Where a coworker alleges a different history of injury than that alleged by the
claimant but where the record indicates that there was an element of conflict be-
tween the coworker and the claimant and where there is not independent corrobora-
tion of the coworker's statement, the coworker's statement does not constitute
strong or persuasive evidence refuting the history of injury provided by the claim-
ant. Constance G. Patterson, 41 ECAB 206 (1989).
Appellant, who alleged a neck injury sustained when she was poked by a coem-
ployee while seated, was not sure whether the coworker poked her intentionally or
unintentionally, but appellant consistently maintained that the contact occurred.
The Board found that the question of whether the coworker's contact was intention-
al was irrelevant to the issue of whether appellant sustained an injury in the per-
formance of duty. Constance G. Patterson, 41 ECAB 206 (1989).
Although appellant's immediate supervisor denied receiving notice of appellant's
claimed injury, appellant submitted sufficient factual evidence to establish his back
injury in the time, place and manner alleged. He contended that he advised the em-
ploying establishment of the injury, submitted corroborating statements from co-
workers, and gave descriptions of the claimed injury which were consistent through-
out the case record. Bill H. Harris, 41 ECAB 216 (1989).
An employee has the burden of establishing the occurrence of an injury at the
time, place, and in the manner alleged by a preponderance of the reliable, probative
and substantial evidence. An injury does not have to be confirmed by eyewitnesses
in order to establish the fact that an employee sustained an injury in the perform-
ance of duty, as alleged, but the employee's statements must be consistent with sur-
rounding facts and circumstances and his or her subsequent course of action. Such
circumstances as late notification of injury, lack of confirmation of injury, continu-
ing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may cast doubt on an employee's statements in determin-
ing whether he or she has established a prima facie case. However, an employee's
statement alleging that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evi-
dence. Constance G. Patterson, 41 ECAB 206 (1989); Bill H. Harris, 41 ECAB 216
(1989).
Appellant alleged a neck injury sustained when she was poked in the left side by
a coworker which caused her to jump while seated. The Board found that appel-
lant's description of her injury, together with the contemporaneous medical evi-
dence, established by the preponderance of the evidence that she sustained an
injury in the time, place, and manner alleged. Appellant provided prompt notice of
injury, obtained medical treatment on the date of injury, consistently maintained
that the injury occurred as alleged in the notice of traumatic injury, and the initial
medical reports contained a history of injury consistent with that alleged by appel-
lant. Constance G. Patterson, 41 ECAB 206 (1989).
Appellant alleged a back sprain which he attributed to carrying and lifting of
mail bags. The Board found that appellant submitted sufficient evidence to establish
that he sustained an injury in the time, place and manner as alleged. The Board
noted that the "inconsistencies" cited to by the Office for rejecting the claim were
an insufficient basis for refuting appellant's claim. Bill H. Harris, 41 ECAB 216
(1989).
Appellant, a custodian, alleged that he sustained an injury to his left knee while
carrying a 150 lb. mailbox upstairs to the second floor of the employing establish-
ment. Appellant's statements were unrefuted and supported by a witness and there
was no evidence in the record to indicate that the alleged employment incident did
not occur at the time, place and manner alleged by appellant. The Board found that
the weight of the evidence of record regarding history of injury supported appel-
lant's statement that appellant sustained an injury to his knee while carrying a
mailbox. The Board found that form reports submitted by appellant's physician
were insufficient to determine whether appellant sustained the diagnosed condition,
a tear of the medial meniscus of the left knee as the result of the employment inci-
dent, but the medical evidence did raise an uncontroverted inference of causal rela-
tionship between appellant's tear of the medial meniscus and the employment inci-
dent. The case was remanded to the Office for further development of the medical
evidence. John J. Carlone, 41 ECAB 354 (1989).
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 condi-
tion for which compensation is claimed, i.e. "causal relationship," are distinct ele-
ments of a compensation claim. 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 employee proving a causal relationship between the injury and
any disability and/or specific condition for which compensation is claimed. An em-
ployee 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 for which
compensation is claimed are causally related to the injury. Thus, in each compensa-
tion claim, it is important that the Office clearly state whether fact of injury has
been established. Joe D. Cameron, 41 ECAB 153 (1989).
