United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

North Little Rock, AR, Employer

__________________________________________

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Docket No. 17-0580

Issued: March 12, 2018

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 January 18, 2017 appellant filed a timely appeal from a January 9, 2017 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).

1

 Pursuant to the Federal 

Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.

ISSUE

The issue is whether appellant met his burden of proof to establish that he sustained an 

employment-related injury in the performance of duty on January 6, 2016, as alleged.

 

1 Appellant timely requested oral argument pursuant to section 501.5(b) of Board’s Rules of Procedure. 20 

C.F.R. § 501.5(b). By order dated July 27, 2017, the Board exercised its discretion and denied the request, finding 

that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for 

Oral Argument, Docket No. 17-0580 (issued July 27, 2017). 

2 5 U.S.C. § 8101 et seq. 
2

On appeal appellant asserts that the evidence of record establishes that his fall on 

January 6, 2016 occurred in the performance of duty. 

FACTUAL HISTORY

On January 8, 2016 appellant, then a 54-year-old supervisory contract specialist, filed a 

traumatic injury claim (Form CA-1) alleging that he was injured when he slipped going down 

stairs at 3:30 p.m. on January 6, 2016. In an attached narrative statement, he indicated that, on 

the date of injury, he was wearing a sling on his left shoulder and was carrying his back pack 

over his right shoulder. Appellant stopped to get water to take a pain pill, took a few steps and 

slipped. He fell backward, striking his back, hip, and elbow. Coworkers stayed with him until 

an ambulance arrived. The employing establishment is located in North Little Rock, Arkansas. 

Appellant lives in the San Antonio, Texas, area when not working. 

An employing establishment manager signed the reverse side of the claim form on 

January 13, 2016. He affirmatively indicated by check mark that the injury was caused by the 

employee’s willful misconduct, intoxication, or intent to injure self or another, stating that a 

medical diagnosis on an emergency department report showed a diagnosis of drug intoxication. 

The manager also noted that appellant was instructed not to use the stairs without assistance. 

Continuation of pay was authorized through February 12, 2016.

Medical evidence submitted included a December 28, 2015 report in which Dr. Patrick 

Simon, a Board-certified orthopedic surgeon, advised that, due to previous left shoulder surgery, 

appellant had restrictions of no use of left arm, no walking up the stairs due to balance issues, 

and no driving. He indicated that appellant could work from home and that the restrictions 

would be for six weeks. 

A summary of hospitalization dated January 6, 2016, from Baptist Health emergency 

department, noted that appellant was seen by Dr. Dannetta Grisham, Board-certified in 

emergency medicine. It listed diagnoses of lightheadedness and drug intoxication and included a 

list of discharge medications and instructions. 

In reports dated January 22 and 29, 2016, Dr. Danilo Hoyumpa, Board-certified in family 

medicine, noted a history that appellant fell down stairs injuring his back, neck, and shoulder. 

He diagnosed left shoulder strain, cervical strain, low back strain, and advised that appellant 

could return to restricted duty, but must work from home due to medications and until seen by an 

orthopedist. Dr. Hoyumpa’s reports were accompanied by treatment notes from Mark Wilson, a 

nurse practitioner, and Mike Hedspeth, a physician assistant, dated January 22 and 29, 2016 

respectively. 

In a January 27, 2016 letter, the employing establishment controverted the claim, 

indicating that medical documentation listed diagnoses of lightheadedness and drug intoxication. 

It noted that appellant had a preexisting history of left shoulder surgery that was not employment

related, and maintained that there was no loose tread on the staircase. Pictures of the staircase 

were enclosed. Documentation regarding appellant’s requests for accommodation to telework 

full time in June and October 2015 were also included. This indicated that appellant had 

requested to telework full time to accommodate his 100 percent service-connected disability and 
3

was offered some accommodation by the employing establishment that he rejected.

3

 Email 

correspondence from the employing establishment to appellant indicated that he was offered an 

additional accommodation on January 14, 2016, which he did not accept.

On February 4, 2016 OWCP informed appellant that, when his claim was received, it 

appeared to be a minor injury that resulted in minimal or no lost time from work and, thus, had 

not been formally adjudicated at that time, but was now being reopened for formal adjudication. 

It advised him of the evidence needed to support his claim. OWCP also asked the employing 

establishment to provide its policy regarding the use of intoxicating substances, prescription or 

otherwise, while on its premises.

