United States Department of Labor

Employees’ Compensation Appeals Board

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S.W., Appellant

and

DEPARTMENT OF THE AIR FORCE, 283rd

COMBAT COMMUNICATIONS SQUADRON, 

DOBBINS AIR FORCE BASE, GA, Employer

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Docket No. 19-0653

Issued: November 21, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 1, 2019 appellant filed a timely appeal from a January 17, 2019 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.2

ISSUE

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

performance of duty, as alleged. 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 17, 2019 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 

evidence for the first time on appeal. Id. 
2

FACTUAL HISTORY

On June 26, 2018 appellant, then a 43-year-old security manager, filed a traumatic injury 

claim (Form CA-1) alleging that on January 2, 2018 he injured his lower back while in the 

performance of duty. He explained that when he lifted an elliptical machine off of a furniture dolly 

with the help of another person, the machine slipped, causing appellant to quickly adjust, which 

jarred his back and caused sciatic nerve damage. On the reverse side of the claim form, the 

employing establishment acknowledged that the incident occurred while appellant was in the 

performance of duty. It further indicated that appellant stopped work on January 2, 2018 and 

returned to work on January 8, 2018.

On July 3, 2018 OWCP received appellant’s hospital records indicating that he was seen

in the emergency room for right leg pain, right lower back pain, and intermittent numbness.

Appellant indicated that on December 26, 2017 while he was carrying an elliptical machine he had

to shift his back, which resulted in immediate muscle spasms and pain in his right lower back. He 

reported that the pain had improved, but he still experienced numbness in his right leg when sitting

for a significant period of time. The records also noted that the “current episode” of his pain began 

gradually and over two days ago, and that the issue occurs on a daily basis and was related to his

twisting and lifting heavy objects. They documented that the pain was in appellant’s lumbar spine 

and was moderate, but shooting and stabbing radiated to the right thigh, and worsened with 

particular positions. The records recorded that other symptoms included paresthesias, leg pain, 

and numbness. 

Dr. Jay P. Patel, a Board-certified diagnostic radiologist, found that appellant experienced 

pain in his lumbar back, and in an anatomy diagram he circled the lower right back to indicate 

where appellant’s pain was located. He found that appellant’s lumbar back had “normal range of 

motion, no tenderness, no bony tenderness, no swelling, no edema, no deformity, no laceration, no 

spasm and normal pulse.” An x-ray of appellant’s lumbar spine indicated that his “vertebral body 

heights and alignments are maintained. No acute fracture or dislocation. Soft tissues are otherwise 

grossly unremarkable,” and “no acute osseous abnormalities.” 

A nurse practitioner, Eleanor E. Girodo, indicated that appellant had lumbar radiculopathy

and diagnosed appellant with right-sided sciatica and acute right-sided low back pain. She 

prescribed medication and provided follow-up advice. The nurse practitioner additionally

recorded that appellant would be able to return to work on January 5, 2018. The records indicated

that appellant was also diagnosed with hypertension and skin paresthesia and discharged on

January 3, 2018.

In a December 13, 2018 development letter, OWCP advised appellant that, when his claim 

was received, it appeared to be a minor injury that resulted in minimal or no lost time from work. 

The claim was administratively approved to allow payment for limited medical expenses, but the 

merits of the claim had not been formally adjudicated. OWCP advised appellant that his claim 

was being reopened due to unpaid bills. However, additional evidence was required in support of 

his claim for compensation benefits. OWCP advised appellant of the type of factual and medical 

evidence needed and provided a questionnaire for his completion. It afforded him 30 days to 

submit the requested evidence. 
3

On January 10, 2019 appellant called OWCP and indicated that he was injured on 

December 26, 2017 and went to see a physician on January 2, 2018. The claims examiner 

memorialized the conversation in a memorandum (Form CA-110). Additionally, appellant 

submitted an undated incident report signed by his supervisor, his unit safety representative, and 

his commander. The report indicated that on December 26, 2017 while in the performance of duty 

appellant and another sergeant were transporting an elliptical machine to the new gym area with a 

dolly, and when they removed the elliptical machine from the dolly the machine moved quickly, 

causing appellant to strain his back. The report listed the other sergeant involved in the incident

as a witness.

By decision dated January 17, 2019, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that he sustained an injury in the performance of 

duty, as alleged. It noted that he had not returned OWCP’s development questionnaire, which was 

needed to clarify the contradicting evidence on the date of the employment injury. OWCP

concluded, therefore, that the requirements had not been met to establish an injury as defined by 

FECA. 

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 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

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.7 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 

 

3 Supra note 1.

4

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). 

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 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). 

7 R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);

Bonnie A. Contreras, 57 ECAB 364 (2006).

8 S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).
4

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

employment incident caused a personal injury.9

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, but the employee’s statements must 

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

action.10 The employee has not met his or her burden of proof to establish the occurrence of an 

injury when there are inconsistencies in the evidence that 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 sufficient doubt on an employee’s 

statements in determining whether a prima facie case has been established. An employee’s 

statements 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.11 

ANALYSIS

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

On his June 26, 2018 Form CA-1, appellant alleged that he injured his lower back on 

January 2, 2018 when he lifted an elliptical machine off of a furniture dolly with the help of another 

person, and the machine slipped, causing him to quickly adjust. However, appellant’s January 3, 

2018 emergency room treatment records reflected that he reported having been injured on 

December 26, 2017 while carrying an elliptical machine. OWCP subsequently requested that 

appellant clarify the discrepancy regarding the date of injury, and provided him a factual 

questionnaire to complete and submit. Although appellant did not return the factual questionnaire, 

he telephoned OWCP (CA-110 notes) on January 10, 2019 and advised that he was injured on 

December 26, 2017. He also submitted an employing establishment incident report, which 

indicated that he and another employee were transporting an elliptical machine on a dolly when 

the machine moved quickly, causing appellant to strain his back.

The Board finds that appellant established that the incident involving the elliptical machine 

occurred as alleged, on December 26, 2017. The employing establishment incident report, coupled 

with the contemporaneous January 3, 2018 emergency room treatment records, as well as 

appellant’s subsequent clarification establish that the alleged incident occurred on 

December 26, 2017. Moreover, appellant has provided a single account of the mechanism of 

injury that has not been refuted by any evidence in the record.12 As noted above, a claimant’s 

statement that an injury occurred at a given time and place, and in a given manner is of great 

 

9 A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008); 

D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 7.

10 M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11 See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

12 B.S., Docket No. 19-0524 (issued August 8, 2019). 
5

probative value and will stand unless refuted by strong or persuasive evidence.13 The Board 

therefore finds that appellant has established that the December 26, 2017 employment incident 

occurred in the performance of duty, as alleged. 

As appellant has established that the December 26, 2017 employment incident factually 

occurred, the question becomes whether this incident caused a personal injury.14 The Board will, 

therefore, remand the case for consideration of the medical evidence. Following this and other 

such further development as deemed necessary, OWCP shall issue a de novo decision addressing 

whether appellant has met his burden of proof to establish an injury or condition causally related 

to the accepted December 26, 2017 employment incident.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the January 17, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board.

Issued: November 21, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

13 Supra note 11. 

14 Supra note 12.