United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WEST PALM BEACH VA MEDICAL CENTER, 

West Palm Beach, FL, Employer

__________________________________________

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Docket No. 21-0554

Issued: June 21, 2022

Appearances: Case Submitted on the Record

Mary Wilson, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 24, 2021 appellant, through counsel, filed a timely appeal from a 

September 23, 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 her burden of proof to establish a traumatic injury 

in the performance of duty on January 17, 2019, as alleged.

FACTUAL HISTORY

On August 28, 2019 appellant, then a 52-year-old certified nursing assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on January 17, 2019 at approximately 2:00 p.m., 

she injured her right rib area while in the performance of duty. She explained that she was using 

a wheelchair to transport a patient’s belongings to the locker room, and when she lifted a duffel

bag from the wheelchair, she slipped and fell to the floor, landing on her right side. On the reverse 

side of the claim form P.S., appellant’s supervisor, acknowledged that appellant was in the 

performance of duty when her injury occurred. However, P.S., further noted that her knowledge 

of the facts did not comport with appellant’s statement. Appellant did not stop work.

In a development letter dated September 3, 2019, OWCP informed appellant that it had not 

received evidence in support of her traumatic injury claim. It informed her of the type of factual 

and medical evidence necessary to establish her claim and provided a questionnaire for her 

completion. OWCP afforded appellant 30 days to respond.

In a January 22, 2019 medical report, appellant informed Dr. Brand Gurney, Boardcertified in family medicine, that on January 17, 2019 she was lifting a heavy bag when she felt a 

sharp pain in the right side of her lower back. On evaluation Dr. Gurney diagnosed lumbar strain 

and opined that there was a direct relationship between appellant’s injury and her federal 

employment. In a form report of even date, he provided work restrictions.

In a January 22, 2019 form report, appellant explained that on January 17, 2019 at 

approximately 2:00 p.m. she was moving a duffel bag on the third floor and pulled a muscle on 

the right side of her rib area.

In a February 5, 2019 progress note, Dr. Gurney noted that appellant was still experiencing 

pain on the right side of her lower back and that she would continue seeking treatment from a 

private doctor. In a form report of even date, he again provided work restrictions. 

In a March 25, 2019 diagnostic report, Dr. Richard Sarner, a Board-certified radiologist, 

performed a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine, observing an

L2-3 posterolateral disc bulge, L4-5 disc dehydration with a broad-based posterior disc bulge, and 

an L5-S1 posterior midline disc protrusion/herniation.

OWCP received an April 9, 2019 light-duty job offer form which detailed work restrictions 

appellant had in relation to an April 4, 2019 work injury.

In an e-mail dated April 10, 2019, S.M., appellant’s coworker, indicated that she had 

presented to the occupational health office that day, and informed her of a right shoulder injury 

she sustained on April 4, 2019, and an injury to her right rib area that she sustained on 

January 17, 2019. She noted that appellant had also presented to the office on January 17, 2019 

alleging that she was moving laundry when she felt pain in her right-side rib area. S.M. explained 
3

that her pain had not improved, and that she was now experiencing pain in her right shoulder. She

provided appellant with information on how to file a Form CA-1.

In an August 26, 2019 diagnostic report, Dr. Sarner performed an MRI scan of appellant’s 

cervical spine, revealing a reversal of the normal cervical lordosis, a C2-3 posterior disc bulge, 

C3-4 grade one retrospondylolisthesis, a C4-5 broad-based posterior disc bulge, a C5-6 posterior 

disc herniation and a C6-7 broad-based posterior disc bulge.

Appellant submitted an August 29, 2019 duty status report (Form CA-17) with an illegible 

signature that indicated that she was injured on January 17, 2019 when she lifted a heavy laundry 

bag, slipped and fell.

In a subsequent August 30, 2019 e-mail, S.M. requested additional information from 

appellant’s supervisor relating to the alleged January 17, 2019 employment incident.

