United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

BOSTON MEDICAL CENTER, Boston, MA, 

Employer 

__________________________________________ 

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Docket No. 16-0777 

Issued: January 3, 2017 

Appearances: Case Submitted on the Record

John L. Whitehouse, 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 March 8, 2016 appellant, through counsel, filed a timely appeal of a February 4, 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 over the merits of this case. 

 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

ISSUE 

The issue is whether appellant met his burden of proof to establish a concussion causally 

related to an accepted March 17, 2015 employment incident. 

FACTUAL HISTORY 

On March 18, 2015 appellant, then a 47-year-old investigator, filed a traumatic injury 

claim (Form CA-1) alleging that on March 17, 2015 he sustained a severe concussion, dizziness, 

confusion, and injuries to his neck, back, and left eye as a result of boxes falling on his head and 

neck at work. He indicated that two boxes fell from a bookcase onto his head and neck and 

caused him to fall forward onto his face. Appellant stopped work on March 17, 2015. 

Appellant’s coworker provided a witness statement dated March 17, 2015. He stated that 

he was in appellant’s office that day at approximately 8:00 a.m., looking at wall jacks for 

computer connections when two boxes fell from the top of a bookcase and landed on appellant’s 

head and shoulder area forcing appellant to fall to the floor. The coworker noted that appellant 

declined assistance, but he informed appellant that he would report the incident to appellant’s 

supervisor. 

Appellant was treated at urgent care by Dr. Stephan Gaehde, a Board-certified internist. 

In a March 17, 2015 note, Dr. Gaehde related that appellant was at work that day when he bent 

over and hit his head on the bottom of a shelf, causing files and books to fall on the back of his 

head. Appellant complained of left-sided head pain, feeling nauseated, and confusion. Upon 

examination, Dr. Gaehde observed a pink oval, around a 15-millimeter size contusion above 

appellant’s left eyebrow and swelling over his left forehead. He opined that appellant sustained a 

head trauma with fall and elevated blood pressure. 

Dr. Glenn Nuttall, a Board-certified internist, also treated appellant and, in a March 17, 

2015 note, described that appellant was at work that day when a bookshelf fell on his head. 

Upon examination, he observed erythema and swelling over the left forehead and supple, full 

range of motion of the neck. Neurologic examination demonstrated clear speech and intact 

sensation of the upper and lower extremities. Dr. Nuttall indicated that appellant sustained a 

concussion. He recommended a computerized tomography (CT) scan. 

A March 17, 2015 CT scan report of the brain by Dr. Joan Cheng, a Board-certified 

diagnostic radiologist, revealed no acute intracranial abnormality and mild soft tissue swelling 

overlying the left supraorbital region without evidence of underlying fracture. 

In a March 17, 2015 work status note, a physician with an illegible signature noted that 

appellant was examined in urgent care on that day and would be out of work until 

March 23, 2015. 

Appellant underwent a CT head scan from Dr. Wesley Rosario-Medina, a Board-certified 

diagnostic radiologist, who indicated, in a March 18, 2015 report, that he saw no abnormal brain 

attenuation and no evidence of bleeding, mass effect, or fluid collection. Dr. Rosario-Medina 

concluded that there was no acute abnormality. 
3

Dr. Glenn A. Tucker, a Board-certified internist, began to treat appellant and reported on 

March 19, 2015 that appellant would not be released to return to work until his examination on 

March 23, 2015. 

In a March 23, 2015 report, Dr. Tucker related that on March 17, 2015 appellant was at 

work when boxes fell on his head and back. He related that appellant experienced vomiting and 

was treated at occupational health. Appellant went home for a day, but went to urgent care when 

he started vomiting again. Dr. Tucker reviewed appellant’s history and conducted an 

examination. He opined that appellant had a cerebral laceration and contusion, without mention 

of open intracranial wound, with concussion. Dr. Tucker reported that appellant’s continued 

fatigue and poor short-term memory were concerning. He recommended a magnetic resonance 

imaging (MRI) scan. 

Dr. Tucker provided a March 23, 2015 letter, which mentioned that he examined 

appellant that day and observed that appellant had fatigue and short-term memory loss from the 

prior week’s accident. He reported that appellant was not able to return to work until further 

evaluation. 

In a March 24, 2015 MRI scan report, Dr. Rosario-Medina noted a history of concussion, 

trouble remembering, headache, and blurry left eye. He reported a normal examination study. 

