United States Department of Labor

Employees’ Compensation Appeals Board

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J.F., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS BENEFITS ADMINISTRATION, 

Portland, OR, Employer

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Docket No. 21-0368

Issued: April 17, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On January 13, 2021 appellant, through counsel, filed a timely appeal from a December 22, 

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 an injury on 

February 25, 2020 in the performance of duty.

FACTUAL HISTORY

On March 3, 2020 appellant, then a 56-year-old authorization quality review specialist, 

filed a traumatic injury claim (Form CA-1) alleging that on February 25, 2020 at 11:30 a.m., while 

teleworking from his residence, as he stood, the watch he was wearing got caught under the armrest

of his chair. He jerked his left arm until the watch was freed, causing him to fall and suffer a left 

biceps complete rupture and chronic left shoulder pain. On the reverse side of the Form CA-1, 

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

Appellant stopped work on February 25, 2020. 

In a February 25, 2020 hospital note, Denalee E. Valler, a certified physician assistant, 

noted that appellant was seen for an arm injury and diagnosed left biceps tendon rupture, left elbow 

olecranon bursitis, and chronic left shoulder pain. 

On February 29, 2020 appellant was seen by Dr. Christopher Stefan Ritchie, a physician 

specializing in family medicine, who noted appellant’s medical history, detailed examination 

findings, and diagnosed biceps tendon tear. 

In a development letter dated March 30, 2020, OWCP requested additional information 

from the employing establishment, including information regarding the work appellant was 

performing at the time of injury, arrangements for working at home, and an opinion on whether 

appellant was performing official duties at the time of injury. 

In a separate development letter dated April 2, 2020, OWCP advised appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence needed to 

establish his claim, and provided a questionnaire for his completion. OWCP afforded appellant

30 days to respond. 

In response, appellant submitted a March 16, 2020 patient medical history form from a 

medical provider, which noted an on-the-job injury date of February 25, 2020 and that appellant 

was seen for left shoulder, bicep, and elbow injuries. The form was not signed by a physician. 

On April 27, 2020 the employing establishment responded to OWCP’s request for 

additional evidence and submitted a copy of appellant’s telework agreement. It noted that, at the 

time of injury, appellant was at his desk when he stood up after completing review of a veteran’s 

application for benefits. The employing establishment acknowledged that he was on duty and 

performing official work at the time of the injury.

On April 28, 2020 OWCP received progress notes dated December 14 and 16, 2019 

from D. Scott Belli, a physician assistant, diagnosing left olecranon bursitis. 
3

By decision dated May 5, 2020, OWCP denied appellant’s claim, finding that the incident 

occurred as alleged, but that the medical evidence was insufficient to establish a diagnosed medical

condition in connection with the accepted February 25, 2020 work incident. 

In a report dated May 20, 2020 and signed on June 1, 2020, Dr. Brian Puskas, a Boardcertified orthopedic surgeon, noted that appellant was seen that day for complaints of persistent 

left shoulder pain. Appellant related that, in September 2019, he underwent a nonwork-related left 

shoulder arthroscopic rotator cuff tear and biceps tenodesis surgery and reported persistent pain 

following a fall in February 2020. A review of his May 20, 2020 shoulder x-ray showed decreased 

acromiohumeral distance consistent with a chronic rotator cuff tear, postsurgical changes, and 

wide space where distal clavicle was located from prior Mumford procedure, and no signs of 

glenohumeral joint osteoarthritis or narrowing. A left elbow x-ray interpretation of even date 

showed no instability, fracture, or osteoarthritis. Physical examination findings were detailed 

including left upper extremity supraspinatus and subscapularis positive empty test, tenderness over 

lateral epicondyle, and poor active motion above his head. Dr. Puskas diagnosed left shoulder 

pain, left shoulder complete rotator tear or rupture, not specified as trauma, and elbow lateral 

epicondylitis. 

In a form report of even date, Dr. Puskas indicated by check mark that appellant had injured 

the same body part in September 2019. He described the new injury as occurring when appellant’s 

watch got caught on the arm of his chair while he was getting up from the chair, he heard a pop 

and felt elbow and shoulder pain. 

On October 8, 2020 appellant, through counsel, requested reconsideration and submitted a 

July 27, 2020 report from Dr. Bradford Lorber, a Board-certified physiatrist.