In an August 30, 2019 letter, S.M. controverted appellant’s claim, asserting that the validity 

of her claim was seriously compromised by her varying accounts of injury. She explained that,

after she was informed that she would be relocated to a less-desirable work area on August 29, 

2019, she elected to file a claim based on a “relatively minor” January 17, 2019 incident from 

which she had been previously treated and returned to normal work duty. S.M. alleged that, while 

appellant was filing her claim, she clearly expressed to her that she needed to avoid being 

reassigned. She noted that she had claimed a different mechanism of injury and a far more serious 

injury. S.M. observed that on her August 28, 2019 claim form appellant indicated that she slipped 

and fell when she was lifting a large duff el bag from a wheelchair. She asserted that she never 

mentioned a slip and fall incident when she originally informed her of the January 17, 2019 

incident. S.M. also observed that appellant was now claiming an injury to her entire right side 

instead of just a muscle in her right rib area. She reviewed the history of appellant’s injury, 

observing that on January 22, 2019 she informed Dr. Gurney that on January 17, 2019 she was 

moving laundry when she pulled a muscle on the right side of her rib. Appellant then changed her 

version of the story, claiming that she experienced a sharp pain in the right side of her lower back 

when she lifted a heavy duffel bag. She was evaluated by Dr. Gurney and provided work 

restrictions. Appellant did not file a claim at that time and was not seen by Dr. Gurney again after 

February 5, 2019. S.M. also discussed medical evidence appellant submitted that indicated that 

she would be unable to work from April 4 to May 16, 2019 due to a separate right shoulder injury. 

She alleged that appellant had altered the April 9, 2019 medical form from Dr. Gurney to extend 

her work restrictions beyond the time she was advised to make it appear as if her injury was more 

severe than it was. S.M. attached an e-mail from Dr. Gurney wherein he provided that he had not 

evaluated appellant since February 5, 2019, but that she presented medical evidence dated 

April 9, 2019 regarding her work restrictions.

In a September 9, 2019 Form CA-17, Dr. Steven Kanner, a Board-certified internist, 

indicated that appellant injured her “right mid to lower back” on January 17, 2019 when she was 

pushing a patient. He diagnosed a cervical disc disorder with radiculopathy and provided work 

restrictions.

In a September 23, 2019 letter, S.M. indicated that appellant had a preexisting neck

condition and attached supporting medical evidence from September 8 to November 28, 2011. 
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She argued that appellant did not meet her burden of proof to establish her claim because the 

evidence did not show that her injury was caused by her employment.

Appellant also submitted evidence addressing an unrelated April 4, 2019 injury.

By decision dated October 11, 2019, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish that the injury and/or events 

occurred as she described. It noted that the medical evidence and statements on file provided 

different histories of injury than the one she alleged in her Form CA-1. OWCP concluded, 

therefore, that the requirements had not been met to establish an injury as defined by FECA.

OWCP continued to receive evidence. In an October 22, 2019 letter, S.M. suggested that 

appellant should be returned to her regular employment duties as her claim was denied by OWCP 

on October 11, 2019. She recommended that appellant use her leave if she had continued medical 

limitations. 

On October 24, 2019 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.

In an October 24, 2019 medical note, Dr. Kanner recommended that appellant continue her 

light-duty assignment due to the injuries she sustained at work on January 17, 2019.

In an October 28, 2019 statement, appellant asserted that she developed cervical disc 

disorder and intervertebral disc disorder due to the alleged January 17, 2019 employment incident. 

She reviewed her history of employment and asserted that she did not have this condition prior to 

the alleged incident. 

In a medical note of even date, Dr. Kanner diagnosed lumbar region intervertebral disc 

disorders with radiculopathy of the lumbar region, and cervical disc disorder with radiculopathy

of the cervical region. He opined that her injury was caused by the January 17, 2019 employment 

incident, and suggested that she remain on light-duty assignment until her next scheduled 

appointment on December 9, 2019. 

