E.B. and Department of the Interior, BIA Emergency Firefighters, Gallup, NM (Board decision, March 29, 2013)

ECAB final decision. The Board affirmed OWCP’s September 17, 2012 denial of E.B.’s traumatic injury claim. It found that he had not described a specific work incident that caused his illness. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

E.B., an emergency firefighter, reported becoming ill while eating at a work camp. He listed symptoms but said he did not know how the illness occurred. OWCP asked him for details about the claimed incident, and he did not respond. The Board found that this record did not establish the first required part of a traumatic injury claim: an identified work incident at a specific time, place, and manner. It affirmed the denial without reaching whether an incident caused a medical condition.

Decision snapshot

• Authority: FECA compensation for work injury, 5 U.S.C. § 8102(a).
• Outcome: September 17, 2012 traumatic injury claim denial affirmed.
• Key point: A claimant must identify how a specific work incident occurred before medical causation can be assessed.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

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E.B., Appellant
)
)
and ) Docket No. 13-136
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Issued: March 29, 2013
DEPARTMENT OF THE INTERIOR,
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BIA EMERGENCY FIREFIGHTERS,
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Gallup, NM, Employer
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_______ )

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

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION

On October 25, 2012 appellant filed a timely appeal from a September 17, 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 this case.2

ISSUE

The issue is whether appellant met his burden of proof to establish that he sustained an injury in the performance of duty on June 17, 2012.

1
5 U.S.C. § 8101 et seq.
2
On appeal, appellant submitted new details pertaining to his injury. However, the Board has no jurisdiction to review this evidence for the first time on appeal.
FACTUAL HISTORY

On July 30, 2012 appellant, then a 56-year-old emergency firefighter, filed a traumatic injury claim alleging that, on June 17, 2012, while in the performance of duty, he became sick while eating at camp. He indicated that he had aching joints, fever, nausea, slight vomiting, was unable to eat, diarrhea and a severe sore throat. Appellant indicated that he “did not know” how it happened. The employing establishment checked the box “yes” in response to whether their knowledge of the facts about the injury agreed with the statements of the employees and witnesses.

In a letter dated August 14, 2012, OWCP requested that appellant submit additional factual and medical evidence with respect to his claim for compensation. It requested further information as to how the injury occurred, the immediate effects of the injury and whether or not appellant had a similar disability or symptoms before the injury.

In a June 29, 2012 authorization for examination and treatment and attending physician’s report, Dr. Culle F. Shigna, a treating physician, indicated that appellant was disabled for the period June 17 to 24, 2012 and could return to regular duty on June 29, 2012.

A June 18, 2012 message from the medical unit leader indicated that appellant was “demobbed” due to an existing injury/illness and would pursue follow up from his physician.

By decision dated September 17, 2012, OWCP denied appellant’s claim on the grounds that he did not establish an injury as alleged. It found that the factual aspects of the claim were not sufficient to establish an injury in the performance of duty as appellant did not describe the specific injury that occurred. OWCP also found that appellant did not submit any medical evidence containing a diagnosis.

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 timely filed within the applicable time limitation period of FECA and that an injury was sustained in the performance of duty.3 These are the essential elements of each compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4

To determine whether a federal employee has sustained a traumatic injury in the performance of duty, it first must be determined whether the fact of injury has been established. There are two components involved in establishing the 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.5 In some traumatic injury cases, this component can 3 Joe D. Cameron, 41 ECAB 153 (1989); James E. Chadden, Sr., 40 ECAB 312 (1988).
4
Delores C. Ellyett, 41 ECAB 992 (1990).
5
Julie B. Hawkins, 38 ECAB 393, 396 (1987).

2 be established by an employee’s uncontroverted statement on the Form CA-1.6 Second, the employee must submit sufficient evidence, generally only in the form of medical evidence, to establish that the employment incident caused a personal injury.7

ANALYSIS

Appellant alleged that he became ill while eating while at work. In a letter dated August 14, 2012, OWCP requested that he provide a detailed description as to how the injury occurred, but no response was received. As appellant failed to describe how he sustained his injury, he has provided insufficient evidence to establish that he actually experienced the employment incident at the time, place and in the manner alleged. Thus, the Board finds that he has not met the first component of fact of injury. Therefore, appellant has not established that he sustained a June 17, 2012 employment incident in the performance of duty.

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 has not met his burden of proof in establishing that he sustained an injury in the performance of duty.

6
John J. Carlone, 41 ECAB 354 (1989).
7
See John J. Carlone, id.

3
ORDER

IT IS HEREBY ORDERED THAT the September 17, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 29, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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