United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

CENTRAL INTELLIGENCE AGENCY, 

Chantilly, VA, Employer

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Docket No. 18-1803

Issued: April 19, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 27, 2018 appellant filed a timely appeal from a July 27, 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.2

ISSUE

The issue is whether appellant has met her burden of proof to establish a traumatic injury

on January 24, 2018 while in the performance of duty, as alleged.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the issuance of OWCP’s July 27, 2018 decision and on appeal, appellant submitted 

additional evidence. However, section 501.2(c)(1) of 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 January 29, 2018 appellant, then a 57-year-old special assistant, filed a traumatic injury

claim (Form CA-1) alleging that at 3:45 p.m. on January 24, 2018 she developed pain and 

numbness in her lower back with radiculopathy, as well as a small bruise on her lower left shin, 

when she packed files and lifted boxes while cleaning a file room. On the reverse side of the claim 

form, appellant’s supervisor, A.A., indicated that she was in the performance of duty when injured.

In an undated statement, A.A. wrote that she discussed appellant’s restrictions of no heavy 

lifting, reaching, movement of heavy items, or standing for long periods with appellant. She

indicated that she assured appellant that she would not be required to do anything that would cause 

her discomfort and that she would receive assistance with moving items during the project, which 

was expected to take multiple days. A.A. identified an individual who assisted appellant on at 

least one occasion. She also noted that she reminded appellant on the date of the alleged injury 

that she was not expected to move or carry anything that was heavy or difficult.

In a return to work note dated January 31, 2018, Dr. Alok Rustogi, a Board-certified 

internist, indicated that appellant was under his care for low back pain and radiculopathy. He

noted that she was able to return to work on February 12, 2018 and should continue with spinal 

precautions, including no lifting, bending, twisting, pushing, or pulling. Dr. Rustogi also indicated 

that appellant should continue with physical therapy three times per week.

A workers’ compensation summary report for a visit from January 25, 2018, noted that

Dr. Khodaidad Basharmal, a Board-certified internist, treated appellant for sprain of ligament of 

lumbar spine. The report further noted light-duty work restrictions beginning January 26, 2018 

with a full-duty release date of February 5, 2018.

In a development letter dated February 14, 2018, OWCP notified appellant that the 

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

medical evidence required and provided a questionnaire for her completion. OWCP afforded 

appellant 30 days to provide the necessary information.

On March 9, 2018 appellant responded to OWCP’s questionnaire. She noted that A.A. 

advised her on the date of the alleged injury to “get help with the boxes.” Appellant indicated that 

she sought help from the individual identified in A.A.’s statement and other colleagues, but the 

help she received was “sporadic at best.”

In a March 8, 2018 statement, Dr. Rustogi detailed appellant’s condition. He diagnosed 

radiculopathy of the lumbosacral region, which he indicated was causally related to unaccustomed 

heavy work of lifting and transferring heavy case files.

In a medical report dated March 14, 2018, Dr. Rae Davis, a Board-certified physical 

medicine and rehabilitation specialist, discussed an evaluation for comprehensive pain care.

By decision dated March 20, 2018, OWCP denied appellant’s claim, finding that she had 

not established that the injury or events occurred as she described. It explained that the facts 

surrounding the injury were unclear as the employing establishment’s statement conveyed that 

appellant received assistance and was expected not to move heavy items. 
3

OWCP subsequently received additional medical evidence, including medical recordsfrom

Dr. Basharmal dated March 28, April 10, and May 12, 2018, where he discussed her history, x-ray 

examination results, and other observations.

On May 30, 2018 appellant requested reconsideration. With her request she provided a 

statement explaining that a colleague had assisted with lifting boxes on one occasion, but 

continuous assistance was not made available, and none of the individuals who were identified as 

available to assist provided help. She also submitted additional evidence, including a follow-up 

medical report from Dr. Rustogi dated April 16, 2018 and associated examination notes. 

Dr. Rustogi explained that appellant was injured while performing unaccustomed heavy lifting and 

transferring of heavy case files and boxes. He diagnosed radiculopathy and opined that it was 

caused directly as a result of the employment incident on January 24, 2018. Dr. Rustogi further 

noted that a magnetic resonance imaging scan performed April 3, 2018 revealed left lateral 

foraminal disc herniation at the L4-5 level.

Appellant also submitted a May 12, 2018 medical report from Dr. Martin Franco 

Tolentino, a Board-certified family practitioner. Following up on Dr. Basharmal’s report, he noted 

that appellant continued to report pain and discomfort in her left leg, with some intermittent or 

occasional pain on the right side.

