United States Department of Labor

Employees’ Compensation Appeals Board

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F.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

MICHAEL E. DEBAKEY VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Houston, TX, Employer

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Docket No. 19-0683

Issued: September 11, 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

JANICE B. ASKIN, Judge

JURISDICTION

On February 7, 2019 appellant filed a timely appeal from September 20, 2018 and

January 31, 2019 merit decisions 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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 31, 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 

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 July 31, 2018, as alleged.

FACTUAL HISTORY

On August 3, 2018 appellant, then a 51-year-old lead medical supply technician, filed a 

traumatic injury claim (Form CA-1) alleging that on July 31, 2018 he was cut on his right arm by 

a coworker, following continuing harassment by this individual, while in the performance of duty. 

He did not initially stop work. On the reverse side of the claim form, the employing establishment 

indicated that appellant was not in the performance of duty when injured because he violated the 

“stay away letter” in place against his coworker. It also referenced a stay away letter and pending 

investigation. 

The employing establishment issued an undated authorization for examination 

and/treatment (Form CA-16) to an occupational health physician. 

In a development letter dated August 13, 2018, OWCP advised appellant of the deficiencies 

of his claim, and informed him of the factual and medical evidence needed to establish his claim. 

It provided a questionnaire for his completion. Specifically, OWCP requested information 

regarding the incident and the nature of appellant’s relationship with the assailant. It afforded him

30 days to submit the necessary evidence. 

In a report dated July 31, 2018, Dr. Asmi Trivedi, an internal medicine specialist, related 

that appellant had an altercation with an “ex significant other,” and she cut him on the right arm 

with a box cutter. He indicated an impression of superficial cut. 

In a report dated August 3, 2018, Dr. Hossam Safar, a Board-certified internist, diagnosed 

laceration without foreign body of right forearm. He noted that the laceration was the result of an 

assault by a coworker with a box cutter. Dr. Safar indicated that appellant could return to work on 

August 3, 2018. 

OWCP also received an August 10, 2018 duty status report (Form CA-17) from a physician 

assistant which noted a date of injury as July 31, 2018 and described findings of a mild cut on the 

right forearm. 

In a narrative statement dated August 11, 2018, appellant indicated that on July 31, 2018 

he was cut with a box cutter by a coworker while working and was “admitted to the emergency 

room” at the employing establishment medical facility on that date. He noted that, since being 

released from the hospital, he had not been able to sleep, had anxiety attacks, and had thoughts of 

being attacked at any moment. Appellant related that he was diagnosed with post-traumatic stress 

disorder (PTSD) and it seemed to have been aggravated because of the cut to his arm. 

In a victim information sheet dated August 13, 2018, appellant noted that he scheduled a 

mental health appointment, and, due to the incident, he experienced insomnia, anxiety, 

embarrassment at work, PTSD, and fear that the perpetrator was stalking his home. 
3

In an investigatory report dated August 13, 2018, appellant indicated that he was the 

subject of an unprovoked attack at work and suffered two slashes to his right arm. In an employee 

emergency treatment form of even date, Dr. Trivedi, an internal medicine specialist, indicated that 

appellant sustained an “on-job-injury” when he was cut by a box cutter on his right arm. 

By decision dated September 20, 2018, OWCP denied appellant’s claim finding that the 

evidence of record was insufficient to establish that the injury arose during the course of 

employment and “within the scope of compensable work factors.” 

On October 10, 2018 appellant requested a review of the written record by OWCP’s Branch 

of Hearings and Review. 

In a report dated August 17, 2018, Rhonda London, a psychiatric nurse practitioner, 

indicated that she examined appellant who complained of increased anxiety and stress secondary 

to work. She noted an impression of PTSD. 

By decision dated January 31, 2019, an OWCP hearing representative affirmed OWCP’s 

initial September 20, 2018 decision finding that the evidence of record failed to establish that 

appellant’s alleged injury occurred within the performance of duty. 