In a February 19, 2016 response, appellant noted that he had been denied 

accommodations before the January 6, 2016 injury, was forced to climb stairs, had to pay for 

transportation to and from work, and was never offered assistance from the employing 

establishment. He stated that he was originally prescribed Hydrocodone by Stephanie Fraser, a 

nurse practitioner, when pain shots no longer relieved his shoulder and back pain, and that

Dr. Simon, his orthopedic surgeon, later prescribed the medication after December 9, 2015 

shoulder surgery. Appellant indicated that both Ms. Fraser and Dr. Simon advised that he work 

from home while on the medication, but no accommodations were made. Appellant noted that 

coworker E.K. witnessed his fall.

A Department of Veterans Affairs (VA) document indicated that appellant is 100 percent 

disabled with service-connected right hand burn scars, right knee degenerative arthritis, right 

little finger burn scars and fracture, left great toe surgical scarring, right great toe degenerative 

arthritis, lumbar spine spondylosis, right leg radiculopathy, left hip degenerative arthritis, 

degenerative osteoarthritis of the left foot, bursitis of the right and left elbow and forearm, 

acromioclavicular (AC) joint separation of the left shoulder, nasal fractures, gout, hypertension, 

gastrointestinal reflux, obstructive sleep apnea, dysphagia, and tinnitus. 

January 6, 2016 records from Baptist Health emergency department indicate that 

appellant arrived at 4:32 p.m. and was discharged at 7:43 p.m. Dr. Grisham noted appellant’s 

complaints of dizziness and fall at work. She related a history that he slid down approximately

15 steps, and that he recently underwent left shoulder rotator cuff surgery and was wearing a left 

shoulder immobilizer. Appellant told her that he took 20 mg of Hydrocodone when he got to 

work, took 20 mg more four hours later, took one more dose after that, and then fell at work 

because he felt lightheaded. Dr. Grisham indicated that appellant reported that he had no injury 

from his fall, but took two more 10 mg Hydrocodone pills while he was waiting to be seen in the 

emergency room because of pain. Her examination demonstrated that appellant had slightly

slurred speech and was obviously somewhat sleepy. Appellant’s neck was supple with normal 

range of motion. There was no edema or tenderness on musculoskeletal examination with 

normal range of motion. Judgment and thought content were normal. Dr. Grisham diagnosed 

lightheadedness and acute narcotic intoxication. Electrocardiogram was abnormal and a prior 

 

3

In a request for accommodation dated October 24, 2015, appellant noted that his medical care was located in 

Texas, and that, if his pain shots wore off, he would then have to take medication while at work, making it unsafe 

for himself and others. He also requested that transportation be provided to and from work. 
4

anterior infarct could not be ruled out. Discharge instructions included that appellant need not 

work while taking narcotics and should have his orthopedic surgeon recheck his shoulder. 

Appellant was advised to establish treatment with a doctor in Arkansas where he worked.

Appellant also submitted a health information document that listed his medication history 

from August 2, 2015 to February 14, 2016. This included a notation that a right shoulder x-ray 

on August 2, 2015 showed degenerative changes of the AC joint. An August 28, 2015 left 

shoulder magnetic resonance imaging (MRI) scan demonstrated a partial thickness supraspinatus 

tear, mild osteoarthritis of the AC joint, bursitis, and post-traumatic scarring.

On April 15, 2015 Dr. Yickui Li, Board-certified in family medicine, noted a history of 

chronic lower back, left shoulder, knee, and foot pain that limited appellant’s ability to sit, stand, 

or walk. Dr. Li advised that, if appellant could work from home, he could be productive in an 

environment that was more comfortable and would provide less stress on his joints.

In a January 20, 2016 form report, Ms. Fraser noted a history of left shoulder surgery and 

January 6, 2016 fall. She listed his restrictions, including no use of left arm, walking upstairs, or 

driving while taking narcotics. Ms. Fraser advised that he could work from home.

On a form report dated February 13, 2016, Dr. Hoyumpa indicated that appellant was 

prevented from returning to work through February 22, 2016 because he could not drive due to 

drowsiness from medication and must work from home. He diagnosed low back, neck, and left 

shoulder pain.

