United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.F., Appellant

and

DEPARTMENT OF THE INTERIOR, 

COLORADO RIVER AGENCY, Parker, AZ, 

Employer

__________________________________________

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Docket No. 21-0825

Issued: February 17, 2022

Appearances: Case Submitted on the Record

Jason S. Lomax, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 19, 2021 appellant, through counsel, filed a timely appeal from an August 26, 

2020 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 a traumatic injury

in the performance of duty on November 30, 2017, as alleged.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are set forth below.

On January 18, 2018 appellant, then a 44-year-old maintenance mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that on November 30, 2017 he was working around debris,

including boards with nails and screws, when he stepped on a nail while in the performance of 

duty. He indicated that he had neuropathy in his feet and did not notice that the nail had pierced 

his left shoe and foot. Appellant noted that he started running a fever and believed that he had the 

flu. He indicated that he woke up on December 6, 2017 with extreme pain in his left foot and 

underwent emergency surgery. Appellant reported that, two of his toes were amputated, the skin 

was removed off the top of his left foot, and half of the bottom of his left foot was stitched. On 

the reverse side of the claim form appellant’s supervisor controverted appellant’s claim, asserting 

that he was not informed of the incident until December 6, 2017 and that medical reports were not 

submitted until January 5, 2018. Appellant stopped work on December 6, 2017.

In a hospital emergency room report dated December 6, 2017, Dr. Raymond B. Wallace, 

an osteopath Board-certified in emergency medicine, noted that appellant was seen for a foot 

infection, with onset of symptoms approximately one week prior. He noted that appellant was a 

diabetic male with left 3rd toe blackness, odor, swelling, and redness. Dr. Wallace diagnosed 

gangrene of the left toe, left lower leg cellulitis, peripheral vascular disease, and diabetes mellitus. 

In a December 15, 2017 note, Dr. Samar Kubba, an osteopath specializing in internal 

medicine, indicated that appellant had left foot necrotizing fasciitis due to a puncture wound from 

a nail. He noted that appellant had undergone amputation of the third and fourth toes of the left 

foot.

In a January 25, 2018 attending physician’s report (Form CA-20), Dr. Glenn Silverstein, a 

podiatrist, noted appellant’s history of injury as stepping on a nail on November 30, 2017. He 

checked a box marked “Yes” in response to whether appellant’s condition was caused or 

aggravated by the employment activity and noted that appellant had neuropathy, which limited 

feeling in his foot.

In a February 2, 2018 development letter, OWCP informed appellant that the evidence of 

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

evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30 

days to submit the necessary evidence.

3 Docket No. 19-1759 (issued April3, 2020).
3

OWCP continued to receive medical evidence. In a December 6, 2017 report,

Dr. Silverstein noted that appellant developed an ulcer on the bottom of his left foot “probably a 

couple of weeks ago and maybe even at work.” He indicated that appellant did not have much 

feeling in his foot and was unsure if he stepped on something.

In a December 6, 2017 report, Dr. Patrick Shayegan, Board-certified internist, noted that 

appellant “likely stepped on a large nail that went through [appellant’s] boot and through the 

bottom of his foot.” He reported that appellant did not feel it at the time because he had neuropathy. 

Dr. Shayegan noted that there was a plantar ulcer present on his foot. He diagnosed necrotizing 

fasciitis and Type 2 diabetes.

In a February 14, 2018 statement, appellant responded to OWCP’s development 

questionnaire. He stated that, while working on November 30, 2017, he received a call from his 

wife who informed him that he needed to take his daughter to the emergency room. Appellant 

noted that he hurriedly began cleaning up his work area and, while doing so, he lost his balance 

and stepped on a wooden board embedded with 16D penny nails. He reported that he “did not feel 

any pain, or any wetness on [his] left foot,” and that there were “no signs of blood or pain at the 

time.” Appellant indicated that he only wore his steel-toe boots at work and that at the time of the 

incident he assumed that he stepped on the nail, but it did not go through his boot. He added that 

he “kicked the 2x4 [board] off an[d] away in front of me.” Appellant related that he worked on 

December 4, 2017, but did not work the following day because he began experiencing nausea, 

chills, and fever. He stated that he noticed discoloration and swelling in his toes and left foot on 

December 6, 2017 and went to the emergency room. Appellant noted that he was diagnosed with 

gangrene and reported that his mother notified his supervisor about the injury.

