United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.L., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Tulsa, OK, Employer

__________________________________________

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Docket No. 19-0361

Issued: October 24, 2019

Appearances: Case Submitted on the Record

Christopher Kannady, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 10, 2018 appellant, through counsel, filed a timely appeal from a 

September 14, 2018 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.3

 

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.

3 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.
2

ISSUE

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

performance of duty on October 19, 2015, as alleged.

FACTUAL HISTORY

On December 4, 2015 appellant, then a 47-year-old budget analyst, filed a traumatic injury 

claim (Form CA-1) alleging that on October 19, 2015 she sustained neck and back spasms, and 

numbness due to daily computer and desk work while in the performance of duty.

4 She did not 

stop work. Appellant’s supervisor checked a box marked “yes” on the claim form indicating that 

her knowledge of the facts of this alleged injury agreed with the statements of the employee and/or 

witnesses. She also checked a box marked “yes” affirming that the injury occurred in the 

performance of duty. 

In a November 9, 2015 report, Dr. Traci L. White, a Board-certified anesthesiologist and 

pain medicine specialist, detailed examination findings and diagnosed chronic pain syndrome, 

cervical radiculitis, cervical and lumbar spondylosis, post-laminectomy cervical spine syndrome, 

and lumbar degenerative disc disease. Appellant related having continuing neck pain radiating 

into her shoulders and thoracic muscle spasms. 

In reports dated November 19 and December 2, 2015, Dr. Kalvin White, an osteopathic 

physician specializing in pain medicine and anesthesiology, diagnosed low back pain and lumbar 

spondylosis. Appellant underwent bilateral L4-5 medial branch blocks on December 2, 2015. 

In a development letter dated December 30, 2015, OWCP informed appellant that her claim 

had initially been adjudicated as a minor injury, but was now reopened for consideration of the 

merits. It requested that she respond to an attached factual development questionnaire and provide 

additional medical evidence to establish that she sustained a diagnosed condition as a result of the 

alleged employment incident. OWCP afforded appellant 30 days to submit the necessary evidence. 

No response was received.

By decision dated February 1, 2016, OWCP denied appellant’s claim finding that she had 

not established that she was in the performance of duty at the time of the alleged October 19, 2015 

employment incident. It noted that her description of the injury was vague and she had not 

responded to the development letter or completed the questionnaire. OWCP concluded, therefore, 

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

On November 15, 2016 appellant requested reconsideration and submitted an October 16, 

2016 report from Dr. John W. Ellis, a Board-certified family medical practitioner. 

In his October 16, 2016 report, Dr. Ellis related that on October 19, 2015 appellant was 

working at her supervisor’s desk when she developed severe mid and lower level back pain. Due 

 

4 The record reflects that appellant has a November 10, 2008 occupational disease claim (Form CA-2) which was 

accepted in OWCP File No. xxxxxx049 for brachial neuritis or radiculitis, ulnar nerve lesion, cervical spondylosis 

without myelopathy, and cervical intervertebral disc degeneration. By decision dated June 1, 2016, OWCP accepted 

her claim for a recurrence of disability beginning October 10, 2015. 
3

to the severity of her back pain and inability to walk, appellant left work. Dr. Ellis reviewed 

appellant’s medical history and provided physical examination findings. He diagnosed bilateral 

L5 and S1 spinal nerve impairments, which he attributed to the alleged October 19, 2015 

employment injury. Dr. Ellis opined that the diagnosed conditions, on a more probable than not 

basis, had been caused or aggravated by employment factors and work duties. He explained that 

abnormal stresses such as twisting her back over the course of several years opened up her low 

back facet joints and placed greater stress on the disc annular fibers and iliolumbar ligaments. 

Dr. Ellis reported that when appellant reached forward and slightly twisted while sitting at the desk 

on October 19, 2015 this movement caused severe acute iliolumbar and sacroiliac ligament and 

annular disc fiber strain. According to him, the incident may have caused immediate 

radiculopathy, which went unnoticed until the following day when appellant experienced bilateral 

leg pain and radiculopathy. Dr. Ellis reviewed a lumbar spine MRI scan, which showed no acute 

herniated discs, but opined it did not rule out annular fiber injury. A review of an 

electromyography/nerve conduction velocity study (EMG/NCV) was negative for cervical and 

lumbar radiculopathy, but Dr. Ellis noted that the study did not rule out spinal impingement. 

Dr. Ellis concluded that appellant sustained lumbar and thoracic muscle, ligament, and disc strains 

due to the acute October 19, 2015 employment injury.

By decision dated February 9, 2017, OWCP denied modification of its prior decision 

finding that appellant had not met her burden of proof to establish the factual portion of her claim. 

It found that she had not provided a statement responding to the development letter and

questionnaire. 

In March 23, 2017 report, Dr. Ellis diagnosed back muscle tendon strain, lumbar disc 

derangement, right L4 and L5 spinal nerve impairment, right L4 nerve impairment, and left L5-S1 

spinal nerve impairment. He opined that the diagnosed conditions had been caused, aggravated, 

or contributed to by her work duties and employment factors. Dr. Ellis noted that appellant 

developed severe back pain on October 19, 2015 while sitting at a desk, reaching forward and 

slightly twisting. He opined that appellant had been totally disabled since October 19, 2015 due 

to the injury sustained that day. 