Appellant began seeing Dr. Daniel Beltran, a chiropractor, on February 18, 2016. He 

noted that on January 6, 2016 appellant slipped on a loose stair and fell back, landing on his 

spine. Current complaints were neck, left arm, lower back, and bilateral leg pain. Dr. Beltran 

described findings and diagnosed cervical sprain/strain, lumbar sprain/strain, possible herniated 

nucleus pulposus (HNP), left shoulder sprain/strain with internal derangement, and myofascial 

pain. On March 3, 2016 he noted that appellant could not work. 

Email correspondence dated December 17, 2015 to January 11, 2016 between appellant 

and the employing establishment, documents that appellant was on approved annual and sick 

leave through January 15, 2016 and was told not to perform any work function. He requested 

reasonable accommodation to telework from his Texas home or administrative leave for his 

absence. The employing establishment denied his request. Appellant arrived for work at 4:46 

a.m. on January 4, 2016. He advised that “liberal leave is useless” and noted that no 

accommodations were made to his office. Appellant requested transportation for four to six 

months and accommodation of his San Antonio medical appointments. At 6:47 a.m. that day the 

employing establishment advised that it was working with management to address his office 

concerns and requested additional medical documentation. The employing establishment denied 

his request for reimbursement of transportation expenses. 

On January 5, 2016 the employing establishment noted that appellant’s restrictions of no 

lifting, reaching, walking up the stairs, and no driving for six weeks limited his ability to perform 

the functions of his position and noted that he had been provided liberal leave to accommodate 

his condition. Appellant noted that he was not feeling well that day as he had no one to prepare 
5

his meal and had to take his medication on an empty stomach, which caused nausea and 

dizziness. He advised that he lost his balance going up stairs. The employing establishment

responded that appellant get help navigating the stairs and again recommended that he take the 

approved leave. 

At 7:15 a.m. on January 6, 2015 he again reported difficulty with the stairs and reported 

that his office heating was not working. At 7:53 a.m. appellant requested help with the stairs. At 

3:24 p.m. on January 7, 2016 the employing establishment noted his fall the previous day. It 

instructed appellant that, based on medical documentation received, he should get help going 

down stairs and when going home. The employing establishment indicated that appellant could 

not return to work until medically cleared. Appellant requested telework or administrative leave, 

which was denied.

On February 22, 2016 the employing establishment notified OWCP that there was no 

elevator or escalator available to appellant, that he was offered assistance in navigating the stairs, 

and that there were no witnesses to the January 6, 2016 fall, other than the driver who was there 

to pick up appellant.

By decision dated March 9, 2016, OWCP denied appellant’s claim, finding that he had 

not submitted sufficient medical evidence to establish causal relationship between his claimed 

condition and the January 6, 2016 fall, and that his intoxication was the proximate cause of the 

injury.

Counsel timely requested a hearing with a representative of OWCP’s Branch of Hearings 

and Review. Additional evidence submitted included correspondence regarding a 2015 

alternative accommodation request, a grievance appellant filed in August 2015, medical evidence 

that predated the January 6, 2016 injury, a January 30, 2016 letter from appellant to his 

Congressman, a January 30, 2016 letter in which appellant rejected the employing 

establishment’s offer of alternative accommodation and his March 1, 2016 appeal, and e-mail 

communications between appellant and the employing establishment dated January 14 to 

March 21, 2016 which mainly dealt with his request to work from home in Texas. The e-mails 

included a list of his medications and schedule of his weekly medical appointments. 

A July 13, 2015 computerized tomography (CT) scan of appellant’s head was normal. A 

July 13, 2015 lumbar spine MRI scan revealed disc bulges at L4-5 and L5-S1 with mild neural 

foraminal narrowing and facet degenerative changes. A July 23, 2015 x-ray of the cervical spine 

demonstrated minimal degenerative spurring and no other significant abnormalities.4 A 

December 19, 2015 discharge note indicated that appellant had left shoulder surgery. It noted 

that he should not bear weight with his left arm and should wear a sling at all times. One to two 

tablets of Norco, every four to six hours, was prescribed for pain.5

 

4 The record also contains March 15, 2016 cervical and spine MRI reports showing a protrusion-subligamentous 

disc herniation at C3-4 and a protrusion-subligamentous disc herniations at L3-4, L4-5, L5-S1. A May 8, 2016 

cervical spine x-ray showed minimal degenerative spurring.