In an accompanying statement, appellant’s wife asserted that she received a telephone call 

from appellant’s supervisor at 1:23 p.m. on December 6, 2017. She related that she had notified 

the supervisor of appellant’s workers’ compensation claim due to stepping on a nail on 

November 30, 2017.

In an undated statement, appellant’s mother indicated that she informed appellant’s 

supervisor of his injury on December 6, 2017. She noted that appellant’s supervisor stated that he 

would provide her with OWCP paperwork, but never did. Appellant’s mother attached telephone 

records with her statement.

By decision dated March 9, 2018, OWCP denied appellant’s claim,finding that the factual 

evidence of record was insufficient to establish that the employment incident occurred as alleged. 

On March 8, 2019 appellant, through counsel, requested reconsideration. 

In support of his request, appellant submitted a January 24, 2019 statement, wherein 

appellant’s wife noted that she had observed him performing renovations at his work site on 

November 29, 2017 at which time she observed him pulling things off the walls, repairing holes 

in the wall, and prepping the premises to be painted. She indicated that there were boards with 

nails, splintered wood, and other debris scattered around the floor. Appellant’s wife related that 

on the morning of December 6, 2017 appellant woke her up complaining of severe foot pain. She 

reported that she noticed he was sweating and seemed feverish. Appellant’s wife observed that 
4

appellant had a perfectly round hole on the pad of his left foot that was producing a secretion. She 

related that she knew he had diabetes, but was unaware that he had diabetic neuropathy until the 

trip to the emergency room. Appellant’s wife noted that she checked appellant’s work boots and 

observed a hole on the bottom of his left boot approximately where his wound was located on his 

foot. She indicated that she put her hand in the boot and felt a bump and a hole where something 

had pushed up through the sole of the boot.

In a January 29, 2019 statement, appellant’s mother provided additional information to 

expand and clarify on her previous statement. She noted that on December 6, 2017 she met 

appellant at the emergency room. Appellant’s mother stated that both the medical staff and 

appellant had told her that he had stepped on a nail causing a puncture wound. She indicated that 

she observed the puncture wound and noticed that it was dark and oozing. Appellant’s mother 

also reported that she went to appellant’s house a few weeks after he was hospitalized and asked 

to look at his work boots. She stated that she found a hole toward the front, middle of the left boot 

at what appeared to be the same location that he had suffered the puncture wound.

In a March 6, 2019 statement, appellant noted that he had been diagnosed with diabetes 

and was aware of his diabetic condition prior to November 30, 2017. However, he indicated that 

he was unaware of his diabetic neuropathy and loss of sensation in his feet until the events of 

December 6, 2017. Appellant clarified that on November 30, 2017 he was in a rush to leave work 

to take his daughter to the emergency room. He asserted that he stepped on a wooden board with 

a penny nail in it and that he had to kick the board off and away from him to remove it from his 

boot. Appellant related that he originally stated that he “assumed [he] stepped on it and it did not 

go thru [his] boot.” He explained that the nail definitely punctured the sole of his boot as it was 

stuck in such a way that he had to kick the board off of his boot. Appellant indicated that he 

“assumed” that the nail did not puncture his foot because he did not feel pain as a result of his 

diabetic neuropathy. He alleged that, in his pained and medicated state, he had difficulty 

understanding that diabetic neuropathy caused loss of sensation and that he could not feel the nail 

puncture in his foot. Appellant reported that the location where he discovered the wound in his 

foot was in the same place that the nail had punctured the sole of his boot on November 30, 2017.

In a March 8, 2019 narrative report, Dr. Roland Palmquist, a podiatrist, noted that he had 

been treating appellant since April 18, 2018. He indicated that appellant presented to his clinic 

with amputation of the third and fourth toes of the left foot after surgery on December 6, 2017. 

Dr. Palmquist noted that appellant had stepped on a nail at work on November 30, 2017, but had 

not realized that his foot had been punctured because he had diabetic neuropathy. He explained 

that diabetic patients commonly injure themselves and are unaware of the injury until the infection 

spreads far enough to reach unaffected nerves, often above the knee. Dr. Palmquist opined that 

the nail puncture caused appellant’s bone infection in the third and fourth metatarsals, which 

resulted in appellant’s amputation and skin graft.

By decision dated May 28, 2019, OWCP denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a).

On August 19, 2019 appellant, through counsel, appealed the May 28, 2019 nonmerit 

decision of OWCP to the Board. By decision dated April 3, 2020, the Board set aside the May 28, 

2019 decision, finding that OWCP had improperly denied appellant’s request for reconsideration 
5

of the merits of his claim pursuant to 5 U.S.C. § 8128(a).4 The Board found that appellant 

submitted relevant and pertinent new evidence not previously considered by OWCP. The Board 

remanded the case for merit review and further development of the evidence as deemed necessary, 

to be followed by an appropriate merit decision.

