United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.O., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Las Vegas, NV, Employer

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Docket No. 17-0789

Issued: May 15, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 28, 2017 appellant filed a timely appeal from a November 30, 2016 merit 

decision and a February 23, 2017 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.

ISSUES

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

due to the accepted October 20, 2016 employment incident; and (2) whether OWCP properly 

denied appellant’s request for a hearing under section 8124 of FECA as untimely filed.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 20, 2016 appellant, then a 41-year-old federal officer, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained injury while at work on October 20, 2016. He 

noted that, after an uncooperative suspect refused to be restrained by handcuffs and a belly chain, 

the suspect braced himself against a wall and spit in appellant’s face. Appellant indicated that 

the saliva entered his mouth. He did not stop work.2

In an October 20, 2016 development letter, OWCP requested that appellant submit 

additional evidence in support of his claim, including a physician’s opinion supported by a 

medical explanation as to how the reported work incident caused or aggravated a medical 

condition. It requested that he complete and return an attached questionnaire which posed 

various questions regarding the claimed exposure to bodily fluids and the medical treatment he 

received after the October 20, 2016 incident. OWCP afforded appellant 30 days to respond.

Appellant subsequently submitted an October 20, 2016 report from Dr. Glen Guillermo, a 

Board-certified emergency medicine physician, who evaluated him on that date in the emergency 

department at the University Medical Center in Las Vegas. Dr. Guillermo noted that appellant 

reported that, while restraining a suspect at work that morning, the suspect spit in his face. 

Appellant felt that the spit entered his mouth and he reported that he immediately washed his 

face and mouth. Dr. Guillermo detailed the findings of his physical examination, noting 

essentially normal findings. He listed appellant’s chief complaint as “exposure” and the primary 

diagnosis as “bodily fluid exposure.” Appellant received a tetanus, diphtheria, and pertussis 

(TDAP) vaccine. Dr. Guillermo discharged appellant, noting that his condition was stable, and 

advised him to return to the emergency department if he had any new or worsening symptoms. 

In an employee’s claim for compensation/report of initial treatment (Form CA-4), 

appellant completed the top half of the form on October 20, 2016, noting that on the same date

he was placing a suspect in handcuffs when the suspect spit in his face and the spit entered his 

mouth. Dr. Guillermo completed the bottom half of the form on October 20, 2016 and listed the 

diagnosis/injury description as “possible exposure, bodily fluids.”

3

In a November 30, 2016 decision, OWCP denied appellant’s claim for an October 20, 

2016 employment injury. It denied his claim because he failed to establish the medical aspect of 

the fact of injury. OWCP found that appellant failed to submit a medical report containing a 

well-rationalized medical opinion explaining how the October 20, 2016 described exposure or 

work factors caused or contributed to a diagnosed medical condition. It noted that possible 

exposure alone was insufficient to establish a work-related medical condition. 

 

2 Appellant also filed an occupational disease claim (Form CA-2) on October 20, 2016, but OWCP properly 

considered his claim to be for a traumatic injury. A traumatic injury refers to injury caused by a specific event or 

incident or series of incidents occurring within a single workday or work shift whereas an occupational disease refers to 

an injury produced by employment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q), (ee); 

Brady L. Fowler, 44 ECAB 343, 351 (1992).

3 Appellant also submitted an unsigned October 20, 2016 adult emergency department record which contained the 

notation, “Spit in face -- went in mouth.”
3

By an appeal request form dated January 26, 2017 and postmarked January 30, 2017, 

appellant requested an oral hearing in connection with OWCP’s November 30, 2016 decision.

In a February 23, 2017 decision, an OWCP hearing and review examiner, determined that 

appellant was not entitled to a hearing as a matter of right because his January 30, 2017 hearing 

request was not made within 30 days of OWCP’s November 30, 2016 merit decision. The 

examiner indicated that she had, in her discretion, carefully considered appellant’s request and 

had determined that the request was denied because the issue of the case could equally well be 

addressed by requesting reconsideration and submitting new evidence which established an 

October 20, 2016 employment injury.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4 has 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 timely filed within the applicable 

time limitation period of FECA, that an injury was sustained 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 

compensation claim regardless of whether the claim is predicated upon 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 first must be determined whether the fact of injury has been established. 

There are two components involved in establishing the fact of injury. First, the employee must 

submit sufficient evidence to establish that he actually experienced the employment incident at 

the time and place, and in the manner alleged.7 Second, the employee must submit evidence, in 

the form of medical evidence, to establish that the employment incident caused a personal 

injury.8

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

establish causal relationship is rationalized medical opinion evidence. The opinion of the 

physician must be based on a complete factual and medical background of the claimant, must be 

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

 

4 See supra note 1.

5 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

6 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury 

caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an 

occupational disease refers to an injury produced by employment factors which occur or are present over a period 

longer than a single workday or work shift. 20 C.F.R. § 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).

7

Julie B. Hawkins, 38 ECAB 393 (1987).

8

John J. Carlone, 41 ECAB 354 (1989).
4

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.9

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish an injury due 

to an October 20, 2016 employment incident. 

Appellant claimed that he sustained an injury at work on October 20, 2016 when an 

uncooperative suspect spit in his face. He indicated that the saliva entered his mouth. In a 

November 30, 2016 decision, OWCP accepted the occurrence of the employment incident as 

alleged. However, it denied appellant’s claim because he failed to establish the medical aspect 

of fact of injury. OWCP found that appellant failed to submit a medical report containing a wellrationalized medical opinion explaining how the described October 20, 2016 exposure or work 

factors caused or contributed to a diagnosed medical condition. 