On January 14, 2020 appellant, through counsel, withdrew her request for an oral hearing 

and instead requested reconsideration of the October 11, 2019 decision. 

In an April 4, 2020 medical report, Dr. Gerald Molloy, a Board-certified neurosurgeon, 

noted that appellant was injured at work on January 17, 2019 when she fell and hit her head on an 

oxygen tank and landed on wheelchair legs. On examination and review of diagnostic studies he 

diagnosed cervical stenosis, cervical spondylolisthesis, cervical radiculopathy, cervicalgia, 

myelopathy, lumbago, lumbosacral stenosis, lumbar radiculopathy, lumbosacral spondylolisthesis 

and sacroiliitis. Dr. Molloy opined that appellant’s conditions were caused by the alleged 

January 17, 2019 employment incident, explaining that, when she lifted the heavy bag and tripped 

over something on the floor, the added force of the weight of the bag caused her to crash harder 

onto the floor. Appellant’s lumbar region landed on an oxygen tank and broken walkers and 

caused a cervical whiplash injury. Dr. Molloy explained that the damage to appellant’s lumbar 

and cervical discs, which caused her foraminal stenosis, was more than what would be expected 

in some one of her age and weight. 
5

In an August 3, 2020 letter, Dr. Kanner explained that it was undetermined if appellant 

would be able to return to work following her surgery to treat the injuries she sustained on 

January 17, 2019. He requested that she be excused from work until January 1, 2021. 

In an August 13, 2020 letter, S.M. attached a copy of Dr. Molloy’s April 4, 2020 medical 

report and controverted the claim, noting that she never mentioned falling and hitting her head on 

an oxygen tank in any of her prior evidence.

On August 27, 2020 appellant, through counsel, again requested reconsideration of the 

October 11, 2019 decision. In an attached August 26, 2020 memorandum,she again explained the 

events of the alleged January 17, 2019 employment incident where she was using a wheelchair to 

transport a duffelbag to a storage room. When she lifted the duffelbag,she tripped over something 

on the floor and fell, landing on an oxygen tank, the wheelchair’s legs and some broken walkers. 

Counsel indicated that these items fell on appellant’s right side, injuring her rib area. She asserted 

that OWCP’s October 11, 2019 decision should be overturned as she had submitted sufficient 

factual and medical evidence to warrant acceptance of her claim. Counsel further contended that 

appellant’s statement was consistent with the original statement in her Form CA-1 and the medical 

evidence of record, reasoning that, while some of the statements went into more detail, all of her 

statements allege that she was injured when she slipped and fell in the storage room. She attached 

witness statements from appellant’s coworkers that supported that her injury occurred at the time, 

place and in the manner she alleged. Counsel further indicated that she submitted a new statement 

from Dr. Kanner that clarified the earlier statements he made in his medical evidence.

In a February 28, 2020 statement, appellant explained that on January 17, 2019 she was 

transporting a large army duffel bag full of a patient’s clothing with a wheelchair. When she 

attempted to lift the duffel bag she tripped on an object on the floor and fell, landing on an oxygen 

tank and the wheelchair legs. Appellant claimed that something hit the back side of her right rib 

area and her head. She claimed that M.F., another nursing assistant, then walked in and asked her 

what happened and advised her to go to employee health. T.B., an employee with environmental 

health, then walked in and helped transport her to the employee health station, where she was 

examined by Dr. Gurney. 

In a separate statement also dated February 28, 2020, C.D., appellant’s coworker, 

explained that she saw appellant and other coworkers walking down the hallway. She asked 

appellant what was wrong. Appellant informed her that she fell down on a wheelchair in the 

storage room and hit her head and her side.

In a March 3, 2020 statement, E.A., appellant’s coworker, explained that during 

January 2019 he was walking in the hallway when he saw appellant walking and crying while T.B. 

was holding her. She informed him that she fell in the storage room when she was lifting a heavy 

duffel bag. T.B. then helped appellant to the employee health station.

