United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 13-1222
Issued: October 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 18, 2013 appellant filed a timely appeal from an October 22, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic
injury claim.1 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.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on May 9, 2012.

1

The Board notes that this appeal is timely because it was postmarked April 18, 2013 and that date controls for
purposes of timely filing.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 9, 2012 appellant, then a 32-year-old city carrier, filed a traumatic injury claim
alleging that on that same date she sustained a lower back, buttocks and left leg injury after she
fell down steps while on her route. She notified her supervisor and first sought medical
treatment on May 9, 2012.
By letter dated May 17, 2012, the employing establishment controverted the claim. It
noted that appellant claimed she fell down steps at 311 E. Westfield Avenue on May 9, 2012.
An investigation of the scene revealed that the steps and surrounding area were wet due to recent
rains. The employing establishment noted that appellant’s uniform pants and shirt were dry,
which indicated that she did not fall onto the wet area. It further noted that she initially indicated
that she needed medical treatment and claimed she could not drive but drove herself to the
hospital when she was informed that an ambulance would be called. The employing
establishment described appellant as hostile and uncooperative during the investigation
immediately after the accident, casting doubt on the validity of her claim.
In a May 9, 2012 Duty Status Report (Form CA-17) and prescription slip, a physician’s
assistant reported that appellant fell down steps injuring her lower back, buttocks and left leg and
was treated in the emergency room (ER).
In a May 14, 2012 CA-17 form and physician’s note, Dr. Aditi Menon, Board-certified in
physical medicine and rehabilitation, reported that appellant fell down steps on May 9, 2012
injuring her lower back, buttocks and left leg. He diagnosed lumbar sprain/strain and provided
work restrictions.
By letter dated May 22, 2012, OWCP informed appellant that the evidence of record was
insufficient to support her claim. It requested additional factual and medical evidence and
provided appellant 30 days to respond.
In an undated statement, Carlos Vega, a U.S. Postal Service (USPS) employee, reported
that on May 9, 2012 he accompanied Postmaster Allocco to investigate appellant’s accident,
which occurred while on route after she tripped. During the investigation, the Postmaster asked
her about the incident and she refused to answer his questions.
In a May 14, 2012 medical report, Dr. Menon reported that appellant was employed as a
USPS letter carrier and sought treatment on May 14, 2012 after she experienced low back pain
from a May 9, 2012 fall at work. Appellant stated that she was delivering mail at a home when
she fell down the stairs outside the house after a slip and landed on her low back. She sought
emergency treatment that same date and returned for follow-up treatment due to continued pain.
Upon physical examination, Dr. Menon diagnosed lumbar strain/sprain and lumbar myospasm.
In follow-up reports dated May 21 and June 4, 2012, Dr. Menon reported that a May 19,
2012 x-ray of the lumbar spine revealed dexoscoliosis related to muscle spasms and mild disc
space narrowing at L5-S1. A May 19, 2012 magnetic resonance imaging (MRI) scan revealed
left sided disc herniation at T11-12, bilateral facet changes at L5-S1 and degenerative disc
disease at L5-S1. Dr. Menon diagnosed lumbar degenerative disc disease, lumbar facet

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arthropathy, thoracic herniated nucleaus pulposus and myospasm.
submitted dated May 14 through June 13, 2012.

Treatment notes were

On May 24, 2012 appellant was examined by physical therapists and underwent a
functional capacity evaluation (FCE).
By decision dated June 22, 2012, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that the May 9, 2012 employment incident occurred at the
time, place and in the manner alleged.
By letter dated July 19, 2012, appellant requested reconsideration of OWCP’s decision.
She stated that she disagreed with the employing establishment’s allegations that her clothes
should have been wet if she fell. Appellant stated that, when she fell, it was only drizzling. She
provided two photographs in support of her claim explaining that the pictures were from the site
where the accident occurred and showed Postmaster Allocco on the scene. Appellant further
stated that she “tripped down a step, fell backwards, my back was arched, with my left leg bent
as if the heel was touching my buttocks while still on the steps.” She explained that she chose
not to take an ambulance because she did not think that her injury was life threatening.
In a separate June 19, 2012 statement, appellant repeated the events surrounding the
May 9, 2012 employment incident. She stated that, after she fell on that date, she called
Mr. Slava, her immediate supervisor, who reported to the scene. Appellant informed him that
she fell down the steps and described it as “more like a trip my left shoe bottom got stuck on one
of the stairs and my left leg bent and my right leg was straight as I fell backwards.” She stated
that Mr. Slava took pictures and that Postmaster Allocco arrived shortly after asking her to repeat
the information she had already provided. Appellant stated that she was in pain and sought
emergency treatment.
In a June 18, 2012 report, Dr. Menon reported that appellant sought treatment for lumbar
pain and recommended continued physical therapy. OWCP notes dated June 14 to 26, 2012
were also submitted.
By decision dated October 22, 2012, OWCP affirmed the June 22, 2012 decision finding
that the evidence of record failed to establish that the May 9, 2012 employment incident occurred
at the time, place and in the manner alleged. It noted that fact of injury was not established
because the evidence revealed three different histories of how the injury occurred.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 are causally related to the

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employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.6 Once an employee establishes
that he or she sustained an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, for which he or she claims
compensation is causally related to the accepted injury.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. In determining whether a case has
been established, such circumstances as late notification of injury, lack of confirmation of injury
and failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on
the employee’s statements. 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.8
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.9 The opinion of the physician must be based on one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 2.

6

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
7

Elaine Pendleton, supra note 2.

8

Betty J. Smith, 54 ECAB 174 (2002).

9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

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must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS
The Board finds that appellant failed to establish that she sustained a lumbar injury in the
performance of duty on May 9, 2012.
Appellant must establish all of the elements of her claim in order to prevail. She must
prove her employment, the time, place and manner of injury, a resulting personal injury and that
her injury arose in the performance of duty. In its October 22, 2012 decision, OWCP found that
appellant did not establish that the incident occurred at the time, place and in the manner alleged.
The Board finds, however, that the evidence of record is sufficient to establish that the May 9,
2012 incident occurred as alleged.
On her May 9, 2012 Form CA-1, appellant alleged that she sustained a lower back,
buttocks and left leg injury after she fell down steps while on her route. She immediately
notified her supervisor and sought medical attention on that same date. By letter dated May 17,
2012, the employing establishment controverted the claim noting that an investigation of the
accident revealed that the steps and surrounding area were wet due to recent rain. The
employing establishment noted that appellant’s uniform pants and shirt were dry which indicated
that she did not fall onto the wet area. In a May 9, 2012 Form CA-17, an ER physician’s
assistant reported that appellant fell down steps injuring the lower back, buttocks and left leg.
Dr. Menon’s May 14, 2012 report noted that she was delivering mail at a home when she fell
down the stairs outside the house after a slip and landed on her low back.
By decision dated June 22, 2012, OWCP denied appellant’s claim for failing to establish
fact of injury.
Appellant requested reconsideration and responded to the employing
establishment’s allegations in two separate statements. In her July 19, 2012 request for
reconsideration, she stated that her clothes were not wet when she fell because it was only
drizzling when the incident occurred. Appellant further stated that she “tripped down a step, fell
backwards, my back was arched, with my left leg bent as if the heel was touching my buttocks
while still on the steps.” In support of her allegations, she provided two photographs of the
accident site shortly after the incident occurred. In a separate June 19, 2012 statement, appellant
stated that she fell down the steps on May 9, 2012 and described it as “more like a trip my left
shoe bottom got stuck on one of the stairs and my left leg bent and my right leg was straight as I
fell backwards.”
In its October 22, 2012 decision, OWCP found that appellant did not establish that the
May 9, 2012 employment incident occurred as alleged because there were three different
histories of how the injury occurred and how she landed, including that she tripped on the bottom
of her left shoe and got stuck on one of the stairs causing her to fall backwards with her left leg
bent, that she tripped down a step and fell backwards with her back arched and left leg bent, and
that she fell down the stairs after a slip and landed on her low back. The Board finds, however,
10

James Mack, 43 ECAB 321 (1991).

