United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.M., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Newark, NJ, Employer 

__________________________________________ 

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Docket No. 13-1947 

Issued: May 6, 2014 

Appearances: Case Submitted on the Record 

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 23, 2013 appellant filed a timely appeal from an August 5, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic 

injury claim. 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 has established that she sustained a traumatic right knee 

injury in the performance of duty. 

On appeal, appellant contends that she promptly reported her injury and that her 

physician’s reports were sufficient to establish causal relationship. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 5, 2013 appellant, then a 52-year-old customs and border protection officer, filed 

a claim for traumatic injury (Form CA-1) alleging that on May 28, 2013 she sustained a right 

knee injury during defensive tactics recertification. She stated that, during the “red man” 

scenario, she used her knee to make the subject comply with her orders. Appellant asserted that 

on May 29, 2013 her right knee became sore and swollen. She did not stop work at the time of 

her claim. The employing establishment controverted appellant’s claim, asserting that there were 

no witnesses to the claimed injury, that she delayed reporting the injury for several days and that 

the training scenario was “not that physical.” 

In support of her claim, appellant submitted June 10, 2013 reports from Dr. John Lee 

Berger, an attending Board-certified orthopedic surgeon, who related her account of twisting her 

right knee at work on May 28, 2013 during defensive tactics training. Dr. Berger obtained right 

knee x-rays within normal limits. On examination, he noted tenderness in the posterior aspect 

and over the medial joint line and limited flexion and extension. Dr. Berger diagnosed 

post-traumatic synovitis of the right knee with internal derangement, rule out meniscal injury and 

rule out chondromalacia. He administered a cortisone injection and prescribed medication and 

physical therapy. 

In a June 28, 2013 letter, OWCP advised appellant of the additional evidence needed to 

establish her claim, including factual information substantiating the May 28, 2013 incident. It 

also emphasized the importance of submitting a report from her attending physician explaining 

how and why the May 28, 2013 incident would cause the claimed right knee injury. OWCP 

afforded appellant 30 days to submit additional evidence. 

In response, appellant submitted a July 3, 2013 report from Dr. Berger, noting that her 

right knee improved significantly following the June 10, 2013 cortisone injection. She had full 

range of motion, normal contour and full weight bearing. Dr. Berger released appellant to full 

duty as of July 8, 2013 and discharged her from care. Appellant also submitted June 20 and 26, 

2013 physical therapy notes. 

By decision dated August 5, 2013, OWCP denied appellant’s claim on the grounds that 

fact of injury was not established. It found that appellant did not establish that the May 28, 2013 

training incident occurred at the time, place and in the manner alleged. OWCP noted that even if 

the May 28, 2013 incident was established as factual, the medical evidence did not explain how 

and why the event would cause the diagnosed right knee injuries. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of establishing 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 filed within the applicable time 

limitation; that an injury was sustained while 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 
3

employment injury.2

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3

In order to determine whether an employee sustained a traumatic injury in the 

performance of duty, OWCP begins with an analysis of whether “fact of injury” has been 

established. Generally, fact of injury consists of two components that must be considered in 

conjunction with one another. First, the employee must submit sufficient evidence to establish 

that he or she actually experienced the employment incident that is alleged to have occurred.4 

Second, the employee must submit sufficient evidence, generally only in the form of medical 

evidence, to establish that the employment incident caused a personal injury.5 

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.6

 The 

employee’s statement, however, must be consistent with the surrounding facts and circumstances 

and his subsequent course of action. An employee has not met his 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.7

ANALYSIS 

Appellant claimed that she sustained a right knee injury on May 28, 2013 in a “red man” 

scenario during defensive tactics recertification. OWCP denied the claim by August 5, 2013 

decision, finding both that she failed to establish the May 28, 2013 incident as factual and that 

the medical evidence was insufficient to establish causal relationship. 

In her June 5, 2013 claim form, appellant explained that she used her right knee to make 

the “red man” comply with her orders. She did not describe the physical requirements of the 

scenario or explain how she believed the exercise physically caused the claimed injury. The 

probative quality of appellant’s account of events was also called into question by the employing 

establishment’s contention that the training scenario was “not that physical.” OWCP advised her 

by June 28, 2013 letter of the additional factual evidence needed to establish her claim, including 

corroboration that the “red man” incident occurred at the time and in the manner alleged. 

 2 Joe D. Cameron, 41 ECAB 153 (1989). 

3 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999). 

4 Gary J. Watling, 52 ECAB 278 (2001). 

5 Deborah L. Beatty, 54 ECAB 340 (2003).

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

7 Betty J. Smith, 54 ECAB 174 (2002). 
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However, appellant did not submit such evidence. The Board therefore finds that OWCP 

properly denied the claim due to a lack of factual evidence.8

As appellant did not meet the threshold requirement of establishing the May 28, 2013 

incident as factual, it is not necessary to address the medical issue of causal relationship. 

On appeal, appellant contends that she reported her injury promptly and that her 

physician’s reports were sufficient to establish causal relationship. As stated, she submitted 

insufficient evidence to establish that the claimed May 28, 2013 incident occurred as alleged. It 

is therefore premature to address the medical issue of causal relationship. 

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 established that she sustained a traumatic right 

knee injury in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated August 5, 2013 is affirmed. 

Issued: May 6, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 Gary J. Watling, supra note 4.