United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.E., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL BASE 

KITSAP, Bremerton, WA, Employer

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Docket No. 18-1612

Issued: February 25, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 21, 2018 appellant filed a timely appeal from a July 9, 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 a back injury in the 

performance of duty on May 1, 2018, as alleged.

FACTUAL HISTORY

On May 16, 2018 appellant, then a 42-year-old store worker, filed a traumatic injury claim 

(Form CA-1) alleging that, at 9:00 a.m. on May 1, 2018, he developed extreme pain in his 

 

1 5 U.S.C. § 8101 et seq.
2

mid-back, ribs, and torso and “severe back strain” while reaching to stock and condense 

merchandise onto a top shelf at work. No evidence was submitted with his claim. 

Appellant’s manager noted on the reverse side of the claim form that she received notice 

of the claimed injury on May 16, 2018. She checked a box marked “yes” indicating that appellant 

was in the performance of duty when injured. Appellant’s manager further indicated that her 

knowledge of the facts about the injury agreed with appellant’s statements. 

OWCP, by development letter dated May 23, 2018, informed appellant that the evidence 

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

evidence needed and provided a questionnaire for his completion, which requested that he clarify 

whether he was claiming an occupational disease or a traumatic injury. Appellant was afforded 

30 days to submit the requested evidence. 

Appellant subsequently submitted medical evidence. In a progress note dated May 15, 

2018, Dr. Courtenay N. Havers, a Board-certified family practitioner, noted that appellant had 

related a history of injuring his back while working at the employing establishment. She explained 

that two weeks prior he reached overhead to stock potato chips onto a shelf and experienced a 

sudden spasm in the mid-thoracic spine. Dr. Havers noted that, on the date of injury, appellant

was treated in urgent care by Dr. Keith C. Tang, a Board-certified family practitioner, who

diagnosed lumbar spine strain. She examined him, diagnosed strain of the lumbar region, 

subsequent encounter, and addressed his treatment plan and work capacity. Dr. Havers reiterated 

her diagnosis of lumbosacral strain and provided follow-up instructions for appellant’s condition 

in an appointment details report dated May 15, 2018. 

In a June 4, 2018 duty status report (Form CA-17), Dr. Paul S. Darby, Board-certified in 

occupational medicine, listed the date of injury as May 1, 2018 and provided a diagnosis due to 

injury of thoracic strain. He advised that appellant could perform his regular work with restrictions 

of intermittent sitting, standing, walking, and pulling/pushing up to 20 pounds. In a narrative

report dated June 4, 2018, Dr. Darby again noted May 1, 2018 as the date of injury. He related 

that appellant was seen for a back injury. Dr. Darby discussed examination findings, but did not 

provide a medical diagnosis. 

An attending physician’s report (Form CA-20) and a Form CA-17 report dated May 1, 

2018 with an illegible signature provided a diagnosis of thoracolumbar strain and noted an injury 

date of May 1, 2018. The reports indicated that appellant developed an instant sharp pain in his 

back while shelving potato chips at work. The reports further indicated that the diagnosed 

condition was due to the claimed May 1, 2018 injury and provided work restrictions.

In a May 1, 2018 report, Dr. Tang related a history of injury that, at 9:00 a.m. on that same 

date, appellant felt back pain and strain while bending over, lifting things, and stocking shelves at 

work. He diagnosed low back sprain. 

In work notes dated May 9 and 16, 2018, Anthony Lyon-Loftus, a certified physician 

assistant, noted appellant’s complaint of back pain and addressed his work capacity and 

restrictions. In a referral order dated May 9, 2018, he referred appellant to physical therapy to 

treat his diagnosed lumbar sprain. 
3

Dr. Havers, in a work capacity evaluation (Form OWCP-5c) dated May 15, 2018, restated 

her diagnosis of lumbar strain and discussed appellant’s work capacity. 

An unsigned assessment and plan report dated May 16, 2018 provided a diagnosis of 

lumbar sprain and listed appellant’s vitals, plan of care, and current medications. 

Dr. Darby, in a progress note dated June 4, 2018, indicated that appellant presented with a 

back injury sustained on May 1, 2018. He related that appellant developed acute mid-back pain 

as he simply placed a can of Pringles onto a shelf while working as a stocker at a grocery store. 

Dr. Darby reported examination findings and diagnosed resolved thoracic strain. 

