United States Department of Labor

Employees’ Compensation Appeals Board

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M.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BUTLER VETERANS ADMINISTRATION 

MEDICAL CENTER, Butler, PA, Employer

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Docket No. 17-1329

Issued: December 11, 2017

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 31, 2017 appellant filed a timely appeal from a January 19, 2017 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 has met her burden of proof to establish a low back injury

in the performance of duty on November 21, 2016, as alleged.

 

1

5 U.S.C. § 8101 et seq.

2 With her request for an appeal, appellant submitted additional evidence. The Board’s Rules of Procedure 

provides that its jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, the Board may not consider this additional evidence for the first time on appeal; 20 CFR 

§ 501.2(c)(1). 
2

FACTUAL HISTORY

On November 28, 2016 appellant, then a 21-year-old nurse, filed a traumatic injury claim 

(Form CA-1), alleging that, on November 21, 2016, she injured her low back when she reached 

over to pull a patient back into bed after he began to fall over the right side of the bed because 

the side rail was not secure. She stopped work on November 24, 2016. On the reverse side of 

the claim form, appellant’s manager, T.D., checked a box marked “yes” to indicate that appellant 

was injured in the performance of duty. T.D., however, controverted continuation of pay, noting 

that there were different medical opinions about the injury. 

Appellant submitted a return to work slip dated November 28, 2016 from an unidentified 

health care provider, who excused appellant from work on November 28 through December 5, 

2016 for “medical reasons.”

Appellant was treated by Dr. Peter C. Gerszten, a neurologist, on December 2, 2016, who 

recommended that she remain off work for two weeks so that he could monitor her symptoms. 

Dr. Gerszten requested that appellant be evaluated for physical capabilities, work restrictions,

and possible return to work. He noted that appellant had a recent work injury and right-sided 

lumbar radiculopathy.

Dr. David A. Stone, a Board-certified physiatrist, noted seeing appellant on December 7, 

2016 for back pain. He diagnosed stress fracture of the lumbar vertebra. Dr. Stone 

recommended a lumbosacral corset.

By letter dated December 12, 2016, OWCP advised appellant of the type of evidence 

needed to establish her claim, particularly requesting that she submit a physician’s reasoned 

opinion addressing the relationship between her claimed condition and the alleged November 21, 

2016 employment incident. It also requested that appellant complete a development 

questionnaire regarding the factual elements of her claim within 30 days. 

Appellant was treated by Dr. Hardy R. Bang, Board-certified in preventative medicine, 

on November 21, 2016 for low back pain. She reported that she relayed her lower back when 

she reached over to pull a patient back into bed as he began to fall over the right side as she 

bathed him. Appellant reported pain on the right side of the lower back and diffuse pain in her 

right leg. She reported a history of low back pain on the left side and surgery in 2011 and 

April 2016. Dr. Bang noted findings on examination of slightly antalgic gait, tenderness on 

palpation of the right lower back muscles, pain with flexion, negative straight leg raise

bilaterally, reflexes were equal and positive bilaterally, intact strength, and intact sensation. He 

diagnosed lumbar strain with right leg pain. Dr. Bang recommended that appellant avoid heavy 

lifting, pushing, pulling, and bending. On November 23, 2016 he noted that appellant’s back and 

leg pain improved, but she still had occasional right leg pain and discomfort in the lower back 

with bending. Findings included negative straight leg raises, mild tenderness of the right lower 

lumbar muscles, improved back range of motion, and intact strength. Dr. Bang diagnosed 

improving lumbar strain with right leg pain and recommended oral analgesics and moist heat. 

Appellant indicated that she was able to resume full duties so she was released to work without 

restrictions.
3

Appellant was treated by Dr. Thomas J. Stancik, Jr., an osteopath, on November 28, 2016 

for low back pain. She reported injuring her back and being treated with oral analgesics and 

steroids which did not relieve her symptoms. Appellant noted symptoms of pain down the right 

leg, and right leg weakness. Dr. Stancik indicated that appellant had back surgery in the spring,

relating to her diagnosed spina bifida, in which three rods were placed in her back. He noted 

findings of positive straight leg raises on the right, tenderness in the low back paraspinals, and 

decreased range of motion in all planes. Dr. Stancik diagnosed lumbar radiculopathy. He 

recommended pain medication and took appellant off work for one week.

A December 5, 2016 magnetic resonance imaging (MRI) scan of the lumbar spine 

revealed known low termination of the conus medullaris at L4-5, focal bone marrow edema in 

the right pedicle of L4, and possible stress response or bone contusion in this location.

Appellant was treated by Dr. Gerszten on December 16, 2016 for a stress fracture in her 

low back. Dr. Gerszten indicated that appellant had not recovered sufficiently to return to work 

and would be evaluated by a physiatrist.