Appellant continued to be treated by Dr. Tucker. In records dated April 7 and 14, 2015, 

Dr. Tucker indicated that appellant was seen for follow up after a head injury at work. He 

related appellant’s current complaints of daily headaches, poor memory, delayed processing of 

information, and difficulty completing tasks. Dr. Tucker discussed appellant’s history and 

provided examination findings. He diagnosed other and unspecified cerebral laceration and 

contusion, without mention of open intracranial wound, with concussion. Dr. Tucker explained 

that he agreed with the diagnosis of concussion, even though the CT and MRI scan did not show 

it. He indicated that appellant had continued symptoms relating to the head injury sustained at 

work. Dr. Tucker also noted that given appellant’s ongoing mental status change, he should have 

a neuropsychological evaluation. He advised that appellant was not able to return to work. 

By letter dated April 14, 2016, OWCP advised appellant that the evidence submitted was 

insufficient to establish his claim. It requested that he submit additional evidence to substantiate 

that the March 17, 2015 incident occurred as alleged and to establish that he sustained a 

diagnosed condition as a result of the alleged incident. Appellant was afforded 30 days to submit 

the additional evidence. A similar letter was also sent to the employing establishment requesting 

witness statements from anyone with knowledge of the March 17, 2015 work event. 

Appellant filed a claim for wage-loss compensation (Form CA-7) for the period May 12 

to 15, 2015. 

In an April 23, 2015 outpatient neuropsychological consultation report, Dr. Paul F. 

Malloy, a clinical neuropsychologist, examined appellant for cognitive problems subsequent to a 

head injury at work. He described the March 17, 2015 employment incident and discussed the 

medical treatment appellant received. Dr. Malloy related that appellant’s wife reported a clear 

decline in cognitive functioning, increased depression, and apathy following the accident. He 
4

indicated that appellant complained of occasional headaches, easy fatigue, and persistent 

cognitive difficulties. Dr. Malloy reviewed appellant’s medical history and provided his findings 

on examination of cognitive and behavioral functioning. He opined that, given the results of his 

examination and description of appellant’s symptoms, appellant had some mild cognitive decline 

experienced from the injury. Dr. Malloy reported that appellant’s prognosis for a complete 

recovery was good. 

Dr. Tucker continued to treat appellant and, in an April 27, 2015 letter, he described the 

March 17, 2015 employment incident. He related that appellant was seen in the emergency room 

and that his examination was consistent with a severe concussion. Dr. Tucker discussed the 

medical treatment that appellant received and noted that head CT and MRI scans did not show 

injury. He reported that appellant continued to have impaired cognition and may not return to 

work before June 27, 2015. Dr. Tucker opined that appellant had continued memory and 

cognitive impairment after sustaining a severe concussion at work. 

On May 1, 2015 OWCP received appellant’s response to OWCP’s development letter. 

Appellant stated that he suffered a severe concussion on March 17, 2015 and suffered various 

issues with his recollection of details, memory, and severe head pressure. He indicated that the 

coworker had provided a witness statement to his supervisor. Appellant reiterated that he had 

very little recollection regarding the fine details of the injury and did not remember much from 

that day. He reported that he remembered that his coworker was in his office helping to move 

computers and telephone systems to their new offices down the hall. Appellant was attempting 

to get wall jack information off of the wall box located under his desk and when he bent down he 

hit a large, black bookcase located behind him. He indicated that this was when things got fuzzy, 

but he remembered being on the floor and going to occupational health. Appellant noted that he 

had not suffered any similar disabilities or symptoms before the injury and that he had not 

sustained any previous head injuries. 

A workers’ compensation program specialist at the employing establishment indicated in 

a May 12, 2015 letter that the employing establishment was questioning appellant’s entitlement 

to workers’ compensation benefits. She asserted that there was nothing in the medical evidence 

which offered positive objective diagnostic evidence or findings to support any other diagnosis 

associated with the incident that occurred on March 17, 2015 at work. 

In a decision dated May 15, 2015, OWCP denied appellant’s claim. It accepted that the 

March 17, 2015 incident occurred as alleged. However, OWCP denied appellant’s claim finding 

that the medical evidence of record was insufficient to establish that his diagnosed conditions 

were causally related to the March 17, 2015 employment incident. 

On June 10, 2015 OWCP received appellant’s request for a hearing before an OWCP 

hearing representative. 

OWCP received hospital emergency records dated March 18, 2015 by Dr. Elyssa A. 

Pellish, Board-certified in emergency medicine. Dr. Pellish described the March 17, 2015 

incident and related that MRI and CT scans were normal. She reviewed appellant’s history and 

provided physical examination findings. Appellant resubmitted Dr. Malloy’s April 23, 2015 

report. 
5

Appellant submitted reports by Dr. Tucker dated May 12 and June 23, 2015. Dr. Tucker 

noted that appellant showed slow improvement, but still had difficulty with completing tasks. 