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that her statements have sufficiently established that the May 9, 2012 employment incident
occurred as alleged. Appellant has consistently alleged that she fell down the stairs on May 9,
2012 while delivering mail on both her Form CA-1 and her July 19, 2012 narrative statements.
The fact that her July 19, 2012 narrative statements provide more details regarding her fall does
not negate that she fell down the stairs on May 9, 2012. Both July 19, 2012 narrative statements
assert that appellant tripped and fell backwards. The minor differences in detail of the statements
do not establish that the fall did not occur in the manner alleged. Moreover, the May 9, 2012 ER
note was consistent in noting that appellant fell backward down steps. Dr. Menon’s May 14,
2012 report, which notes that she slipped and fell down the stairs does not cast such
inconsistencies as to establish that she did not suffer from a fall down the steps on May 9, 2012.
While the employing establishment controverted the claim stating that appellant’s clothes
should have been wet if she fell backwards, the Board finds that this assumption is not enough to
establish that the incident did not occur as alleged. Moreover, appellant provided photographs of
the accident scene shortly after her fall. The ground and steps do not appear to be so wet that her
clothing would necessarily become wet as a result of her fall. The Board has held that a
claimant’s statement that an injury 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.11
Appellant’s statements have all been consistent with one basic account of the mechanism
of the employment incident. Moreover, she sought medical treatment, immediately notified her
supervisor and filed her Form CA-1 on the same date of the employment incident. The Board
finds that, given the above referenced evidence, appellant has alleged with specificity that the
incident occurred at the time, place and in the manner alleged.12
In medical reports dated May 14 to June 18, 2012, Dr. Menon reported that appellant was
a USPS carrier and sought treatment after she fell down the stairs outside a house while working
on May 9, 2012. He diagnosed lumbar sprain/strain and myospasm. In follow-up reports,
Dr. Menon reviewed a May 19, 2012 MRI scan and x-ray of the lumbar spine and diagnosed
lumbar degenerative disc disease, lumbar facet arthropathy, thoracic herniated nucleus pulposus
and myospasm. Progress notes were also submitted noting appellant’s treatment from May 14 to
June 26, 2012.
The Board finds that the medical evidence of record establishes a sufficient diagnosis of
lumbar sprain/strain, lumbar degenerative disc disease, lumbar facet arthropathy, thoracic
herniated nucleaus pulposus and myospasm. Given that appellant has established a diagnosed
condition, the question becomes whether the May 9, 2012 incident caused her lumbar injury.
Thus, she must submit rationalized medical evidence to establish that her diagnosed medical
condition is causally related to the accepted May 9, 2012 employment incident.
While Dr. Menon’s reports establish a sufficient diagnosis of lumbar sprain/strain,
lumbar degenerative disc disease, lumbar facet arthropathy, thoracic herniated nucleaus pulposus
and myospasm, he failed to provide a rationalized opinion on the issue of causal relationship. He
did not provide an adequate explanation of how the incident accepted in this case caused or
11

Thelma Rogers, 42 ECAB 866, 869-70 (1991).

12

See Willie J. Clements, 43 ECAB 244 (1991).

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contributed to appellant’s lumbar injury. Dr. Menon failed to adequately address her medical
history or discuss any preexisting lumbar conditions. He merely recounted the incident as
described by appellant, did not determine that her condition was work related and did not offer a
rationalized opinion on the issue of causal relationship.13 Medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.14 The opinion of a physician supporting causal relationship must
rest on a complete factual and medical background supported by affirmative evidence, address
the specific factual and medical evidence of record and provide medical rationale explaining the
relationship between the diagnosed condition and the established incident or factor of
employment.15 Dr. Menon’s reports do not meet that standard and are insufficient to meet
appellant’s burden of proof.
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s lumbar injury and the May 9, 2012 employment incident as the
progress notes merely noted appellant’s complaints and treatment but failed to provide any
opinion on causal relationship. Moreover, it is unclear if the progress notes were signed by a
physician as they contain an illegible signature.16 These notes lack probative medical value as
the author(s) cannot be identified as a physician.17 The medical reports signed by physician’s
assistants and the functional capacity evaluation provided by physical therapists are also of no
probative value as nurses, physician’s assistants, physical and occupational therapists are not
“physicians” as defined by FECA.18
In the instant case, appellant has established that the May 9, 2012 incident occurred as
alleged. She has also established a firm medical diagnosis of lumbar sprain/strain, lumbar
degenerative disc disease, lumbar facet arthropathy, thoracic herniated nucleaus pulposus and
myospasm. The record, however, is without rationalized medical evidence establishing a causal
relationship between the accepted May 9, 2012 employment incident and appellant’s lumbar
injury. Thus, appellant has failed to establish her burden of proof.19

13

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
14

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

15

See Lee R. Haywood, 48 ECAB 145 (1996).

16

Nurses, physician’s assistants, physical and occupational therapists are not “physicians” as defined by FECA,
their opinions regarding diagnosis and causal relationship are of no probative medical value. 5 U.S.C. § 8101(2) of
FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.
See also Roy L. Humphrey, 57 ECAB 238 (2005).
17

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

18

Supra note 15.

19

The Board notes that a Form CA-16, authorization of medical care was not issued in this case. Upon return of
the case record, OWCP shall determine whether appellant’s initial medical care in the hospital emergency room
should be authorized pursuant to 20 C.F.R. § 10.304, which provides that in cases involving emergencies or unusual
circumstances, OWCP may authorize treatment in a manner other than as stated in this subpart.

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Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant established a clear diagnosis for her alleged injury, but did
not meet her burden of proof to establish that her lumbar condition is causally related to the
accepted May 9, 2012 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: October 25, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ARKANSAS VETERANS
HEALTHCARE SYSTEM, Little Rock, AR,
Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-1612
Issued: February 24, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
Appellant filed a timely appeal from a July 7, 2008 merit decision of the Office of
Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over the merits of this case.1
ISSUE
The issue is whether appellant has established that he was disabled from February 17,
2004 to November 30, 2005 causally related to his accepted employment injury.

1

For final adverse Office decisions issued on and after November 19, 2008, a claimant has 180 days to file an
appeal with the Board. 20 C.F.R. § 501.3(e). For final adverse Office decisions issued before November 19, 2008,
a claimant had up to one year in which to file an appeal. See 20 C.F.R. § 501.3(d)(2).

