United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.L., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Alexandria, LA, Employer 

__________________________________________ 

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Docket No. 14-524 

Issued: May 21, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 31, 2013 appellant, through her attorney, filed a timely appeal from a 

November 15, 2013 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 established an injury on July 25, 2011 in the performance 

of duty. 

FACTUAL HISTORY 

On April 23, 2012 appellant, a 76-year-old medical clerk, filed a claim for traumatic 

injury to her left hip, both knees and hands on July 25, 2011 when she tripped over a floor tile. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

The employing establishment controverted the claim; the form contained a statement from 

appellant’s supervisor, Amy Lesniewski, who asserted that her secretary had called one morning 

during the year prior and told her that appellant had fallen at home and broken her hip. 

Ms. Lesniewski also stated that appellant did not report or file a claim for the alleged injury 

within 30 days. 

By letter dated May 9, 2012, OWCP advised appellant to submit additional factual and 

medical evidence in support of her claim. It asked that she submit the requested information in 30 

days. 

A July 26, 2011 hospital report received by OWCP on June 1, 2012 from Dr. Roberto 

Garcia, a specialist in internal medicine, noted that appellant was admitted on July 26, 2011 with a 

fractured left hip, which she sustained after falling due to chronic vertigo. On July 27, 2011 

Dr. Garcia stated that appellant was having vertigo while sitting by her bed when she fell and 

landed on her left side. He advised that she had left hip pain. 

In a hospital report dated July 26, 2011, Dr. Robert M. Taylor, a specialist in physical 

medicine and rehabilitation, advised that appellant was status post fall in her home and sustained 

a left hip fracture. He related that she was sorting some items at her bedside in her home when 

she fell and fractured her left hip. 

On December 12, 2011 Dr. Benjamin T. Drury, a specialist in orthopedic surgery, stated 

that he had treated appellant since she underwent a hemiarthroplasty for a femoral neck fracture 

on July 26, 2011. Appellant was progressing well from the procedure and had a full range of 

motion. Dr. Drury advised that she also underwent a right shoulder arthroscopy on November 3, 

2011 for a right rotator cuff tear and subacromial bursitis. He related that appellant was 

attending physical therapy to work on range of motion and strengthening. Dr. Drury stated that 

she was unable to perform her usual job and was uncertain as to when she could return to work. 

In an August 5, 2011 report, Dr. Taylor stated that appellant was admitted to the hospital 

on July 26, 2011 following a fall with a left hip fracture. Appellant was admitted to the physical 

rehabilitation unit on July 30, 2011 for occupational therapy and was scheduled for discharge on 

August 13, 2011. 

In a September 12, 2011 report, Dr. Garcia reiterated that appellant was disabled for work 

and that her current disability began on July 25, 2011 when she fractured her hip. He submitted 

periodic reports which documented his treatment of appellant. 

In a report dated May 29, 2012, Dr. Garcia reiterated that appellant was treated for a left 

hip fracture. He examined her in follow-up appointments on October 26, 2011, February 13 and 

April 27, 2012. 

By decision dated June 20, 2012, OWCP denied appellant’s claim. It found that she failed 

to establish that she fell on July 25, 2011 at work, as alleged. 

By letter dated September 13, 2012, appellant requested reconsideration. 
3

In a July 17, 2012 report, Dr. J. David De Lapp, a specialist in orthopedic surgery, stated 

that appellant sustained a fall on July 25, 2011 while at work in a nursing office. Appellant related 

that she took a hard fall to her left hip down the hallway at the employing establishment. She went 

home to try to “tough out” the pain and got into bed. When appellant woke up the next morning 

and stood up out of bed, she felt severe pain in her hip and fell to her knees. The following day her 

daughter drove her to the hospital, where physicians diagnosed a fractured left hip. Dr. De Lapp 

opined that, during her injury at the employing establishment, “in which she took such a big fall,” 

appellant could have injured the left hip, torn her right rotator cuff, injured her right knee and 

reinjured her lumbar spine. He asserted that she sustained a significant injury during her fall at 

work on July 25, 2011. Dr. De Lapp concluded that appellant’s fall directly resulted in her current 

left hip pain, right shoulder pain, right knee pain and lumbar spine pain. He was uncertain as to 

whether she could return to full duty but stated that she could possibly perform modified light-duty 

work. 

In a July 2, 2013 report, Dr. Drury stated that he initially examined appellant on July 25, 

2011 after she sustained a fall at work that resulted in a left femoral neck fracture. Appellant 

underwent a hemiarthroplasty. Dr. Drury stated that it was a fairly clear-cut chain of events which 

led from the fall to the surgical procedure and that he wanted to clarify that this was the case. 