5 The medical provider signature is illegible.
6

Dr. Hoyumpa provided a treatment note dated February 13, 2016. He noted that 

appellant was originally seen on January 22, 2016 for a January 6, 2016 employment injury 

when he fell down stairs while carrying a back pack, injuring his left shoulder, neck, and lower 

back. Dr. Hoyumpa noted appellant’s complaint of continued sharp pain for which he was 

taking Hydrocodone. He diagnosed strains of the left upper extremity and neck and low back 

pain, all improved. Dr. Hoyumpa advised that appellant should remain off work, noting that his 

medication caused drowsiness.

In a March 19, 2016 report, Jeff Dickerson, a nurse practitioner, noted a history that 

appellant fell down a flight of stairs on January 6, 2016, and listed appellant’s complaints of 

continued cervical and lumbar spine pain. He reviewed results of diagnostic testing, described 

findings, and offered diagnoses for the cervical and lumbar spine. Mr. Dickerson advised that 

appellant’s subjective complaints, combined with his physical examination and imaging studies, 

were consistent with the reported mechanism of injury. Dr. Beltran continued to submit duty 

status reports (CA-17 forms) advising that appellant could not work. 

In a treatment note dated March 30, 2016, Dr. Johnny White, Board-certified in 

anesthesiology and pain medicine, listed January 6, 2016 as the date of injury and slip and fall 

under a heading “causation.” He described appellant’s complaints of radiating back pain and left 

shoulder pain with difficulty standing erect, fatigue in legs with walking, sleep dysfunction, right 

leg tingling, and bilateral leg swelling and heaviness with ambulation. Low back examination 

demonstrated positive straight leg raising bilaterally and tenderness over the paravertebral 

muscles. Dr. White reviewed the March 23, 2016 lumbar spine MRI scan and diagnosed sprain 

of ligaments of lumbar spine, intervertebral disc disorders with radiculopathy, lumbosacral 

region. He recommended epidural injections.

In correspondence dated March 31, 2016, appellant requested that Baptist Health amend 

its medical record regarding inaccuracies in its medical report.

On May 5, 2016 Dr. Beltran advised that appellant must work from home due to 

medication. In an amended May 5, 2016 duty status report (Form CA-17), the chiropractor also 

indicated that appellant needed physical therapy three times per week. He continued to submit 

reports indicating that appellant must work from home due to medication. On May 16, 2016

Dr. Simon advised that appellant could perform light duty, but must work from home and would 

have physical therapy appointments.

Appellant filed an additional grievance in May 2016. He returned to duty on 

May 13, 2016.

During the hearing, held on November 8, 2016, appellant testified that he did not work 

from January to July 2016 and had been instructed to return to work. He indicated that on 

January 6, 2016 he could not drive because he had undergone nonemployment-related rotator 

cuff surgery and was taking Hydrocodone and Naprosyn for pain and additional medication for 

hypertension and gout, and had restrictions provided by Dr. Simon on December 31, 2015 of no 

stair-climbing and no driving. Appellant stated that he felt lightheaded and sick to his stomach at 

work on January 6, 2016, and that his driver E.K., a friend, came his office and walked in front 

of him as he went down the stairs. He stated that he took Hydrocodone just as he left, picked up 
7

his backpack, took a few steps and slid almost to the landing. Appellant noted that the building 

had no elevator and the employing establishment would not give him a first floor office. He

related that coworkers helped him sit up until he was taken to an emergency room. Appellant

maintained that the Hydrocodone had kicked in and made him groggy and sleepy, and that the 

emergency room report was incorrect. He indicated that he also had a history of bilateral total 

knee replacements and needed a hip replacement. Appellant stated that he returned to work the 

next day, but was sent home. He claimed that he injured his back, left shoulder, and neck. The 

hearing representative advised him to get a statement from his driver and provide supportive 

medical evidence. The record was left open for 30 days. 

The only evidence received by OWCP after the hearing were duplicates of the March 15, 

2016 MRI scans, and an October 5, 2016 report in which Dr. Beltran described examination 

findings. Dr. Beltran reviewed the March 15, 2016 MRI scans and diagnosed cervical and 

lumbar herniated discs, left shoulder sprain/strain with internal derangement, and myofascial 

pain. He noted that appellant had left shoulder surgery on December 9, 2015 and returned to 

work on January 4, 2016. Dr. Beltran indicated that the January 6, 2016 fall caused a worsening 

of left shoulder symptoms, and neck and lower back pain. He opined that, within reasonable 

medical probability, appellant’s history, mechanism of injury, and physical examination findings 

were consistent with injuries to his cervical spine, lumbar spine, and left shoulder.