FACTUAL HISTORY
On November 5, 2003 appellant, then a 47-year-old procurement clerk, filed an
occupational disease claim alleging that he sustained a “Reoccurrence of job-related stress” due
to factors of his federal employment.
By decision dated February 20, 2004, the Office denied appellant’s claim after finding
that he failed to establish an emotional condition in the performance of duty. It determined that
he had not identified any compensable work factors.
On February 27, 2004 appellant requested an oral hearing, which was held on
September 2, 2004. In an April 25, 2005 decision, an Office hearing representative set aside the
February 20, 2004 decision. She found that appellant had established as compensable
employment factors that he worked in a noisy environment without adequate ear protection and
was assigned computer work without receiving requested training. The hearing representative
remanded the case for the Office to prepare a statement of accepted facts and refer him for a
second opinion examination to determine whether he sustained an emotional condition due to the
accepted work factors and, if so, the nature and extent of any disability.
On July 11, 2005 the Office referred appellant, together with the case record and a
statement of accepted facts, to Dr. Ronald J. Wauters, a Board-certified psychiatrist, for a second
opinion examination. It requested that Dr. Wauters address the causal relationship between any
diagnosed emotional condition and the employment factors accepted as compensable and the
duration of any work-related disability. On August 4, 2005 Dr. Wauters diagnosed recurrent,
severe major depressive disorder. He opined that appellant’s preexisting depression was
exacerbated by the identified incidents set forth in the statement of accepted facts. Dr. Wauters
related, “As far as an opinion on the duration and extent of any disability, at this point [appellant]
does not trust the agency or any government agency. It is doubtful that he would trust any large
entity. Given [appellant’s] depression, his anger, his frustration, and his level of distrust, it
would be difficult for him to be employed in most circumstances.” Dr. Wauters opined that
appellant had been “ill for quite some time” with exacerbations before and during employment.
He stated that it was “difficult or impossible to predict the length of his depression or the timing
or length of any improvements.”
On October 4, 2005 the Office accepted appellant’s claim for an aggravation of
preexisting depression condition. On November 30, 2005 appellant filed a claim for wage loss
February 17, 2004 to November 30, 2005.2
In a report dated April 25, 2006, Dr. John Lierly, a clinical psychologist, related that he
treated appellant in a group setting for anger management. Appellant told him about his
difficulties with supervisors at work and his numerous medical problems.
By decision dated March 3, 2008, the Office denied appellant’s claim for compensation
for disability from February 17, 2004 to November 30, 2005. It noted that Dr. Wauters found
that appellant’s disability was hard to determine as it was preexisting.
2

Appellant resigned from the employing establishment on February 17, 2004.

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On March 8, 2008 appellant requested a review of the written record. He submitted a
report dated August 6, 2006 Dr. Billy W. Evans, a Board-certified internist, diagnoses included
major depression and panic disorder with agoraphobia. Dr. Evans found that appellant was
“unable to engage in sustained work activity on a regular consistent daily basis” due to pain and
symptoms of depression.
By decision dated July 7, 2008, an Office hearing representative affirmed the March 3,
2008 decision. She found that the medical evidence failed to establish that appellant was
disabled from February 17, 2004 to November 30, 2005 due to his accepted employment injury.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act3 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.4 Whether a particular injury caused an employee disability for employment
is a medical issue which must be resolved by competent medical evidence.5 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.6 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.7
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter.8 While the claimant has the responsibility to establish entitlement to compensation, the
Office shares responsibility in the development of the evidence.9 Once the Office has begun an
investigation of a claim, it must pursue the evidence as far as reasonably possible. It has the
obligation to see that justice is done.10 When the Office selects a physician for an opinion, it has
an obligation to secure, if necessary, clarification of the physician’s report.11 Where the Office

3

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

4

Paul E. Thams, 56 ECAB 503 (2005).

5

Id.

6

Id.

7

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Vanessa Young, 55 ECAB 575 (2004).

9

Peter C. Belkind, 56 ECAB 580 (2005).

10

Richard E. Simpson, 55 ECAB 490 (2004).

11

See Peter C. Belkind, supra note 9; Steven P. Anderson, 51 ECAB 525 (2000).

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refers a claimant for a second opinion evaluation and the report does not adequately address the
relevant issues, the Office should secure an appropriate report on the relevant issues.12
ANALYSIS
Appellant filed a claim alleging that he sustained stress causally related to his federal
employment. He further claimed that he was disabled due to stress February 17, 2004 to
November 30, 2005. On April 25, 2005 an Office hearing representative found that appellant
had established as compensable employment factors that he worked in a noisy environment
without adequate hearing protection and was assigned computer work without training. She
instructed the Office to refer him for a second opinion examination to determine whether he
sustained an emotional condition due to the compensable work factors and, if so, the nature and
extent of any disability. The Office referred appellant to Dr. Wauters. Based on Dr. Wauters’
opinion, it accepted his claim for an aggravation of preexisting depression. The Office found,
however, that Dr. Wauters’ report was insufficient to show that appellant was disabled beginning
February 17, 2004 due to his accepted employment injury.
In his August 4, 2005 report, Dr. Wauters diagnosed recurrent, severe major depression.
Regarding the duration of disability, he related that it would be difficult for appellant to be
employed given his depression, anger and mistrust. Dr. Wauters opined that appellant had
experienced exacerbations of his condition before and during his employment but that it was
“difficult or impossible to predict the length of his depression or the timing or length of any
improvements.” His opinion is insufficient to resolve the question of whether appellant was
disabled from February 17, 2004 to November 30, 2005.
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. Once the Office undertakes to develop the medical evidence further, it has
the responsibility to do in a manner that will resolve the relevant issues in the case.13 In
accordance with instructions from the hearing representative, it requested that Dr. Wauters
address the nature and extent of any employment-related disability. As the Office sought the
opinion of Dr. Wauters, it has the responsibility to obtain an opinion that adequately addresses
the issue presented.14 Accordingly, the case will be remanded to the Office to obtain a reasoned
medical opinion on the extent of any disability due to the accepted employment injury. After
such further development as deemed necessary, the Office should issue an appropriate merit
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

Ayanle A. Hashi, 56 ECAB 234 (2004); Mae Z. Hackett, 34 ECAB 1421 (1983).

13

Id.

14

See Ayanle A. Hashi, supra note 12.

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ORDER
IT IS HEREBY ORDERED THAT the July 7, 2008 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: February 24, 2011
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Fort Lee, VA,
Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-116
Issued: July 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 21, 2013 appellant, through counsel, filed a timely appeal from the June 19,
2013 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 met his burden of proof to establish an injury in the
performance of duty on August 24, 2011.
FACTUAL HISTORY
On September 22, 2011 appellant, then a 60-year-old meat cutter, filed a traumatic injury
claim (Form CA-1) alleging that on August 24, 2011 he sustained a work injury in the form of
1

5 U.S.C. §§ 8101-8193.

three head lacerations, left eye laceration and trauma to his head, neck, chest, ribs, knees and left
wrist. Regarding the cause of injury, appellant stated, “was attacked by three masked men using
ax handles as I tried to get out of my car upon returning from work to home. They told me to
‘stop talking sh-- at work’ as they were beating me.”2 On the same form, Angel Liciaga,
appellant’s supervisor, checked a box indicating that the claimed injury did not occur in the
performance of duty and stated, “Employee alleges that three men beat him with ax handles at
his residence, [though to] my knowledge there is no evidence that supports that this is work
related. [Appellant] refused to make a statement to the police about what happen[ed] that day.”
Mr. Liciaga also noted, “[Appellant] has made statements to the store director and in the first
portion of [Form CA-1] that he believes this accident was work related. However, there is no
evidence to support this theory (that has been provided to me).”
In a September 29, 2011 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of his claim.
In a statement received on November 1, 2011, appellant discussed various incidents prior
to August 24, 2011 which he believed showed that the alleged assault on August 24, 2011 was
related to his work. He indicated that beginning in March 2011 he complained to Mr. Liciaga
about improper actions in the workplace, including the falsification of product order invoices and
the cutting and processing of fresh chicken in the meat department. Appellant detailed meetings
he held with management officials in mid-March 2011 regarding these matters and indicated that
on March 25 or 26, 2011 a window in his personal car was broken out while parked at his house.
He discussed additional interactions with management regarding his concerns and then detailed
the August 24, 2011 incident:
“On the afternoon of August 24, 2011, I signed out on my time card at 2:30 p.m.
but did not leave the commissary until approx. 2:40 p.m. I drove home … and as
I pulled into my driveway, I turned off my car. Through my rear view mirror, I
saw a white vehicle stop, blocking my driveway and my vehicle, three men came
running out of the car, they were wearing bandanas (gang member attire),
covering their faces to where only their eyes could be seen. They told me to ‘stop
talking sh-- at work’ and all three began beating me on my legs, arms, hands,
face, neck and head, with wooden ax handles. I was trapped inside my car.
“I tried to get out on the passenger side of my car but one of the men went over to
that side of the car and was striking me through the window, so I tried to get out
of the driver’s side again, but they had me trapped inside. For reasons unknown
to me, one man turned his body towards the street and I grabbed the ax handle
from him, but they all starting beating me on my left wrist to get the axe handle
back, which they did, after one of them struck me in my left eye.
“When I was finally able to get out of the car, all three kept striking me repeatedly
with the ax handles and then I was struck several times to the back of my head
which made me fall to the ground on my knees. While I was trying to get up, they
2

Appellant reported the time of his injury as 2:45 p.m.

