (1989). 

12 See R.Z., Docket No. 13-1911 (issued September 15, 2014). 
5

Appellant did not provide a clear factual statement identifying how operating a backhoe 

loading trucks on July 24, 2013 was alleged to have caused his back condition. On June 2, 2014 

OWCP advised him of the deficiencies in his claim. It noted that appellant had not provided 

sufficient evidence to establish that he actually experienced an incident alleged to have caused 

injury, and asked that he submit a response to its questionnaire to substantiate the factual 

elements of his claim. Appellant was asked to provide a detailed description of how the injury 

occurred, the effects of the injury, and a description of his condition until he sought medical 

attention. OWCP afforded him 30 days to submit this additional evidence. Appellant did not 

provide any statement responding to OWCP’s inquiry. 

The Board notes that appellant has offered no explanation as to why he continued to work 

until July 31, 2013, when the injury occurred on July 24, 2013. The Board further notes that 

while he sought medical care on July 31, 2013, none of the medical evidence of record 

documents that he sustained a work injury on July 24, 2013. These inconsistences in the 

evidence of record cast sufficient doubt on an employee’s statements in determining whether a 

prima facie case has been established. 

Thus, the Board finds that appellant has not sufficiently established the time, place, and 

manner of the traumatic incident of July 24, 2013 to meet his burden of proof.13 As appellant has 

not established the factual component of his claim, the Board will not address the medical 

evidence as it relates to a diagnosis of an incident in connection with the incident of July 24, 

2013 or the causal relationship between this incident and appellant’s alleged injury.14

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish a traumatic 

injury in the performance of duty on July 24, 2013. 

 13 See C.J., Docket No. 12-1927 (issued March 29, 2013); C.G., Docket No. 11-1897 (issued April 24, 2012). 

14 See Bonnie A. Contreras, 57 ECAB 364 (2006). 
6

ORDER 

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

Compensation Programs dated July 7, 2014 is affirmed. 

Issued: January 13, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board