He mentioned that appellant wanted to return to work, but he was unsure if appellant would be 

able to perform the tasks. Dr. Tucker reviewed appellant’s history and conducted an 

examination. He diagnosed other and unspecified cerebral laceration and contusion, without 

mention of open intracranial wound, with concussion unchanged from previous appointment. 

Dr. Tucker opined that appellant may need to work with a regular schedule for his remaining 

symptoms to improvement. He believed that appellant would not be physically able to return to 

the field work of surveillance. 

A hearing was held on November 20, 2015. Counsel was present. He described the 

March 17, 2015 employment incident and discussed the medical treatment appellant received. 

Counsel noted that appellant was initially examined in urgent care for confusion and nausea and 

was diagnosed with concussion by Dr. Natal. Dr. Nuttall related that appellant was examined in 

the emergency room twice before he was treated by Dr. Tucker. Counsel indicated that 

Dr. Tucker diagnosed cerebral laceration and contusion with concussion. He noted that appellant 

was examined and diagnosed on three separate occasions with a concussion resulting from the 

trauma that was reported to the doctors. Counsel further noted that appellant experienced 

symptoms such as nausea, dizziness, neck pain, and vomiting, which were common symptoms 

for someone who sustained a concussion. He also asserted that a concussion would not 

necessarily show up on a diagnostic examination, which was why appellant’s diagnostic 

examinations were normal. Counsel noted that there was only one cause for a concussion, which 

was a blow to the head very similar to what happened to appellant on March 17, 2015. He 

asserted that the facts and circumstances strongly supported a finding that that there was a direct 

connection between the diagnosed concussion and the trauma appellant sustained. 

In a December 14, 2015 letter, counsel requested that OWCP consider a December 4, 

2015 report by Dr. Tucker that he had enclosed. He described the March 17, 2015 employment 

incident and the medical treatment that appellant received. Counsel indicated that OWCP’s 

claims examiner demonstrated a lack of understanding of concussions when he denied 

appellant’s traumatic injury claim by noting that appellant’s CT and MRI scans examinations 

were normal. He asserted that all of the symptoms that appellant exhibited were the result of 

head trauma and were recognized as being consistent with a concussion as recognized by the 

three physicians that examined appellant. Counsel requested that OWCP refer appellant’s case 

to a district medical adviser or second opinion physician in order to determine whether 

appellant’s diagnosed conditions were causally related to the accepted head trauma on 

March 17, 2015. 

Dr. Tucker treated appellant and, in a December 4, 2015 letter, he described that on 

March 17, 2015 appellant was struck on the head and upper back when boxes fell on him at 

work. He related that appellant was examined by occupational health and taken to urgent care 

where he was diagnosed with a concussion. Dr. Tucker noted that he initially examined 

appellant on March 23, 2015 for complaints of fatigue and short-term memory loss. He 

diagnosed cerebral laceration and contusion with concussion. Dr. Tucker related that he 

examined appellant again on April 7, 2015 for complaints of daily headaches, poor memory, 

delayed processing of information, difficulty completing tasks, and depression. He again noted 

diagnoses of cerebral laceration and contusion with concussion and advised that appellant 
6

remained disabled from work. Dr. Tucker opined, to a reasonable degree of medical certainty, 

that appellant’s concussion was directly related to the trauma on March 17, 2015. He related that 

appellant had no history of a head trauma until he was struck on the head by falling boxes on 

March 17, 2015. Dr. Tucker noted that since then appellant suffered multiple symptoms, 

including head and neck pain, nausea, dizziness, swelling, vomiting, confusion, fatigue, shortterm memory loss, and depression, which were all symptoms of a concussion. He further noted 

that appellant was diagnosed with a concussion within hours of the March 17, 2015 incident and 

that there was no other reported incident or event which would account for appellant’s diagnosis. 

By letter dated December 22, 2015, an employing establishment official commented on 

the hearing transcript and asserted that the May 15, 2015 denial decision should be affirmed. 

She alleged that there was insufficient evidence to support that appellant sustained any diagnosed 

condition causally related to the March 17, 2015 incident. The employing establishment official 

also noted that appellant provided various accounts regarding what exactly had occurred on 

March 17, 2015 and that he had initially refused medical treatment at urgent care. The 

employing establishment submitted various e-mails between appellant and his supervisor 

regarding his claim for workers’ compensation and screenshots of postings and comments from 

appellant’s social media page. 

By decision dated February 4, 2016, an OWCP hearing representative affirmed the 

May 15, 2015 decision in part and modified it in part. She determined that the evidence was 

sufficient to establish a causal relationship between appellant’s diagnosed forehead contusion 

and the March 17, 2015 employment incident and remanded the case for OWCP to accept the 

claim for contusion of the left forehead. The hearing representative also found that the evidence 

failed to establish that appellant’s concussion was causally related to the March 17, 2015 

employment incident.3

 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4 has the burden of proof to establish the 

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

evidence5

 including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.6

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.7 

 3

 The record reveals that on March 9, 2016 OWCP issued a decision accepting appellant’s claim for left forehead 

contusion. 