2

told me again to ‘stop talking sh-- at work’ and then they ran to their car and
left.”3
In a September 29, 2011 statement, an employing establishment official stated that
appellant’s claim for an August 24, 2011 work injury was being controverted. She noted that
appellant’s claimed injury occurred at his home while he was off duty and that he refused to file
a police report on the claimed date of injury.
The record contains a number of e-mails produced by employing establishment officials
on or shortly after August 24, 2011. Several individuals indicated that appellant refused to talk
to police in detail or receive more than cursory medical attention when he appeared at the
workplace shortly after the claimed time of the attack on August 24, 2011.4 In an undated
statement, a coworker stated that at about 3:50 p.m. she saw appellant at the workplace with
blood all over his clothing and face.
In a November 10, 2011 decision, OWCP denied appellant’s claim that he sustained an
injury in the performance of duty on August 24, 2011. Regarding the reason for the denial, it
stated, “[s]pecifically, your case is denied because the evidence is not sufficient to establish that
the injury and/or medical condition arose during the course of employment and within the scope
of compensable work factors. The reason for this finding is that the evidence submitted does not
establish you were in the performance of duty at the time of the attack.”
Appellant submitted additional evidence including a military police report from
August 24, 2011. The report noted that military police responded to a call from the area of
Commissary Building 4240 at the workplace and discovered that appellant had multiple injuries
which he alleged were due to a battery that occurred outside his residence. Appellant refused to
provide details about the incident other than to state that three men (with their faces covered by
bandanas) hit him with ax handles. He also submitted a transcript of a telephone call he
participated in with a coworker, Andy, approximately seven months after the August 24, 2011
incident. Andy indicated that “everybody in the commissary” thought that two other coworkers,
Michael and Jimmy, had something to do with the August 24, 2011 attack.5
In a June 1, 2012 decision, OWCP denied modification of its November 10, 2011
decision finding that appellant did not show that he was injured in the performance of duty on
3

Appellant met his wife at his workplace and a coworker called 911 for him. An ambulance arrived and he was
transported to a nearby hospital emergency room. Appellant stated, “Since I had just been beaten and was bleeding
profusely, I did not want anyone to see me talking to the police, since I had just been told to ‘stop talking sh-- at
work,’ so I said nothing until two days later when I called the police station to talk to the detective who responded to
the 911 call.” He informed the detective that the “men who attacked me were of Asian descent.” In an August 29,
2011 disability note, an attending physician indicated that appellant should be off work from August 24 to
September 6, 2011.
4

The record does, however, contain a medical record which shows that appellant sought medical treatment at a
community hospital later in the day on August 24, 2011.
5

Appellant also submitted several statements concerning his dealings with coworkers prior to August 24, 2011,
including Michael Nguyen, and a record from an officer of Marina Police Department about a meeting the officer
had with appellant and his wife on February 9, 2013.

3

August 24, 2011. It found that the additional evidence submitted by appellant did not establish
an employment link to the claimed August 24, 2011 injury.
In a February 19, 2013 statement, appellant continued to argue that he believed he was
attacked on August 24, 2011 by coworkers who were angry about his whistleblower activities.
He submitted several documents that had already been considered by OWCP. By decision dated
March 18, 2013, OWCP denied appellant’s request for further review of the merits of his claim.
Appellant submitted various documents of officials from the Inspector General of the
Department of Defense concerning whistleblower disclosures that he made as well as
January 2013 letters of reprimand issued to several employing establishment workers for such
actions as mislabeling products and engaging in improper inventory management.
In a June 19, 2013 decision, OWCP denied modification of its June 1, 2012 decision
denying appellant’s claim for an August 24, 2011 work injury.
LEGAL PRECEDENT
FECA provides for the payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.6 The term “in the
performance of duty” has been interpreted to be the equivalent of the commonly found
prerequisite in workers’ compensation law, “arising out of and in the course of employment.”7
The phrase “course of employment” is recognized as relating to the work situation, and more
particularly, relating to elements of time, place and circumstance. In the compensation field, to
occur in the course of employment, an injury must occur: (1) at a time when the employee may
be reasonably engaged in the master’s business; (2) at a place where he may reasonably be
expected to be in connection with the employment; and (3) while he was reasonably fulfilling the
duties of his 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. In order for an injury to be considered as arising out of the employment, the facts of the
case must show some substantial employer benefit is derived or an employment requirement
gave rise to the injury.9
ANALYSIS
On September 22, 2011 appellant filed a traumatic injury claim alleging that on
August 24, 2011 he sustained a work injury in the form of three head lacerations, left eye
laceration and trauma to his head, neck, chest, ribs, knees and left wrist. Regarding the cause of
6

5 U.S.C. § 8102.

7

Bernard D. Blum, 1 ECAB 1, 2 (1947).

8

See L.K., 59 ECAB 465 (2008); R.S., 58 ECAB 660 (2007).

9

See Eugene G. Chin, 39 ECAB 598, 601-02 (1988).

4

injury, appellant stated, “was attacked by three masked men using ax handles as I tried to get out
of my car upon returning from work to home. They told me to ‘stop talking sh-- at work’ as they
were beating me.” In later statements, appellant asserted that he was attacked by unidentified
coworkers due to his whistleblower activities at work, including exposing employees who
falsified product order invoices and mishandled inventory.
The Board finds that appellant has not established a sufficient nexus to his employment
such that his claimed injuries on August 24, 2011 would be covered under FECA as occurring in
the performance of duty. Appellant’s claimed injury occurred at his home while he was off duty
and was not performing any regular or specially assigned duties. Therefore, two important
aspects of the performance of duty test have not been met. At the time of the claimed work
injury on August 24, 2011, the injury did not occur: (1) at a time when the employee may be
reasonably said to be engaged in the master’s business; or (2) at a place where he may
reasonably be expected to be in connection with the employment.10 Appellant also has not
shown that he was reasonably fulfilling the duties of his employment or engaged in doing
something incidental thereto. He has attempted to establish an employment link by positing that
he would not have been attacked but for his whistleblower activities at work, i.e., his work
activities placed him in a position of risk to be harmed.11 However, appellant has not proven
such an employment link. His alleged attackers, by his own account, wore bandanas and he was
not able to identify them. The record reflects that appellant was initially reluctant to cooperate
with law enforcement officials and there is no police report of record which identifies the
claimed attackers.12
On appeal, counsel argued that because appellant consistently indicated that his claimed
attackers told him to “stop talking sh-- at work” as they were beating him, it must be accepted
that there was a work link to the attack. Counsel made reference to Board precedent which
indicates that an employee has not met his burden of proof to establish an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim, but
that 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.13 While it is true that appellant consistently indicated that he was being attacked for
“talking sh-- at work,” the Board notes that, even if it could be established that he made this
statement, the link of the claimed incident to work factors would still remain vague. For these
10

See supra note 8.

