United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.T., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ALEXANDRIA MEDICAL CENTER, 

Pineville, LA, Employer

__________________________________________

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Docket No. 21-0583

Issued: February 2, 2022

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, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 21, 2020 appellant, through counsel, filed a timely appeal from a 

November 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 his burden of proof to establish an injury in the 

performance of duty on May 6, 2020, as alleged.

FACTUAL HISTORY

On May 29, 2020 appellant, then a 57-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that on May 7, 2020 he injured his left shoulder, upper arm, and back when 

repositioning a patient in bed and pulling a draw sheet while in the performance of duty. He 

explained that he had been repositioning the patient in bed every two hours and began experiencing 

excruciating pain in his left shoulder. Appellant noted that the following day he had pain radiating 

down his neck and mid back. On the reverse side of the claim form the employing establishment 

controverted appellant’s claim noting that he was not scheduled to work on May 7, 2020 at the 

time of the injury. Supervisor E.R. also challenged the claim, contending that appellant initially 

reported that he sustained a non-work-related injury, but then subsequently reported that the injury 

was in fact work related.

In a June 9, 2020 development letter, OWCP informed appellant of the deficiencies of his 

claim. It advised him of the type of factual and medical evidence needed and provided a factual 

questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary 

evidence. 

In a May 7, 2020 report, Jeremy Wiley, a nurse practitioner, diagnosed left shoulder joint 

pain. 

In a May 12, 2020 medical note, Dr. Gregory Bevels, Board-certified in family practice, 

noted that appellant was under his care and provided work restrictions of no lifting or pulling over 

20 pounds for two weeks. In a medical report of even date, he noted that appellant experienced 

bilateral shoulder pain and muscle stiffness for a week. Dr. Bevels diagnosed left shoulder pain 

and left shoulder muscle spasm. 

May 18, 2020 x-rays of the left and right shoulder revealed normal results.

In a May 18, 2020 report of employee’s emergency treatment, Judy Jameson, an advanced 

practice registered nurse, indicated that appellant developed a non-work-related illness and

provided work restrictions. In a progress report of even date, she indicated that he had stopped 

work beginning May 9, 2020 due to concerns over having COVID-19. Appellant reported that he 

developed muscle aches along his trapezius muscles and back. Ms. Jameson noted that he sought 

medical care for muscle pain on May 12, 2020 with Dr. Bevels, who opined that it was possibly 

pain radiating down from his shoulder due to arthritis. She also indicated that appellant denied 

any significant shoulder injury, but mentioned that he had been working with a heavy patient, who 

needed to be turned over every two hours.

In a May 27, 2020 medical note, Dr. Bevels repeated his previous work restrictions. 

In a June 10, 2020 letter, the employing establishment again controverted appellant’s 

claim. 
3

In an undated response to OWCP’s development questionnaire, appellant clarified his date 

of injury as May 6, 2020. He explained that he had previously provided an incorrect date of injury 

due to numerous changes that occurred with his assignment and work location. Appellant further 

noted that he initially believed that his condition was a symptom of the COVID-19, but 

subsequently tested negative for COVID-19. He again contended that, at the time of his injury, he 

was assisting a patient in bed. Appellant explained that he was pulling the draw sheet when he felt 

severe pain in his left shoulder that felt like a muscle sprain or a pulled muscle. He noted that his 

pain initially decreased, but later returned. 

In a June 14, 2020 injury report, appellant reported that he sustained a work-related left 

shoulder injury on May 6, 2020. He explained that the date of injury was previously reported

incorrectly as May 7, 2020. 

In a June 15, 2020 work status report, Dr. Bevels provided work restrictions.

In a June 30, 2020 attending physician’s report (Form CA-20), Dr. Robert C. Smith, 

Board-certified in family practice, indicated that appellant’s date of injury was May 7, 2020. He 

noted that appellant injured his left shoulder while repositioning a patient in bed. Dr. Smith 

diagnosed incomplete rotator cuff tear or rupture of left shoulder, unspecified rotator cuff tear or 

rupture of left shoulder, and left shoulder impingement.

By decision dated July 10 2020, OWCP denied appellant’s traumatic injury claim, finding 

that the medical evidence of record was insufficient to establish a diagnosis in connection with the 

accepted May 7, 2020 employment incident. It concluded, therefore, that the requirements had 

not been met to establish an injury as defined under FECA. 

