United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.G., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Farmers Branch, TX, Employer 

__________________________________________ 

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Docket No. 15-1251 

Issued: October 15, 2015 

Appearances: Case Submitted on the Record

Tim Egbuchunam, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 12, 2015 appellant, through her representative, filed a timely appeal from a 

February 27, 2015 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 the case. 

ISSUE 

The issue is whether appellant has met her burden of proof to establish that she sustained 

an occupational disease in the performance of duty. 

FACTUAL HISTORY 

On July 28, 2014 appellant, then a 38-year-old clerk, filed an occupational disease claim 

alleging that on July 15, 2014, while performing her duties, she had a sharp, burning, stabbing, 

 1

 5 U.S.C. § 8101 et seq. 
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electroylic pain from her lower neck to her elbow. She noted being in pain and going to an 

emergency room on July 21, 2014 where she was diagnosed with a muscle sprain and taken off 

work for three days. Appellant stated that she returned to work on July 25, 2014, but still had 

pain such that she left work early and went to the emergency room on July 26, 2014 where she 

was diagnosed with a rotator cuff tear. She noted reporting her condition to her manager on 

July 15, 2014 during a meeting. 

Appellant’s supervisor, N.W., noted that, while appellant alleged reporting the injury to 

her on July 15, 2014, she was on leave from July 10 to 15, 2014 and therefore appellant could 

not have reported the injury to her. She further indicated that appellant did not report any injury 

on that day to the acting supervisor, F.C. N.W. noted meeting with appellant on July 16, 2014 to 

discuss tardiness, break and lunch time, and absences. She related that appellant reported being 

under a lot of stress and had pains in her back but she never indicated an injury related to her job 

duties. 

In a statement dated July 21, 2014, appellant indicated that she was under a doctor’s care 

from July 21 to 23, 2014 and requested advanced sick leave. She also submitted coworker 

statements. In a July 28, 2014 statement, C.B. noted that she had witnessed appellant in pain and 

having issues with her shoulders, neck, and back. A July 25, 2014 statement from C.C. noted 

that appellant advised her that she was having some discomfort in her shoulders and neck on 

July 15, 2014. Appellant reported a sharp burning pain and noted she was using a heating pad 

for comfort and ice packs. 

Appellant was treated in the emergency room by Dr. Sarah Shoemaker Way, Boardcertified in emergency medicine, on July 21, 2014 for left shoulder pain. Dr. Way diagnosed left 

shoulder pain, arthralgia, and muscle strain and noted appellant was off work for three days. In a 

note dated July 21, 2014, she noted that appellant was treated on July 21, 2014 and would not be 

able to work for three days. Appellant submitted a July 26, 2014 note from a health care 

provider with an illegible signature who noted that appellant could return to work on 

July 29, 2014. 

Appellant was treated by Dr. Kelly D. Alana, a chiropractor, on July 29, 2014 for therapy 

and an examination. Dr. Alana took appellant off work on July 29, 2014. 

Appellant was seen in an emergency room on July 26, 2014 by Dr. Dirk Perritt, Boardcertified in emergency medicine, for a rotator cuff injury. Dr. Perritt noted that appellant’s 

condition was good and discharged her with prescriptions for hydrocodone and prednisone. 

By letter dated August 6, 2014, OWCP advised that the evidence was insufficient to 

establish that appellant actually experienced the incident alleged to have caused the injury. It 

also noted that there was no physician’s opinion as to how work activities caused or aggravated a 

medical condition and requested that she provide such an opinion. OWCP asked that appellant 

specifically describe the employment-related activities that contributed to her condition, the 

frequency of the work, and report any activities outside her employment. It also requested that 

the employing establishment provide comments from a knowledgeable supervisor. 
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Appellant provided a July 28, 2014 note from Dr. Shamim Khambati, a Board-certified 

internist, who treated appellant for left shoulder and arm pain. Dr. Khambati noted that appellant 

was excused from work until she saw an orthopedist. 