11

Larson has identified three types of risks: risks distinctly associated with the employment, risks personal to the
claimant, and “neutral” risks, i.e., risks having no particular employment or personal character. He further indicated
that harms from the first risk are universally compensable and those from the second are universally
noncompensable; harms from the third risk are the subject of controversy in modern compensation law but there is
increased acceptance for finding an injury arose in the performance of duty when a condition of employment put the
claimant in a position to be injured by the neutral risk. See A. Larson, The Law of Workers’ Compensation, sections
7.00, 7.30 (2010).
12

Appellant presented documents which he felt established the participation of coworkers in the claimed attack,
including a transcript of a telephone call held seven months after the August 24, 2011 incident, but the documents
lack probative value.
13

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

5

reasons, appellant has not established that he was in the course of his employment at the time of
the alleged incident and he has not shown that he sustained an injury in the performance of duty
on August 24, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on August 24, 2011.
ORDER
IT IS HEREBY ORDERED THAT the June 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 2, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, SYRACUSE POSTAL )
& DISTRIBUTION CENTER, Syracuse, NY, )
Employer
)
__________________________________________ )
D.N., Appellant

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 15-0987
Issued: August 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 30, 2015 appellant filed a timely appeal from a November 19, 2014 merit
decision and a January 5, 2015 nonmerit 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 merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that he
sustained an injury on September 24, 2014; and (2) whether OWCP properly denied appellant’s
request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 25, 2014 appellant, then a 51-year-old mail processing equipment
mechanic, filed a traumatic injury clam alleging that on September 24, 2014 he injured his right
hand and wrist when he tripped while retrieving a package from a conveyer when his knee got
caught on the frame. No evidence was submitted with his claim.
By letter dated October 10, 2014, OWCP advised appellant of the deficiencies in his
claim and provided him 30 days in which to submit additional factual and medical evidence,
including a medical report which provided a diagnosis of a medical condition which was
sustained as a result of the claimed events.
In response to the development letter, OWCP received appellant’s November 20, 2014
statement and a copy of a September 25, 2014 x-ray report of the right wrist.
In a September 25, 2014 report, Dr. Shelly L. Hearn, a Board-certified family
practitioner, noted that appellant hit the dorsum of his right wrist on the conveyor belt at work
while inspecting it. She noted that he had a history of carpal tunnel syndrome and was wearing a
splint. X-rays of the right wrist were negative. An assessment of wrist injury was provided.
By decision dated November 19, 2014, OWCP denied the claim on the basis that fact of
injury was not established. Specifically, it found that appellant did not submit any medical
evidence containing a medical diagnosis in connection with the injury and/or event.
By letter dated November 27, 2014, received by OWCP on December 1, 2014, appellant
requested reconsideration. Evidence received in support of the reconsideration request included
a December 1, 2014 letter from the employing establishment instructing appellant to submit bills
to his personal health insurance and duplicate copies of the September 25, 2014 right wrist x-ray
report and September 25, 2014 medical report of Dr. Hearn.
By decision dated January 5, 2015, OWCP denied appellant’s request for reconsideration
without merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 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 and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 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.3

2

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

3

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

2

OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 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 actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS -- ISSUE 1
Appellant alleged that he hit his right wrist and hand during the performance of his duties
on September 24, 2014. The evidence supports that the claimed incident occurred. Therefore,
the Board finds that the first component of fact of injury is established. However, the medical
evidence is insufficient to establish a medical diagnosis in connection with the accepted
September 24, 2014 employment incident.
In her September 25, 2014 report, Dr. Hearn provided a history of preexisting carpal
tunnel syndrome and an assessment of wrist injury. However, an injury is not a valid diagnosis
of a medical condition and, in and of itself, cannot support compensation benefits under FECA.7
Without a valid medical diagnosis of a current medical condition linked to the accepted incident,
the medical component of fact of injury cannot be met. Thus, this report is insufficient to
establish the medical component of fact of injury.8
The September 25, 2014 x-ray report is also insufficient to establish appellant’s claim as
diagnostic reports fail to provide a rationalized opinion regarding the causal relationship between
the diagnosed conditions, if any, and the accepted employment incident.9 Thus, this is
insufficient to establish appellant’s claim.

4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

5

T.H., 59 ECAB 388 (2008).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

20 C.F.R. § 10.501(a)(3).

8

See Elaine Pendleton, 40 ECAB 1143 (1989.

9

K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E.
Smith, 50 ECAB 313 (1999).

3

The Board finds that the evidence of record does not establish a medical diagnosis in
connection with appellant’s September 24, 2014 employment incident. Consequently, appellant
failed to establish fact of injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,10
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.11 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.12 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.13
ANALYSIS -- ISSUE 2
The issue on reconsideration is whether appellant has established the medical component
of fact of injury. Appellant’s request for reconsideration neither alleged nor demonstrated that
OWCP erroneously applied or interpreted a specific point of law. Consequently, appellant was
not entitled to a review of the merits based on the first and second above-noted requirements
under 20 C.F.R. § 10.606(b)(2).
The Board also finds that appellant did not provide any relevant or pertinent new
evidence warranting the reopening of the case on the merits. On reconsideration, appellant
submitted duplicative copies of the September 25, 2014 right wrist x-ray report and Dr. Hearn’s
September 25, 2014 report. Evidence which repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a case.14 While the
December 1, 2014 letter from the employing establishment instructing appellant to submit bills
to his personal health insurance is new, it is not relevant to the fact of injury issue in his claim.15
10

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
11

20 C.F.R. § 10.606(b)(2).

12

Id. at § 10.607(a).

13

Id. at § 10.608(b).

14

See J.P., 58 ECAB 289 (2007); Richard Yadron, 57 ECAB 207 (2005).

15

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000) (evidence which does not
address the particular issue involved does not constitute a basis for reopening a case for a merit review).

4

The Board finds that appellant did not show that OWCP erroneously interpreted a
specific point of law, advance a relevant legal argument not previously considered, or submit
relevant and pertinent new evidence not previously considered by OWCP. Appellant did not
meet any of the regulatory requirements and OWCP properly declined to reopen his claim for
further merit review.16
On appeal, appellant enclosed duplicative copies of the evidence of record and stated that
he believed that all the information showed the cause of the accident, timely reporting, and
follow-up medical attention. As noted, OWCP denied his claim as the medical component of
fact of injury was not established. Appellant has the burden of proof to submit medical evidence
that contains a medical diagnosis in relation to the injury and/or events of September 24, 2014.
He must also submit medical evidence that establishes causal relationship. Appellant has not
met his burden in this case.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on September 24, 2014, as alleged. Furthermore, the Board finds that
OWCP properly denied appellant’s request for merit review under 5 U.S.C. § 8128(a).

16

M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued
August 3, 2010) (when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the
case for a review on the merits).

