United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

EDITH NOURSE ROGERS MEMORIAL 

VETERANS HOSPITAL, Bedford, MA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 18-1574

Issued: March 27, 2019

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 August 14, 2018 appellant filed a timely appeal from a June 20, 2018 merit 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.

ISSUE

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

performance of duty on November 13, 2017, as alleged.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On December 4, 2017 appellant, then a 58-year-old boiler plant operator, filed a traumatic 

injury claim (Form CA-1) alleging that, on November 13, 2017, he sustained a back sprain in the 

performance of duty. He indicated that he “fell as he went to sit back down in his chair.” Appellant 

stopped work on November 14, 2017.2

On the reverse side of the claim form, appellant’s supervisor indicated his disagreement 

with appellant’s description of the injury. He related that appellant had walked around during the 

day without making complaints and had not mentioned his injury until the end of the day. 

Appellant’s supervisor also alleged that appellant’s injury was caused by willful misconduct. He 

explained that appellant was participating in an alternative dispute resolution meeting and became 

emotionally reactive.

In a development letter dated December 5, 2017, OWCP informed appellant that the 

evidence of record was insufficient to establish his claim. It advised him of the type of factual and 

medical evidence necessary to establish his claim and provided a questionnaire for completion. 

OWCP afforded appellant 30 days to provide the necessary evidence.

In a December 8, 2017 letter, the employing establishment, controverted appellant’s claim 

for continuation of pay (COP).

OWCP also received a November 22, 2017 e-mail from R.M., chief of engineering service, 

who related that he was present during a mediation session when appellant became emotionally 

irate about the discussion. R.M. reported that appellant kept his left hand on his chair’s armrest 

when he stood up to hand the mediator a document. He described that, when appellant sat back 

down, he pushed the chair out from under him with his left hand and fell to the ground.3 RM.

alleged that appellant started to laugh and did not look hurt. He noted that appellant wanted to 

continue the discussion.

In a December 5, 2017 e-mail, E.G., a coworker, explained that on November 13, 2017 

appellant stood up approximately six feet away from her. She related that, as he began to sit down 

in his chair, the chair rolled backwards and he “slid” onto the floor. E.G. indicated that appellant 

remained on the floor until she offered to assist him. She noted that he did not wish to end the 

mediation session.

T.Q., a maintenance and operations supervisor, related in a November 21, 2017 e-mail that 

appellant had come to work that day to complete the required form for a work-related injury, but 

he was unable to do so.

 

2 The record reveals that appellant has a prior claim under File No. xxxxxx741, which OWCP accepted for cervical 

and thoracic sprains causally related to a July 18, 2016 employment injury. Under File No. xxxxxx033, OWCP 

accepted lumbosacral strain, kidney contusion, and lower back muscle spasms as a result of an April 26, 2017 

employment injury. Appellant stopped work and returned to modified duty on August 21, 2017.

3 An e-mail from P.G. to T.Q., dated November 30, 2017, indicated that all the chairs in room 113 were examined 

and none of them appeared to be in need of repair.
3

Appellant explained in a December 11, 2017 narrative statement that on the morning of 

November 13, 2017 he was in Building 62 participating in a meeting with three other people. He

indicated that he stood up from his chair and when he attempted to sit back down, the chair 

suddenly and unexpectedly flipped upward and rolled way, causing him to fall and land backward. 

Appellant described that he fell down with a weight of 235 pounds, from a height of between four 

to five feet. He reported that the impact was strong enough to cause immediate bruising. Appellant

asserted that the chair’s design was not recommended by the Occupational Safety and Health 

Administration (OSHA) and that the room appeared cluttered. He asserted that he sought medical 

treatment on November 15, 2017 as soon as the employing establishment completed an 

authorization for examination and/or treatment (Form CA-16). Appellant indicated that he 

completed his portion of the Form CA-1 on November 30, 2017, but he was having trouble 

accessing his account so it was not submitted until December 4, 2017. He reported that, after the 

mediation meeting, he went to the union office and the Equal Employment Opportunity (EEO) 

office and was instructed to go to employee health. Appellant further alleged that he was not upset 

in a way that contributed to his injury and he did not have an emotional reaction. He also noted 

that he did not have prior back injuries.

In a November 13, 2017 occupational health note, Teresa Chong, a nurse practitioner, 

reported that appellant had informed her that he had fallen to the floor when the chair he was going 

to sit down in rolled out of the way. Examination of appellant’s lumbar spine showed mild stiffness 

and full range of motion. Ms. Chong authorized him to work with restrictions.

On November 15, 2017 the employing establishment issued appellant a completed Form 

CA-16, which indicated that he was authorized to seek medical treatment from Dr. Steven P. 

