United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.A., Appellant 

and 

DEPARTMENT OF ARMY, INSTALLATION 

MANAGEMENT COMMAND, 

Fort Benning, GA, Employer 

__________________________________________ 

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Docket No. 14-1961 

Issued: February 2, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 10, 2014 appellant filed a timely appeal from a March 17, 2014 Office of 

Workers’ Compensation Programs (OWCP) merit decision and a May 22, 2014 OWCP nonmerit 

decision. 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.2

ISSUES 

The issues are: (1) whether appellant has met his burden of proof in establishing that he 

sustained a right leg injury in the performance of duty; and (2) whether OWCP properly denied 

his request for review of the written record. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 The Board notes that appellant submitted new evidence following OWCP’s March 17, 2014 decision. However, 

as OWCP did not consider this evidence in reaching a final decision, the Board may not consider it for the first time 

on appeal. See 20 C.F.R. § 501.2(c); Joseph F. McHale, 45 ECAB 669 (1994). 
2

FACTUAL HISTORY 

On February 6, 2014 appellant, then a 63-year-old electric equipment repairer, filed a 

traumatic injury claim, alleging that on December 23, 2013 he tripped across a wire and landed 

in a bed of ants, and causing cellulitis of the right leg. His supervisor noted on the Form CA-1 

that appellant allegedly injured his leg on December 23, 2013 but he did not seek medical 

treatment until January 10, 2014, and did not provide notice of the claimed injury until 

February 6, 2014. The employing establishment did not indicate that appellant stopped work at 

that time. 

Appellant submitted a certificate from Dr. Becky Abell, a Board-certified emergency 

room physician, dated January 10, 2014, who noted that appellant could not return to work until 

January 14, 2014. In emergency department discharge instructions, Dr. Abell noted performing 

laboratory testing and discharged appellant with medications. Appellant submitted a January 21, 

2014 certificate from a registered nurse who indicated that appellant was treated from January 16 

to 21, 2014 and would be on light duty for 30 days. 

On January 21, 2014 appellant was treated by Dr. Timothy R. Brown, an osteopath, who 

diagnosed right lower extremity cellulitis and inflammation. Dr. Brown noted that appellant’s 

history was significant for underlying chronic anemia and liver disease. He recommended that 

appellant be evaluated by his primary care physician for wound care and for underlying poorly 

controlled diabetes. In a multidisciplinary discharge note dated January 21, 2014, prepared by a 

nonidentified health care provider, appellant was treated for cellulitis. He presented with right 

leg pain for a week and reported that he sustained a minor abrasion and fire ant bites six days 

ago. The health care provider indicated that appellant developed a secondary infection with pain, 

edema, and erythema, and was diagnosed with cellulitis, superficial phlebitis, hypertension, and 

kidney disease. In a January 22, 2014 emergency department discharge instructions, 

Dr. Michael B. Williams, a Board-certified emergency room physician, diagnosed right lower 

extremity cellulitis and discharged appellant with medications. On January 31, 2014 appellant 

was treated by Dr. Angus Phelts, a Board-certified otolaryngologist, who diagnosed cellulitis and 

lower leg infection. Dr. Phelts found appellant totally disabled for two weeks. 

By letter dated February 10, 2014, OWCP advised appellant of the type of factual and 

medical evidence needed to establish his claim. It indicated that the evidence was not sufficient 

to establish that he experienced the incident or employment factor alleged to have caused the 

injury. OWCP specifically requested that appellant substantiate the factual elements of his claim 

and respond to a questionnaire. 