5

ORDER
IT IS HEREBY ORDERED THAT the January 5, 2015 and November 19, 2014
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 3, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 19-1977
Issued: February 22, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 30, 2019 appellant filed a timely appeal from an August 26, 2019 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.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,446.08, for which he was not at fault, because
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 26, 2019 decision, OWCP received additional evidence. 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.

he concurrently received FECA wage-loss compensation benefits and Social Security
Administration (SSA) age-related retirement benefits for the period February 6 through May 25,
2019 without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment.
FACTUAL HISTORY
On December 21, 2018 appellant, then a 77-year-old customs border patrol officer, filed a
traumatic injury claim (Form CA-1) alleging that on December 20, 2018 he injured his lower back
and buttocks when he slipped on steps while in the performance of duty. His retirement coverage
was noted as federal employee retirement system (FERS). OWCP accepted the claim for
spondylosis without myelopathy or radiculopathy, lumbar region; and unspecified fracture of
unspecified lumbar vertebra closed fracture. It paid appellant wage-loss compensation on the
supplemental rolls effective February 6, 2019 and on the periodic compensation rolls effective
March 31 through August 17, 2019.
On March 28, 2019 OWCP requested information from SSA regarding appellant’s dual
FERS/SSA benefits.
On April 22, 2019 OWCP received a completed FERS/SSA dual benefits calculation form
from SSA dated April 17, 2019, wherein SSA indicated that appellant’s SSA age-related
retirement benefit rates with and without a FERS offset. The form indicated that the SSA rate with
FERS was $2,675.60 and SSA rate without FERS was $1,716.60 effective February 1, 2019. On
May 26, 2019 OWCP adjusted appellant’s compensation based on the FERS offset.
On June 3, 2019 OWCP completed a FERS offset calculation form. It determined the 28day FERS offset amount for the days in each period and computed a total overpayment of
$3,604.15 for the period February 1 through May 25, 2019.
A June 6, 2019 FERS offset calculation form indicated that during the 109 days from
February 6 to May 25, 2019 appellant received an overpayment in the amount of $3,446.08. In a
June 6, 2019 manual adjustment form, OWCP determined that for the period February 6 through
May 25, 2019, appellant received an overpayment due to FERS offset of $3,446.08.
On July 24, 2019 OWCP notified appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $3,446.08 for the period February 6
through May 25, 2019 as he had received FECA wage-loss compensation and SSA age-related
retirement benefits without an appropriate offset, and that this portion of his SSA benefit was a
prohibited dual benefit. It included copies of the FERS offset calculation form for the period
February 6 through May 25, 2019 and its manual adjustment form both dated June 6, 2019 setting
forth the claimed basis of the overpayment. OWCP also informed appellant of its preliminary
determination that he was without fault in the creation of the overpayment. It provided him with
an overpayment action request form and an overpayment recovery questionnaire (Form
OWCP-20). OWCP notified appellant that, within 30 days of the date of the letter, he could request
a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.

2

On August 22, 2019 OWCP received appellant’s August 12, 2019 request for waiver of
recovery of the overpayment and an August 12, 2019 completed Form OWCP-20. Appellant
alleged that having to repay the overpayment would create a financial hardship on him and his
family. Copies of financial documents including 1040 tax forms for the years 2016, 2017, 2018,
electric bills, car payments, credit card bills, a mortgage statement, and earning and leave
statements were submitted.
By decision dated August 26, 2019, OWCP finalized the overpayment determination,
finding that appellant received an overpayment of wage-loss compensation in the amount of
$3,446.08 from February 6 through May 25, 2019 because it had failed to deduct SSA age-related
retirement benefits from his compensation for that period. It also affirmed the finding that he was
without fault in the creation of the overpayment as, due to the complexity in benefits
administration, he could not have reasonably known that an improper payment occurred. OWCP
required that appellant forward the entire amount as repayment, summarily concluding that there
was no evidence of record to substantiate waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA age-related retirement benefits because
the portion of the SSA benefit earned as a federal employee is part of the FERS retirement package,
and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$3,446.08 because he concurrently received FECA wage-loss compensation benefits and SSA agerelated retirement benefits for the period February 6 through May 25, 2019 without an appropriate
offset.

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August 12, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019).
6

FECA Bulletin No. 97-09 (February 3, 1997); see also S.M., Docket No. 20-0152 (issued August 10, 2020).

3

The record indicates that, while appellant was receiving wage-loss compensation under
FECA, he also received SSA age-related retirement benefits attributable to his federal service
during the relevant period. A claimant cannot receive both compensation for wage loss and SSA
age-related retirement benefits attributable to federal service for the same period.7 Consequently,
the fact of the overpayment has been established.
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS and without FERS for the period
February 1 through May 25, 2019. OWCP provided its calculations of the amount that should
have been offset during the relevant period based on information provided by SSA for the period
February 6 through May 25, 2019 in its July 24, 2019 preliminary overpayment determination. No
contrary evidence was received.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period February 6 through May 25, 2019 and finds that an overpayment of compensation in the
amount of $3,446.08 was created.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.9 Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver.10
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP’s regulations.11 Section 10.436 provides that recovery of an overpayment
would defeat the purpose of FECA if recovery would cause hardship because the beneficiary needs
substantially all of his or her income (including compensation benefits) to meet current ordinary
and necessary living expense, and, also, if the beneficiary’s assets do not exceed a specified amount

7

See N.B., Docket No. 20-0727 (issued January 26, 2021); D.M., Docket No. 19-1369 (issued June 30, 2020).

8

See N.B., id.; L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

9

5 U.S.C. § 8129.

10

20 C.F.R. § 10.438.

11

Id. at §§ 10.434-10.437.

4

as determined by OWCP from data provided by the Bureau of Labor Statistics.12 For waiver of
recovery of the overpayment under the defeat the purpose of FECA standard, appellant must show
that he or she needs substantially all of his or her current income to meet current ordinary and
necessary living expenses, and that assets do not exceed the resource base.13 An individual is
deemed to need substantially all of his or her current income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00.14
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision as to whether recovery of the
overpayment should be waived.
In the case of William A. Couch,15 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
In its August 26, 2019 decision, OWCP denied waiver of recovery finding that there was
no evidence to substantiate waiver. However, the record reflects that on August 22, 2019 it
received appellant’s request for waiver of the overpayment and a completed Form OWCP-20.
Notably, appellant documented his income, expenses, and assets as specified by OWCP on his
Form OWCP-20 and submitted financial information. He also alleged that having to repay the
overpayment would create a financial hardship for himself and his family. OWCP failed to review
the information submitted by appellant in support of his request for waiver of recovery of the
overpayment, therefore, failing to follow its procedures by properly discussing all of the relevant
evidence of record received prior to issuing the final overpayment decision on August 26, 2019.16
On remand OWCP shall review all evidence of record and, following any further
development as it deems necessary, it shall issue a de novo decision.

12

Id. at § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).
13

Id.

14

Id.

15

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

16

All evidence submitted should be reviewed and discussed in the decision. Whenever possible, the evidence
should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012); see P.H., (K.H.), Docket No. 19-1130 (issued November 19, 2020); M.R., Docket
No. 19-1626 (issued August 19, 2020).

5

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$3,446.08 because he concurrently received FECA wage-loss compensation benefits and SSA agerelated retirement benefits for the period February 6 through May 25, 2019 without an appropriate
offset. The Board further finds that this case is not in posture for decision regarding the issue of
waiver of recovery of the $3,446.08 overpayment.
ORDER
IT IS HEREBY ORDERED THAT the August 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part, and set aside in part, and the case is
remanded for further action consistent with this decision of the Board.
Issued: February 22, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
U.S. CAPITOL POLICE, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Kelly Burchell, for the appellant
Office of Solicitor, for the Director

Docket No. 06-2053
Issued: April 9, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 6, 2006 appellant filed a timely appeal from the January 5, 2006 decision
of the Office of Workers’ Compensation Programs and a July 18, 2006 decision of an Office
hearing representative. By the January 5, 2006 decision, the Office denied her traumatic injury
claim. The Office hearing representative affirmed this denial by the July 18, 2006 decision.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case. On appeal, appellant argued that the Office hearing representative’s decision should be
overturned because it placed great weight on statements that were not part of the record. No
specific statements were identified.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 15, 2005.