In support of his claim, appellant submitted an October 20, 2016 report from

Dr. Guillermo who evaluated him on that date. Dr. Guillermo noted that appellant reported that, 

while restraining a suspect at work that morning, the suspect spit in his face and the spit entered 

his mouth. He detailed the findings of his physical examination, noting essentially normal 

findings. Dr. Guillermo listed appellant’s chief complaint as “exposure” and the primary 

diagnosis as “bodily fluid exposure.” Appellant received a TDAP vaccine, and Dr. Guillermo 

discharged him noting that his condition was stable. In a form report dated October 20, 2016,

Dr. Guillermo listed the diagnosis/injury description as “possible exposure, bodily fluids.”

10

These reports are insufficient to establish appellant’s claim for an October 20, 2016 

employment injury because, while the reports acknowledge the occurrence of the October 20, 

2016 spitting incident, they do not contain an opinion that appellant sustained a diagnosed 

medical condition due to the incident. The Board has held that medical evidence which does not 

offer an opinion regarding the nature and cause of an employee’s medical condition is of no 

probative value in establishing a work-related condition.

11

 Moreover, OWCP procedures provide 

that simple exposure to a workplace hazard, such as an infectious agent, does not constitute a 

work-related medical condition.12 The Board notes that, for these reasons, appellant did not meet 

his burden of proof to establish his claim for an October 20, 2016 employment injury because he 

failed to establish the medical aspect of the fact of injury.13 

 

9 See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

10 Appellant completed a portion of the form report on October 20, 2016, noting that on the same date he was 

placing a suspect in handcuffs when the suspect spit in his face and the spit entered his mouth.

11 See Charles H. Tomaszewski, 39 ECAB 461 (1988).

12 20 C.F.R. § 10.303; see also R.L., Docket No. 15-1328 (issued September 21, 2016).

13 See supra notes 7 and 8.
5

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

Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an 

OWCP representative, provides in pertinent part: “Before review under section 8128(a) of this 

title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on 

request made within 30 days after the date of the issuance of the decision, to a hearing on his claim 

before a representative of the Secretary.”

14

 Section 10.615 of OWCP’s federal regulations, 

implementing this section of FECA, provides that a claimant who requests a hearing can choose 

between two formats, either an oral hearing or a review of the written record by an OWCP 

hearing representative.15 As section 8124(b)(1) is unequivocal in setting forth the time limitation 

for requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless the 

request is made within the requisite 30 days.16 The date of filing is fixed by postmark or other 

carrier’s date marking.17

The Board has held that OWCP, in its broad discretionary authority in the administration of 

FECA, has the power to hold hearings in certain circumstances where no legal provision was made 

for such hearings and that OWCP must exercise this discretionary authority in deciding whether to 

grant a hearing.18 Specifically, the Board has held that OWCP has the discretion to grant or deny a 

hearing request on a claim involving an injury sustained prior to the enactment of the 1966 

amendments to FECA which provided the right to a hearing,19 when the request is made after the 

30-day period for requesting a hearing,20 when the request is for a second hearing on the same 

issue,21 and when the request is made after a reconsideration request was previously submitted.22 

In these instances, OWCP will determine whether a discretionary hearing should be granted or, if 

not, will so advise the claimant with reasons.23

 

14 5 U.S.C. § 8124(b)(1).

15 20 C.F.R. § 10.615.

16 Ella M. Garner, 36 ECAB 238, 241-42 (1984).

17 See 20 C.F.R. § 10.616(a).

18 Henry Moreno, 39 ECAB 475, 482 (1988).

19 Rudolph Bermann, 26 ECAB 354, 360 (1975).

20 Herbert C. Holley, 33 ECAB 140, 142 (1981).

21 Johnny S. Henderson, 34 ECAB 216, 219 (1982).

22 R.H., Docket No. 07-1658 (issued December 17, 2007); S.J., Docket No. 07-1037 (issued September 12, 2007).

23 See supra note 19.
6

ANALYSIS -- ISSUE 2

Appellant’s request for an oral hearing was made on January 30, 2017, i.e., a date more 

than 30 days after the issuance of OWCP’s merit decision dated November 30, 2016. Hence, the 

Board finds that appellant was not entitled to a hearing as a matter of right.24

While OWCP also has the discretionary power to grant a hearing when a claimant is not 

entitled to a hearing as a matter of right, OWCP’s hearing and review examiner, in its February 23, 

2017 decision, properly exercised its discretion by indicating that it had carefully considered 

appellant’s request and had determined that the request was denied for the reason that the issue

of the case could equally well be addressed by requesting reconsideration and submitting new 

evidence which established an October 20, 2016 employment injury. The Board has held that as 

the only limitation on OWCP’s authority is reasonableness, abuse of discretion is generally shown 

through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which 

are contrary to both logic and probable deduction from established facts.25 In the present case, the 

evidence of record does not indicate that OWCP committed any act in connection with its denial of 

appellant’s request for a hearing which could be found to be an abuse of discretion.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish an injury due 

to the accepted October 20, 2016 employment incident. The Board further finds that OWCP 

properly denied appellant’s request for a hearing under section 8124 of FECA.

 

24 See supra notes 16 and 20.

25 Daniel J. Perea, 42 ECAB 214, 221 (1990).
7

ORDER

IT IS HEREBY ORDERED THAT the February 23, 2017 and November 30, 2016 

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

Issued: May 15, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board