United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS,

JESSE BROWN VA MEDICAL CENTER, 

Chicago, IL, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-1346

Issued: January 10, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 10, 2021 appellant filed a timely appeal from an August 13, 2021 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.

ISSUE

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

injury occurred in the performance of duty on October 31, 2019, as alleged.

FACTUAL HISTORY

On November 5, 2019 appellant, then a 43-year-old medical support assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on October 31, 2019 she sustained a back sprain

when she assisted a man who fell near an elevator while in the performance of duty. She explained 

1

5 U.S.C. § 8101 et seq.
2

that she felt a pop in her back when she attempted to help him and subsequently had an x-ray 

performed which demonstrated a sprain. On the reverse side of the claim form,J.R., an employing 

establishment supervisor acknowledged that appellant was in the performance of duty when 

injured and noted that his knowledge of the facts about the injury was consistent with her 

statements. Appellant stopped work on November 4, 2019 and returned to work on 

November 12, 2019. 

In a medical report dated November 27, 2019, Dr. Joseph Rabi, a Board-certified 

physiatrist, related that appellant developed instant pain in her lower back and left leg after she 

experienced a pop in her back while assisting a client on October 31, 2019, while at work. On 

physical examination, she was noted to have reduced range of motion (ROM) in the lumbar spine, 

tender trigger points and a positive Kemp’s test. Dr. Rabi noted that appellant continued to 

experience back pain, radiating into her left leg, aggravated by bending, lifting, carrying, pushing,

and pulling. He diagnosed a lumbar disc herniation with left radiculitis spine contusion.

On November 30, 2019 Dr. Vikram Sobti, a Board-certified radiologist, performed a 

magnetic resonance imaging (MRI) scan of the lumbar spine, subsequent to low back pain related 

to an October 31, 2019 work injury. He provided impressions of mild multilevel spondylosis,

broad-based herniations at L3-4 and L4-5 causing mild to moderate stenosis and straightening of 

normal lumbar lordosis indicating muscle spasm versus strain. 

In physical therapy notes dated December 3, 2019 through January 13, 2020, Mitchel 

Bershader, a physical therapist, noted that appellant participated in four weeks of physical therapy 

for lower lumbar spine pain relating to an October 31, 2019 employment incident where she

injured her back when she helped a fallen patient.

A December 11, 2019 note from Dr. Rabi related appellant’s ongoing complaints of pain 

in her lower back, radiating into her left leg, which prevented her from sitting for extended periods. 

On physical examination Dr. Rabi continued to note reduced ROM of the lumbar spine, tender 

trigger points and positive Kemp’s test.

In a June 23, 2021 development letter, OWCP informed appellant of the deficiencies of 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 submit the necessary 

evidence. 

Thereafter, OWCP received reports and return to work notes dated May 30 through 

July 17, 2018, from Dr. Howard Robinson, a Board-certified physiatrist, who noted that appellant 

had been in good health until February 2018 when she awakened with significant back pain. In 

follow-up notes dated July 21, 2020 through June 24, 2021, he noted ongoing complaints of 

worsening back pain radiating into appellant’s left leg, prescribed medication and provided work 

restrictions. Dr. Robinson referenced a May 11, 2021 MRI study of the lumbar spine which 

revealed an enlarging herniated disc at the L4-5 level, severe left-sided foraminal stenosis and 

moderate right stenosis. He opined that these findings seemed to demonstrate worsening from 

prior studies.

In a letter of controversion dated July 12, 2021, the employing establishment informed 

OWCP that it was not challenging the diagnosis of a herniated lumbar disc or that the October 31, 
3

2019 employment incident had occurred as alleged. Rather, it was controverting the claim only 

based on causal relationship.

In a duty status report (Form CA-17) dated July 28, 2021, an unidentifiable health care 

provider diagnosed an enlarged disc herniation at the L4-5 level and described the injury as 

occurring from assisting a patient who was falling in an elevator.

By decision dated August 13, 2021, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish that the claimed injury occurred in 

the performance of duty on October 31, 2019, as alleged. Consequently, it found that the 

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

LEGAL PRECEDENT

An employee seeking benefits under FECA2 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,3that 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 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 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.6 

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. 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 

2

Id.

3 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued December 13, 2019); 

Joe D. Cameron, 41 ECAB 153 (1989). 

4 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).

5 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). 

6 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).
4

medical treatment may, if otherwise unexplained, cast serious doubt on the employee’s statements 

in determining whether a prima facie case has been established.7 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 a traumatic incident

in the performance of duty on October 31, 2019, as alleged.

As noted, 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 or 

persuasive evidence.9 In her Form CA-1 dated November 5, 2019, appellant alleged that she 

sustained an injury to her back on October 31, 2019, when she assisted a patient who fell near an 

elevator while in the performance of duty. Appellant has provided a consistent description of the 

October 31, 2019 employment incident to her treating physician. On November 27, 2019Dr. Rabi 

noted her history of injury of injuring her back while trying to assist a patient who had fallen near 

the elevator she had entered at work on October 31, 2019. He diagnosed a lumbar disc with left 

radiculitis spine contusion. A November 30, 2019 MRI scan report of the lumbar spine also noted 

an October 31, 2019 date of injury and provided impressions of mild multilevel spondylosis, 

broad-based herniations at L3-4 and L4-5 and straightening of normal lumbar lordosis. 

December 3, 2019 through January 13, 2020 physical therapy notes indicate appellant was treated 

for lower back pain related to an October 31, 2019 employment incident where she injured her 

back helping a patient who had fallen. 

Additionally, the employing establishment twice acknowledged that appellant was injured 

in the performance of duty on October 31, 2019, as alleged. On the reverse side of the claim form, 

appellant’s supervisor acknowledged that appellant was injured in the performance of duty on 

October 31, 2019, and that his knowledge of the facts of the injury was consistent with her

statements. Furthermore, in a letter dated July 12, 2021, the employing establishment informed 

OWCP that it was not challenging the diagnosis of a herniated lumbar disc or that the October 31, 

2019 employment incident had occurred, as alleged. Rather, it was controverting the claim only 

based on causal relationship.

The Board thus finds that the evidence of record is sufficient to establish that the 

October 31, 2019 employment incident occurred in the performance of duty, as alleged. 

As appellant has established that the October 31, 2019 employment incident factually 

occurred as alleged, the question becomes whether the incident caused an injury. 10 As OWCP 

found that she had not established fact of injury, it has not evaluated the medical evidence. The 

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

8

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

9

See id. 

10 See M.H., Docket No, 20-0576 (issued August6, 2020); M.A., Docket No. 19-0616 (issued April10, 2020); C.M., 

Docket No. 19-0009 (issued May 24, 2019).
5

case must, therefore, be remanded for consideration of the medical evidence of record.11 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 October 31, 2019 employment incident.

CONCLUSION

The Board finds that appellant has met her burden to that the October 31, 2019 incident 

occurred in the performance of duty, as alleged. The Board further finds that the case is not in 

posture for decision with regard to whether the medical evidence of record is sufficient to establish 

an injury causally related to the accepted October 31, 2019 employment incident. 

ORDER

IT IS HEREBY ORDERED THAT the August 13, 2021 decision of the Office of 

Workers’Compensation Programs is reversed in part and set aside in part, and the case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: January 10, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

11 M.H., id.; S.M., Docket No. 16-0875 (issued December 12, 2017).