In a June 30, 2020 medical report, Dr. Smith noted May 7, 2020 as appellant’s date of 

injury. He noted that appellant was performing his daily work duties, including repositioning one 

of his patients and pulling the draw sheet, when he experienced excruciating pain in his left 

shoulder. Dr. Smith diagnosed incomplete left shoulder rotator cuff tear/rupture, left shoulder 

impingement syndrome, and unspecified left shoulder rotator cuff tear/rupture. He opined that 

continuous repositioning of a patient over two hours while in a lying position directly caused 

appellant’s diagnosed conditions. In a work capacity evaluation (Form OWCP-5c) of even date,

Dr. Smith diagnosed left shoulder rotator cuff tear and impingement syndrome.

In a July 16, 2020 medical report, Dr. Smith reiterated his findings and diagnoses. In a 

Form OWCP-5c of even date, he reiterated his diagnoses and noted that appellant could not 

perform his work duties. 

In a July 27, 2020 letter, Dr. Smith reiterated appellant’s history of injury and diagnosed a 

left shoulder rotator cuff tear, a supraspinatus tear, and impingement syndrome.

In a July 31, 2020 medical report, Dr. Smith reiterated his findings and diagnoses. In a 

Form OWCP-5c of even date, Dr. Smith again noted that appellant could not perform his work 

duties. 

In an August 10, 2020 medical report, Dr. Smith reiterated his findings and diagnoses. In 

a Form OWCP-5c of even date, he again noted that appellant could not perform his work duties.
4

On August 12, 2020 appellant requested reconsideration. By decision dated August 19, 

2020, OWCP denied modification of the July 10, 2020 decision. 

In an August 20, 2020 Form OWCP-5c of even date, Dr. Smith noted that appellant was 

still unable to perform his work duties. 

In an August 21, 2020 statement, appellant contended that he sustained his injury on 

May 6, 2020 while assisting and repositioning a bedbound patient and pulling the draw sh eet when 

he experienced severe pain. He again explained that he initially reported the date of injury as 

May 7, 2020, which was in error.

On August 25, 2020 appellant requested reconsideration.

On September 15, 2020 OWCP received an August 31, 2020 notification of personnel 

action (Form SF-50).

In a September 15, 2020 Form OWCP-5c, Dr. Smith reiterated his diagnoses.

In an October 6, 2020 letter, the employing establishment controverted appellant’s claim. 

In an undated statement, appellant asserted that he woke up with pain in his left shoulder 

and neck on May 7, 2020 after his shift ended on May 6, 2020 at 7:15 a.m. In another undated 

statement, appellant reiterated that, although he initially reported May 7, 2020 as the date of injury, 

he sustained his work-related injury on May 6, 2020. 

By decision dated November 23, 2020, OWCP modified the August 19, 2020 decision to 

find that appellant had not established that the May 7, 2020 employment incident occurred as 

alleged, noting that appellant provided inconsistent statements regarding his injury.

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 related to the 

3

Supra note 2.

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

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. 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. The second component is whether the employment 

incident caused a personal injury and can be established only by medical evidence.7 

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 subsequent course of 

action.8 The employee has not met his or her burden of proof of establishing the occurrence of an 

injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity 

of the claim.9 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 case has been established. 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.10

ANALYSIS

The Board finds that appellant has met his burden of proof to establish that the May 7, 2020 

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

To establish a claim for compensation in a traumatic injury claim, an employee must submit 

a statement that explains how the claimed injury occurred.11 Appellant has provided a detailed 

description on the claim form, an undated response to OWCP’s development questionnaire, and 

subsequent statements explaining how the alleged employment incident occurred. His claim form 

and subsequent statements were consistent in describing that an injury occurred on May 7, 2020 

when repositioning a patient pulling a draw sheet while in the performance of duty. Thus, the 

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 January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

8

See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April9, 2019).

9

See V.J., Docket No. 19-1600 (issued March 13, 2020); E.C., Docket No. 19-0943 (issued September 23, 2019).

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

11 B.L., Docket No. 20-0394 (issued July 17, 2020); R.B., Docket No. 19-1026 (issued January 14, 2020).
6

Board finds that appellant has established that an employment incident occurred on May 7, 2020, 

as alleged.

Consequently, the question becomes whether this incident caused an injury.12 Thus, the 

Board will set aside OWCP’s November 23, 2020 decision and remand the case for consideration 

of the medical evidence.13 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 a diagnosed medical condition causally related to the accepted May 7, 2020

employment incident.

CONCLUSION

The Board finds that appellant has met his burden of proof to establish that the May 7, 2020 

employment incident occurred while in the performance of duty, as alleged. The Board further 

finds that this case is not in posture for decision with regard to whether he has established a medical 

condition causally related to the accepted May 7, 2020 employment incident.

12 C.H., Docket No. 19-1781 (issued November 13, 2020); A.C., Docket No. 18-1567 (issued April9, 2019).

13 S.V., Docket No. 21-0027 (issued April29, 2021); W.R., Docket No. 17-0287 (issued June8, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the November 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: February 2, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board