United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Washington, DC, Employer

__________________________________________

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Docket No. 19-1359

Issued: April 30, 2020

Appearances: Case Submitted on the Record

Brett E. Blumstein, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On June 6, 2019 appellant, through counsel, filed a timely appeal from a May 14, 2019 

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 diagnosed 

conditions causally related to the accepted December 14, 2016 employment incident while 

performing high-risk employment duties.

FACTUAL HISTORY

On December 20, 2016 appellant, then a 48-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on December 14, 2016 he injured his left index finger while in the 

performance of duty. He explained that a bloody needle stuck through his left index finger. On 

the reverse side of the claim form, the employing establishment indicated that appellant was 

injured in the performance of duty. It did not indicate whether he had stopped work. 

In a February 8, 2018 development letter, OWCP advised appellant that the evidence of 

record was insufficient to establish his claim as he had not demonstrated that he experienced the 

incident or employment factor alleged to have caused injury. It noted the type of evidence 

necessary to establish his claim, including a comprehensive, narrative medical report from a 

qualified physician that included a diagnosis and an opinion, supported by medical rationale, 

addressing how the claimed employment incident caused or aggravated a medical condition. 

OWCP attached a questionnaire for appellant’s completion. It afforded him 30 days to submit the 

necessary evidence. In the same letter, OWCP requested that the employing establishment provide 

appellant’s treatment notes if he had been treated at an agency medical facility. 

By decision dated March 12, 2018, OWCP denied appellant’s traumatic injury claim 

finding that the evidence of record failed to establish that he was injured in the performance of 

duty, as alleged.

A December 14, 2016 memorandum from appellant’s coworker, L.L., indicated that on 

that date she was acting as charge nurse in the emergency room when appellant let her know that 

while he was cleaning a bed in emergency room 5 he was stuck by a contaminated needle. She

went to emergency room 5 with him and found that at the left edge of the bed there was an exposed 

butterfly needle attached to a vacutainer with its tubing filled with light red, fresh blood that was 

consistent with an arterial needle stick. L.L. observed two puncture marks on appellant’s left index 

finger, and she told him to go to the handwashing station for decontamination. She then called a 

coworker to bring a red top blood tube and saline flush to collect the specimen, as she thought that 

if the blood had been in the tubing for hours it was probably clotted, however, the vacuum in the 

red top tube was able to collect the entire specimen. L.L. confirmed that the sample and the needle 

were bagged and labeled and given to a registered nurse at the employing establishment for 

safekeeping and processing. The coworker also collected a blood sample from appellant. Two 

attending physicians were informed about the incident and, together with L.L., initiated a needle

stick protocol care plan. L.L. noted that she inquired about the unique identifier needed to 

appropriately identify the unknown specimen so that it could be accurately reported to the lab. 

After reviewing the daily patient log to identify possible sources of the blood and needle, she

identified three possible patients. L.L. noted that appellant had indicated, however, that the needle 

could have been in the bed when it was in use in another room. 
3

In a statement dated February 26, 2018, appellant noted that on the date of the incident he

was admitted into the emergency department and provided with the needle stick protocol. 

Immediately after the incident, he consulted Dr. Andre Michalak, his primary care physician who 

specializes in internal medicine, who referred him to Dr. Jose Bordon, a Board-certified infectious 

disease specialist. Appellant attached a December 14, 2016 report of contact he made with the 

employing establishment in response to OWCP’s request for details about his injury. He also 

noted in his statement that he had treated a patient in emergency room 5 for a wound check and 

dressing change, but no blood was drawn from the patient. Then, after the patient was discharged,

he returned to emergency room 5 and began stripping the bed when he felt a sharp pain. When 

appellant pulled his hand back he saw a BD vacutainer push button which was not retracted, and 

its tubing was full of blood. He removed his glove and saw two puncture wounds through his left 

index finger. Appellant then washed his hands and informed the charge nurse L.L. 

