M.B. and Department of the Treasury, Internal Revenue Service, Chamblee, GA (Board decision, August 20, 2015)

ECAB final decision. The Board reversed OWCP's November 6, 2014 denial of M.B.'s finger injury claim and directed payment of appropriate 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 of issuance 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

M.B., an IRS contact representative, cut her right index finger on the underside of a toilet paper dispenser at work. The event and visible laceration were not disputed, and she did not claim wage-loss disability. The Board held that a medical report was unnecessary to establish this straightforward injury. It reversed OWCP's denial and returned the case for payment of appropriate medical expenses.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq..
• Outcome: November 6, 2014 claim denial reversed; appropriate medical expenses to be paid.
• Key point: The undisputed work event and visible cut established the injury without a medical causation report.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.B., Appellant
)
)
and ) Docket No. 15-0287
) Issued: August 20, 2015
DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE,
)
Chamblee, GA, 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
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On November 19, 2014 appellant filed a timely appeal of the November 6, 2014 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 has met her burden of proof to establish that she sustained a traumatic injury in the performance of duty.

FACTUAL HISTORY

On September 25, 2014 appellant then a 63-year-old contact representative, filed a Form CA-1, traumatic injury claim alleging that on September 17, 2014, she cut her right index finger

1
5 U.S.C. §§ 8101-8193. on the sharp underside edge of a toilet paper dispenser in the restroom while in the performance of duty. She did not stop work. The employing establishment advised that it received notice of the claimed injury on September 25, 2014.

By letter dated September 30, 2014, OWCP advised appellant of the type of evidence needed to establish her claim, particularly requesting that she submit a physician’s reasoned opinion addressing the relationship of her claimed condition and specific employment factors.

The employing establishment submitted a September 25, 2014 statement from Paul Cashman, an assistant manager, who noted that on September 17, 2014 appellant reported cutting herself slightly in the women’s restroom on an exposed sharp edge and she submitted a repair ticket so that the problem could be corrected. Mr. Cashman noted appellant treated herself for the injury using first-aid supplies at her workstation and went to the nurses’ station the following day to be treated.

Appellant submitted a statement dated October 24, 2014 and noted that on September 17, 2014 she cut her right index finger on a sharp edge of a toilet paper dispenser in the restroom. She reported the injury to Mr. Cashman on September 17, 2014 and sent a repair ticket for the hazard to be corrected. Appellant reported being treated by a nurse at the federal occupational health clinic on September 18, 2014. She submitted federal occupational health clinic notes prepared by a registered nurse dated September 17 to 22, 2014 which noted her treatment for a right index finger cut. Appellant reported cutting her right index finger the day before while handling a toilet paper dispenser. Also submitted were e-mails from her on September 18, 2014 to her supervisor, Kathy Primm, advising her of the incident and appellant’s treatment and testing for blood borne diseases. Appellant submitted an OWCP Form CA-20 attending physician’s report dated October 14, 2014, prepared by Dr. Hugh Lee Durham, a Board-certified internist, who noted that appellant reported cutting her right index finger on a toilet paper dispenser at work on September 17, 2014. She requested testing for blood borne diseases. Dr. Durham noted testing for hepatitis A and hepatitis C. He noted diagnoses of “no hepatitis A or C.” Dr. Durham noted with a checkmark “yes” that appellant’s condition was caused or aggravated by an employment activity. He returned her to regular duty on September 17, 2014.

In a decision dated November 6, 2014, OWCP denied appellant’s claim finding the medical evidence insufficient to establish that a medical condition was diagnosed in connection with the claimed event or work factors.

LEGAL PRECEDENT

An employee seeking compensation under FECA has the burden of establishing the essential elements of his or her claim by the weight of reliable, probative, and substantial evidence,2 including that she is an “employee” within the meaning of FECA and that she filed her claim within the applicable time limitation.3 The employee must also establish that she

2
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).
3
R.C., 59 ECAB 427 (2008).

2 sustained an injury in the performance of duty as alleged and that her disability for work, if any, was causally related to the employment injury.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 she actually experienced the employment incident at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the form of medical evidence, to establish that the employment incident caused a personal injury.5

OWCP may accept a case without a medical report when one or more of the following criteria, as set forth in OWCP’s procedure manual,6 are satisfied:

“(a) the condition reported is a minor one which can be identified on visual inspection by a lay person (e.g., burns, lacerations, insect sting, or animal bite);

“(b) the injury was witnessed or reported promptly and no dispute exists as to the fact of injury; and

“(c) no time was lost from work due to disability.”

ANALYSIS

OWCP denied appellant’s claim in a decision dated November 6, 2014 finding that the medical evidence was insufficient to establish that a medical condition was diagnosed in connection with the claimed event or work factors. Although causal relationship generally requires rationalized medical opinion, its procedures provide for acceptance of a claim without a medical report when the above-referenced criteria are satisfied.

The condition reported, a laceration, is specifically listed in the first criterion as the type of condition that can be identified on visual inspection by a lay person. Mr. Cashman’s account gives no indication of a serious condition, indeed, its brevity and matter-of-fact presentation suggests a minor one. Specifically, he noted that on September 17, 2014 appellant reported cutting herself slightly in the women’s restroom on an exposed sharp edge and she submitted a repair ticket so that the problem could be corrected. Mr. Cashman noted that she treated herself for the injury using first-aid supplies at her workstation and went to the nurse’s station the following day to be treated. Therefore, the first criterion is satisfied.

The second criterion is also satisfied. Appellant reported the injury to the assistant manager, Mr. Cashman, on September 17, 2014, the day of the accident and she sent a repair ticket for the hazard to be corrected. She reported being treated by a nurse at the federal

4
Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
5
T.H., 59 ECAB 388 (2008).
6
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3 (January 2013); Melissa A. Carter, 45 ECAB 618 (1994).

3 occupational health clinic on September 17, 2014 and she submitted federal occupational health clinic notes prepared by a registered nurse dated September 17 to 22, 2014 which noted her treatment for a right index finger cut sustained the day before while handling a toilet paper dispenser. No dispute exists as to these facts. As the record indicates that appellant did not stop work and has not claimed disability due to this incident, the third criterion is also met. A medical report is therefore not necessary in this case. Accordingly, the Board finds that the record establishes that a right index finger laceration occurred in the performance of duty.7

The case will be remanded for OWCP for payment of appropriate medical expenses.

CONCLUSION

The Board finds that appellant established that she sustained an injury in the performance of duty on September 17, 2014.

ORDER

IT IS HEREBY ORDERED THAT the November 6, 2014 decision of the Office of Workers’ Compensation Programs is reversed.

Issued: August 20, 2015
Washington, DC

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

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

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

7
Pearlene Morton, 52 ECAB 493 (2001).

4