FACTUAL HISTORY
On October 15, 2005 a traumatic injury claim, Form CA-1, was filed on behalf of
appellant, a 35-year-old police officer, by Sergeant Patricia Covington who alleged that appellant
fell down two steps, hit a metal stanchion and then hit the ground. Ms. Covington stated that
appellant appeared to have a seizure, which continued while she was transported to George
Washington University Hospital. She stated that the nature of the injuries, which might include
head and neck injuries, could not be fully ascertained as appellant was unable to speak. The
CA-1 form included the witness statement of Officer Raymond Mudd, who stated that appellant
“started to shake and tremble, then fell off of one of the lower steps of the Lower West Terrace,
striking her head on a metal stanchion and the pavement. Appellant continued to shake
uncontrollably and began to bleed out of her mouth.”
Appellant also submitted the statements of three other witnesses. Officer J.R. Bleiden
“observed [appellant] fall from the lower steps head first onto the stanchions and then the
pavement. Although she lay motionless for a couple of seconds, she then began to tremble as if
she were having a seizure.” Officer Trina Hamilton stated that she “witnessed [appellant] fall
from the steps of the Lower West Terrace Door. [Appellant] hit her head on a portable metal
barrier (bike rack) before falling completely onto the ground on the back of her head. [Her] body
began to tremble vigorously and blood started to flow from her mouth.” Officer Amanda Norris
stated that she “heard a loud thud and turned around. [She] saw [appellant] lying on the ground
trembling and shaking. [Appellant’s] head was resting against a portable metal barrier (bicycle
rack). Her head had hit the ground and there was blood running from the corner of her mouth.”
Appellant was transported to George Washington University Hospital, where it was
discovered that she had anterior temporal lobe lesions consistent with meningioma with
substantial mass effect. Dr. Anthony Caputy, a Board-certified neurological surgeon, diagnosed
a left temporal lobe mass and seizure disorder. On October 19, 2005 Dr. Caputy conducted a
craniotomy to remove the tumor. Appellant was released from the hospital on October 23, 2005
and placed on nonduty status.
On December 1, 2005 the Office requested additional information from appellant,
including a medical opinion as to whether her seizure or tumor were caused by her employment
and a narrative statement of the facts surrounding her fall. The Office informed appellant that
idiopathic falls, which arise from personal, nonoccupational conditions, were compensable only
if there was intervention or contribution by an employment factor.
In response to this request, appellant provided records dated October 15 to 16, 2005 from
the hospital emergency department and records dated October 16 to 21 and November 9, 2005
related to her surgery. They consisted of diagnostic tests, progress notes and procedure reports.
The medical history taken at intake indicated that this was appellant’s first seizure. In the
discharge summary report completed on November 9, 2005, Dr. Caputy explained that appellant
had presented at the hospital with a seizure. He stated that she was standing on the steps of the
Capitol building and then fell down them. Dr. Caputy noted that she had not experienced any
symptoms prior to the fall.

2

By decision dated January 5, 2006, the Office denied appellant’s claim on the grounds
that she had provided no evidence that her seizure or fall was related to her employment. It
found that she had not provided the requested medical and factual evidence about the cause of
her fall that would establish a relationship to her federal employment. The Office noted that
from the evidence in the record it appeared that appellant’s fall was “caused by a seizure disorder
which was a personal medical condition.”
On January 9, 2006 the Office received statements from appellant, her supervisor and
Dr. Caputy. On January 17, 2006 the Office received a substantial amount of medical evidence
from George Washington University Hospital.
In a narrative statement dated December 8, 2005, appellant stated that, before her fall, she
had no history of seizure, dizziness, fainting, heart condition, high blood pressure or any other
medical problems. On the day of the incident she was working a 14-hour shift for a special
event, which entailed long periods of standing and few breaks. Appellant recalled walking up
and then down the stairs to speak with a coworker prior to her fall. She postulated that it was
possible that she slipped on the stairs, but she had no recollection of how she fell. Appellant’s
coworkers told her that she struck her head against a bike rack as she fell. She listed her injuries
as a bruise and lump on forehead, a swollen left leg and scrapes on shin.
In a statement dated December 8, 2005, Sergeant Renee Wilson stated that she was
appellant’s supervisor and had been working with her on the day that she fell. She stated that she
and appellant were required to be at work at 3:00 a.m. because of a large public event and had
been on duty for nearly 14 hours when the incident occurred. Ms. Wilson recalled that appellant
was standing on a staircase outside of the U.S. Capitol Building and suddenly fell and struck her
head on a metal bike rack located near the bottom of the staircase. She stated that appellant had
never experienced episodes of fainting, dizziness or seizures on the job.
In a report dated December 21, 2005, Dr. Caputy opined that appellant’s seizure was
caused by the brain tumor and not the subsequent fall. He also stated that appellant was under
his care following a craniotomy for excision of a brain tumor.
Appellant’s full hospital records consisted of charts, progress notes, diagnostic testing
results and administrative records. In the history section of a handwritten intake form1 of unclear
authorship, it is noted that she was standing on the Capitol steps and fell and rolled down five to
six steps and hit her head on the ground. Appellant was unable to talk afterwards. She reported
“dizziness this a.m. at little league game [illegible] x 15 min, then got better.” It was also noted
that appellant did not “remember anything right before incident.” An undated and unsigned
neurological history form in the hospital records indicated that she reported an occipital
headache after the seizure where she fell on her head. It also noted that appellant felt “strange”
the night before the seizure, but experienced no aura.
Appellant was released to work on January 18, 2006. On January 20, 2006 she requested
an oral hearing to review the decision of the Office.

1

Several parts of this form are illegible.

3

On April 3, 2006 appellant was examined by Dr. Allan Weber, a Board-certified
neurologist, who noted that on the day of her seizure appellant reported to work at 3:00 a.m. and
that, prior to her fall, approximately 13 hours into her shift, she was excessively fatigued.
Mr. Weber stated that she had “a slip-and-fall” which caused head trauma when she hit the bike
rack at the bottom of the steps and that she then had a seizure. He reported that the meningioma
found by the hospital corresponded with the epileptiform activity seen on appellant’s
electroencephalogram. Dr. Weber stated that people who are prone to seizure can experience
them as a result of lowering the seizure threshold. He opined that appellant’s seizure was likely
the result of her head trauma, but that her threshold level was lowered by the excessive fatigue
she was experiencing. Dr. Weber stated that she may have had subclinical seizures prior to her
clinical seizure. He noted that he would like to see medical records related to appellant’s prior
treatment.
An Office hearing representative conducted the oral hearing on May 3, 2006. At the
hearing, appellant gave testimony about the day of the seizure, including the fact that she was
wearing approximately 30 pounds of equipment and had only 45 minutes of break-time since
starting the shift at 3:00 a.m. She said that she felt very tired and that her equipment felt very
heavy. Appellant also introduced Dr. Weber’s report. Through counsel, she argued that his
opinion was better rationalized than that of Dr. Caputy, who gave no analysis for his conclusion
that the seizure was caused by the tumor and not the fall. Appellant argued that Dr. Weber’s
opinion supported the conclusion that the seizure was caused by her employment and was
therefore compensable. She also argued that Dr. Caputy’s opinion, which was rendered two
months after the accident, was conclusory and was not clearly based on any medical records.
The Board notes that another version of Dr. Caputy’s December 21. 2005 report was
introduced by appellant at the oral hearing conducted on May 3, 2006. It contained an
additional sentence: “She did not sustain a work-related injury and when her condition
warrants she may return to her regular work activity.”
On May 30, 2006 appellant sent additional records, including event reports from the
District of Columbia Fire and Emergency Medical Service and excerpts from the previously
submitted hospitalization record.
On July 18, 20062 the Office hearing representative issued a decision affirming the denial
on the grounds that appellant had not established that she was injured in the performance of duty.
After reviewing the medical and factual evidence, she found that the report of Dr. Weber was of
diminished probative value in establishing that appellant had been injured in the course of duty.
The hearing representative found that the hospital records contemporaneous to the fall and the
statement of Dr. Caputy both indicated that the seizure was caused by the tumor and not the fall.
Based on the witness statements, the Office hearing representative found that appellant did not
slip on the steps, as Dr. Weber had assumed. She stated that, while it appeared that appellant had
struck her head on the metal bike rack, which would be an intervening object, there was no
evidence that appellant sustained any injuries from it. The Office hearing representative also

2

The Board notes that neither the decision nor the accompanying letter is dated, but that it was entered into the
Office’s electronic record on July 18, 2006.