By decision dated January 9, 2017, OWCP’s hearing representative found that appellant’s 

fall on January 6, 2016 was caused by medication intoxication and, assuming arguendo that it 

was not caused by narcotic intoxication, it was an idiopathic fall related to appellant’s left 

shoulder injury. The hearing representative affirmed the March 9, 2016 decision. 

LEGAL PRECEDENT

An employee seeking compensation under FECA6 has the burden of proof to establish the 

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

evidence,7including that he or she is an employee within the meaning of FECA, that the claim 

was filed within the applicable time limitation,

8

and that he or she sustained an injury in the 

performance of duty as alleged. The employee must also prove that any disability from work 

was causally related to the employment injury.9

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. 

 

6 Supra note 2.

7

J.P., 59 ECAB 178 (2007).

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

9

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989). OWCP regulations define a traumatic injury as a condition 

of the body caused by a specific event or incident or series of events or incidents within a single workday or shift. 

20 C.F.R. § 10.5(ee). OWCP regulations define the term “occupational disease or illness” as a condition produced 

by the work environment over a period longer than a single workday or shift.” 20 C.F.R. § 10.5(q).
8

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 

medical evidence to establish that the employment incident caused a personal injury.10

Under FECA, OWCP shall pay compensation for the disability or death of an employee 

resulting from personal injury sustained while in the performance of duty, unless the injury or 

death is proximately caused by the intoxication of the injured employee.11 Intoxication is an 

affirmative defense and, if invoked, OWCP must do so during the initial adjudication of the 

claim.12 In order to correctly invoke section 8102(a)(3), OWCP must establish by reliable, 

probative, and substantial evidence that intoxication was the proximate cause of injury or 

death.13

OWCP procedures provide that where intoxication may be the proximate cause of the 

injury, the record must contain all available evidence showing: (a) the extent to which the 

employee was intoxicated at the time of injury; and (b) the particular manner in which the 

intoxication caused the injury. It is not enough merely to show that the employee was 

intoxicated. It is also OWCP’s burden to show that the intoxication caused the injury. An 

intoxicant may be alcohol or any other drug.14

In addition to obtaining statements from the supervisor/official superior, the employee 

and any coworkers or other witnesses, the procedures also indicate that a statement should be 

obtained from the physician and the hospital where the employee was examined following the 

injury which describes as fully as possible the extent to which the employee was intoxicated and 

the manner in which the intoxicant was affecting the employee’s activities.15 Moreover, the 

results of any tests made by the physician or hospital to determine the extent of intoxication 

should be obtained.16

ANALYSIS

The Board finds that OWCP did not meet its burden of proof to deny this claim by raising 

the affirmative defense of intoxication.

 

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

11 5 U.S.C. § 8102(a)(3).

12 T.F., Docket No. 08-1256 (issued November 12, 2008).

13 Id.

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 1.804.14.c(1) 

(September 1995).

15 Id. at Chapter 1.804.14.c(2)(3).

16 Id.
9

As noted, OWCP’s use of an affirmative defense must be invoked in the original 

adjudication of the claim, and OWCP has the burden to prove such a defense.17 The evidence to 

establish this defense must be reliable, probative, and substantial.18 When intoxication is 

invoked as an affirmative defense, the Board has explained that the statutory test under FECA is 

“proximate cause.” Therefore, OWCP must show that the employee was in fact intoxicated 

when the injury occurred and that such intoxication was the proximate cause of such injury. A 

mere showing that intoxication existed concurrently with the injury is insufficient.19 FECA does 

not intend that compensation shall be denied where intoxication is one cause of injury or death, 

on the theory that if an employee is intoxicated he or she is not in the performance of 

duty. Intoxication as a cause does not, ipso facto, take the case out of the performance of duty.20 

In defining what is meant by proximate cause, the Board has stated that intoxication as one cause 

of an injury does not destroy the possibility of an injury arising out of and in the course of 

employment, and that intoxication does not bring the case within the statutory language under 

which benefits may be denied, unless the injury was occasioned solely by or was proximately 

caused by intoxication.21 Something more is necessary than a mere showing that intoxication 

existed concurrently with injury. If the injury was solely caused by intoxication, then the statute 

requires denial of benefits, but this test can only be applied where the injury is one arising out of 

and in the course of employment from other aspects, as this fundamental prerequisite must be 

satisfied first before applying the secondary “cause” test. If the first test is not met, then there is 

no need to apply the second test.

