M.M. and Department of Veterans Affairs, Atlanta Medical Center, Decatur, GA (Board decision, June 2, 2015)

ECAB final decision. The Board affirmed OWCP’s November 20, 2014 denial of M.M.’s traumatic injury claim. 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).

Plain-English summary

M.M., a Veterans Affairs nurse, reported striking her head on an open medical storage cabinet at work. Coworkers described the incident, and OWCP accepted that it happened. The Board found that an emergency room note diagnosing head trauma had no signature showing it came from a physician. A neurologist described a different sequence of events and offered possible conditions without clearly identifying a diagnosis caused by the accepted incident. The Board therefore affirmed the denial for insufficient medical evidence of a work-related injury.

Decision snapshot

• Authority: FECA traumatic injury claim.
• Outcome: November 20, 2014 denial affirmed.
• Key point: Witnesses established the workplace event, but the medical reports did not firmly identify a condition caused by it.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.M., Appellant
)
)
and ) Docket No. 15-595
) Issued: June 2, 2015
DEPARTMENT OF VETERANS AFFAIRS,
)
ATLANTA MEDICAL CENTER, Decatur, 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
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On January 23, 2015 appellant filed a timely appeal of a November 20, 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 to consider the merits of the case.

ISSUE

The issue is whether appellant has met her burden of proof to establish a head injury in the performance of duty on July 15, 2014, as alleged.

FACTUAL HISTORY

On July 18, 2014 appellant, then a 40-year-old nurse, alleged that she hit her head on an open door of the Omnicell, which a logistics staff member was restocking on July 15, 2014. She

1
5 U.S.C. § 8101 et seq. sought treatment in the employing establishment emergency room and received a diagnosis of head trauma. Appellant underwent a computerized tomography (CT) scan of her head on July 15, 2014 due to a closed head injury. This CT scan did not demonstrate any acute intracranial abnormality.

In a statement dated July 18, 2014, Angela Weiss, a coworker, stated that on July 14, 2014 appellant walked into the open glass door of an Omnicell medical storage device. She stated that she heard the impact. Ms. Weiss stated that she could tell by the look on appellant’s face that she had been injured by the impact. Appellant stood still for a few minutes clutching her head while groaning. Ms. Weiss asked if she was okay, and appellant replied, “no.” After a few more moments, appellant seemed to lose her balance and sat down hard. She continued to clutch her head. Ms. Weiss asked if appellant felt that she had lost consciousness and she stated, “yes.” Appellant could recall her name and location, but was unable to state the day of the week or recall any information about the incident she just experienced. Ms. Weiss determined that appellant was unable to stand and walk and transferred her to the emergency department for evaluation and treatment.

Vendola Lawrence, a coworker, submitted a statement dated July 17, 2014 and reported that appellant hit the right side of her head on the corner of the Omnicell door. Appellant stood exclaiming, “my head, my head,” for about three minutes and then sat on the floor.

Dr. Badar Syed, a Board-certified neurologist, examined appellant on August 7, 2014.
He stated on July 15, 2014 at work she suddenly developed sharp pain in the right side of her scalp. Appellant lowered herself to the floor, but when she stood up she hit her head against the counter top and briefly passed out. Since July 15, 2014 she experienced daily headaches, dizziness, nausea, and visual disturbances. Dr. Syed diagnosed probable postconcussion syndrome and stated that the possibility of traumatic vestibulopathy could not be excluded, possible tension type headache and visual disturbance which was very unusual for a typical head concussion.

In a letter dated October 17, 2014, OWCP requested additional factual and medical evidence from appellant.

By decision dated November 20, 2014, OWCP denied appellant’s traumatic injury claim finding that she failed to submit medical evidence including a firm diagnosis as a result of her accepted employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA2 has the burden of establishing the essential elements of his or her claim by the weight of the reliable, probative, and substantial evidence, including the fact that the individual is an “employee of the United States” within the meaning of FECA and that the claim was timely filed within the applicable time limitation period of FECA, that an injury was sustained in the performance of duty as alleged and that any disability or specific condition for which compensation is claimed is causally related to the employment 2 Id. at §§ 8101-8193.

2 injury.3 These are the essential elements of each and every compensation claim regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4

OWCP defines 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. Such condition must be caused by external force, including stress or strain which is identifiable as to time and place of occurrence and member or function of the body affected.”5 To determine whether a federal employee has sustained a traumatic injury in the performance of duty, it must first be determined whether a “fact of injury” has been established. First the employee must submit sufficient evidence to establish that he or she actually experienced the employment incident at the time, place, and in the manner alleged.6 Second, the employee must submit sufficient evidence, generally only in the form a medical evidence, to establish that the employment incident caused a personal injury.7 The Board has held that medical opinions that are speculative or equivocal in character diminish the probative value of the medical opinion.8

ANALYSIS

Appellant filed a traumatic injury claim alleging that on July 15, 2014 she hit her head on the open door of a medical storage cabinet. She submitted witness statements regarding the event. Appellant sought treatment in the employing establishment emergency room and received a diagnosis of head trauma. However, there is no signature on this note and the Board is unable to determine if this diagnosis was provided by a physician; therefore, it is of no probative value.9

Appellant also submitted a report from Dr. Syed dated August 7, 2014 which noted a different history of injury and including a sharp pain prior to her traumatic incident. Dr. Syed diagnosed probable postconcussion syndrome, possible tension type headache, possible traumatic vestibulopathy, and visual disturbance. His diagnoses are speculative and equivocal. Dr. Syed did not offer a clear opinion as to which, if any, of the offered diagnoses appellant experienced and which, if any, resulted from her July 15, 2014 employment incident. Due to the lack of evidence of a clear diagnosed medical condition resulting from appellant’s accepted employment incident, the Board finds that appellant has not established her claim.

The Board finds that appellant has failed to submit sufficient medical opinion evidence to establish that she sustained an injury in the performance of duty on July 15, 2014, as alleged.

3
Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).
4
Victor J. Woodhams, 41 ECAB 345 (1989).
5
20 C.F.R. § 10.5(ee).
6
John J. Carlone, 41 ECAB 354 (1989).
7
J.Z., 58 ECAB 529 (2007).
8
A.G., Docket No. 12-659 (issued August 22, 2012); D.D., 57 ECAB 734, 738 (2006).
9
See Merton J. Sills, 39 ECAB 572 (1988).

3
 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 a traumatic injury in the performance of duty on July 15, 2014, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the November 20, 2014 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: June 2, 2015
Washington, DC

Christopher J. Godfrey, 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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