United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

LEBANON VETERANS ADMINISTRATION 

MEDICAL CENTER, Lebanon, PA, Employer

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Docket No. 19-0772

Issued: September 4, 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

JANICE B. ASKIN, Judge

JURISDICTION

On February 25, 2019 appellant, through counsel, filed a timely appeal from a 

December 20, 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 to consider the merits of this case.3

 

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.

3 The Board notes that, following the December 20, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

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

performance of duty on June 23, 2018, as alleged.

FACTUAL HISTORY

On June 28, 2018 appellant, then a 57-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on June 23, 2018 he sustained injuries to his neck and right 

shoulder area assisting a patient while in the performance of duty. He claimed that while he was 

pulling up the patient’s thromboembolic deterrent (TED) socks, the patient pushed down on 

appellant’s head with both hands. Appellant further alleged that another staff member assisted in 

removing the patient’s hands from his neck. On the reverse side of the claim form, appellant’s 

supervisor, J.A., indicated that the employing establishment’s investigation of the incident did not 

support appellant’s statement, and that appellant had just returned to full-duty work on April 24, 

2018 after a similar injury which had occurred on February 1, 2018.

4

 JA. contended that appellant

was dissatisfied with the resolution of his previous claim as appellant believed that, surgery should 

have been authorized, and consequently, he was claiming a new injury to the same area.

In progress notes dated June 27, 2018, Dr. Bruce K. Eagleson, an emergency medical 

specialist, reported that appellant presented for a “follow-up appointment” for right-sided neck and 

shoulder pain, as the previous appointment of June 19, 2018 had been cancelled because appellant

failed to attend. He noted that, the original complaint of March 21, 2018 was for a right-sided 

neck and shoulder pain that radiated distally into the triceps-area and had recurred since a 

“previous injury [when appellant] ‘jammed head on trapeze’ on floor 3/2017[, appellant was] seen 

in [the emergency department.]” Dr. Eagleson notes a description of a new injury occurring on 

June 23, 2018 at 5:45 a.m. when appellant was attempting to put an TED hose on a demented 

patient who pushed down on appellant’s head, flexing his neck resulting in immediate pain in the 

neck with numbness, and tingling in the right shoulder and arm. On physical examination he found 

limited range of motion in the neck and shoulder. In his review of prior imaging reports,

Dr. Eagleson noted that a February 22, 2018 diagnostic study on appellant’s right shoulder found 

normal bone mineral density without fracture or dislocation, and mild-to-moderate degenerative 

changes at the right acromioclavicular joint. A cervical spine report from March 2017 revealed 

multilevel mild cervical spine degenerative changes. Dr. Eagleson recommended light-duty work. 

In a July 11, 2018 development letter, OWCP requested that appellant submit additional 

evidence in support of his claim. It advised him of the type of factual and medical evidence needed 

and provided a questionnaire for his completion, which was required to substantiate the factual 

elements of his claim. The questionnaire inquired as to the circumstances of the prior injury 

mentioned by the employing establishment and requested that appellant send records of all prior 

treatment. OWCP also requested that he provide a narrative report from his attending physician, 

to include a diagnosis and an explanation as to how the reported work incident either caused or 

aggravated a medical condition. It afforded appellant 30 days to submit the requested information. 

 

4 Appellant previously filed a traumatic injury claim for a neck/shoulder injury that allegedly occurred on 

February 1, 2018. OWCP assigned the claim OWCP File No. xxxxxx535. Appellant’s claims have not been 

administratively combined. 
3

In a July 6, 2018 progress note, Dr. Matthew Torres, a Board-certified family practitioner,

related that appellant presented for cervical and thoracic pain. He provided findings on physical 

examination and noted review of an April 3, 2018 cervical spine magnetic resonance imaging 

(MRI) scan. Dr. Torres noted that the thoracic spine findings on the MRI scan were “unrelated to 

the work injury.” He diagnosed neck pain and an abnormal MRI scan, and ordered a follow-up 

MRI scan of the thoracic spine. 