On October 26, 2018 appellant, through counsel, requested reconsideration. Counsel

asserted that appellant’s December 14, 2016 report of contact and L.L.’s December 14, 2016 

memorandum both provided detailed statements of the events surrounding the needle stick 

incident. He attached new evidence including an October 2, 2018 medical report by Dr. John W. 

Ellis, a Board-certified family medicine specialist, which set forth the history of appellant’s 

employment incident involving the needle stick. Counsel asserted that appellant had therefore 

established his claim. 

In the October 2, 2018 medical report, Dr. Ellis indicated that appellant had previously 

been in good health and had never been diagnosed with human immunodeficiency virus (HIV) or 

Hepatitis C. He reported that on December 14, 2016 a needle had stuck through appellant’s finger

while he was at work. Appellant noted that in January or February 2017 he had experienced

achiness and felt fatigued and tired. In February 2017, he was diagnosed with HIV and Hepatitis 

C. On February 4, 2018 appellant felt a burning sensation in his left thumb and fingers, and was 

diagnosed with cryoglobulinemia. An arteriogram revealed that his blood supply was cut off from 

his left four fingers and part of his left thumb all the way up to his left forearm. On February 7, 

2018 appellant underwent a left forearm fasciotomy, left hand fasciotomy, and left upper extremity 

fasciotomy. On February 10, 2018 he had a left upper extremity partial disclosure and tensioning 

of the fasciotomy. On February 13, 2018 appellant underwent incision and drainage of his left 

arm incision and drainage and closure of the compartment syndrome. On March 9, 2018 he had 

his left gangrenous index, middle, ring, and small fingers and the tip of his left thumb amputated. 

Dr. Ellis diagnosed HIV, Hepatitis C, cryoglobulinemia, traumatic compartment syndrome of the 

left upper extremity, blood clots of the left upper extremity requiring fasciotomy with loss of 

fingertips in the dominant left upper extremity, acquired absence of left thumb and left fingers 

secondary to fasciotomy, and orthostatic hypotension. He opined that all of these diagnoses were 

caused by appellant’s workplace needle stick. Dr. Ellis noted that after appellant’s needle stick he 

went to the occupational health unit where he was found to be HIV and Hepatitis C negative, and 

then in February 2017 was diagnosed with HIV and Hepatitis C. He opined that the timeline of 

appellant’s development of HIV and Hepatitis C was chronologically consistent with his specific 

workplace needle stick. Dr. Ellis also indicated that appellant was not a drug or needle user, and 

he opined that the infectious disease from the needle stick caused appellant’s blood to clot. The 

clotting caused an embolus in the blood vessels of appellant’s left upper arm, thumb, and digits 

and necessitated the above-noted surgeries. Dr. Ellis opined that appellant’s viral load caused his 

autonomic response, which in turn caused his orthostatic hypotension. 
4

By decision dated January 22, 2019, OWCP modified its March 12, 2018 decision finding 

that the evidence of record established that appellant was injured in the performance of duty, as 

alleged. However, the claim remained denied because the medical evidence submitted was 

insufficient to establish that his diagnosed conditions were causally related to the accepted 

December 14, 2016 event.

On April 3, 2019 appellant, through counsel, requested reconsideration. 

A March 20, 2019 medical report by Dr. Ellis indicated that he reviewed medical records

dated January 20, 2017 from Dr. Bordon, which noted that appellant was a new patient who was 

seen after his exposure to HIV. Appellant took a rapid HIV detection test which was nonreactive, 

and he was then advised to take a few more tests to confirm the status of his HIV exposure. 

Dr. Ellis also reviewed medical records dated January 27, 2017 from Dr. Bordon who indicated 

that appellant was diagnosed with exposure to a blood borne pathogen, an unspecified viral 

infection, and HIV exposure, and he was treated for HIV exposure. He reviewed a statement made 

by appellant on March 18, 2019 in which he stated that he had a partner, no prior drug use, no 

blood transfusions, and did not engage in high-risk sexual activity. Dr. Ellis furthered stated that 

he took rapid HIV tests on January 20 and 27, 2017, both of which came back negative. Appellant 

indicated that he tested positive for Hepatitis C and HIV in February 2017, approximately 60 days 

after he was struck by the needle. Dr. Ellis opined that it is medically reasonable to conclude that 

this specific chronology of initial negative results after the needle stick incident and then later 

positive results indicated that appellant developed HIV and Hepatitis C from occupational 

exposures at the employing establishment.