In a July 30, 2014 report, Dr. Ira O. Murchison, an osteopath, noted that appellant 

presented with sharp and stabbing pain in the cervical spine, left shoulder, and elbow. He noted 

that she worked as a clerk which involved repetitive duties including typing, keyboarding, using 

a mouse, grabbing, lifting, holding, and carrying boxes that weighed between 5 and 50 pounds, 

restocking supplies on shelves above and below shoulder level. Dr. Murchison noted that 

appellant was reaching above her head along with bending and stooping to put supplies away 

which involved constant use of hands, wrists, elbows, shoulders, and her neck on a constant basis 

eight hours a day five days a week. He noted findings and diagnosed sprain/strain of the cervical 

spine, sprain/strain left rotator cuff, impingement syndrome left shoulder, bursitis left shoulder, 

cubital tunnel syndrome left elbow, sprain/strain left elbow, sprain/strain left wrist, sprain/strain 

left hand, muscle spasms, and left shoulder muscle weakness. Dr. Murchison opined that 

appellant sustained injuries to her cervical spine, left shoulder, left elbow, and left wrist/hand 

while working as a clerk. He noted that the injury occurred due to the repetitive nature of her job 

duties. Dr. Murchison opined that the daily repetitive activities over the past 15 years put wear 

and tear on appellant’s neck, shoulder, elbow, wrist, and hand joints and resulted in her injuries. 

In a September 3, 2014 duty status report, he noted findings and opined that she was unable to 

work from August 25 to September 5, 2014. Appellant also provided reports of diagnostic 

testing and records from a rehabilitation facility. 

Appellant submitted a statement dated August 30, 2014 and noted on July 15, 2014 while 

sitting at her desk performing her duties she received a sharp, burning, stabbing, and electroylic 

pain from her lower neck to her mid elbow. She reported her injury to her manager as they were 

conducting a meeting together. Appellant reported performing her job for a minimum of 40 

hours a week. 

The employing establishment provided an outside employment or business activity 

request dated January 24, 2013 prepared by appellant which noted that she worked a position 

outside the government at Presbyterian Hospital in Dallas, Texas as a part-time dispatch operator 

beginning January 28, 2013 which connected rooms and doctors in the evenings and nights. The 

employing establishment submitted a statement from Gerri Soden, human resources specialist, 

dated August 8, 2014 who noted appellant’s manager, N.W., disagreed with appellant’s claimed 

date of injury and advised that she was not in the office on July 15, 2014 so appellant could not 

have informed her of her injury as she claimed. N.W. noted that appellant’s job duties included 

stocking forms but she has not done that job in over a month prior to this claim. The employing 

establishment indicated that it received a July 29, 2014 medical form from Centralrehab advising 

that appellant was off work and her return was yet to be determined. However, on July 31, 2014 

appellant sent a text to N.W. requesting time off to help her daughter move. The employing 

establishment submitted a text message from appellant to N.W. dated June l6, 2014 at 7:28 p.m. 

regarding the daughter’s move. In an August 12, 2014 statement, N.W. described appellant’s 

tasks as mainly sitting at the initial receptionist desk and performing data entry, screening 

taxpayers, supplying them with information, offering assistance to taxpayers at the machines 

which required her to verbally guide them through computer program, and stock forms. 

However, due to office staffing issues the task of offering actual assistance was rare. N.W. noted 
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assistance from the male employees in the office was provided with lifting heavy boxes. She 

provided a copy of a job description for a clerk. 

In a decision dated October 27, 2014, OWCP denied appellant’s claim finding that the 

evidence did not support that the injury or events occurred as alleged. 

On November 2 and 25, 2014 appellant requested reconsideration. She submitted a 

report from Dr. Murchison dated July 30, 2014, reports of diagnostic testing, and a job 

description for a clerk, all previously of record. 