Abreu, a Board-certified internist, for his claimed November 13, 2017 lumbar strain injury. On 

the attending physician’s report (Form CA-20) Dr. Abreu noted a November 13, 2017 date of 

injury and indicated that appellant “fell backwards at work.” He reported findings of pain and 

decreased range of motion of the lumbar spine. Dr. Abreu diagnosed lumbar strain. He checked 

a box marked “yes” indicating that appellant’s condition was caused or aggravated by the 

employment activity. Dr. Abreu noted “fall led to pain.”

OWCP received additional reports by Dr. Abreu dated November 21 and 28, 2017. 

Dr. Abreu related that on November 13, 2017 appellant had fallen backwards and struck his back 

at work. Examination of appellant’s lumbar spine demonstrated mild ecchymosis over the lumbar 

spine and pain with flexion, lateral flexion, and rotation. Dr. Abreu diagnosed low back sprain 

“related to the fall and microscopic hematuria possibly related to a renal contusion.” He also 

provided progress notes dated July 19 to August 18, 2017 regarding treatment for appellant’s

complaints of back pain.

Dr. Abreu provided additional CA-20 forms and a work capacity evaluation form (OWCP5c) dated December 11 and 19, 2017. He indicated that appellant “fell to ground while trying to 

sit at a work meeting on [December 13, 2017].” Dr. Abreu provided examination findings and 

diagnosed lumbar strain and hematoma. He checked a box marked “yes” indicating that 

appellant’s condition was caused or aggravated by an employment activity.

On December 13, 2017 appellant provided a statement outlining the timeline of events 

beginning with the alleged November 13, 2017 employment incident. He alleged that the Form 
4

CA-1 submitted by the employing establishment on December 5, 2017 was not a true 

representation of the Form CA-1 that he completed on November 30, 2017. Appellant provided a 

copy of the November 30, 2017 Form CA-1.

In a December 13, 2017 letter, the employing establishment explained that the program 

specialist, who initially completed the Form CA-1, was unable to provide all of the information 

written from the form that appellant had completed due to limited space on the electronic form.

On December 20, 2017 appellant returned to work in a full-duty capacity.

In a development letter dated December 20, 2017, OWCP requested that the employing 

establishment provide additional evidence to support its contention that appellant’s alleged 

November 13, 2017 injury was due to willful misconduct. It was afforded 30 days to respond.

In a December 20, 2017 e-mail, E.K. reported that it looked like appellant had his hands 

on the chair arms and that appellant slowly lowered himself to the floor. In a December 21, 2017 

e-mail, R.M., an engineering service chief, related that appellant had a history of filing for workers’

compensation. He asserted that appellant knew the chair had wheels and was not stationary since,

during the meeting, appellant kept sliding his chair around. R.M. related that, after appellant stood 

up to give the mediator a piece of paper, he pushed the chair back with his left hand when he sat 

back down. He indicated that appellant had a huge smile on his face when he fell to the floor. 

R.M. further reported that a couple of days later appellant was on sick leave for the alleged back 

injury, but was seen riding his motorcycle into work to complete his documentation for workers’

compensation claim.

On December 30, 2017 OWCP received a Form CA-1 with appellant’s responses to the 

employing establishment’s challenge. Appellant related that the meeting ended at approximately 

1:30 p.m. and he immediately stopped by the EEO and Union Office. He noted that at 

approximately 1500 (3:00 p.m.) he went to see his supervisor and reported the injury. Appellant 

asserted that his injury did not prevent him from walking, only from performing his duties.

By decision dated January 19, 2018, OWCP denied appellant’s traumatic injury claim, 

finding that the factual evidence of record was insufficient to establish that the November 13, 2017 

incident occurred in the performance of duty, as alleged. It noted that witness statements and his

actions surrounding the claimed employment incident cast doubt on the validity of the claim. 

On February 28, 2018 appellant requested a review of the written record by an OWCP 

hearing representative. 

By decision dated June 20, 2018, an OWCP hearing representative affirmed the 

January 19, 2018 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 
5

time limitation period of FECA,4that 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.5 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.6

In order to determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, OWCP must first determine whether fact of injury has been established.7 

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.8 Second, the employee must submit evidence, in the form 

of probative medical evidence, to establish that the employment incident caused a personal injury.9 

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.10 

Moreover, 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 the surrounding facts and circumstances and his or her 

subsequent course of action.11 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. Circumstances such 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 sufficient doubt on an 

employee’s statement in determining whether a prima facie case has been established.12 

 

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

153 (1989).

5

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

ECAB 312 (1988).

6 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).