Appellant was treated by Dr. Phelts on January 31 and February 7, 2014 for right leg pain 

associated with an edema located on the right lower extremity. Dr. Phelts noted the edema arose 

from an unknown origin. He diagnosed edema, open wound of the knee, leg, and ankle, 

hypothyroidism, diabetes mellitus without complication, hypertension, and accidental fall into 

other hole or other opening surface. Dr. Phelts noted that appellant had fire ant bites that became 

infected several weeks ago that had not been treated. In reports dated February 14 to 28, 2014, 

he noted treating appellant for a pitting edema and a wound located in the right lower extremity 

which was thought to be related to an accident. Dr. Phelts diagnosed edema, open wound of the 

knee, leg, and ankle, diabetes mellitus, and accidental fall into other hole or opening in surface. 
3

In a March 7, 2014 report, Dr. Brittony Blakey, a Board-certified dermatologist, treated 

appellant in the wound care clinic for evaluation of a chronic wound on his right lower leg status 

post injury in December 2013. Appellant reported that in December he sustained a severe 

reaction to fire ant bites causing severe swelling, edema, and sores, and was admitted to the 

hospital. Dr. Blakey diagnosed dermatology skin condition, chronic, long standing, slow to heal 

wound involving the entire right lower leg, wound care debridement, and nonsurgical dressing 

change. In a March 14, 2014 individual sick slip, a physician’s assistant noted “on-the-job 

injury” and indicated that appellant could return to limited-duty work. 

In a decision dated March 17, 2014, OWCP denied appellant’s claim on the grounds that 

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

In an appeal request form dated and postmarked April 17, 2014, appellant requested a 

review of the written record. He also submitted a statement dated April 16, 2014, as well as 

additional medical evidence. 

In a decision dated May 22, 2014, OWCP denied appellant’s request for an oral hearing. 

It found that the request was not timely filed. Appellant was informed that his case had been 

considered in relation to the issues involved, and that the request was further denied for the 

reason that the issues in this case could be addressed by requesting reconsideration from OWCP 

and submitting evidence not previously considered. 

LEGAL PRECEDENT -- ISSUE 1 

 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 

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 is 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

 In order to determine whether an employee actually sustained an 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 which must be considered in 

conjunction with one another. 

 The first component to be established is that the employee actually experienced the 

employment incident which is alleged to have occurred.5 In some traumatic injury cases, this 

component can be established by an employee’s uncontroverted statement on the Form CA-1.6

 

 3 Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

4 Daniel J. Overfield, 42 ECAB 718, 721 (1991). 

5 Supra note 3. 

6 John J. Carlone, 41 ECAB 354 (1989). 
4

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 circumstances and his subsequent course of 

action.7

 A consistent history of the injury as reported on medical reports, to the claimant’s 

supervisor and on the notice of injury can also be evidence of the occurrence of the incident.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, if otherwise unexplained, cast sufficient doubt on an employee’s statements in 

determining whether a prima facie case has been established.9

 Although an employee’s 

statement alleging that an injury occurred at a given time and in a given manner is of great 

probative valued and will stand unless refuted by strong or persuasive evidence,10 an employee 

has not met this burden when there are inconsistencies in the evidence such as to cast serious 

doubt upon the validity of the claim.11

 The second component is whether the employment incident caused a personal injury and 

generally can be established only by medical evidence. To establish a causal relationship 

between the condition, as well as any attendant disability claimed, and the employment event or 

incident, the employee must submit rationalized medical opinion evidence, based on a complete 

factual and medical background, supporting such a causal relationship.12

ANALYSIS -- ISSUE 1 

In the present case, appellant, an electric equipment repairer, filed a traumatic injury 

claim, alleging that on December 23, 2013 he tripped across a wire and landed in a bed of ants at 

work, causing developed cellulitis to the right leg. However, he did not stop work at the time of 

the alleged injury and did not seek treatment until January 10, 2014, nearly 18 days later. Once 

appellant did seek medical treatment, the initial treatment notes make no mention of an 

employment-related condition. Additionally, he did not file a traumatic injury claim or 

otherwise provide notice to the employer for more than one month following the alleged 

incident. On February 10, 2014 OWCP informed appellant that the evidence was not sufficient 

to establish that the incident occurred as alleged and it specifically requested that he substantiate 

the factual elements of his claim and respond to a questionnaire. Appellant did not respond prior 

to the March 17, 2014 OWCP decision. These circumstances of late notification, lack of 

confirmation, and failure to report his injury as work related to health care professionals cast 

serious doubt on appellant’s claim of injury. 