By decision dated May 14, 2019, OWCP denied modification of the January 22, 2019 

decision. 

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

 

3

Id.

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 April25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); 

DeloresC. Ellyett, 41 ECAB 992 (1990). 
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.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 

submit sufficient evidence to establish that the employment incident caused a personal injury.9 

Rationalized medical opinion evidence is required to establish causal relationship. The 

opinion of the physician must be based on a complete factual and medical background, 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 incident. 10 

OWCP’s procedures provide at Chapter 2.805.6 of the Federal (FECA) Procedure Manual 

as follows: 

“High-Risk Employment. Certain kinds of employment routinely present situations 

which may lead to infection by contact with animals, human blood, bodily 

secretions and other substances. Conditions such as (HIV) infection and [H]epatitis 

B more commonly represent a work hazard in health care facilities, correctional 

institutions and drug treatment centers, among others, than in [f]ederal workplaces 

as a whole.... 

“The [claims examiner] CE can accept the claim for a physical injury where one 

exists while developing the claim for a more serious condition (e.g., a puncture 

wound may be accepted while any claimed hepatitis is developed).”

11

 

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).

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 Dennis M. Mascarenas, 49 ECAB 215 (1997).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.6 (January 2013).
6

Regarding acceptance of the claim for the alleged disease, these procedures provide: 

“(b) ... the CE may accept the case if --

(1) A known carrier is involved, and the claimant had neither a prior history 

of the disease nor exposure outside of employment; or

(2) A prior test was negative and a physical injury (such as a sexual assault) 

has been accepted, even if a known carrier is not involved, if the claimant’s 

occupation puts him or her at continuous risk for contracting the disease in 

question and factors unrelated to work have not been identified as a source 

of infection. If such factors are present, the CE must carefully consider the 

medical probability of infection both outside and within the sphere of 

employment, as well as the incubation period of the disease.”

12

The claimant bears the burden of proof to establish a claim for a consequential injury. As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, establishing causal relationship. The opinion must be 

one of reasonable medical certainty and must be supported by medical rationale explaining the 

nature of the relationship of the diagnosed condition and the specific employment factors or 

employment injury.13

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, the question is whether compensability should be extended to a 

subsequent injury or aggravation related in some way to the primary injury. The rules that come 

into play are essentially based upon the concepts of direct and natural results and of the claimant’s 

own conduct as an independent intervening cause. The basic rule is that a subsequent injury, 

whether an aggravation of the original injury or a new and distinct injury, is compensable if it is 

the direct and natural result of a compensable primary injury.14

ANALYSIS

The Board finds that appellant has met his burden of proof to establish his diagnosed 

conditions of HIV and Hepatitis C are causally related to the accepted December 14, 2016

employment incident while performing high-risk employment duties.

The Board initially finds that appellant’s work as a nurse at the employing establishment 

routinely presented situations which placed him in contact with human blood, bodily secretions, 

and other potentially hazardous substances which OWCP and the Board have determined are 

 

12 Id.

13 K.W., Docket No. 18-0991 (issued December 11, 2018).

14 K.S., Docket No. 17-1583 (issued May 10, 2018); Arthur Larson & Lex K. Larson, The Law of Workers’

Compensation § 3.05 (2014).
7

common contaminants in a high-risk employment position.15 Such contact, including a needle 

stick contaminated with human blood as occurred here, was possible at the employing 

establishment in his position. Thus, appellant’s position as a nurse is found to constitute high-risk 

employment.

