"It is my professional opinion that Mr. Cameron's presenting symptoms were, in fact, caused by not taking his prescribed medication and most likely his noncompliance was triggered by fear of losing his job and the reported work pressure he was undergoing in the immediate period prior to his hospitalization. Mr. Cameron is a paranoid schizophrenic and his presenting behavior would be typical of a schizophrenic who refuses to take his medication."

By letter dated June 27, 1988 the Office advised appellant that it needed further information on his disease, including a detailed chronological description of the particular employment factors which he believed caused his condition, a description of other sources of stress in his personal life and a description of the progress and development of his work-related condition from its beginning. The Office further advised appellant that, "the medical evidence now on file does not contain job factors causing or aggravating your mental condition with physician's reasoned opinion as to causal relationship."

The employing establishment submitted appellant's supervisor's notes of discussions with appellant regarding his performance. These notes show that appellant was advised on November 26, 1985 that unless his performance improved tremendously within the next 30 days he would not be upgraded after six months at work, that on January 22, 1986 appellant was advised that he must build up his speed and that he would not be upgraded until his speed and phraseology improved, that on February 14, 1986 appellant called to say he would be late for work because of car problems, that this was the fourth or fifth time and he was advised in the future he would be considered absent without leave when late, that on March 8, 1986 appellant was advised he was still very slow in general but was minimally meeting the requirements of his position and would be upgraded as soon as possible, that on April 3, 1986 appellant was again advised he was very slow in general and that on April 23, 1986 he was told that he was meeting all the elements of his plan but needed to try to be careful, to respond to signals promptly, and to record times correctly or his performance could fall below fully successful.

By letter dated July 21, 1988 the Office advised appellant that the medical evidence he had submitted did "not contain reasoned or well-rationalized medical opinion based on an accurate history of employment and nonemployment factors to substantiate that your mental illness was precipitated, aggravated, or accelerated due to

factors of your federal employment." The Office allowed 30 days to submit additional evidence.

By compensation order dated October 6, 1988 the Office rejected appellant's claim on the basis that he had "not met the burden of proof in providing rationalized medical opinion evidence, based on a complete factual and medical background, showing causal relation between an injury while in the performance of duty and disability." The Office's memorandum that was made part of the compensation order stated that appellant "did not meet the initial burden of proof because [he] has not responded to our June 27, 1988 development letter asking for his written statement containing a detailed chronological description of the particular employment factors which he believed caused or aggravated his neuropsychiatric condition."

Appellant requested reconsideration and submitted a list of occasions on which he was told his work was too slow; appellant described his reactions to such counseling. Appellant contended that being told repeatedly by his supervisor he was slow led him to stop taking his medication.

In a statement dated December 5, 1988 commenting on appellant's allegations on reconsideration, appellant's supervisor stated, "he was not badgered about being too slow, however, he was periodically provided counseling to make him aware of his strengths and weaknesses."

By compensation order dated January 27, 1989 the Office found that the additional evidence was not sufficient to require review of its prior decision.

The Board finds that this case is not in posture for decision. The Board finds that the prior decisions of the Office did not adequately set forth the basis for denial of appellant's claim and the Board is therefore unable to render an informed decision on appellant's

case.

An employee seeking benefits under the Federal Employees' Compensation Act 2 has the burden of establishing the essential elements of his or her claim3 including the fact that the individual is an "employee of the United States" within the meaning of the Act, that the claim was timely filed within the applicable time limitation period of the Act,5 that an injury was sustained in the

4

25 U.S.C. §§ 8101 et seq.

'See Daniel R. Hickman, 34 ECAB 1220, 1223 (1983); 20 C.F.R. § 10.110.

James A. Lynch, 32 ECAB 216 (1980); see also 5 U.S.C. § 8101(1).

$5 U.S.C. § 8122.

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.6

In determining whether a claimant has discharged his or her burden of proof and is entitled to compensation benefits, the Office is required by statute and regulation to make findings of fact."

The Office's Federal (FECA) Procedure Manual specifies additional requirements for a final decision of the Office which denies an employee's claim for benefits. The procedure manual, as supported by Board precedent, states that a final decision denying a claim must include findings of fact and provided "a correct description of the basis for denial so that the parties of interest will have a clear understanding of the precise defect of the claim and the kind of evidence which would tend to overcome it. 10

9

In the instant case, it is not clear from the Office's October 6, 1988 decision whether appellant's claim was denied on the basis of failure to establish fact of injury in the performance of duty or failure to establish a causal relationship between the alleged injury and appellant's diagnosed condition. The compensation order stated that appellant did not meet his burden of proof because he did not present rationalized medical evidence showing causal relation, while the memorandum made part of the compensation order stated that appellant did not meet his burden of proof because he did not submit the requested description of the employment factors to which he attributed his condition.

Establishing whether an injury, traumatic or occupational, was sustained in the performance of duty as alleged, i.e., "fact of injury," and establishing whether there is a causal relationship between the injury and any disability and/or specific condition for which compensation is claimed, i.e., "causal relationship" are distinct elements of a compensation claim.11 While the issue of "causal relationship" cannot be established until "fact of injury" is established, acceptance of fact of injury is not contingent upon an

*See Daniel R. Hickman, supra note 3.