4

noted that the hospital records indicated that, in the days before the seizure, appellant reported
dizziness and “feeling strange.”
LEGAL PRECEDENT
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury.4 Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.5
It is a well-settled principle of workers’ compensation law and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface and
there is no intervention or contribution by any hazard or special condition of employment -- is
not within coverage of the Act.6 Such an injury does not arise out of a risk connected with the
employment and is, therefore, not compensable. Although a fall is idiopathic, an injury resulting
from the fall is compensable if some job circumstance or working condition intervenes in
contributing to the incident or injury, such as if an employee, instead of falling directly onto the
floor, strikes a part of his body against a wall, a piece of equipment, furniture, machinery or
some similar object.7 In situations involving idiopathic falls, Office procedures provide that, if
some factor of the employment intervened or contributed to the injury resulting from the fall, the
employee has coverage for the results of the injury but not for the idiopathic condition that
caused the fall.8
The fact that the cause of a particular fall cannot be ascertained or that the reason it
occurred cannot be explained, does not establish that it was due to an idiopathic condition.9 This
3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

John J. Carlone, 41 ECAB 354 (1989).

5

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and claimant’s specific employment factors. Id.
6

5 U.S.C. §§ 8101-8193.

7

Lowell D. Meisinger, 43 ECAB 992 (1992).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.9(b) (August 1992)
(if some factor of the employment intervened or contributed to the injury resulting from the fall, the employee has
coverage for the results of the injury but not for the idiopathic condition that caused the fall).
9

Steven S. Saleh, 55 ECAB 169, 173 (2003).

5

follows the general rule that an injury occurring on the industrial premises during working hours
is compensable unless the injury is established to be within an exception to such general rule.10
If the record does not establish that the particular fall was due to an idiopathic condition, it must
be considered as merely an unexplained fall, one which is distinguishable from a fall in which it
is definitely proved that a physical condition preexisted the fall and caused the fall.11
ANALYSIS
The record establishes that appellant fell on the Capitol steps on October 15, 2005 and hit
her head on a bike rack and on the ground. The record also indicates that she had a seizure
shortly before or after the fall. As a result of her seizure, she was taken to the hospital, where it
was discovered that she had a brain tumor or meningioma. The tumor was surgically removed
on October 19, 2005 and appellant was placed on nonduty status until January 18, 2006, when
she was released to return to work.
In order for an injury to be compensable, a factor of appellant’s employment must have
caused or contributed to it. Appellant argued that her fall was work related and that her seizure
was caused by striking her head on the bike rack as she fell. The Office found that her seizure
and the attendant fall were caused by her tumor and were therefore unrelated to her employment.
It found that the bike rack was an intervening factor of employment, but that she did not sustain
any compensable injury from hitting it as she fell. The Board finds that the Office has not
established that appellant’s fall was idiopathic.
The factual evidence of record is insufficient to establish an idiopathic fall. It is unclear
from the witness’s statements whether a seizure precipitated appellant’s fall from the Capitol
steps: one witness stated that appellant began to shake before her fall, one witness stated that she
did not begin to shake until after her fall and the others do not specify. None of them stated that
she appeared to trip or slip. Appellant does not remember the fall or the events immediately
preceding it, but remembers feeling exhausted from the long shift and heavy equipment.
Hospital history forms indicate that appellant reported 15 minutes of dizziness a few days before
her seizure and feeling “strange” the night before it. Though the evidence does establish that
appellant’s fall was not caused by slipping or tripping down the steps, the Board cannot make a
determination of whether appellant fell because she was experiencing a seizure based only on
these contradictory and inconclusive statements.
Like wise, the medical evidence of records is insufficient to establish whether the fall was
idiopathic. The fact that appellant had a preexisting condition of meningioma is not in itself
adequate evidence that the fall was idiopathic. The Board has held that the fact of a claimant’s
preexisting medical condition, without additional medical evidence, is not sufficient to establish
that a fall is idiopathic.12 The physicians’ reports in the hospital records do not posit a causal
10

John R. Black, 49 ECAB 624, 626 (1998); Lowell D. Meisinger, supra note 7 at 1000-01; Dora J. Ward, 43
ECAB 767, 769-70 (1992).
11

John R. Black, supra note 10; Steven S. Saleh, supra note 9.

12

Steven S. Saleh, supra note 9.

6

relationship between the fall and seizure, they only indicate that both events occurred.
Dr. Caputy, a Board-certified neurological surgeon, diagnosed a seizure disorder, but did not
specify what triggered the seizure. In a report dated December 21, 2005, Dr. Caputy stated that
appellant’s seizure was caused by her brain tumor. However, he provided no medical history or
rationalization for this medical opinion. Moreover, in a revised report of the same date,
Dr. Caputy concluded that appellant did not sustain a work-related injury and that she may return
to work. The fact that he was the surgeon who removed appellant’s tumor is not sufficient to
give his unrationalized opinion the weight of the medical evidence. The Board finds that, based
on the factual and medical evidence of record, the Office has not established that the fall was
idiopathic.
The Board has held that, if the record does not establish that a fall was due to an
idiopathic condition, it must be considered as an unexplained fall, which is covered by the Act.13
However, appellant still has the burden of proving that her unexplained fall was the cause of her
injury. The Board finds that appellant has not provided adequate evidence to establish that she
sustained a work-related injury. Dr. Weber, a Board-certified neurosurgeon, opined that
appellant slipped on the Capitol steps after a long day at work and hit her head against a metal
bike rack, which precipitated a seizure. He also stated that the long hours she worked on
October 15, 2005 lowered her threshold for seizure. Though his opinion contains more analysis
than Dr. Caputy’s, the Board notes that Dr. Weber’s report is of diminished probative value as it
was made without reference to a full and accurate history, notably, the medical reports and
diagnostics from her surgical hospitalization. Dr. Weber also states that appellant had a “slipand-fall,” which does not appear to be a correct statement of the facts based on the witnesses’
statements. The medical opinion evidence of Dr. Weber is therefore insufficient to establish that
appellant’s unexplained fall resulted in an injury in the form of a seizure of head injury.
The Board concludes that the Office did not establish that the fall was idiopathic, and
reverses this finding in the Office’s decisions below. The Board also finds that appellant has not
met her burden of proof in establishing that her seizure or other injuries were caused by her fall.
Additionally, the Board finds that, contrary to appellant’s assertions on appeal, the Office
hearing representative relied only on statements that were part of the record in reaching her
decision.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on October 15, 2005. The Board also finds that the Office did not establish
that appellant’s fall was idiopathic.

13

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 18 and January 5, 2006 are reversed in part, modified in part
and affirmed in accordance with this decision.
Issued: April 9, 2007
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

8