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

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 D.B., 58 ECAB 529 (2007); Gregory J. Reser, 57 ECAB 277 (2005).

11 Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541, 

547 (1991).

12 Betty J. Smith, 54 ECAB 174 (2002).
6

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a traumatic 

injury in the performance of duty on November 13, 2017, as alleged.

Initially, the employing establishment controverted the claim alleging an affirmative 

defense of willful misconduct. OWCP’s use of an affirmative defense in denying a claim must be 

invoked in the original adjudication of the claim, and it has the burden to prove such a defense.13 

In the original January 19, 2018 decision, OWCP did not make specific findings regarding 

misconduct as an affirmative defense, but rather found that appellant had not established fact of 

injury. Accordingly, the affirmative defense of willful misconduct is not at issue in this case.14

OWCP denied appellant’s claim based on fact of injury, finding that witness statements 

and appellant’s actions surrounding the alleged November 13, 2017 injury cast doubt on whether 

he had sustained an injury at the time, place, and in the manner alleged. In his Form CA-1, 

appellant claimed that he sprained his back when he “fell as he went to sit back down in his chair”

at work. He later provided a more detailed statement. Appellant related that on the morning of 

November 13, 2017 he was participating in a mediation meeting with three other people. He

explained that he stood up from his chair to hand a paper to the mediator and while he was sitting 

back down, the chair suddenly flipped upward and rolled way, causing him to fall down. Appellant

alleged that the impact of his fall was strong enough to cause immediate bruising. 

The Board notes that there is no inconsistency in the evidence of record with regard to the 

time and place of appellant’s alleged injury. The Board finds, however, that there are sufficient 

inconsistencies surrounding the manner in which he allegedly sustained a back injury to deny fact 

of injury. Specifically, statements from witnesses and appellant’s coworkers cast serious doubt on 

the validity of appellant’s claim and overcome the probative value generally afforded to a 

claimant’s statement of how he was injured.15 

In a November 22, 2017 statement, R.M., a witness who was present during the mediation 

session, related that appellant became emotionally irate during the meeting. He reported that 

appellant partially stood up to give the mediator a document and kept his left hand on the chair’s 

armrest. R.M. noted that when appellant sat back down, he pushed the chair out from under him 

with his left hand and fell to the ground. He alleged that appellant started laughing and wished to 

continue with the mediation. E.G., another witness present at the mediation session, likewise 

reported that as appellant began to sit down, his chair rolled backwards and appellant “slid” onto 

the floor. She related that he did not wish to end the mediation. In a December 20, 2017 e-mail, 

E.K., a third witness at the mediation, described that appellant had stood up and appeared to slowly 

lower himself to the floor. 

 

13 See B.P., Docket No. 17-058 (issued March 12, 2018); see also Brenda J. Bouette, Docket No. 05-1477 (issued 

December 14, 2005).

14 See A.P., Docket No. 18-0886 (issued November 16, 2018).

15 See D.P., Docket No. 18-0190 (issued May 22, 2018).
7

The Board finds that the uniformity in the three witness statements corroborate that 

appellant did not fall, but rather was aware that the chair was rolling away and lowered himself 

onto the floor. Appellant has not provided evidence into the record to indicate that R.M., E.G., or 

E.K. were biased against appellant’s version of the incident. Additionally, there is no reason to 

discount their version of the incident and observance of appellant’s behavior. The Board finds that 

these statements cast serious doubt on the validity of appellant’s claims.16 

The Board thus finds that appellant, has not met his burden of proof to establish that the 

November 13, 2017 incident occurred in the performance of duty, as alleged. Consequently, it is 

unnecessary to address the medical evidence of record.17

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 10.607.18

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a traumatic 

injury in the performance of duty on November 13, 2017, as alleged.

 

16 See A.B., Docket No. 14-0522 (issued November 9, 2015) (the Board found that a claimant did not establish fact 

of injury when statements by the claimant’s coworker and supervisor indicated that the claimant staged a fall and were 

not consistent with the claimant’s version of events).

17 See M.P., Docket No. 15-0952 (issued July 23, 2015); Alvin V. Gadd, 57 ECAB 172 (2005).

18 The Board notes that it appears that the employing establishment issued appellant a signed authorization for 

examination and/or treatment (Form CA-16) authorizing treatment. The Board has held that where an employing 

establishment properly executes a CA-16 form, which authorizes medical treatment as a result of an employee’s claim 

for an employment-related injury, it creates a contractual obligation which does not involve the employee directly to 

pay the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300, 

10.304; R.W., Docket No. 18-0894 (issued December 4, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the June 20, 2018 merit decision of the Office of

Workers’ Compensation Programs is affirmed.

Issued: March 27, 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