United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Phoenix, AZ, Employer

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Docket No. 18-1456

Issued: July 3, 2019

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 July 27, 2018 appellant, through counsel, filed a timely appeal from a May 21, 2018 

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 has met his burden of proof to establish a traumatic injury 

in the performance of duty on January 18, 2017, as alleged.

FACTUAL HISTORY

On January 19, 2017 appellant, then a 58-year-old housekeeping aid, filed a traumatic 

injury claim (Form CA-1) alleging that, on January 18, 2017, he dislocated fingers on his left hand

while in the performance of duty because a scrubber was “rigged by someone” and did not operate 

properly.

On March 17, 2017 appellant filed a claim for compensation (Form CA-7) for wage loss 

for the period March 9 to 20, 2017.

In a development letter dated March 24, 2017, OWCP informed appellant that initially his 

claim appeared to be for a minor injury that resulted in minimal or no lost time from work and, as 

such, payment of a limited amount of medical expenses was administratively approved. It 

explained, however, that it had reopened the claim for formal consideration of the merits upon 

receipt of his claim for wage-loss compensation. OWCP requested additional factual and medical 

evidence and afforded appellant 30 days to respond. 

In a January 19, 2017 report, Dr. Todd K. Farnworth, a Board-certified plastic surgeon, 

diagnosed sprain of proximal interphalangeal (PIP) joints of the left index and middle finger. He

noted that appellant was injured “while working bumping [his] hand against a door frame suffering 

a dislocation of the PIP joint area of the left index and middle fingers.” Appellant reportedly 

relocated his fingers himself and then presented to the emergency department and had x-rays

completed. His fingers had been buddy taped together since January 18, 2017, the date of the 

alleged injury. Dr. Farnworth recommended splinting in a slightly flexed position for two more 

weeks followed by physical therapy. 

On January 23, 2017 Dr. Farnworth indicated that appellant, who worked in housekeeping 

and “cleans floors nightly,” sustained a work-related injury when his “hand hit the metal door 

frame due to equipment malfunction.” He opined that appellant’s blunt trauma with continued 

pain and limited motion affected his functional use.

In a statement on an employing establishment report of contact form dated April 6, 2017,

E.M. stated that he was appellant’s coworker and in the month of January 2017 they were both 

“top scrubbing and burnishing the Emerald Clinic located on the 1st floor of the ACC.” He

reported that appellant told him that “he needed to go to the [e]mergency [r]oom because his 

diabetes was acting up and vision was getting blurry.” A few hours later, E.M. went out to smoke 

and appellant came out not too long after and told him that he had fractured his fingers. He stated 

that he personally knows that appellant is lying because a few months prior, appellant explained

that his fingers would never get fixed because of his past experiences. E.M. further indicated that 

he was working side-by-side with appellant the entire time and the machine worked just fine. He 

noted that they used that machine on a day-to-day basis and in no way possible could the machine 

be jammed. E.M. stated that appellant had informed the lead, J.J., that he had plugged in the 
3

machine and it just took off and his hand got stuck, but appellant had never mentioned it to him

and only stated that he needed to see a physician in regards to his diabetes.

Appellant underwent a left middle finger PIP volar plate arthroplasty on April 19, 2017. 

By decision dated May 3, 2017, OWCP denied appellant’s claim finding that the evidence 

of record was insufficient to establish that the January 18, 2017 incident occurred, as alleged.

On February 27, 2018 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence. He also submitted a narrative statement asserting that E.M.’s 

statement that his left hand was already injured before he was hired was untruthful.

An employee health note dated January 19, 2017 indicated that appellant worked as a 

member of the floor crew to report an injury and was initially seen in the emergency room the 

night before. Appellant reported that after prepping the floor to be scrubbed he put the pad down 

to place the scrubber on it and when he turned the scrubber on, it snatched away from him and his 

hand was on the handle and it smashed it against the door jam. He alleged that somebody modified 

the scrubber and put a cap on that made the scrubber slide and pull away. Appellant noted that his 

left middle finger was bent and he tried to pull and straighten it, but was unable. He noted that the 

other two fingers (index and ring) were sore from hitting the door jam.