In accordance with the Federal (FECA) Procedure Manual, in order to determine
whether an employee actually sustained an injury in the performance of duty, the
Office begins with an analysis of whether "fact of injury" has been established. Gen-
erally, "fact of injury" consists of two components which must be considered in con-
junction with one another. The first component to be established is that the employ-
ee actually experienced the employment incident which is alleged to have occurred.
In order to meet his burden of proof to establish the fact that he sustained an injury
while in the performance of his duty, an employee must submit sufficient evidence
to establish that he actually experienced the employment incident at the time, place
and manner alleged. In some traumatic injury cases, this first component can be
established by an employee's uncontroverted statement on the CA-1 form report.
An alleged work incident does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty but the
employee's statement must be consistent with the surrounding facts and circum-
stances and his subsequent course of action. The employee has the burden of estab-
lishing the occurrence of the alleged injury at the time, place, and in the manner
alleged. The second component is whether the employment incident caused a per-
sonal injury and can be established only by medical evidence. John J. Carlone, 41
ECAB 354 (1989).
To establish that an injury was sustained in the performance of duty in an occu-
pational disease claim, a claimant must submit the following: (1) medical evidence
establishing the presence or existence of the disease or condition for which compen-
sation is claimed; (2) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed con-
dition is causally related to the employment factors identified by the claimant. The
medical evidence required to establish a causal relationship, generally, is rationa-
lized medical opinion evidence. Rationalized medical opinion evidence is medical evi-
dence which includes a physician's rationalized opinion on the issue of whether
there is a causal relationship between the claimant's diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasona-
ble medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employ-
ment factors identified by the claimant. Victor J. Woodhams, 41 ECAB 345 (1989).
To accept fact of injury in a traumatic injury case, the Office, in addition to find-
ing 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 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 of the employment. Joe D. Cameron, 41 ECAB 153
(1989).
LOCAL LAW ENFORCEMENT OFFICERS
Appellant, a Hawaii County Police Officer, sustained injuries in a helicopter crash
while assisting in a marijuana eradication program. The Board found that appellant
sustained an injury within coverage of 5 U.S.C. § 8191(3). The Board found that, at
the time of his injury, appellant was engaged in the lawful prevention, or lawful
attempt to prevent, a federal crime, the growing of marijuana, as a result of his
involvement in a joint federal/state marijuana eradication program. Appellant was
directing a ground crew to a house next to which he had identified marijuana as
growing in order that it could be confiscated and destroyed. Rodney Aurello, 41
ECAB 450 (1990).
Appellant contended on appeal that the agreement between the State of Hawaii
and the Drug Enforcement Administration, which clearly states that local law en-
forcement officers shall not be considered federal employees, precludes him from
coverage under the FECA. The lack of federal employee status does not, under the
circumstances of this case, preclude appellant from coverage. The legislative history
of section 8191 supports that the purpose of Congress in enacting this section was to
compensate "local" law enforcement officers, i.e., non-federal law enforcement offi-
cers, for death or injury sustained when involved in federal law enforcement activi-
ties as enumerated in 5 U.S.C. § 8191. Rodney Aurello, 41 ECAB 450 (1990).
Appellant also contended that to find him covered under the Act in view of the
provisions of the April 8, 1985 agreement, whereby federal employee status and cov-
erage were expressly waived, would frustrate the purpose of the agreement and the
intent of Congress in enacting 5 U.S.C. § 8191. As heretofore noted, under the cir-
cumstances of this particular case, finding appellant covered under section 8191 ef-
fectuates, rather frustrates, the intent of Congress in enacting 5 U.S.C. § 8191.
Additionally, if a local law enforcement officer is found to have sustained injuries
under the circumstances enumerated under 5 U.S.C. § 8191, his right to benefits
under the Act may not be waived pursuant to 20 C.F.R. § 10.21. Rodney Aurello, 41
ECAB 450 (1990).