OWCP also received physical therapy notes dated January 30 to March 29, 2018; 

diagnostic test results dated November 11, 2016 and April 3, 2018; and e-mails from appellant, 

her supervisors, and other colleagues in planning the file room cleanout and identifying individuals 

who could assist appellant. 

By decision dated July 27, 2018, OWCP denied modification of its March 20, 2018 

decision, finding that the evidence of record was insufficient to establish that the employment 

incident occurred as alleged.

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 

time limitation period of FECA,3and that 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.4 These are the essential elements of each and every 

 

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

153 (1989).

4

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

ECAB 312 (1988).
4

compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an 

occupational disease.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. 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.6 Second, the employee must 

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

employment incident caused a personal injury.7

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 her subsequent course of action. 

The employee has not met 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 serious doubt on an employee’s statements in determining 

whether a prima facie case has been established. 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.8

ANALYSIS

The Board finds that appellant has met her burden of proof to establish that the January 24, 

2018 employment incident occurred in the performance of duty, as alleged.

On the January 29, 2018 Form CA-1, appellant’s supervisor, A.A., indicated that appellant

was in the performance of duty when the injury was alleged to have occurred. While A.A. also 

indicated that she disagreed with the facts involving the injury as alleged by appellant, she did not 

dispute the fact that appellant was performing her assigned work duties when the employment 

incident allegedly occurred.

In the present case, the evidence of record supports that appellant’s duties as a special 

assistant involved assisting in various office projects which were the tasks she alleged she was 

performing when injured on January 24, 2018.

 

5 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).

6 M.M., Docket No. 17-1522 (issued April 25, 2018); John J. Carlone, 41 ECAB 354 (1989).

7

J.N., Docket No. 18-0675 (issued December 10, 2018); E.H., Docket No. 16-1786 (issued January 30, 2017).

8 M.J., Docket No. 17-1810 (issued August 3, 2018); S.P., Docket No. 10-0431 (issued November 24, 2010); Mary 

Joan Coppolino, 43 ECAB 988, 991 (1992).
5

The back injury appellant allegedly sustained on January 24, 2018 is also consistent with 

the facts and circumstances she set forth, her course of action following the alleged incident, and 

the medical evidence she submitted. The history of the work incident was confirmed by 

contemporaneous medical reports. She sought prompt medical care, first with Dr. Basharmal and 

later with Dr. Rustogi, her primary care physician, who diagnosed a pinched nerve in her lower 

back and attributed it to lifting and transferring heavy case files.

As noted above, to establish fact of injury the claimant must submit sufficient evidence to 

establish that she actually experienced the employment incident at the time, place, and in the 

manner alleged.9 The Board finds that appellant has established that the January 24, 2018 

employment incident occurred, as alleged. The employing establishment does not dispute that 

appellant was moving files and lifting boxes. Its statements to the effect that appellant declined to 

solicit help and defied instructions not to lift anything heavy may cast doubt on whether the injury 

arose within the scope of compensable work factors, but they do not discount appellant’s 

contention that the employment incident occurred at the time, place, and in the manner alleged. 

Under the circumstances of this case, the Board finds that her allegations have not been refuted by 

strong or persuasive evidence and that there are no inconsistencies sufficient to cast serious doubt 

on her version of the employment incident.10

As there is no dispute that appellant experienced an employment incident in the 

performance of her duties on January 24, 2018, the Board finds that the first component of fact of 

injury, the claimed incident, occurred as alleged. Given that she has established that the 

January 24, 2018 employment incident occurred as alleged, the question becomes whether this 

incident caused an injury. As OWCP found that appellant had not established fact of injury, it did 

not evaluate the medical evidence. Thus, the Board will set aside OWCP’s July 27, 2018 decision 

and remand the case for consideration of the medical evidence of record.

11

 After this and any 

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

whether appellant has met her burden of proof to establish an employment-related injury.

CONCLUSION

The Board finds that appellant has met her burden of proof to establish that the January 24, 

2018 employment incident occurred in the performance of duty, as alleged. The Board finds, 

however, that the case is not in posture for decision regarding whether she has established a 

traumatic injury causally related to the accepted January 24, 2018 employment incident.

 

9 L.F., Docket No. 17-0689 (issued May 9, 2018); Julie B. Hawkins, 38 ECAB 393 (1987).

10 See L.S., Docket No. 13-1742 (issued August 7, 2014); M.H., 59 ECAB 461 (2008).

11 See C.M., Docket No. 17-0891 (issued October 20, 2017).
6

ORDER

IT IS HEREBY ORDERED THAT the July 27, 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: April 19, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board