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 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.4

The phrase sustained while in the performance of duty is regarded as the equivalent of the 

coverage formula commonly found in workers’ compensation laws, namely, arising out of and in 

the course of employment.5 In the course of employment relates to the elements of time, place, 

and work activity.6 To arise in the course of employment, an injury must occur at a time when the 

employee may reasonably be stated to be engaged in his or her master’s business, at a place when 

he or she may reasonably be expected to be in connection with his or her employment, and while 

he or she was reasonably fulfilling the duties of the employment, or engaged in doing something 

incidental thereto.7 As to the phrase in the course of employment, the Board has accepted the 

 

3 Supra note 1. 

4

J.W., Docket No. 18-0183 (issued January 4, 2019); L.R., Docket No. 17-0031 (issued July 11, 2017).

5 This construction makes the statute effective in those situations generally recognized as properly within the scope 

of workers’ compensation law. J.W., id.; Bernard D. Blum, 1 ECAB 1 (1947).

6

J.G., Docket No. 17-0747 (issued May 14, 2018).

7

J.W., supra note 4; see J.B., Docket No. 17-0378 (issued December 22, 2017).
4

general rule of workers’ compensation law that, as to employees having fixed hours and places of 

work, injuries occurring on the premises of the employing establishment, while the employees are 

going to and from work, before or after work hours or at lunch time, are compensable.8

Assaults arise out of the employment either if the risk of assault is increased because of the 

nature or setting of the work or if the reason for the assault was a quarrel having its origin in the 

work. Assaults for private reasons do not arise out of the employment unless, by facilitating 

an assault that would not otherwise be made, the employment becomes a contributing factor.9

ANALYSIS

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

performance of duty on July 31, 2018, as alleged.

In its August 13, 2018 development letter, OWCP requested further information regarding 

the incident and the nature of appellant’s relationship with the assailant. However, appellant did 

not respond to the specific inquiries regarding the factual circumstances surrounding the 

employment incident.

10

 His failure to respond to these specific questions included on the

development letter prevented OWCP from determining whether the incident arose from his 

employment or for a “private reason” a personal dispute imported into the work environment.

In his July 31, 2018 report, Dr. Trivedi noted that appellant reported an altercation with an 

ex significant other while at work. However, as noted above, appellant did not respond to OWCP’s 

August 13, 2018 development letter requesting additional information regarding the relationship 

between appellant and assailant. Larson provides that assaults arise “out of the employment” either 

if the risk of assault is increased because of the nature or setting of the work, or if the reason for 

the assault was a quarrel having its origin in the work. Assaults for private reasons do not arise 

out of the employment unless, by facilitating an assault that, would not otherwise be made, the 

employment becomes a contributing factor.11 Because appellant failed to indicate the nature of 

his relationship with the assailant as well as the reasons for the assault, the Board finds that his

injury did not occur within the performance of duty.12

 

8 T.H., Docket No. 17-0747 (issued May 14, 2018).

9

J.G., supra note 6; see also A. Larson, The Law of Workers’ Compensation § 8.00 (May 2004).

10 D.A., Docket No. 18-1715 (issued May 24, 2019); see David S. Lee, 56 ECAB 602 (2005).

11 A. Larson, The Law of Workers’ Compensation, supra note 9. See J.W., supra note 4; M.A., Docket No. 08-2510 

(issued July 16, 2009).

12 The Board notes that the employing establishment issued a signed authorization for examination and/or treatment 

(Form CA-16) authorizing medical treatment. The Board has held that where an employing establishment properly 

executes a CA-16 form, which authorizes medical treatment as a result of an employee’s claim for an employmentrelated injury, it creates a contractual obligation which does not involve the employee directly to pay the cost of the 

examination or treatment regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300 and 10.304; see also

R.W., Docket No. 18-0894 (issued December 4, 2018).
5

For the foregoing reasons, the Board finds that appellant has not met his burden of proof 

to establish that the claimed incident occurred as alleged, nor has he met his burden of proof to 

establish that he sustained a traumatic injury in the performance of duty. As appellant did not 

establish that his alleged injury occurred in the performance of duty, the Board need not consider 

the medical evidence of record.13

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this decision regarding the merits of appellant’s claim, 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 July 31, 2018, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the January 31, 2019 and September 20, 2018 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: September 11, 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

 

13 D.A., supra note 10; see Katherine A. Berg, 54 ECAB 262 (2002).