On remand, OWCP requested that appellant’s supervisor provide a further comment 

regarding appellant’s claim. No response was received.

By decision dated August 26, 2020, OWCP denied modification.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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,6that 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.7 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.8

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.9 Fact 

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

First, the employee must submit sufficient evidence to establish that he or she actually experienced 

the employment incident at the time and place, and in the manner alleged.10 Second, the employee 

must submit sufficient evidence to establish that the employment incident caused a personal 

injury.11

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 his or her subseq uent course of 

4

Id. 

5

5 U.S.C. § 8101 et seq.

6

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

Cameron, 41 ECAB 153 (1989).

7

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

ECAB 312 (1988).

8 R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

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

10 L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11 B.M., Docket No. 17-0796 (issued July 5, 2018); JohnJ. Carlone, 41 ECAB 354 (1989).
6

action.12 The employee has not met his or her burden of proof to establish the occurrence of an 

injury when there are inconsistencies in the evidence that 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.13 An employee’s statements 

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.14

ANALYSIS

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

incident occurred in the performance of duty on November 30, 2017, as alleged.

The record establishes that on November 30, 2017 appellant was performing duties of his 

federal employment while working around debris including boards with nails and screws. At the 

time, due to his diabetic neuropathy, appellant did not immediately realize that his boot and left 

foot has been pierced by a nail. However, he later clarified and expanded upon his previous 

statements. Appellant explained that while rushing to leave work to take his daughter to the 

emergency room, he stepped on a wooden board with a penny nail in it and that he had to kick the 

board off and away from him to remove it from his boot. 

Appellant also provided a January 24, 2019 statement from his wife, corroborating that 

appellant’s work entailed pulling things off the walls, filling holes, and painting. Appellant’s wife

observed him working around boards with nails, splintered wood, and other debris scattered around 

the floor. She related that on the morning of December 6, 2017 appellant woke her up complaining 

of severe foot pain. Appellant’s wife observed that appellant had a perfectly round hole on the 

pad of his left foot that was producing a secretion; and that she checked appellant’s work boots, 

observing a hole on the bottom of his left boot approximately where his wound was located on his 

foot. She indicated that she put her hand in the boot and felt a bump and a hole where something 

had pushed up through the sole of the boot. Appellant’s mother also reported in a statement dated 

January 29, 2019 that she went to appellant’s house a few weeks after he was hospitalized and 

asked to look at his work boots. She stated that she found a hole toward the front, middle of the 

left boot at what appeared to be the same location that he had suffered the puncture wound.

The injuries appellant claimed are consistent with the facts and circumstances he set forth, 

his course of action, and the medical evidence he submitted. He has explained any apparent 

inconsistencies in his earlier statements reviewed by OWCP. Appellant has provided statements 

from his family that help to explain why and how he came to realize that he had stepped on a nail 

at work on November 30, 2017. He has also provided an explanation from Dr. Palmquist 

explaining how it would be possible for appellant not to immediately notice the nail piercing his 

12 M.F., Docket No. 18-1162 (issued April9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

13 Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

14 See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).
7

left foot at the time, as a result of his diagnosed diabetic neuropathy. As noted above, the 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 his or her subsequent course of action. 15 An 

employee’s statements 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. 16 The Board, 

thus, finds that appellant has met his burden of proof to establish that the November 30, 2017 

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

As appellant has established that the November 30, 2017 employment incident occurred as 

alleged, the question becomes whether the incident caused an injury. 17 As OWCP found that he

had not established fact of injury, it did not evaluate the medical evidence. The case must, 

therefore, be remanded for consideration of the medical evidence of record. 18 After such further 

development as deemed necessary, OWCP shall issue a de novo decision addressing whether 

appellant has met his burden of proof to establish an injury causally related to the accepted 

November 30, 2017 employment incident, and any attendant disability. 

CONCLUSION

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

incident occurred in the performance of duty on November 30, 2017, as alleged.

15 Supra note 12.

16 Supra note 14.

17 See M.A., Docket No. 19-0616 (issued April10, 2020); C.M.,Docket No. 19-0009 (issued May 24, 2019).

18 See supra note 13; S.M., Docket No. 16-0875 (issued December 12, 2017).
8

ORDER

IT IS HEREBY ORDERED THAT the August 26, 2020 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: February 17, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board