In a report dated July 27, 2020, Dr. Lorber noted appellant’s history of injury on 

February 25, 2020. He also noted appellant’s prior medical history, which included left shoulder 

surgical procedure on September 27, 2019, which consisted of left suprascapularis repair, glenoid 

labrum debridement, and left biceps tenodesis. Dr. Lorber related that appellant’s prior injury had 

occurred during a mountain biking incident. Physical examination and range of motion findings 

were noted. Due to appellant’s inability to elevate his arm, Dr. Lorber could not perform 

maneuvers. He diagnosed left shoulder rotator cuff tear, preexisting left shoulder subscapularis 

repair, glenoid labrum debridement, and left biceps tenodesis, and preexisting left shoulder clavicle 

surgery in 1991 and 1993. Dr. Lorber advised that he could not offer an opinion on causation as 

he would have to review appellant’s initial medical records before offering an opinion. He also 

explained that the mechanism of injury as described by appellant could have caused a rotator cuff 

tear especially given his recent second surgery in September 2019. In an addendum report,

Dr. Lorber noted that he had reviewed the medical record and concluded that the diagnosis of acute 

biceps tendon rupture was likely a preexisting finding and that the rotator cuff tear was the main 

pathology.

By decision dated December 22, 2020, OWCP modified the May 5, 2020 decision to find 

that the medical evidence of record was sufficient to establish a diagnosed medical condition in 

connection with the accepted employment incident. However, the claim remained denied as the 

evidence of record was insufficient to establish that appellant was in the performance of duty at 

the time of the February 25, 2020 incident. 
4

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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 filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific 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 on a traumatic injury or an occupational disease.5

FECA provides for the payment of compensation for “the disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.”

6

 The phrase 

“sustained while in the performance of duty” has been interpreted by the Board to be the equivalent 

of the commonly found prerequisite in workers’ compensation law of “arising out of and in the 

course of employment.”

7

 The phrase “in the course of employment” is recognized as relating to 

the work situation, and more particularly, relating to elements of time, place, and circumstance. 

To arise in the course of employment, an injury must occur at a time when the employee may 

reasonably be said to be engaged in the master’s business, at a place where he or she may 

reasonably be expected to be in connection with the employment, and while he or she was 

reasonably fulfilling the duties of his or her employment or engaged in doing something incidental 

thereto.”

8

 This alone is not sufficient to establish entitlement to benefits for compensability. The 

concomitant requirement of an injury “arising out of the employment” must be shown, and this 

encompasses not only the work setting, but also a causal concept, the requirement being that the 

employment caused the injury.9

ANALYSIS

The Board finds that appellant has met his burden of proof to establish an injury occurred 

on February 25, 2020, while in the performance of duty.

OWCP’s procedures provide that, ordinarily, the protections of FECA do not extend to the 

employee’s home; however, there is an exception when the injury is sustained while the employee 

3

Id.

4 N.B., Docket No. 20-1446 (issued March 19, 2021); A.S., Docket No. 18-1381 (issued April 8, 2019); Alvin V. 

Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

5 See N.B., id.; A.S., id.; Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 

530 (2004).

6 Supra note 2 at § 8102(a).

7 N.B., supra note 4; A.S., supra note 4; A.K., Docket No. 16-1133 (issued December 19, 2016); Charles 

Crawford, 40 ECAB 474, 476-77 (1989).

8 N.B., id.; A.S., id.; D.L., 58 ECAB 667 (2007); Mary Keszler, 38 ECAB 735 (1987).

9 N.B., id.; A.S., id.; M.T., Docket No. 16-0927 (issued February 13, 2017); Vitaliy Y. Matviiv, 57 ECAB 193 (2005);

Eugene G. Chin, 39 ECAB 598 (1988).
5

is performing official duties. In situations of this sort, it is critical to ascertain whether at the time 

of injury the employee was in fact doing something for the benefit of the employer.10

It is undisputed that on February 25, 2020 appellant jerked his left shoulder/arm to free his 

watch, which had gotten caught under the left armrest of his chair as he stood while teleworking. 

He was, therefore, at a time when he was reasonably said to be engaged in the master’s business; 

at a place where he was reasonably be expected to be in connection with the employment; and 

while he was reasonably fulfilling the duties of his employment or engaged in doing something 

incidental thereto.

11

 Furthermore, appellant’s supervisor acknowledged that appellant was injured 

in the performance of duty. The Board thus finds that appellant was injured while in the 

performance of duty.12

The Board will, therefore, remand the case for consideration of the medical evidence on 

the issue of causal relationship. Following this and other 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 February 25, 2020 employment 

incident.

CONCLUSION

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

in the performance of duty on February 25, 2020, as alleged.

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1) (August 1992);

see also P.B., Docket No. 21-0667 (issued March 3, 2022); M.T., Docket No. 16-0927 (issued February 13, 2017);

S.F., Docket No. 09-2172 (issued August 23, 2010).

11 P.B., id.

12 See D.E., Docket No. 21-0988 (issued June 2, 2022). 
6

ORDER

IT IS HEREBY ORDERED THAT the December 22, 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: April 17, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board