4 Supra note 2. 

5

 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 

6 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

7 S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005). 
7

There are two components involved in establishing the 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.8 Second, the employee must submit 

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

employment incident caused a personal injury.9 An employee may establish that the 

employment incident occurred as alleged, but fail to show that his or her disability or condition 

relates to the employment incident.10

Whether an employee sustained an injury in the performance of duty requires the 

submission of rationalized medical opinion evidence.11 The opinion of the physician must be 

based on a complete factual and medical background of the employee, 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 employee.12 The weight of the medical evidence is determined by its reliability, its probative 

value, its convincing quality, the care of analysis manifested, and the medical rationale expressed 

in support of the physician’s opinion.13

While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility in the development of the evidence and to see that justice is done.14 

ANALYSIS 

Appellant alleged that on March 17, 2015 he sustained a concussion and injuries to his 

neck, back, and left eye in the performance of duty. OWCP accepted that the employment 

incident occurred as alleged and that appellant sustained a contusion of the forehead. It denied 

appellant’s claim finding the medical evidence of record insufficient to establish that his 

concussion was causally related to the March 17, 2015 employment incident 

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

Appellant submitted various reports and letters by Dr. Tucker dated March 19 to 

December 4, 2015. In a March 23, 2015 report, Dr. Tucker related that on March 17, 2015 

appellant experienced vomiting at work when boxes fell onto his head and back. He provided 

physical examination findings and diagnosed cerebral laceration and contusion, without open 

 8 Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968). 

9

 David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989). 

10 T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006). 

11 See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005). 

12 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

13 James Mack, 43 ECAB 321 (1991). 

14 Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell, 

34 ECAB 1233, 1237 (1983). 
8

intracranial wound, with concussion. Dr. Tucker reported again, in an April 27, 2015 letter, that 

appellant had continued memory and cognitive impairment after sustaining a severe concussion 

at work. He advised that appellant remain off work. In a December 4, 2015 letter, Dr. Tucker 

opined that appellant’s concussion was directly related to the March 17, 2015 trauma. He 

explained that appellant had no history of head trauma and that, since the March 1, 2015 work 

accident, appellant suffered from multiple symptoms, including head and neck pain, nausea, 

dizziness, swelling, vomiting, confusion, fatigue, short-term memory loss, and depression, which 

were all symptoms of a concussion. The Board notes that, although these reports do not provide 

medical rationale explaining how the accepted employment incident caused or contributed to his 

head contusion and concussion, they strongly suggest and support a relationship between the 

accepted March 17, 2015 employment incident and appellant’s head injury.15

The Board finds that, while the reports from Dr. Tucker are not completely rationalized, 

they are consistent in indicating that appellant sustained a cerebral laceration and contusion with 

concussion on March 17, 2015 and are not contradicted by any substantial medical or factual 

evidence of record.16 Dr. Tucker’s opinion is also supported by the March 17, 2015 note of 

Dr. Gaehde, who described the March 17, 2015 incident and opined that appellant sustained a 

head trauma with fall and elevated blood pressure. Although these reports are insufficient to 

meet appellant’s burden of proof to establish a claim, they raise an uncontroverted inference 

between appellant’s diagnosed head injury and the accepted March 17, 2015 employment 

incident, and thus, they are sufficient to require OWCP to further develop the medical 

evidence.17

It is well established that proceedings under FECA are not adversarial in nature and 

OWCP is not a disinterested arbiter.18 While the claimant has the burden of proof to establish 

entitlement to compensation, OWCP shares responsibility in the development of the evidence 

and to see that justice is done.19 Thus, the Board will remand the case to OWCP for further 

development to obtain a rationalized medical opinion as to whether appellant’s head condition is 

causally related to the employment incident and thereafter to issue a de novo decision on whether 

he sustained an injury causally related to the March 17, 2015 employment incident, as alleged. 

CONCLUSION 

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

 15 See L.F., Docket No. 14-1906 (issued August 13, 2015) (the Board determined that reports by a claimant’s 

treating physician strongly supported a relationship between the employment incident and diagnosed condition and 

remanded the case for OWCP to further develop the medical evidence). 

16 See E.J., Docket No. 09-1481 (issued February 19, 2010). 

17 Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, supra note 9.

18 See Vanessa Young, 56 ECAB 575 (2004). 

19 Supra note 14. 
9

ORDER 

IT IS HEREBY ORDERED THAT the February 4, 2016 merit decision of the Office 

of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further 

action consistent with this decision of the Board. 

Issued: January 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