United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.D., Appellant 

and 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, Arlington, VA, Employer 

__________________________________________ 

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Docket No. 17-0086 

Issued: August 3, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 October 20, 2016 appellant, through counsel, filed a timely appeal from an August 24, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction to consider the merits of the case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish an injury in the 

performance of duty on February 20, 2015, as alleged. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 9, 2015 appellant, then a 57-year-old financial analyst, filed a traumatic injury 

claim (Form CA-1) alleging that at 9:00 a.m. on February 20, 2015 he was walking from his car, 

which was parked near the bottom of the ramp of the employing establishment parking garage 

between the first and second floors, when he tripped on a strip of concrete. He explained that he 

then rapidly flew forward, head first, into a concrete staircase. Appellant alleged that he 

sustained a large bruise on his upper right arm, skinned both of his knees, and experienced right 

forearm cramps, sore right thigh, soreness in his back, as well as a tingling sensation in his 

fingers and right hand for two days. The employing establishment controverted appellant’s 

claim, alleging that appellant was walking from his car to the office elevator on his morning 

commute when the incident occurred. Appellant did not stop work. 

On February 20, 2015 a representative of the employing establishment sent appellant a 

memorandum which indicated that he was sorry to hear that appellant may have had an 

employment-related injury. He also provided appellant with instructions for filing a claim. 

By letter dated June 25, 2015, OWCP informed appellant that further information was 

necessary to support his claim, including evidence supporting that he was injured in the course of 

employment and medical evidence. It also asked him to respond to certain questions. OWCP 

afforded appellant 30 days to submit the information. 

OWCP also requested information from the employing establishment. In a response 

received by OWCP on July 24, 2015, the employing establishment indicated that it had assigned 

appellant a parking space in the garage. It confirmed that it leased the building and the 

underground parking area where the incident occurred and contracted with building management 

to maintain the facility. The employing establishment noted that, in the sense that it assigned 

parking spots based on established policy and procedures, including seniority it controlled the 

parking facilities. Appellant was responsible for paying for his parking. 

By decision dated July 28, 2015, OWCP denied appellant’s claim. It determined that 

appellant had not met the factual component of his claim in that he had not established that the 

events occurred as alleged. OWCP noted that he had failed to provide a detailed description 

when asked for additional information regarding the parking lot, previous injuries, the effects of 

the injury, the delay in filing the claim, and a response to the employing establishment’s 

challenge. It also found that appellant failed to submit medical evidence establishing a medical 

diagnosis in connection with the alleged incident. OWCP concluded that appellant had not 

established that he sustained an injury in the performance of duty. 

By letter received by OWCP on June 7, 2016, appellant, through counsel, requested 

reconsideration. In support of his claim, appellant submitted the results of multiple objective 

diagnostic studies. A February 25, 2015 computerized tomography (CT) scan of the lumbar 

spine was interpreted by Dr. Neal Desai, a Board-certified radiologist, who compared it to a 

March 31, 2014 CT scan, and found a stable examination. He found status post posterior spinal 

fusion L4-S1 with mild lucency surrounding the S1 transpedicular screw which may be due to 

loosening, mild grade 1 anterolisthesis L4-L5; multilevel degenerative changes, most 

pronounced at L5-S1; and noted incidentally fatty liver and bilateral nephrolithiasis. 
3

In a March 3, 2015 report, Dr. Kemesha L. Delisseer, a Board-certified physiatrist, noted 

that she administered a successful, fluoroscopically-guided diagnostic left and right S1 

transforaminal epidural steroid injection. 

In a March 20, 2015 report, Dr. Michael Jay, a Board-certified radiologist, found a study 

of the lumbar spine showed stable postsurgical and degenerative changes and grade 1 

anterolisthesis at L4-L5 measures approximately seven millimeters and no evidence of dynamic 

instability. On June 7, 2016 Dr. Michael Staloch, a Board-certified radiologist, interpreted a 

magnetic resonance imaging (MRI) scan as showing no substantial change compared to the 

December 5, 2013 MRI scan of the lumbar spine. He noted that there was mild L3-L4 central 

canal narrowing and multilevel degenerative disc disease changes. 

