United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.A., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, East Orange, NJ, Employer

__________________________________________

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Docket No. 19-0616

Issued: April 10, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 16, 20191 appellant filed a timely appeal from a July 20, 2018 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal Employees’

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from July 20, 2018, the date of OWCP’s last decision was 

January 16, 2019. Because using January 22, 2019, the date the appeal was received by the Clerk of the Appellate 

Boards,would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is January 16 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated February 21, 

2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately 

be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-0616 (issued 

February 21, 2020). The Board’s Rules of Procedure provide that an appeal in which a request for oral argument is 

denied by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R. 

§ 501.5(b).
2

Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.4

ISSUE

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

performance of duty on August 21, 2017, as alleged.

FACTUAL HISTORY

On August 29, 2017 appellant, then a 28-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that, at 11:30 a.m. on August 21, 2017, she sustained injuries to her 

low back and right lower leg while in the performance of duty. She explained that she was guiding 

a resident in the bathroom who fell backward, and that she caught him to prevent him from falling.

Appellant stopped work August 22, 2017. On the reverse side of the claim form, E.U., a nurse 

manager and appellant’s supervisor, indicated that appellant was injured in the performance of 

duty and that his knowledge of the facts about this injury agreed with the statements of the 

employee.

In an August 25, 2017 statement, appellant indicated that she had ongoing pain in her left 

hip/pelvic area from a June 30, 2016 work-related injury to her lower back, which had started to 

affect her daily life activities.5 She also noted that she was pregnant at the time of her claimed 

injury. Appellant explained that on August 21, 2017 she was assigned to transport a male resident 

to an employing establishment eye clinic. She denied being told that the resident could not stand. 

The injury occurred as appellant went to guide the resident in the bathroom stall out of his chair. 

He fell backward onto her and she caught him. Appellant indicated that she notified E.U. that day 

and explained what happened. E.U. told her that the resident could stand, but after the bathroom 

incident the resident could not stand. Appellant noted that it took two men to get the resident out 

of the chair and into a bed in the examination room. E.U. then told her to get help from whomever 

was there. 

On August 25 and 28, 2017 appellant sought urgent care treatment for the August 21, 2017 

incident. In an August 25, 2017 note, Dr. Kasnif Ramzan, a Board-certified family practitioner, 

diagnosed leg sprain and took appellant off work. In an August 28, 2017 note, Dr. Michael Tafoya, 

a Board-certified emergency medical practitioner, diagnosed right calf strain and right gluteal 

strain. He advised that appellant could work with restrictions. 

 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that appellant submitted additional evidence on appeal. 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.

5 Under OWCP File No. xxxxxx356, OWCP accepted that appellant sustained a lumbar strain on June 30, 2016. 

Appellant returned to work in a full-time limited-duty position on July 5, 2016. 
3

In a September 1, 2017 letter, E.U. controverted the claim. He advised that appellant was 

on light duty, and that she knew her lifting limitations. E.U. also advised that she knew all the 

residents as she came in contact with them daily. On August 21, 2017 appellant escorted a resident 

to the employing establishment’s eye clinic. Her only responsibility was to accompany the resident 

to the eye clinic. Before her shift, appellant was instructed to ask staff at the eye clinic location to 

help should the resident need help. E.U. indicated that, when she spoke with him that day, she 

advised him that she was unable to help the resident to the bathroom because of her limited-duty 

status. He told appellant to ask the staff at the clinic to escort the resident to the bathroom and that 

she had confirmed that staff from the clinic took the resident to the bathroom. E.U. further

indicated that, when she returned to the unit, she did not report an incident with the resident to 

either the charge nurse or the manager. There was also no documentation at the clinic involving 

an incident with the resident. E.U. noted that appellant took annual leave on August 22, 2017, but 

did not report an injury. Appellant also delayed medical treatment until August 25, 2017. 

In September 13 and 27, 2017 attending physician’s reports (Form CA-20), Dr. Joe 

VonGvorachoti, a Board-certified physiatrist, reported a history of a heavy male patient falling on 

appellant, who was reported as being six months pregnant, on August 21, 2017. In corresponding 

reports, he diagnosed S1 joint inflammation and lumbar disc displacement. Dr. VonGvorachoti

requested physical therapy and found appellant totally disabled from work until October 11, 2017. 

An October 17, 2016 magnetic resonance imaging (MRI) lumbar spine scan, which noted minimal 

disc bulging at L3-4 through L5-S1, was provided. 

In a development letter dated October 12, 2017, OWCP informed appellant that when the 

claim was first received it appeared to be a minor injury that resulted in minimal or no time lost 

from work, therefore, a limited amount of medical expenses had been administratively approved. 

However, the claim had now been reopened for merit review. It further advised appellant that the 

factual and medical evidence of record was insufficient to support her claim. OWCP advised her 

of the type of factual and medical evidence needed and provided a questionnaire for her 

completion. It afforded appellant 30 days to submit the requested evidence. 