Appellant, a highway patrol trooper, sustained a gunshot wound to the right
hand. He stated that while on a routine patrol he observed a vehicle with only one
tail lamp. When he approached to investigate, the occupant of the vehicle opened
fire on appellant. The Board found that appellant's injury did not occur under cir-
cumstances which brought it under the coverage of 5 U.S.C. § 8191. Although appel-
lant's assailant was sought by a federal law enforcement agency for the commission
of a federal crime, appellant did not establish that he had prior knowledge that his
assailant was a federal fugitive or that he was engaged in activities which could be
characterized as apprehending or attempting to apprehend a federal fugitive at the
time of his injury. Lance D. Coleman, 41 ECAB 604 (1990).
Prior knowledge of the involvement of a federal crime is a prerequisite to cover-
age under 5 U.S.C. § 8191. The legislative history of the Act supports that the pur-
pose of this statutory provision is to grant federal compensation benefits to local law
enforcement officers who are purposely, not accidentally, engaged in those federal
law enforcement activities enumerated in the Act and who are injured as a result of
such activities. Later discovery of a federal crime or potential federal crime arising
out of local police activity does not, in itself, bring the injury within the scope of
section 8191. Lance D. Coleman, 41 ECAB 604 (1990).
EVIDENCE
The Office has the burden of proving that it mailed to claimant notice of the
scheduled hearing. It is presumed in the absence of evidence to the contrary, that a
notice mailed to an individual in the ordinary course of business was received by
that individual. The presumption arises after it appears from the record that the
notice was duly mailed and the notice was properly addressed. Samuel Smith, 41
ECAB 226 (1989).
When a claimant maintains that he or she did not receive notice of hearing, and
the only evidence in the record of notification shows an incorrect address, the pre-
sumption of receipt does not arise. Where the Office sent the notice of hearing to
appellant's former representative with a copy to appellant's former address, despite
the fact that appellant had provided the Office with notification of his intention to
secure other counsel and his new address, the Board found that appellant's failure
to appear at the hearing, or to show within 10 days after the hearing good cause for
his absence, did not constitute abandonment of his request for a hearing because the
evidence of record did not establish that the Office properly served him with notice
of hearing. Samuel Smith, 41 ECAB 226 (1989).
OBSTRUCTION OR REFUSAL TO UNDERGO
Section 8123(a) of the FECA authorizes the Office to require an employee who
claims compensation for an employment injury to undergo such physical examina-
tions as it deems necessary. The determination of the need for an examination, the
type of examination, the choice of locale and the choice of medical examiners are
matters within the province and discretion of the Office. If an employee refuses to
submit to or obstructs an examination, his or her right to compensation is suspend-
ed until the refusal or obstruction stops. Herbert L. Dazey, 41 ECAB 271 (1989).
Before the Office may invoke this provision of the Act, the Federal (FECA) Proce-
dure Manual requires that a claimant must be given an opportunity to present, in
writing, his or her reasons for the refusal or obstruction. A time must be set for a
medical examination and the claimant must fail to appear for that appointment,
without an acceptable excuse or reason, before the Office can suspend entitlement
to compensation benefits. Herbert L. Dazey, 41 ECAB 271 (1989).
Appellant was directed by the Office to make an appointment for an impartial
medical examination. Appellant did not make any such appointment. The rejection
of appellant's claim by the Office was found to be premature as appellant had not
yet undergone an impartial medical examination as directed by an Office hearing
representative. Herbert L. Dazey, 41 ECAB 271 (1989).
MEDICAL EXPENSES AND TREATMENT
The Board found that appellant was entitled to reimbursement of expenses for
medical services authorized under a Form CA-16 issued by the employing establish-
ment. Where an employing agency properly executes a Form CA-16 which author-
izes medical treatment or a medical examination as a result of an employee's claim
of sustaining an employment-related injury, the Form CA-16 creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. Elaine K.
Kreymborg, 41 ECAB 256 (1989); John J. Carlone, 41 ECAB 354 (1989); Robert F.
Hamilton, 41 ECAB 431 (1990).
|