D.J. and Department of Homeland Security, Federal Emergency Management Agency, Oklahoma City, OK (Board decision, September 26, 2014)

ECAB final decision. The Board affirmed OWCP’s December 17, 2013 denial of D.J.’s traumatic injury claim. It separately directed OWCP to address possible reimbursement of emergency medical expenses. 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

D.J., a FEMA logistics specialist, fainted and struck his face. He said he was on deployment, while the employer said he was off duty; the Board did not decide that dispute. OWCP accepted that the incident occurred but denied his injury claim. The Board found that the emergency physician diagnosed fainting but did not give a medical opinion connecting a condition to the employment incident. It affirmed the claim denial on that basis. The Board also said OWCP should decide separately whether his emergency care expenses were reimbursable even though the injury claim was denied.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: OWCP’s December 17, 2013 injury denial affirmed; medical expense reimbursement left for OWCP to decide.
• Key point: A documented incident and emergency treatment did not establish a compensable injury without a reasoned medical causation opinion.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.J., Appellant
)
)
and ) Docket No. 14-1145
) Issued: September 26, 2014
DEPARTMENT OF HOMELAND SECURITY,
)
FEDERAL EMERGENCY MANAGEMENT
)
AGENCY, Oklahoma City, OK, Employer
)
__________ )

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

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On April 21, 2014 appellant filed a timely appeal from a December 17, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim. 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 sustained an injury on June 9, 2013 in the performance of duty.

FACTUAL HISTORY

On June 12, 2013 appellant, then a 63-year-old logistics specialist, filed a traumatic injury claim alleging that on June 9, 2013 he fainted, falling on his face and breaking his glasses.

1
5 U.S.C. § 8101 et seq.
He noted that he was dehydrated and taking medication for a cold at the time of the incident. On the reverse side of the claim form, the employing establishment controverted the claim, stating “The employee was injured on his day off. However, dehydration may have been a contributing factor and may have been caused by a work[-]related activity.” Appellant stopped work on June 10, 2013 and returned to work on June 12, 2013.

In a note dated June 10, 2013, Dr. David Ryan Fish, Board-certified in emergency medicine, found that appellant could return to work on June 11, 2013.

By letter dated June 25, 2013, OWCP requested that appellant submit additional factual and medical information in support of his claim, including a detailed report from his attending physician addressing the relationship between a diagnosed condition and the alleged employment incident.

In a statement dated July 24, 2013, appellant advised that on June 9, 2013 he was getting ready for the workweek. He related that he had a cold and stated, “After talking my hypertension medicine and a across the counter cold remedy I went downstairs of the hotel to play one more game on my iPhone. After finishing the game the next thing I remember is I was on the ground.” A coworker helped appellant to his room. The employing establishment instructed the coworker to drive him to the emergency room the next morning.

By decision dated August 13, 2013, OWCP denied appellant’s claim on the grounds that he did not establish fact of injury. It found that he failed to submit medical evidence establishing that he sustained an injury causally related to the accepted June 9, 2013 employment incident.

On August 16, 2013 appellant submitted reports of his treatment on June 10, 2013 at the emergency room. Dr. Fish noted that appellant related a history of sitting down playing a game on his telephone. Appellant was “going to stand up [but] the next thing he knows he was on the ground and struck his face.” Dr. Fish noted that appellant took all of his blood pressure medications prior to the fall and also had an upper respiratory infection. He found “some bruising to his face” on examination. Dr. Fish referred appellant for diagnostic testing. In a discharge note, he diagnosed syncope.

On September 16, 2013 appellant requested reconsideration. He related that it took him longer than expected to obtain the reports from the emergency room.

By decision dated December 17, 2013, OWCP denied modification of its August 13, 2013 decision. It determined that appellant did not submit medical evidence establishing a diagnosed condition as a result of his employment.

On appeal, appellant relates that he was on temporary duty at the time of the June 9, 2013 incident and on call 24 hours a day. He notes that the employing establishment instructed him to seek treatment at the emergency room on June 10, 2013 and informed him that it would pay his medical expenses.

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 LEGAL PRECEDENT

An employee seeking benefits under FECA2 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 and/or specific condition for which compensation is claimed are causally related to the 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 an occupational disease.4

To determine whether an employee sustained a traumatic injury in the performance of duty, OWCP must determine whether “fact of injury” is established. First, an employee has the burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged, by a preponderance of the reliable, probative and substantial evidence.5 Second, the employee must submit sufficient evidence, generally only in the form of medical evidence, to establish a causal relationship between the employment incident and the alleged disability and/or condition for which compensation is claimed.6 An employee may establish that the employment incident occurred as alleged, but fail to show that his or her disability and/or condition relates to the employment incident.7

ANALYSIS

Appellant alleged that he sustained an injury on June 9, 2013 when he fainted and fell onto his face, breaking his glass. OWCP accepted that he established the occurrence of the June 9, 2013 incident. The issue, consequently, is whether the medical evidence establishes that appellant sustained an injury as a result of this incident.

The Board finds that appellant has not submitted sufficient medical evidence to establish that he sustained an employment injury on June 9, 2013. On June 10, 2013 Dr. Fish treated appellant at the emergency room. He discussed appellant’s history of playing a game on his telephone the previous evening after taking medication for hypertension and a cold. Appellant began to stand up but fainted to the ground and hit his face. Dr. Fish noted that appellant had some bruising on his face. In a discharge note, he diagnosed syncope. Dr. Fish did not, however, specifically address the cause of appellant’s condition. In order to establish a compensable work injury, a claimant must submit rationalized medical opinion evidence based on a complete factual and medical background supporting causal relationship.8 The opinion of 2 5 U.S.C. § 8101 et seq.
3
Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).
4
See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).
5
David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).
6
Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).
7
Id.
8
See John M. Tornello, 35 ECAB 234 (1983).

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Dr. Fish must be of reasonable medical certainty and explain the nature of the relationship between the diagnosed condition and the specific employment factors identified by the claimant. As Dr. Fish did not provide any causation finding, his report is of diminished probative value.9

Appellant has not submitted rationalized medical evidence from a physician establishing a diagnosed medical condition causally related to the accepted June 9, 2013 employment incident. OWCP advised him of the medical evidence required to establish his claim; however, he failed to submit such evidence.

On appeal, appellant relates that he was on deployment at the time of the June 9, 2013 incident and on call 24 hours a day. OWCP, however, did not deny his claim on the grounds that he was not in the performance of duty on June 9, 2013 but instead found that the medical evidence was insufficient to establish that he sustained an employment injury.

Appellant further asserts that the employing establishment advised him to go to the emergency room on June 10, 2013 and notified him that it would pay his medical expenses. In denying appellant’s claim for a traumatic injury, OWCP did not consider whether emergency circumstances or unusual circumstances were present or whether this was a situation in which reimbursement of medical expenses was appropriate.10 It is required to exercise its discretion to determine whether medical care has been authorized, or whether unauthorized medical care involved emergency or unusual circumstances and is therefore reimbursable regardless of whether the underlying claim for benefits has been accepted or denied.11 On return of the record, OWCP should adjudicate the issue of reimbursement of medical expenses.12

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 established that he sustained an injury on June 9, 2013 in the performance of duty

9
See Conard Hightower, 54 ECAB 796 (2003).
10
See P.S., Docket No. 10-1560 (issued June 23, 2011).
11
See Michael L. Malone, 46 ECAB 957 (1995).
12
See A.F., Docket No. 13-520 (issued May 17, 2013).

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 ORDER

IT IS HEREBY ORDERED THAT the December 17, 2013 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: September 26, 2014
Washington, DC

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

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

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

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