In an August 12, 2020 letter, Dr. Kanner corrected the statements he provided in his 

September 9, 2019 Form CA-17, clarifying that appellant was lifting a laundry bag when her injury 

occurred and not transporting a patient with a wheelchair. He explained that, when he initially 

treated appellant, he misunderstood her explanation of the January 17, 2019 incident. 
6

By decision dated September 23, 2020, OWCP denied modification of its October 11, 2019 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the

essential elements of his or her claim, including 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,4that 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 re lated to the 

employment injury.5 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.6

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. The first component is that 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. The second component is 

whether the employment incident caused a personal injury and can be established only by medical 

evidence.7

To establish that an injury occurred as alleged, the injury need not be confirmed by

eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and 

circumstances and his or her subsequent course of action.8 The employee has not met his or her 

burden when there are such inconsistencies in the evidence as to cast serious doubt on 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 the employee’s 

statements in determining whether a prima facie case has been established.9 An employee’s 

3

Id.

4 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989).

5 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

6 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

7 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

8

S.W., Docket No. 17-0261(issued May 24, 2017).

9 C.M., Docket No. 20-1519 (issued March 22, 2021); Betty J. Smith, 54 ECAB 174 (2002).
7

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.10

ANALYSIS

The Board finds that appellant has met her burden of proof to establish an employment 

incident in the performance of duty on January 17, 2019, as alleged.

As noted above, an employee’s statement alleging that an injury occurred at a given time 

and place, and in a given manner is of great probative value and will stand unless refuted by strong 

and persuasive evidence.11 Herein, in her August 28, 2019 Form CA-1, appellant claimed that she 

was using a wheelchair to transport a patient’s belongings to the locker room and when she lifted 

a large duffel bag from the wheelchair she slipped and fell to the floor, landing on her right side at 

approximately 2:00 p.m. She submitted a February 28, 2020 statement wherein she further 

clarified the events of the alleged January 17, 2019 employment incident. Appellant indicated that 

when she attempted to lift a duffel bag full of clothing she tripped on an object on the floor, landing 

on an oxygen tank and the wheelchair legs. She further detailed her injuries, noting that something 

hit the back side of her right rib area and head when she fell. Additionally, the witness statements 

from C.D. and E.A. both confirm that appellant informed her coworkers that she fell in the storage 

room and injured her right side when she attempted to lift a heavy duffel bag. Moreover, appellant 

sought prompt medical care, first with Dr. Gurney on January 22, 2019 where he observed that she 

injured the right side of her lower back while lifting a heavy duffel bag and diagnosed a lumbar 

strain, opining that her injury was caused by her employment activity.

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

statements from her coworkers, her course of action, and the medical evidence of record. Of note,

Dr. Kanner submitted an August 12, 2020 letter in which he clarified that she injured her right 

mid-to-lower back while lifting a heavy duffel bag. On the reverse side of the claim form, the 

employing establishment acknowledged that appellant was injured while in the performance of 

duty. The Board, thus, finds that appellant has established that the January 17, 2019 employment 

incident occurred in the performance of duty as alleged.

As appellant has established that the January 17, 2019 employment incident factually 

occurred as alleged, the question becomes whether the incident caused an injury. 12 As OWCP 

found that appellant had not established fact of injury, it did not evaluate the medical evidence. 

The case must, therefore, be remandedfor consideration of the medical evidence of record.13 After 

this and other such further development as deemed necessary, OWCP shall issue a de novo decision 

addressing whether appellant has met her burden of proof to establish an injury causally related to 

the accepted January 17, 2019 employment incident, and any attendant disability.

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

11 Id.

12 Id.

13 S.M.,Docket No. 16-0875 (issued December 12, 2017).
8

CONCLUSION

The Board finds that appellant has met her burden of proof to establish an employment 

incident in the performance of duty on January 17, 2019, as alleged. The Board further finds that 

the case is not in posture for decision regarding whether she has established an injury causally 

related to the accepted January 17, 2019 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the September 23, 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: June 21, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board