In a July 18, 2018 follow-up report, Dr. Christopher Kager, a Board-certified 

neurosurgeon, noted that appellant presented for a surgical evaluation regarding neck and radiating 

right shoulder pain. He indicated that appellant had an initial work-related injury in 2016 when he 

stood up while helping a patient and hit is head on the bar of the bed. Dr. Kager explained that, a 

month prior, appellant had another episode where a patient pushed appellant’s head down 

aggressively and he thereafter felt increased symptoms. He noted that appellant had been through 

recent shoulder issues and also had two cervical injections with minimal relief. Dr. Kager reported 

his interpretation of the April 2018 cervical spine MRI scan. He opined that, “[a]lthough it is 

impossible to say with certainty, I do believe [that appellant’s cervical spine condition] is related 

to his work-related inciden[ts] as he describes them, and he may require an IME [(independent 

medical examiner)] on [OWCP’s] part.” 

By decision dated August 16, 2018, OWCP denied appellant’s traumatic injury claim

finding that the evidence of record was insufficient to establish that the June 23, 2018 incident 

occurred as alleged. It noted that the claim was contested and he had not responded to its request 

for information. 

On September 24, 2018 appellant requested reconsideration of the August 16, 2018 

decision. 

In a work restriction note dated June 26, 2018, Dr. Eagleson restricted appellant from 

patient care duties, lifting over five pounds with the right hand, and indicated he could perform no 

driving duty, no overhead work, and no work involving ladders. 

In an October 10, 2018 note, Dr. Kager recommended a C3-6 cervical discectomy with 

fusion and plating, and diagnosed cervical disc disorder with radiculopathy of the mid-cervical 

region. He reported that surgery was scheduled for October 16, 2018 and that appellant would be 

off work for six weeks following surgery.

By decision dated December 20, 2018, OWCP denied modification of the August 16, 2018 

decision finding that appellant had not responded to its request for information from the initial 

development letter. 

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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 Supra note 2.
4

time limitation of FECA,6that 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.7 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.8

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established.9 Fact of injury 

consists of two components that must be considered in conjunction with one another. The first 

component is whether the employee actually experienced the employment incident that allegedly 

occurred.10 The second component is whether the employment incident caused a personal injury.11 

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.12 

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.13 An employee has not met his or her burden of proof of establishing 

the employment incident when there are such inconsistencies in the evidence as to cast serious 

doubt upon the validity of the claim.14

ANALYSIS

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

performance of duty on June 23, 2018, as alleged. 

Following the filing of the present claim, in a development letter dated July 11, 2018, 

OWCP notified appellant that completion of a questionnaire was needed to substantiate the factual 

basis for his claim. The questionnaire inquired as to the circumstances of the prior injury noted 

by the employing establishment and requested treatment records from that injury. Appellant did 

not respond to the questionnaire and failed to provide a narrative statement detailing the alleged 

 

6

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. 

Cameron, 41 ECAB 153 (1989). 

7

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

ECAB 312 (1988). 

8 R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); 

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

9 E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008). 

10 L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11 B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

12 L.A., Docket No. 17-0138 (issued April 5, 2017); D.B., 58 ECAB 529 (2007); Gregory J. Reser, 57 ECAB 

277 (2005).

13 L.A., id.

14 Id.
5

traumatic incident(s) or refute the allegations of the employing establishment. The record contains 

persuasive evidence of prior, nonwork injuries as well as a prior employment injury claim. As 

appellant has not responded to the factual development inquiries following the filing of the present

claim and because there is serious disagreement raised by his supervisor on the claim form, the 

Board finds that appellant has not met his burden of proof to establish that he was injured in the 

performance of duty as alleged.

15

As appellant did not establish that, the incident occurred as alleged, the Board need not 

address the medical evidence of record or the issue of causal relationship.16

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 not met his burden of proof to establish an injury in the 

performance of duty on June 23, 2018 as alleged.

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: September 4, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

15 D.A., Docket No. 18-1715 (issued May 24, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).

16 K.M., Docket No. 19-0367 (issued June 26, 2019).