Appellant submitted disability slips dated October 11 and November 10, 2017 from

Dr. VonGvorachoti.

6

 

In a November 8, 2017 report, Dr. VonGvorachoti noted that on September 13, 2017 

appellant presented for an initial examination and evaluation from an August 21, 2017 

employment-related injury, which occurred when she was moving an obese patient who fell onto 

her. He diagnosed displacement of lumbar intervertebral disc and inflammation of sacroiliac 

joint.7 Dr. VonGvorachoti noted that appellant prior work injury in June 2016 predisposed her to 

future back injuries and that she was pregnant, which put extra strain on her back. He indicated 

that a heavy patient falling on her was a potential mechanism for back injuries. Dr. VonGvorachoti 

 

6 OWCP received wage-loss compensation claims (Form CA-7) for the period October 6, 2017 onward. 

7 A September 1, 2016 lumbar MRI scan revealed disc bulges at L3-4 and L5-S1 and electromyogram/nerve 

conduction velocity tests conducted on March 29, 2017 were normal. 
4

opined that the August 21, 2017 work incident aggravated conditions caused by the June 30, 2016 

injury as well as any new low back pain. 

In a November 10, 2017 statement, appellant indicated that the August 21, 2017 incident 

occurred when she was in the bathroom with a male resident, who weighed 150 to 160 pounds, 

who fell backward onto her when she was guiding him in the bathroom stall. She advised that 

there were no witnesses and that she reported the incident right away to her supervisor by 

telephone. Appellant submitted her cellphone record, which contained two one-minute calls at 

12:42 p.m. and 12:47 p.m. to the nurse manager’s telephone number. 

In a November 20, 2017 development letter, OWCP advised appellant that additional 

evidence was needed to establish the factual basis of her claim as the factual evidence of record 

was conflicting. It afforded her 15 days to submit additional evidence. 

In a November 27, 2017 statement in response to OWCP’s development questionnaire, 

appellant advised that the resident she escorted on August 21, 2017 was a new patient for her and 

that she did not know his medical situation or plan of care. She noted that, since her June 30, 2016 

injury, she does not come in direct contact or engage in personal patient care with any residents. 

With regard to the alleged August 21, 2017 employment incident, appellant indicated that she, not 

the clinical staff, had taken the resident to the restroom and that the injury took place in the 

restroom. She reiterated that she had telephoned her supervisor, E.U., promptly to report the 

incident, as indicated by the submitted telephone records. Appellant also reiterated that during the 

conversation E.U. told her that the resident could walk, but she had told him that the resident could 

not walk after the bathroom incident. She noted that, shortly after the bathroom incident, the 

resident went in for his examination and that two men from the clinical staff had to lift him onto 

the examination table. Appellant noted that, when E.U. told her to get help, the injury had already 

occurred. She also advised that her pain progressed so she sought medical treatment on 

August 25, 2017. Appellant noted filing “a C-3” on August 25, 2017, which was returned to her 

as it was the wrong jurisdiction. 

In an August 25, 2017 state workers’ compensation (Form C-3), appellant indicated that 

the injury occurred on the “10th floor in the men’s restroom.” She reported assisting the “patient 

in the bathroom stall at his chair when he fell back on me. I caught him.” 

In a December 5, 2017 statement, E.U. advised that appellant had been on light duty for 

one year prior to the August 21, 2017 incident and, even on light duty, she had interactions with 

the resident in question prior to the August 21, 2017 assignment. He indicated that she had not 

reported an injury on August 21, 2017 to any authority figures, but rather left for the day. E.U. 

also advised that appellant used sick leave on August 22, 2017 without reporting an injury. 

By decision dated January 4, 2018, OWCP denied appellant’s claim finding that the factual 

component of fact of injury had not been met. It found that the evidence was insufficient to 

establish that an employment incident occurred as alleged. OWCP concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA.

On January 30, 2018 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. During the June 5, 2018 hearing, she indicated that she 
5

was working on a long-term demented unit/memory care ward and was initially told that the 

resident, who had dementia, could walk so she took him to the bathroom. Appellant later indicated 

that as “he got up, he fell back, and I caught him.” She explained that she was in the bathroom 

stall with the resident, who fell backwards against her as she was positioned behind him. Appellant 

indicated that, when she called her manager to explain what happened, he told her to get help, but 

the accident had already occurred. She verified that she was on work restrictions when the incident 

occurred, that she was out of work the next day, and that she filed both federal and state 

compensation claim forms and sought medical treatment after the pain persisted. Appellant 

testified that she had not lifted the resident, rather he fell onto her and she caught him. She also 

testified that she returned to work in a full-time limited-duty capacity on April 24, 2018. 

In a January 24, 2018 report, Dr. VonGvorachoti noted that a heavy/obese male patient fell 

on appellant in the bathroom. He indicated that such incident injured her lumbar discs and repeated 

his assessment of lumbar disc displacement and inflammation of sacroiliac joint. 

