M.H. and Department of Veterans Affairs (Board decision, October 21, 2024)

ECAB final decision. The Board affirmed OWCP's denial of the claimed condition. A party may petition the Board for reconsideration within 30 days of issuance unless this order 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

A Veterans Affairs food service worker reported a groin injury after slipping on a wet floor at work. The Board accepted that the December 2023 incident occurred. It found the submitted evidence did not establish a diagnosed condition connected with the incident, so it affirmed OWCP's denial.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Injury claim denied for lack of a diagnosed condition.
• Key point: A reported workplace slip did not by itself establish the claimed medical injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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M.H., Appellant
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and ) Docket No. 24-0828
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Issued: October 21, 2024
DEPARTMENT OF VETERAN AFFAIRS,
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SOUTHEAST LOUISIANA VETERAN
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HEALTH CARE SYSTEM, New Orleans, LA, )
Employer
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__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge

JURISDICTION

On August 12, 2024 appellant filed a timely appeal from a March 13, 2024 merit decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal

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Appellant submitted a timely oral argument request before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s oral argument request, he asserted that oral argument should be granted because he had additional medical evidence to submit in support of his claim . The Board, in exercising its discretion, denies his request for oral argument because the arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied, and this decision is based on the case record as submitted to the Board. Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 3

ISSUE

The issue is whether appellant has met his burden of proof to establish a diagnosed medical condition in connection with the accepted December 1, 2023 employment incident.

FACTUAL HISTORY

On January 2, 2024 appellant, then a 71-year-old food service worker, filed a traumatic injury claim (Form CA-1) alleging that on December 1, 2023 he sustained a torn groin when he slipped on a wet floor entering the employing establishment building while in the performance of duty. He stopped work on that date and returned to work on December 15, 2023.

In support of his claim, appellant provided a witness statement from J.M., a coworker, who related that he saw him slip on a wet floor at work.

In an undated note, Dr. Benjamin Castin, an emergency medicine physician, examined appellant on December 1, 2023 and found that he was totally disabled from work for the period December 1 through 8, 2023. On December 7, 2023 Dr. Marlene Zekoski, a Board-certified internist, examined appellant and advised that he was totally disabled from work for the period December 8 through 14, 2023. She attributed his disability to an unidentified “injury.”

In a January 9, 2024 development letter, OWCP informed appellant of the deficiencies of his claim. It advised him of the type of factual and medical evidence required and provided a questionnaire for his completion. OWCP afforded appellant 60 days to submit the requested evidence. No additional evidence was received.

In a follow-up letter dated February 6, 2024, OWCP advised appellant that it had conducted an interim review, and the evidence remained insufficient to establish h is claim. It noted that he had 60 days from the January 9, 2024 letter to submit the requested supporting evidence. OWCP further advised that if the evidence was not received during this time, it would issue a decision based on the evidence contained in the record. No additional evidence was received.

By decision dated March 13, 2024, OWCP denied appellant’s traumatic injury claim, finding that the evidence of record was insufficient to establish a medical condition in connection with the accepted December 1, 2023 employment incident. It concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

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5 U.S.C. § 8101 et seq.
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The Board notes that appellant submitted additional evidence after the March 13, 2024 decision on appeal. The Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

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LEGAL PRECEDENT

An employee seeking benefits under FECA 4 has the burden of proof to establish the essential elements of his or her claim, including 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 of FECA, 5 that an injury was sustained in the performance of duty as alleged, and that any disability or medical condition for which compensation is claimed is causally related to the employment injury. 6 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. 7

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. First, the employee must submit sufficient evidence to establish that he or she actually experienced the employment incident at the time and place, and in the manner alleged. Second, the employee must submit sufficient evidence to establish that the employment incident caused an injury.8

The medical evidence required to establish causal relationship between a claimed specific condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of the physician must be based on a complete factual and medical background of the employee, 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 incident. 10

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a diagnosed medical condition in connection with the accepted December 1, 2023 employment incident.

4
Supra note 1.
5
E.K., Docket No. 22-1130 (issued December 30, 2022); F.H., Docket No. 18-0869 (issued January 29, 2020);
J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989). 6 S.H., Docket No. 22-0391 (issued June 29, 2022); L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); James E. Chadden, Sr., 40 ECAB 312 (1988). 7 E.H., Docket No. 22-0401 (issued June 29, 2022); P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41 ECAB 992 (1990). 8 H.M., Docket No. 22-0343 (issued June 28, 2022); T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. Carlone, 41 ECAB 354 (1989). 9 S.M., Docket No. 22-0075 (issued May 6, 2022); S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G. Morris, 48 ECAB 238 (1996). 10 J.D., Docket No. 22-0935 (issued December 16, 2022); T.L., Docket No. 18-0778 (issued January 22, 2020);
Y.S., Docket No. 18-0366 (issued January 22, 2020); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3
In support of his claim, appellant submitted an undated report, wherein Dr. Castin opined that he was totally disabled from work for the period December 1 through 8, 2023. Dr. Castin did not, however, diagnose a medical condition in connection with the accepted December 1, 2023 employment incident. Appellant submitted a similar report dated December 7, 2023, wherein Dr. Zekoski found that he was totally disabled from work for the period December 8 through 14, 2023 because of an unidentified “injury.” She did not, however, diagnose a medical condition in connection with the accepted December 1, 2023 employment incident. The Board has held that medical reports lacking a firm diagnosis and a rationalized medical opinion regarding causal relationship are of no probative value. 11 As such, the reports from Drs. Castin and Zekoski are insufficient to establish the claim.

As the medical evidence of record is insufficient to establish a diagnosed medical condition in connection with the accepted December 1, 2023 employment incident, the Board finds that appellant has not met his burden of proof.

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 to establish a diagnosed medical condition in connection with the accepted December 1, 2023 employment incident.

11
See A.C., Docket No. 20-1510 (issued April 23, 2021); J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020); see also L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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ORDER

IT IS HEREBY ORDERED THAT the March 13, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: October 21, 2024
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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