Having established that appellant was employed in a high-risk position at the time of the 

needle stick, it must next be determined whether his claim should be accepted for diagnoses 

associated with high-risk employment under either of the two provisions in OWCP’s 

aforementioned procedures. In support of his claim, he submitted an October 2, 2018 medical 

report by Dr. Ellis who indicated that after appellant’s December 14, 2016 needle stick incident he 

went to the employing establishment’s occupational health unit where he was tested and found to 

be HIV and Hepatitis C negative. Subsequently, in February 2017, appellant again underwent 

testing and was diagnosed as positive for HIV and Hepatitis C. No other factors outside of his

employment have been identified as a potential source of infection. Dr. Ellis opined that the 

timeline of appellant’s development of HIV and Hepatitis C is chronologically consistent with the 

specific accepted December 14, 2016 workplace needle stick. OWCP accepted that the needle 

stick occurred on December 14, 2016 and that upon initial testing he was negative, but in close 

proximity he was tested again and, within mere months following the incident, he tested positive. 

The Board finds that Dr. Ellis’ opinion regarding the timeline of the development of the positive

diagnostic testing, coupled with his high-risk occupation which put him at continuous risk for 

contracting the diseases in question and the lack of other factors likely to have been a source of 

infection, is sufficient to establish causal relationship for the conditions of HIV and Hepatitis C. 

The Board therefore finds that although the source of the blood from the butterfly needle that stuck 

appellant is unknown, appellant has satisfied all elements listed in Chapter 2.805.6(b)(2) of 

OWCP’s procedure manual, and has therefore met his burden of proof to establish that the 

diagnosed conditions of HIV and Hepatitis C must be accepted as work related.

Regarding appellant’s claim that his left upper extremity conditions were a consequence of 

the accepted injury, the Board finds that this case is not in posture for decision. 

Dr. Ellis’ October 2, 2018 medical report diagnosed additional conditions that he claimed 

were also caused by appellant’s December 14, 2016 employment incident. In addition to HIV and 

Hepatitis C, he diagnosed cryoglobulinemia, traumatic compartment syndrome of the left upper 

extremity, blood clots of the left upper extremity, and orthostatic hypotension, and he opined that 

all of these diagnoses were caused by appellant’s workplace needle stick. Dr. Ellis explained that 

the infectious diseases from the needle stick caused appellant’s blood to clot which in turn caused 

an embolus in the blood vessels of appellant’s left upper arm, thumb, and digits and necessitated 

the previously mentioned surgeries. He also opined that appellant’s viral load caused his 

autonomic response, which in turn caused his orthostatic hypotension. 

Proceedings under FECA are not adversarial in nature, and OWCP is not a disinterested 

arbiter.16 The Board finds that while Dr. Ellis’ October 2, 2018 report is insufficient to meet 

appellant’s burden of proof regarding causal relationship of the additional the left upper extremity 

 

15 Supra note 12; see also D.W., widower of T.M., Docket No. 14-0460 (issued February 11, 2016).

16 See B.B., Docket No. 18-1321 (issued April5, 2019).
8

conditions, it raises an uncontroverted inference between his additional diagnosed conditions of 

cryoglobulinemia, traumatic compartment syndrome of the left upper extremity, blood clots of the 

left upper extremity, and orthostatic hypotension and his now accepted December 14, 2016 

employment injury. Further development of appellant’s claim is therefore required. 

On remand OWCP shall prepare a statement of accepted facts and refer appellant to an 

appropriate Board-certified specialist for a second opinion examination and an evaluation 

regarding whether he sustained additional medical conditions due to or as a consequence of the 

accepted December 14, 2016 employment injury. Following such further development as deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that appellant has met his burden of proof to establish HIV and Hepatitis 

C as causally related to the accepted December 14, 2016 employment injury. The Board also finds 

that this case is not in posture for decision regarding the issue of whether appellant has met his 

burden of proof to establish additional conditions due to or as a consequence of his accepted 

December 14, 2016 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the May 14, 2019 decision of the Office of Workers’

Compensation Programs is reversed in part and set aside in part and the case is remanded for 

further action consistent with this decision of the Board. 

Issued: April 30, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board