In a June 18, 2018 Form CA-17 report, Dr. Havers noted that a history of injury that her

unidentified patient felt a pull in his back while lifting cases of illegible frozen items. She did not 

mention a date of injury. Dr. Havers reiterated his diagnosis of lumbar spine strain and diagnosed 

thoracic spine strain. She advised that the diagnosed conditions were due to injury. Dr. Havers 

provided work restrictions. 

By decision dated July 9, 2018, OWCP denied appellant’s claim, finding that the evidence 

of record was insufficient to establish that the May 1, 2018 employment incident occurred, as 

alleged. It noted that he did not respond to its May 23, 2018 questionnaire regarding the nature of 

his condition or injury and claim. Therefore, appellant did not meet the requirements for 

establishing an injury as defined by FECA. 

LEGAL PRECEDENT

An employee seeking benefits under FECA2has 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 filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 

employment injury. These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3

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

performance of duty, it first must be determined whether fact of injury has been established. 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. Second, the employee must submit medical evidence to 

establish that the employment incident caused a personal injury.4 

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 

 

2

Id.

3 A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

4 A.D., id.; T.H., 59 ECAB 388 (2008).
4

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

action. 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 sufficient doubt on an employee’s 

statements in determining whether a prima facie case has been established. However, 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.5

ANALYSIS

The Board finds that appellant has established that the employment incident occurred while 

in the performance of duty on May 1, 2018, as alleged.

Although appellant did not respond to OWCP’s May 23, 2018 development questionnaire

regarding the nature of his claimed injury, the Board finds that the evidence of record is sufficient

to establish that a specific traumatic incident of reaching to stock and condense merchandise at 

work occurred in the performance of duty on May 1, 2018, as alleged.

On his May 16, 2018 Form CA-1, appellant identified reaching to place merchandise onto 

a top shelf as the cause of his back injury. Moreover, he provided a single account of the 

mechanism of injury, specifically attributing his self-reported extreme pain in his central back, 

ribs, and torso, and severe back strain to the May 1, 2018 employment incident, and sought

emergency medical treatment on the date of the employment incident. The medical reports of 

Drs. Havers, Tang, and Darby, and reports with an illegible signature all substantiate appellant’s 

claim, which note a May 1, 2018 back injury after he reached to place merchandise onto a shelf at 

work. In addition, Dr. Havers diagnosed appellant as having back strain. Although appellant did 

not notify his manager about his injury until May 16, 2018, the manager indicated on the Form 

CA-1 that appellant was in the performance of duty and her knowledge of the facts about the injury 

agreed with his statements. 

The Board finds that appellant’s statements are consistent with the surrounding facts and 

circumstances in that he sought medical treatment on the same date as the employment incident, 

consistently reported to medical personnel that he was injured on May 1, 2018, and was diagnosed 

as having a back strain, and that the employing establishment agreed with his statement of facts. 

Accordingly, appellant has established that he was reaching to stock and condense merchandise

onto a top shelf in the performance of duty on May 1, 2018.6

Given that appellant has established that the May 1, 2018 employment incident occurred 

as alleged, the issue turns to whether this incident caused an injury. As OWCP denied his claim 

based on a finding that he had not established the factual element of the claim, it did not develop 

or evaluate the medical evidence of record. Thus, the Board will set aside OWCP’s July 9, 2018 

 

5 L.F., Docket No. 17-0689 (issued May 9, 2018).

6 See L.D., Docket No. 16-1793 (issued February 6, 2017); A.J., Docket No. 16-0339 (issued July 18, 2016).
5

decision and remand the case for further development of the medical evidence to determine 

whether appellant sustained an injury causally related to the May 1, 2018 employment incident 

and if so, to also determine the nature and extent of disability, if any.7 After this and any further 

development, as deemed necessary, OWCP shall issue a de novo decision on the issue of whether 

he has met his burden of proof to establish an employment-related injury.

CONCLUSION

The Board finds that appellant has established that the employment incident occurred in 

the performance of duty on May 1, 2018, as alleged. The Board finds, however, that the case is 

not in posture for decision regarding whether he has established a traumatic injury causally related 

to the accepted May 1, 2018 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the July 9, 2018 decision of the Office of Workers’

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

with this opinion of the Board

Issued: February 25, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

7 See J.L., Docket No. 17-1712 (issued February 12, 2018).