In a May 17, 2016 report, Dr. Maria S. Babcock, an osteopath, described appellant’s fall 

of February 20, 2015. She noted that, after the fall, he had experienced increased pain on right 

leg and back. Dr. Babcock also discussed appellant’s preexisting condition, noted that the fall 

aggravated the preexisting condition, and also injured his surgical fusion. She opined that 

appellant needed urgent surgery. Dr. Babcock diagnosed lumbar disc displacement, lumbar 

radiculopathy, sacroiliac joint pain, and lumbago and concluded that these conditions were “the 

direct and proximate cause” of the described events “based on reasonable medical probability.” 

By decision dated August 24, 2016, OWCP denied modification of its July 28, 2015 

decision. It determined that appellant still had not responded to OWCP’s questions or 

established that the event occurred as alleged. OWCP noted that appellant had not provided a 

detailed description when asked for additional information with regard to the parking lot, any 

previous injuries, the effects of the injury, the delay in filing the claim, and a response to the 

agency challenge. It further noted that, although appellant had submitted medical evidence, this 

evidence did not establish a diagnosed medical condition causally related to the employment 

injury or event. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3 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. 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

 

In order to determine whether an employee actually sustained an injury in the 

performance of duty, OWCP begins with an analysis of whether fact of injury has been 

established. Generally, fact of injury consists of two components, which must be considered in 

 3 Supra note 2. 

4 Jussara L. Arcanjo, 55 ECAB 281, 283 (2004). 
4

conjunction with one another. The first component to be established is that the employee 

actually experienced the employment incident or exposure which is alleged to have occurred.5

 In 

order to meet his burden of proof to establish the fact that he sustained an injury in the 

performance of duty, an employee must submit sufficient evidence to establish that he actually 

experienced the employment injury or exposure at the time, place, and in the manner alleged.6

The phrase “sustained while in the performance of duty” is regarded as the equivalent of 

the coverage formula commonly found in workers’ compensation laws, namely, arising out of 

and in the course of employment.7 In the course of employment relates to the elements of time, 

place, and work activity. 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 or her master’s business, at a 

place when he or she may reasonably be expected to be in connection with his or her 

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

or engaged in doing something incidental thereto. As to the phrase in the course of employment, 

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 employees are going to and from work, before or after working hours or 

at lunch time, are compensable.8

Whether an injury occurs in the performance of duty is a preliminary issue before the 

merits of the claim are adjudicated.9

The second component appellant must establish is whether the employment incident 

caused a personal injury and generally can be established only by medical evidence.10 The 

medical evidence required to establish causal relationship is usually rationalized medical 

evidence. Rationalized medical opinion evidence is medical evidence which includes a 

physician’s rationalized opinion on the issue of whether there is 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 of the claimant, 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.11

 5 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012). 

6 Linda S. Jackson, 49 ECAB 486 (1998). 

7 A.K., Docket No. 16-1133 (issued December 19, 2016). 

8 Narbik A. Karamian, 40 ECAB 617, 218 (1989). The Board has also applied this general rule of workers’ 

compensation law in circumstances where the employee was on an unauthorized break. See Eileen R. Gibbons, 52 

ECAB 209 (2001). 

9 P.L., Docket No. 16-0631 (issued August 9, 2016). 

10 John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978). 

11 Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994). 
5

ANALYSIS 

OWCP denied appellant’s claim, finding that appellant had not established that his injury 

occurred at work as alleged due to his failure to respond to OWCP’s queries. As previously 

noted the initial question is whether appellant’s accident occurred in the performance of duty.12 

For an employee with fixed hours and a fixed workplace, an injury that occurs on the 

employing establishment premises when the employee is going to or from work is 

compensable.13 Therefore, it is important to determine whether the location of the incident is 

considered to be part of the premises of the employing establishment. The Board has explained 

the factors which determine whether a parking lot used by employees may be considered a part 

of the employing establishment’s premises. These factors include whether the employing 

establishment contracted for the exclusive use by its employees of the parking area, whether 

parking spaces on the lot were assigned by the employing establishment to its employees, 

whether the parking areas were checked to see that no unauthorized cars were parked in the lot, 

whether parking was provided without cost to the employees, whether the public was permitted 