22

In the case at hand, at the time of appellant’s injury at 3:30 p.m. on January 6, 2016, he 

was just ending his day as a contract specialist. To arise in the course of employment, an injury 

must occur at a time when the employee may reasonably be said to be engaged in his master’s 

business, at a place when he or she may reasonably be expected to be in connection with his 

employment, and while he or she was reasonably fulfilling the duties of the employment or 

engaged in doing something incidental thereto.23 The Board has accepted the general rule of 

workers’ compensation law that, as to employees having fixed hours and places of work, injuries 

occurring on the premises of the employing establishment, while the employee is going to or 

 

17 Supra note 12.

18 Supra note 13.

19 N.P., Docket No. 10-0952 (issued July 26, 2011).

20 In Ruth Bubier (Sylvester C. Bubier), the Board considered whether intoxication was the proximate cause of the 

employee’s injury and death. It noted that, under FECA, intoxication comes into picture as destroying the right to 

compensation in situations, otherwise within the performance of duty, only if intoxication is the proximate cause of 

the injury. Ruth Bubier (Sylvester Bubier), 2 ECAB 60 (1948).

21 Id.

22 Id.; see N.P., supra note 19.

23 P.S., Docket No. 08-2216 (issued September 25, 2009).
10

from work, before or after working hours, or at lunch time, are compensable.24 Thus, appellant 

was in the course of employment when the January 6, 2016 incident occurred.

Appellant arrived at the emergency department at 4:32 p.m. in January 6, 2016 and was 

discharged home at 7:43 p.m. Dr. Grisham noted his complaint of dizziness and fall at work. 

She related a history that he slid down approximately 15 stairs, and that he recently had left 

shoulder rotator cuff surgery and was wearing a left shoulder immobilizer. Dr. Grisham reported 

that appellant told her he took 20 mg of Hydrocodone when he got to work, took 20 mg more 

four hours later, took one more dose after that, and then fell at work because he felt lightheaded. 

She indicated that appellant reported he had no injury from his fall, but took two more 10 mg

Hydrocodone pills while he was waiting to be seen in the emergency room because of shoulder

pain. On examination appellant had slightly slurred speech and was somewhat sleepy. Judgment 

and thought content were normal. Dr. Grisham diagnosed lightheadedness and acute narcotic 

intoxication. The record, however, does not include a toxicology report that could provide 

evidence of intoxication. As noted, it is not enough to show that an employee was intoxicated. 

Therefore, even if the record in this case contained positive toxicology reports in the record, 

these would not necessarily establish that appellant was intoxicated at the time of the fall such 

that intoxication was the proximate cause of the fall. 

The Board finds that the evidence of record establishes only the possibility that appellant 

was intoxicated by ingestion of medication at the time of injury.25 The record is insufficient to 

establish that intoxication was the proximate cause of his fall. The Board, therefore, finds that 

OWCP has not met its burden of proof to establish the affirmative defense of intoxication. 

Therefore, the claim is not precluded under 5 U.S.C. § 8102(a)(3).

The record indicates that no coworkers witnessed the fall. Appellant testified at the 

hearing that he was accompanied on the stairs by coworker, E.K. The hearing representative 

asked that he obtain a statement from her, but appellant did not do so. As the incident was 

witnessed, it is incumbent on appellant to furnish this statement to OWCP so that a proper 

description of his fall can be determined for assessing whether the fall was idiopathic in nature 

and, if not, the nature and degree of any injuries sustained.26

The case will be remanded to OWCP to first obtain a witness statement from E.K. to 

determine an exact description of the incident, to be followed by evaluation of the medical 

evidence and a determination of the extent of any injury and periods of disability. Following this 

and any other development deemed necessary, OWCP shall issue a de novo decision.

 

24 R.M., Docket No. 07-1066 (issued February 6, 2009).

25 N.P., supra note 19.

26 As to the hearing representative’s reliance on the idiopathic fall doctrine, to properly apply the idiopathic 

exception to the premises rule, there must be two elements present: a fall resulting from a personal, nonoccupational 

pathology, and no contribution from the employment. N.P., Docket No. 08-1201 (issued May 8, 2009). As the 

exact circumstances of the fall have yet to be determined, the Board is unable to properly adjudicate this issue.
11

CONCLUSION

The Board finds that the case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the January 9, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded to OWCP for further 

proceedings consistent with this decision of the Board.

Issued: March 12, 2018

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