Dr. VonGvorachoti opined that appellant’s back pain was causally related to her August 21, 2017 

employment injury, which also exacerbated her previous employment injury of June 2016. He 

explained that a heavy patient falling on her is a potential mechanism for back injuries. 

OWCP received additional medical reports and CA-7 claims for disability compensation. 

An April 27, 2018 Form CA-7 indicated that appellant returned to work on April 24, 2018 on “desk 

duty.” 

By decision dated July 20, 2018, an OWCP hearing representative affirmed OWCP’s 

January 4, 2018 decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA8 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,9that 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.10 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. 11

 

8

Supra note 3.

9

J.P., Docket No. 19-0129 (issued April26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. 

Cameron, 41 ECAB 153 (1989).

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

ECAB 312 (1988).

11 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).
6

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established.12 Fact of injury 

consists of two components that must be considered in conjunction with one another. The first 

component is whether the employee actually experienced the employment incident that allegedly 

occurred.13 The second component is whether the employment incident caused a personal injury. 14

An employee’s statement 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. 15 

Moreover, an injury does not have to be confirmed by eyewitnesses.16 The employee’s statement, 

however, must 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.17 Circumstances such 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 statement in determining whether a prima facie case has been established.18

ANALYSIS

The Board finds that appellant has met her burden of proof to establish that the August 21, 

2017 employment incident occurred, as alleged.

It is undisputed that appellant was on limited-duty status and that she worked on a ward 

where the residents have dementia or long-term memory loss issues. It is also undisputed that she 

was assigned to transport a male resident to the employing establishment’s eye clinic for 

examination on August 21, 2017. 

Appellant consistently stated on her August 29, 2017 claim form, on the August 25, 2017 

state workers’ compensation form, in her narrative statements, and in her hearing testimony, that 

her injury occurred at approximately 11:30 a.m. on August 21, 2017 when assisting a male resident 

in the bathroom stall. She consistently explained that he fell backward onto her and she caught 

him. Appellant further indicated that she promptly notified the nurse manager, E.U., of her injury 

and explained what happened. 

 

12 E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

13 L.T., 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

14 B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

15 A.R., Docket No. 18-0924 (issued August 13, 2019); R.T., Docket No. 08-0408 (issued December 16, 2008); 

Gregory J. Reser, 57 ECAB 277 (2005).

16 L.A., Docket No. 17-0138 (issued April5, 2017).

17 Id.

18 See K.M., Docket No. 19-0367 (issued June 26, 2019); L.D., Docket No. 16-0199 (issued March 8, 2016); Betty J. 

Smith, 54 ECAB 174 (2002).
7

E.U. acknowledged that appellant had called on August 21, 2017 and the telephone records 

support that two calls took place at 12:42 p.m. and 12:47 p.m., approximately one hour after the 

alleged incident. In her testimony before OWCP’s hearing representative, appellant indicated that 

the incident occurred in the bathroom, with no witnesses present, and that the resident was then 

seen for his eye appointment. She indicated that two men from the eye clinic had to lift the resident 

onto the examination table. Appellant’s narrative statements support that she told E.U. during her 

telephone conversation that the resident could not stand after the bathroom incident and that she 

had indicated that it took two men from the clinic to get the resident out of his chair and onto an 

examination room bed. While E.U. had advised her to get help, the evidence supports that the 

bathroom incident with the resident had already occurred.

The Board finds that appellant’s consistent description of the incident are sufficient to 

establish that the August 21, 2017 employment incident occurred at the time, place, and in the 

manner alleged. Appellant provided a consistent account of the mechanism of injury that has not 

been refuted by evidence contained in the record.19 

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

August 21, 2017 employment incident occurred in the performance of duty, as alleged.

As appellant has established that the August 21, 2017 employment incident factually 

occurred, the question becomes whether this incident caused an injury.20 The Board will, 

therefore, set aside OWCP’s July 20, 2018 decision and 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 the medical evidence is sufficient to 

establish a condition causally related to the accepted employment incident.21

CONCLUSION

The Board finds that appellant has met her burden of proof to establish an incident in the 

performance of duty on August 21, 2017, as alleged.

 

19 A.R., Docket No. 18-0924 (issued August13, 2019); see S.W., Docket No. 17-0261 (issued May24, 2017) (the 

Board found that OWCP improperly determined that the alleged employment incident did not occur when appellant 

provided consistent accounts of the claimed incident and there was no evidence to refute her detailed description); see 

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

20 See C.M., Docket No. 19-0009 (issued May 24, 2019).

21 Supra note 18; see also Betty J. Smith, 54 ECAB 174 (2002).
8

ORDER

IT IS HEREBY ORDERED THAT the July 20, 2018 decision of the Office of Workers’

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

with this decision of the Board.

Issued: April 10, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board