to use the lot, and whether other parking was available to the employees.14 

Herein, OWCP properly asked the employing establishment to provide further 

information about the parking facility. The employing establishment indicated that it leased the 

office building, which included the underground parking area where the incident occurred, and 

contracted with a building management firm to work with it to maintain the facility. The 

employing establishment noted that the parking facilities were under its control in so much as it 

assigned parking spaces based on seniority and availability. Based upon these facts, the Board 

finds that the evidence of record is sufficient to establish that the parking garage was part of the 

employing establishment’s premises.15

The Board further finds that appellant has established that the incident occurred as 

alleged. 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.16 There are no substantial inconsistencies in the claim that would contradict 

 12 Supra note 8. 

13 I.F., Docket No. 12-192 (issued September 26, 2013). 

14 G.E., Docket No. 14-843 (issued September 23, 2014). The facts in the current case are similar to the Board’s 

decision in G.E. In that case, claimant alleged that while walking up a slanted driveway in a parking garage, she 

scraped her right knee and middle toe. OWCP had determined that the employing establishment did not own, 

operate, or control the parking garage which was shared with other building tenants, and that accordingly appellant’s 

injury did not occur on federal property. However, the Board reversed this determination. The Board determined 

that the parking garage was leased by the employing establishment for the use of its employees, that appellant had a 

parking decal which the security guards checked to ensure that only authorized spaces were used, and that the 

employing establishment recommended that employees park there for their safety and convenience as there was 

limited on-street parking which was considered unsafe. Accordingly, the Board found that the parking garage was 

part of the employing establishment premises. 

15 Id. 

16 P.H., Docket No. 15-1519 (issued December 22, 2015). 
6

appellant’s allegations with regard to the accident in question. Although appellant delayed filing 

his claim for over three months after the February 20, 2015 date of the alleged injury, the record 

does contain a memorandum from the employing establishment dated February 20, 2015 

expressing concern regarding the injury and providing appellant with instructions with regard to 

filing a claim. Therefore, the Board finds that the employment incident occurred as alleged. 

However, the Board finds that appellant has not submitted sufficient medical evidence to 

establish that the accepted employment incident caused or contributed to a diagnosed medical 

condition and resultant employment injury.17 None of the diagnostic studies nor the report by 

Dr. Delisser address the cause of appellant’s condition. As such these opinions are insufficient 

to establish causal relationship.18 

Dr. Babcock opined that appellant’s fall of February 20, 2015 aggravated his preexisting 

condition and also injured his spinal fusion. He diagnosed, among other things, lumbar disc 

displacement. Dr. Babcock does not provide any rationalized explanation for her conclusions. A 

mere conclusion without the necessary rationale explaining how and why the physician believes 

that a claimant’s accepted incident resulted in a diagnosed condition is not sufficient to meet 

appellant’s burden of proof.19 The Board finds that Dr. Babcock did not provide a rationalized 

medical opinion explaining how appellant’s trip and fall on February 20, 2015 would have 

physiologically caused the diagnosed condition.20 A rationalized medical opinion is especially 

necessary in light of appellant’s preexisting degenerative condition.21

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

the employee’s own belief of causal relationship.22 Appellant’s honest belief that the 

February 20, 2015 employment incident caused a medical injury is not in question. That belief, 

however sincerely held, does not constitute medical evidence to establish causal relationship.23

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 established that the employment incident occurred as 

alleged, and that he was in the performance of duty at the time of the incident. However, 

 17 J.P., Docket No. 16-0954 (issued December 13, 2016). 

18 See G.M., Docket No. 14-2057 (issued May 12, 2015). 

19 See R.E., Docket No. 14-868 (issued September 24, 2014). 

20 J.B., Docket No. 16-1192 (issued December 6, 2016). 

21 K.K., Docket No. 16-1642 (issued February 22, 2017). 

22 D.D., 57 ECAB 734 (2006). 

23 H.H., Docket No. 16-0509 (issued September 16, 2016). 
7

appellant has not met his burden of proof to establish an injury causally related to the 

February 20, 2015 employment incident, as alleged. 

ORDER 

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

Compensation Programs dated August 24, 2016 is affirmed, as modified. 

Issued: August 3, 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