The employing establishment submitted a statement from N.W. dated December 15, 

2014, who disagreed with appellant’s statement concerning the description of her duties. N.W. 

noted appellant’s statement that she consistently stocked shelves in the lobby and storage room 

on a daily basis was not accurate. She indicated that while appellant’s manager and acting 

manager she stocked the forms in the lobby and storage room every three weeks and appellant 

would use a cart to pull out forms to assist in stocking. N.W. never witnessed appellant carrying 

boxes, rather she would take out a handful of forms from a box and place them on the cart. 

In a decision dated February 27, 2014, OWCP denied modification of the decision dated 

October 27, 2014. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim. When an employee claims that he or she sustained an 

injury in the performance of duty, he or she must submit sufficient evidence to establish that he 

or she experienced a specific event, incident or exposure occurring at the time, place, and in the 

manner alleged. Appellant must also establish that such event, incident or exposure caused an 

injury.2 

An employee’s statement 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 evidence.3

 

Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement, 

however, must be consistent with the surrounding facts and circumstances and her subsequent 

course of action. An employee has not met his or her burden in establishing the occurrence of an 

injury when there are such inconsistencies in the evidence as to cast serious doubt upon the 

validity of the claim. Circumstances such 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, if otherwise unexplained, cast doubt on an employee’s statement 

in determining whether a prima facie case has been established.4

 2 See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB 

243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40 

ECAB 1143 (1989). 

3 R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005). 

4 Betty J. Smith, 54 ECAB 174 (2002). 
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ANALYSIS 

Appellant, a clerk, filed an occupational disease claim, alleging that while performing her 

duties, she had a sharp, burning, stabbing, electroylic pain from her lower neck to her elbow. 

She became aware of the condition on July 15, 2014 but did not stop work at that time. The 

Board finds that there are inconsistencies in the evidence which cast serious doubt upon the 

validity of the claim. 

Appellant indicated that, while performing her duties, she had a sharp, burning, stabbing, 

electroylic pain from her lower neck to her elbow, but she did not specifically indicate what 

duties she was performing when her condition commenced. She noted reporting her condition to 

her manager N.W. on July 15, 2014 during a meeting. However, N.W. noted that appellant 

could not have reported the injury to her at that time as she was on leave from July 10 

to 15, 2014. She further indicated that appellant did not report an injury on July 15, 2014 to the 

acting supervisor. N.W. stated that she did meet with appellant on July 16, 2014 but, while 

appellant reported being under a lot of stress and had pains in her back, she did not indicate that 

she sustained an injury related to her job duties. Appellant’s statement conflicts with that of 

N.W. and she had not provided any statement that seeks to clarify or explain this discrepancy. 

Additionally, the employing establishment noted that it received a July 29, 2014 medical 

form advising that appellant was off work and her return was yet to be determined, but on 

July 31, 2014 appellant sent a text message to N.W. requesting time off to help her daughter 

move. This is inconsistent behavior for a person who has sustained a shoulder, neck, and back 

injury and also serves to cast serious doubt upon the validity of the claim. 

Appellant submitted coworker statements from coworkers C.C. and C.B., but neither 

person noted witnessing appellant performing specific duties at a particular time which are 

alleged to have caused or contributed to her condition. She also provided numerous medical 

records. However, the medical evidence did not provide a clear history of injury consistent with 

appellant’s statements. Dr. Murchison noted certain of appellant’s duties and opined that her 

condition was employment related, but he did not provide any particulars regarding the history of 

injury that appellant reported regarding the onset of her symptoms from July 15 to 25, 2014. 

Under these circumstances, the lack of confirmation of the claimed incident and inconsistencies 

about the manner of how she was injured cast serious doubt upon the validity of the claim. 

For these reasons, the Board finds that appellant has not established that she sustained an 

occupational disease in the performance of duty. As appellant has not established that the 

claimed work incidents occurred as alleged, it is not necessary for the Board to consider the 

medical evidence regarding causal relationship.5

 Consequently, she has not met her burden of 

proof in establishing her claim. 

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. 

 5 See S.P., 59 ECAB 184 (2007). 
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CONCLUSION 

The Board finds that appellant has failed to meet her burden of proof to establish that she 

sustained an occupational disease in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the February 27, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 15, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board