Appellant submitted a December 21, 2016 report from Dr. Stone who treated her for back 

pain. Dr. Stone diagnosed bilateral lumbar radiculopathy, piriformis syndrome on the left side, 

lateral hip impingement syndrome, and prior L4 pedicle stress reaction. Appellant reported that 

the lumbar corset and medications initially seemed to reduce her symptoms, but she fell on her 

right side and had increase in pain, bilateral leg pain, and SI joint pain. Findings included pain 

on range of motion bilaterally, tenderness of the SI joints bilaterally, positive slump test 

bilaterally, generalized weakness of the hips, positive anterior impingement test bilaterally, and 

tenderness of the paraspinal muscles and the oblique’s on the right. Dr. Stone noted that 

appellant was status post tethered cord surgery and bilateral SI joint fusion with persistent SI 

joint pain. He advised that she was presently unable to work and was starting physical therapy. 

In a referral for physical therapy dated December 21, 2016, Dr. Stone diagnosed bilateral lumbar 

radiculopathy, piriformis syndrome on the left side, bilateral SI joint fusion with persistent SI 

joint pain, L4 pedicle stress reaction, weak core with right hip internal rotator strain following 

contusion, and anterior hip impingement. He noted that appellant was status post tethered cord 

surgery and recommended physical therapy for six weeks. 

By decision dated January 19, 2017, OWCP denied appellant’s claim for compensation 

because the factual evidence of record did not support that the injury occurred as alleged. 

Therefore, fact of injury had not been established.

LEGAL PRECEDENT

An employee seeking benefits under FECA3has the burden of proof to establish 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 of FECA, that an injury was sustained in the performance of duty as alleged, and that 

any disability or specific condition for which compensation is claimed is causally related to the 

 

3

Supra note 1.
4

employment injury. These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4

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 and place, and in the manner alleged. Second, the employee must submit 

medical evidence to establish that the employment incident caused a personal injury.5

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.6 

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 or her

subsequent course of action. An employee has not met his or her burden of proof to establish 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.7

Rationalized medical opinion evidence is generally required to establish causal 

relationship. 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

ANALYSIS

OWCP denied appellant’s claim because she failed to establish that the claimed work 

incident occurred as alleged. The evidence of record supports that appellant’s duties as a nurse 

involved direct patient care including bathing patients. There is no dispute that she was actually 

doing the job of a nurse on November 21, 2016. Specifically, appellant’s supervisor, T.D.,

indicated on the Form CA-1 that appellant was in the performance of duty when the injury was 

alleged to have occurred. While T.D. also indicated that she disagreed with the facts involving 

the injury as alleged by appellant, she did not dispute the fact that appellant was performing her 

assigned work duties when the employment incident allegedly occurred. 

 

4 Gary J. Watling, 52 ECAB 357 (2001).

5

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

6 R.T., Docket No. 08-0408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

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

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
5

Additionally, the history of the work incident was confirmed by contemporaneous 

medical reports.9 Appellant sought medical treatment on November 21, 2016, the same day as 

the alleged work incident, and provided her medical care providers with a consistent history of 

injury. On November 21, 2016 she was treated by Dr. Bang for low back pain. Appellant 

reported that she injured her lower back when she reached over to pull a patient back into bed as 

he began to fall over the right side as she bathed him. The Board finds that it is undisputed that 

on November 21, 2016 appellant reached across a bed to pull a patient back into bed.10

As there is no dispute that appellant slipped and fell in the performance of her duties on 

July 5, 2016, the Board finds that the first component of fact of injury, the claimed incident, 

occurred as alleged. Given that she has established that the November 21, 2016 employment 

incident occurred as alleged, the question becomes whether this incident caused her an injury. 

As OWCP found that appellant did not establish fact of injury it did not analyze or develop the 

medical evidence. Thus, the Board will set aside OWCP’s January 19, 2017 decision and remand

the case for further action.11 After such further development as is deemed necessary, OWCP 

shall issue a de novo final decision on appellant’s traumatic injury 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 has met her burden of proof to establish a November 21, 

2016 employment incident, as alleged. The case is remanded to determine whether appellant has 

an injury and disability causally related to the accepted November 21, 2016 employment 

incident.

 

9

See, e.g., Cheryl R. Coleman, Docket No. 94-1489 (issued Macy 11, 1996) (as contemporaneous medical 

evidence related ankle and knee complaints, OWCP accepted the claim for right ankle knee contusions).

10 See generally, Conard Hightower, 54 ECAB 796 (2003) (contemporaneous evidence is entitle to greater 

probative value than later evidence).

11 See C.M., Docket No. 17-0891 (issued October 20, 2017).
6

ORDER

IT IS HEREBY ORDERED THAT the January 19, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed, as modified.

Issued: December 11, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board