On April 17, 2017 appellant, through counsel, requested reconsideration. In an 

accompanying March 28, 2017 supplemental statement, she clarified that she was claiming a 

traumatic injury and not an occupational disease. Appellant explained that she was working on 

budget files in her supervisor’s office on October 19, 2015, which required passing the files back 

and forth across the desk. While leaning forward to reach for a file with a slight left twist, she felt 

a sudden severe mid-to-low back pain. She noted that she was unable to walk without excruciating 

pain. Appellant left work after the incident, took medication, and rested. Due to the severity of 

the pain, she went to urgent care on October 23, 2015 and received a cortisone shot. 

By decision dated August 14, 2017, OWCP granted modification of its prior decision 

finding that the evidence submitted was sufficient to establish the factual portion of her claim. 

However, it found the medical evidence was insufficient to establish a causal relationship between 

the accepted October 19, 2015 employment incident and the diagnosed medical conditions.

In a September 11, 2017 report, Dr. Ellis noted that on October 19, 2015 appellant was 

sitting in her supervisor’s office at a standard desk while she and her supervisor passed files back 

and forth across the desk. Appellant related feeling severe mid-to-low back pain from leaning 
4

forward and twisting her back. Dr. Ellis summarized appellant’s diagnoses and related that his 

opinion regarding causal relationship was unchanged from his prior reports. He also opined that

the October 19, 2015 employment incident aggravated her accepted cervical conditions. In a 

December 4, 2017 report, Dr. Ellis reiterated findings, diagnoses, and opinions from his prior 

reports.

On April 17, 2018 appellant, through counsel, requested reconsideration. 

By decision dated September 14, 2018, OWCP modified its prior decision, and found that 

appellant failed to establish the factual portion of her claim. Specifically, it found that she failed 

to establish that the injury occurred in the manner, time, or place alleged.

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

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. 9 

Moreover, 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, as alleged, but the employee’s 

statements must be consistent with the surrounding facts and circumstances and his or her 

subsequent course of action.10 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.11

 

5

Supra note 2.

6

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

ECAB 312 (1988).

7 C.B., Docket No. 18-0071 (issued May 13, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);

DeloresC. Ellyett, 41 ECAB 992 (1990).

8 D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9 A.C., Docket No. 18-1567 (issued April9, 2019); Gregory J. Reser, 57 ECAB 277 (2005).

10 A.C., id.; Joseph H. Surgener, 42 ECAB 541, 547 (1991).

11 A.C., supra note 9; BettyJ. Smith, 54 ECAB 174 (2002).
5

ANALYSIS

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

performance of duty on October 19, 2015, as alleged. 

While appellant initially provided a vague description of her alleged October 19, 2015 

employment incident, in a March 28, 2017 supplemental statement appellant responded to 

OWCP’s development letter and clarified that she had sustained a traumatic incident on 

October 19, 2015 when she was working on budget files in her supervisor’s office. She explained 

that this work required passing the files back and forth across the desk to her supervisor. Appellant 

further explained that, while leaning forward to reach for a file with a slight left twist, she felt a 

sudden, severe mid-to-low back pain.

The Board finds that appellant’s description of the incident in her March 28, 2017 

statement is sufficient to establish that the October 19, 2019 employment incident occurred at the 

time, place, and in the manner alleged. Appellant provided a singular account of the mechanism 

of injury that has not been refuted by any evidence in the record.12 Appellant’s supervisor 

indicated that her knowledge of the facts of the case corresponded with appellant’s statements. 

The medical evidence of record also substantiated her description of the October 19, 2015 incident. 

In reports dated October 16, 2016, March 23, September 11, and December 4, 2017, Dr. Ellis 

reported that an incident occurred on October 19, 2015 when appellant was sitting at the desk in 

her supervisor’s office and passing files back and forth across the desk to her supervisor. As noted 

above, a claimant’s statement that an incident occurred at a given time, place, and in a given 

manner is of great probative value and will stand unless refuted by strong or persuasive evidence. 13 

There is no contradictory evidence of record. The Board finds, therefore, that appellant has 

established that the October 19, 2015 employment incident occurred in the performance of duty, 

as alleged.

As appellant has established that the October 19, 2015 employment incident factually 

occurred, the question becomes whether this accepted employment incident caused an injury. 14 

The Board will, therefore, set aside OWCP’s September 14, 2018 decision and remand the case to 

be administratively combined with OWCP File No. xxxxxx049 to be followed by consideration of 

the medical evidence. Following 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 or medical condition causally related to the accepted employment incident and 

any attendant disability.

 

12 See S.W., Docket No. 17-0261 (issued May 24, 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 C.M., Docket No. 19-0009 (issued May24, 

2019); J.L., Docket No. 17-1712 (issued February12, 2018).

13 A.C., supra note 9; GregoryJ. Reser, 57 ECAB 277 (2005).

14 See C.M.supra note 12; Willie J. Clements, 43 ECAB 244 (1991).
6

CONCLUSION

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

performance of duty on October 19, 2015, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the September 14, 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: October 24, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board