By letter dated September 30, 2013, the employing establishment controverted appellant’s 

claim as she reported the injury some nine months after the alleged incident. Further, appellant’s 

medical providers obtained histories on July 26 and 27, 2011 that she fell while at home. The 

employing establishment advised that she called the nurse executive secretary on July 26, 2011 

(time and attendance record) and requested leave due to a fall. 

By decision dated November 15, 2013, OWCP denied modification of the June 20, 2012 

decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA2 has the burden of establishing that the 

essential elements of his or her claim including the fact 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 period of FECA, that an injury was sustained in the 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.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

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. 

                                                             2

 5 U.S.C. § 8101 et seq. 

3 Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). 

4

 Victor J. Woodhams, 41 ECAB 345 (1989). 
4

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.5

 The employee must also 

submit sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.6

OWCP cannot accept fact of injury if there are such inconsistencies in the evidence as to 

seriously question whether the specific event or incident occurred at the time, place and in the 

manner alleged, or whether the alleged injury was in the performance of duty,7

 nor can OWCP find 

fact of injury if the evidence fails to establish that the employee sustained an “injury” within the 

meaning of FECA. An injury does not have to be confirmed by eyewitnesses in order to establish 

the fact that an employee sustained an injury in the performance of duty, as alleged, but the 

employee’s statements must be consistent with surrounding facts and circumstances and her 

subsequent course of action.8 Such circumstances as late notification of injury, lack of 

confirmation of injury, continuing to work without apparent difficulty following the alleged injury, 

and failure to obtain medical treatment may cast doubt on an employee’s statements in determining 

whether he or she has established his or her claim.9

ANALYSIS 

The Board finds that appellant has not established fact of injury due to inconsistencies in 

the evidence that cast serious doubt as to whether the July 25, 2011 incident occurred at the time, 

place and in the manner alleged. She did not establish that she fell at work on July 25, 2011. 

Appellant did not file a claim for injury until April 23, 2012, almost nine months after the 

alleged incident. In a report dated July 26, 2011, the date after the alleged incident, Dr. Garcia 

noted a history that she experienced vertigo while sitting by her bed at home. Appellant fell over 

and landed on her left side. On July 26, 2011 Dr. Taylor’s hospital report stated that she was 

status post fall in her home and sustained a left hip fracture due to the fall. He related that 

appellant was sorting some items at her bedside at her home when she fell and fractured her left 

hip. The contemporaneous accounts from the physicians contradict statements from appellant 

and the reports from Drs. De Lapp and Drury, dated July 17, 2012 and July 2, 2013. In addition, 

appellant’s supervisor stated on the CA-1 claim form that her secretary advised that appellant 

called one morning within the past year prior and informed her that she had fallen at home and 

broken her hip. The employing establishment also submitted a September 30, 2013 statement 

asserting that, according to its time and attendance records, appellant called the nurse executive 

secretary on July 26, 2011 and requested leave due to a fall. 

                                                             5

 John J. Carlone, 41 ECAB 354 (1989). 

6

 Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e)(e). 

7 Pendleton, supra note 3. 

8 See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541, 

547 (1991). 

9 See Constance G. Patterson, 42 ECAB 206 (1989). 
5

Based on the evidence of record, there are such discrepancies in the accounts of injury 

appellant provided to raise uncertainty as to the time, place and in the manner in which she fell. 

Appellant allegedly injured her left hip, neck, both knees and both hands during the July 25, 2011 

work incident, but according to her supervisors she did not provide notification of a work injury to 

the employing establishment almost nine months, and after initially advising that she had injured 

her left hip during a fall at home.10 The record does not support that Drs. De Lapp and Drury had 

an accurate history of the July 25, 2011 incident as they related differing accounts of how the 

injury occurred or indicate any awareness that appellant had initially related that she injured her 

left hip during a fall at home on July 25, 2011.11

The Board also notes that appellant failed to submit to OWCP a corroborating witness 

statement in response to its request. This casts doubt on her assertion that she injured her left hip 

in a fall at work on July 25, 2011. OWCP requested that appellant submit additional factual and 

medical evidence explaining how she sustained injury to her left hip, neck, both hands and both 

knees on the date in question. Appellant failed to submit such evidence. Given the inconsistencies 

in the evidence regarding how she sustained her injury, the Board finds that there is insufficient 

evidence to establish an injury in the performance of duty as alleged.12

For the reasons stated above, the Board finds that appellant did not meet her burden of 

proof to establish fact of injury. 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 OWCP properly found that appellant failed to meet her burden of 

proof to establish that she sustained an injury in the performance of duty on July 25, 2011. 

                                                             10 Id.

11 See Geraldine H. Johnson, 44 ECAB 745 (1993). 

12 See Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that discrepancies and inconsistencies in 

appellant’s statements describing the injury created serious doubts that the injury was sustained in the performance of 

duty). 
6

ORDER 

IT IS HEREBY ORDERED THAT the November 15, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 21, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board