By decision dated May 21, 2018, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA 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,3that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

to the employment injury.4 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.5 

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether fact of injury has been established. A 

fact of injury determination is based on two elements. 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 sufficient evidence, generally 

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

 

3 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).
4

injury. An employee may establish that the employment incident occurred as alleged, but fail to 

show that his or her condition relates to the employment incident.6

An employee has the burden of proof to establish the occurrence of an injury at the time,

place, and in the manner alleged, by a preponderance of the reliable, probative, and substantial 

evidence. 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.7 

An injury does not have to be confirmed by eyewitnesses in order to establish the fact that an 

employee sustained an injury in the performance of duty, as alleged, but the employee’s statements 

must be consistent with surrounding facts and circumstances and his or her subsequent course of 

action.8 An employee has not met his or her burden of proof to establish the occurrence of an 

injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity 

of the claim. Such circumstances as late notification of injury, lack of confirmation of injury, 

continuing to work without apparent difficulty following the alleged injury, and failure to obtain 

medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statement 

in determining whether a prima facie case has been established.9 

ANALYSIS

The Board finds that appellant has met his burden of proof to establish that the January 18, 

2017 employment incident occurred in the performance of duty, as alleged.

On his claim form, appellant alleged that he “dislocated fingers on left hand” on 

January 18, 2017 because a scrubber was “rigged by someone” and did not operate properly. With 

his request for reconsideration, appellant further submitted a January 19, 2017 employee health 

note which included his own statements that “after prepping the floor to be scrubbed in the Emerald 

Clinic, I put the pad down to put the scrubber on it. When I [turned] the scrubber on, the scrubber 

snatched away from me and my hand was on the handle and it smashed it against the door jam. 

When I looked, somebody modified the scrubber and put a cap on that made the scrubber slide and 

pull me away. My [left] middle finger was bent and I tried to pull and straighten it, but I was 

unable to straighten it. The other 2 fingers (index and ring) are sore from hitting the door jam.” 

OWCP denied his claim as it found that he had not established that the January 18, 2017 

employment incident occurred, as alleged.

The Board finds that the evidence of record does not contain inconsistencies sufficient to 

cast serious doubt on appellant’s version of the occurrence of the employment incident.10 

 

6

Id.

7 See Constance G. Patterson, 41 ECAB 206 (1989); Thelma S. Buffington, 34 ECAB 104 (1982).

8 Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995).

9 L.B., Docket No. 17-2023 (issued August 21, 2018).

10 C.V., Docket No. 15-0615 (issued September 13, 2016).
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Appellant has consistently described the employment incident as occurring on January 18, 2017 

when he turned a scrubber on and it smashed his left hand against a door jam.

As noted, 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 and persuasive 

evidence.11 While appellant’s coworker, E.M., stated that appellant needed to go to the emergency 

room due to his diabetes and he personally knew that appellant was lying, he also corroborated the 

fact that he and appellant were both “top scrubbing and burnishing the Emerald Clinic located on 

the 1st floor of the ACC.” The Board finds that, under the circumstances of this case, appellant’s

allegations of sustaining a left hand injury due to using a scrubber at work have not been refuted 

by strong or persuasive evidence and there are no inconsistencies sufficient to cast serious doubt 

on his version of the employment incident.12 The employing establishment did not controvert the 

claim and he sought medical treatment on January 19, 2017 the day after the alleged work incident.

As appellant has established that the January 28, 2017 employment incident occurred as 

alleged, further consideration of the medical evidence is necessary.13 For these reasons, the case 

will be remanded to OWCP to evaluate the medical evidence and determine whether he sustained 

a medical condition or disability causally related to the accepted January 18, 2017 employment 

incident.14 After any further development as it deems necessary, OWCP shall issue a de novo

decision.

CONCLUSION

The Board finds that appellant has met his burden of proof to establish a traumatic injury 

in the performance of duty on January 18, 2017, as alleged. The further finds, however, that the 

case is not in posture for decision with regard to causal relationship between appellant’s medical 

condition(s) and the accepted January 18, 2017 employment incident.

 

11 Supra note 7; see also M.T., Docket No. 17-1934 (issued September 19, 2018).

12 Supra note 10.

13 M.D., Docket No. 18-1365 (issued March 12, 2019).

14 See supra note 7.
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ORDER

IT IS HEREBY ORDERED THAT the May 21, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: July 3, 2019

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