15 U.S.C. § 8124(a), 20 C.F.R. § 10.130.

*Federal (FECA) Procedure Manual, Part 2-Claims, Chapter 2-1400, Disallowances (August 1987).

"The procedure manual states that the findings of fact should include the following: "(1) whether timely claim for compensation was filed; (2) whether the injured person was a civil employee; (3) date and place of injury or alleged injury; (4) circumstances surrounding the injury or alleged injury; (5) nature and extent of injury or alleged injury; and (6) any other facts which are necessary to address each substantive allegation made concerning the issue on which the denial is based." Federal (FECA) Procedure Manual, supra note 10.

10 Federal (FECA) Procedure Manual, supra note 9. The procedure manual further states as follows: "A finding that claimant failed to meet the burden of proof is properly made from the evidence or lack thereof, and not simply because the claimant failed to respond to correspondence from [the Office]''; James D. Boller, 12 ECAB 45 (1960).

11 See Daniel R. Hickman, supra note 3.

employee proving a causal relationship between the injury and any disability and/or specific condition for which compensation is claimed. An employee may establish that an injury occurred in the performance of duty as alleged but fail to establish that his or her disability and/or a specific condition from which compensation is claimed are causally related to the injury. 12 Thus, in each compensation claim, it is important that the Office clearly state whether fact of injury has been established. 13

To accept fact of injury in a traumatic injury case, the Office, in addition to finding that the employment incident occurred in the performance of duty as alleged, must also find that the employment incident resulted in an "injury." The term "injury" as defined by the Act, as commonly used, refers to some physical or mental condition caused either by trauma or by continued or repeated exposure to, or contact with, certain factors, elements or conditions. 14

As fact of injury is a material point in a compensation case, the Office must clearly state whether fact of injury is accepted and, if fact of injury is not accepted, the Office must clearly specify the basis for denial. 15

Appellant's case is remanded to the Office for a de novo decision which shall include findings of fact as required by statute and regulation and a clear and precise basis for denial of appellant's claim. If on remand, the Office finds that fact of injury has been established in appellant's case, the Office should determine whether appellant is entitled to reimbursement of any medical expenses incurred with regard to the accepted injury. Following this and such further development as it deems necessary, the Office should then issue a de novo decision.

The Board finds that the Office abused its discretion by refusing to reopen appellant's case for further review of the merits under 5 U.S.C. § 8128.

Under 20 C.F.R. § 10.138(b)(1), a claimant may obtain review of the merits of his claim by showing that the Office erroneously applied or interpreted point of law, by advancing a point of law or

12 As used in the Act, the term "disability" means incapacity because of an injury in employment to earn wages the employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of wageearning capacity. See Frazier V. Nichol, 37 ECAB 528, 540 (1986).

13 A more complete discussion of the concept of “fact of injury” may be found in the case of Elaine Pendleton, 40 ECAB 1143 (1989).

14 Pendleton, supra note 13.

15 Should fact of injury be accepted, the Office should proceed to determine whether the employee has met his burden of proof in establishing a causal relationship between the employment injury and any disability and/or specific condition for which compensation is claimed and determine whether the employee is entitled, under section 8103 of the Act, to medical benefits for the accepted injury. See Pendleton, supra note 13.

fact not previously considered by the Office, or by submitting relevant and pertinent evidence not previously considered by the Office.

In support of his request for reconsideration, appellant submitted a chronological listing of the employment incidents to which he attributed his disabling psychiatric condition. As this is the information the Office's memorandum and its June 27, 1988 letter advised appellant was needed, it was inappropriate for the Office to find that the submission of such evidence was insufficient to warrant review of its prior decision.

The decisions of the Office of Workers' Compensation Programs dated October 6, 1988 and January 24, 1989 are set aside, and the case is remanded to the Office for further action in accordance with this decision of the Board.

In the Matter of LUIS CHAPA, JR. and DEPARTMENT OF THE ARMY, COMMANDER CORPUS CHRISTI ARMY DEPOT, Corpus Christi, Tex.

Docket No. 89-568; Submitted on the Record;
Issued October 31, 1989

Before GEORGE E. RIVERS, DAVID S. GERSON,
MICHELE VON KELSCH

The issue is whether appellant has more than a 41 percent permanent loss of use of his left leg for which he received a schedule award.

On November 20, 1974 appellant, a 27-year-old apprentice, filed a notice of injury or occupational disease, Form CA-1&2, alleging that on that day he sustained an injury to his left knee when he missed a step and slipped at work while in the performance of duty. He continued working until December 3, 1974 when he stopped and sought medical treatment from Dr. John D. McKeever, a Board-certified orthopedic surgeon, who diagnosed a sprain of the left knee as resulting from the November 20, 1974 incident. Appellant was absent on an intermittent basis for the period December 3, 1974 until March 14, 1975.

Appellant continued under Dr. McKeever's care who hospitalized him and performed an arthrotomy and a medial meniscectomy of the left knee on April 2, 1975 to correct a tear of the medial menis