E.M. and Department of Homeland Security, Customs & Border Protection, Laredo, TX (Board decision, January 7, 2013)

ECAB final decision on the merits. The Board affirmed OWCP's March 23, 2012 denial of E.M.'s traumatic injury claim. The Board's compensation decision is final under 5 U.S.C. § 8128(b), without ordinary judicial review. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

E.M., a border patrol agent, came into contact with a suspect's blood while making an arrest. OWCP accepted the work event. The Board found that the medical record did not establish a blood-borne disease or another identifiable condition caused by the exposure. It affirmed the claim denial and found no basis in this record to reimburse his hospital expenses.

Decision snapshot

• Authority: FECA traumatic injury and medical treatment following exposure.
• Outcome: March 23, 2012 injury claim denial affirmed.
• Key point: Exposure alone did not establish an identifiable compensable condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.M., Appellant
)
)
and ) Docket No. 12-1678
) Issued: January 7, 2013
DEPARTMENT OF HOMELAND SECURITY,
)
CUSTOMS & BORDER PROTECTION,
)
Laredo, TX, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On August 3, 2012 appellant filed a timely appeal of a March 23, 2012 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 the case.

ISSUE

The issue is whether appellant met his burden of proof to establish that he sustained a traumatic injury in the performance of duty on January 31, 2012.

FACTUAL HISTORY

On January 31, 2012 appellant, then a 24-year-old border patrol agent, filed a traumatic injury claim alleging that an open wound on his left hand was exposed to blood while he was

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5 U.S.C. § 8101 et seq. making an arrest earlier that evening. He stopped work on February 1, 2012 and returned on February 2, 2012. In a February 14, 2012 letter, OWCP advised appellant that medical evidence was needed to establish his claim. It gave him 30 days to submit a report from a qualified physician explaining how a diagnosed condition resulted from the alleged incident.

Dr. Dara Batki, an emergency physician, related in February 1, 2012 emergency department records that appellant’s left fifth digit abrasion was covered with a suspect’s blood on January 31, 2012. Physical examination findings were unremarkable, venipuncture was administered, and baseline tests for human immunodeficiency virus (HIV) and hepatitis were ordered.2 Thereafter, Dr. Batki discharged appellant and released him to regular duty effective February 2, 2012.

By decision dated March 23, 2012, OWCP denied appellant’s claim, finding the medical evidence insufficient to establish that the accepted January 31, 2012 employment incident caused or contributed to a diagnosed condition.

LEGAL PRECEDENT

An employee seeking compensation under FECA has the burden of establishing the essential elements of his claim by the weight of reliable, probative, and substantial evidence,3 including that he is an “employee” within the meaning of FECA and that he filed his claim within the applicable time limitation.4 The employee must also establish that he sustained an injury in the performance of duty as alleged and that his disability for work, if any, was causally related to the employment injury.5

To determine whether a federal employee has sustained a traumatic injury in the performance of duty, it first must be determined whether fact of injury has been established. There are two components involved in establishing fact of injury. 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.6

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.7

2
The case record indicates that each test result was nonreactive relative to its particular reference range.
3
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).
4
R.C., 59 ECAB 427 (2008).
5
Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
6
T.H., 59 ECAB 388 (2008).
7
I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

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ANALYSIS

The case record supports that appellant arrested a suspect and came into contact with the suspect’s blood while in the performance of duty on January 31, 2012. The Board finds that he did not establish his traumatic injury claim because the medical evidence did not establish that the accepted work event caused or contributed to a diagnosed condition.

In February 1, 2012 emergency department records, Dr. Batki noted that appellant’s left fifth digit abrasion was covered with a suspect’s blood on January 31, 2012 and ordered laboratory tests. Although she identified the employment incident, she did not address whether this exposure resulted in a blood-borne disease. Dr. Batki’s report is of diminished probative value on the issue of causal relationship.8 In the absence of rationalized medical opinion evidence, appellant failed to meet his burden of proof.

Appellant contends on appeal that OWCP should pay for his hospital bills. Simple exposure to a workplace hazard, such as an infectious agent, does not constitute a work-related injury entitling an employee to medical treatment under FECA unless the employee has sustained an identifiable injury or medical condition as a result of that exposure. Where there is actual or probable exposure to a known contaminant due to an injury, OWCP can authorize treatment.9 In this case, the medical evidence from Dr. Batki did not establish that appellant sustained any blood-borne disease or was otherwise exposed to a known contaminant due to the January 31, 2012 employment incident. Appellant is not entitled to reimbursement for his medical expenses.

Appellant may submit new evidence or argument as part of a formal 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 establish that he sustained a traumatic injury in the performance of duty on January 31, 2012.

8
S.E., Docket No. 08-2214 (issued May 6, 2009).
9
J.F., Docket No. 09-1061 (issued November 17, 2009). See also 20 C.F.R. §§ 10.303(a) and 10.313(b).

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ORDER

IT IS HEREBY ORDERED THAT the March 23, 2012 merit decision of the Office of Workers’ Compensation Programs be affirmed.

Issued: January 7, 2013
Washington, DC

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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

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