 7 Rex A. Lenk, 35 ECAB 253, 255 (1983). 

8 Id. at 255-56. 

9 Dorothy M. Kelsey, 32 ECAB 998 (1981). 

10 Robert A. Gregory, 40 ECAB 478 (1989). 

11 Joseph A. Fournier, 35 ECAB 1175 (1984). 

12 See Richard A. Weiss, 47 ECAB 182 (1995); John M. Tornello, 35 ECAB 234 (1983). 
5

The history of injury provided in the medical evidence submitted by appellant also does 

not sufficiently support that the incident of December 23, 2013 occurred as alleged. The medical 

records submitted most contemporaneously with the date of the alleged injury, including a 

certificate from Dr. Abell dated January 10, 2014 and emergency department discharge 

instructions, noted that appellant was treated and discharged with no specific mention of the 

December 23, 2013 incident. On January 21, 2014 appellant was treated by Dr. Brown who 

diagnosed right lower extremity cellulitis and inflammation improved and poorly controlled 

diabetes, and a discharge note of the same date related that he had a minor abrasion, and fire ant 

bites six days earlier.13 Similarly, Dr. Williams in a January 22, 2014 discharge instruction made 

no mention of a December 23, 2013 work incident. Although, the medical records submitted 

most contemporaneously with the date of the alleged injury indicated that appellant was being 

evaluated for a right leg injury they did not mention a work-related injury or incident.14 The 

January 21, 2014 discharge document mentioned ant bites six days earlier, but did not indicate 

that this happened at work. Furthermore, six days prior to the beginning of appellant’s 

hospitalization would have been about January 10, 2014, still significantly later than 

December 23, 2013, the date of injury he stated on his traumatic injury claim form. The histories 

provided in subsequent medical documents do not specifically support that any fire ant bites 

occurred on December 23, 2013 at work. 

 As noted above, there were no witnesses to the alleged injury and no contemporaneous 

statements from persons present at the employing establishment supporting that the incident 

occurred as alleged. While an injury does not have to be confirmed by eyewitnesses in order to 

establish that an employee sustained an injury in the performance of duty, the employee’s 

statement must be consistent with the surrounding facts and circumstances, and his subsequent 

course of action. These notes do not relate a consistent history of injury. 

The lack of witness to the claimed incident and inconsistencies about the manner in 

which the injury occurred cast serious doubt upon the validity of the claim. For these reasons, 

the Board finds that appellant has not established that the claimed incident occurred as alleged. 

As appellant has not established that the December 23, 2013 incident occurred as alleged, it is 

not necessary for the Board to consider the medical evidence regarding causal relationship.15 

Consequently, appellant has not met his burden of proof in establishing his claim. 

 13 Appellant’s hospitalization began on January 16, 2014. 

14 The Board has consistently held that contemporaneous evidence is entitled to greater probative value than later 

evidence; see Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971). 

15 See S.P., 59 ECAB 184 (2007). 
6

On appeal, appellant asserts that he was misdirected by management as to how to 

properly submit documentation in support of his claim for compensation. As noted above, the 

circumstances of lack of confirmation of the claimed incident, the fact that he did not stop work 

at the time of the alleged injury and did not seek treatment until January 10, 2014, nearly 18 days 

later and once he did seek medical treatment, and the initial treatment notes make no mention of 

an employment-related incident cast serious doubt upon the validity of the claim. For these 

reasons, the Board finds that appellant has not established that the claimed incident occurred as 

alleged. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied 

with a decision of the Secretary ... is entitled, on request made within 30 days after the date of 

the issuance of the decision, to a hearing on his or her claim before a representative of the 

Secretary.”16 Section 10.617 and 10.618 of the federal regulations implementing this section of 

FECA provides that a claimant shall be afforded a choice of an oral hearing or a review of the 

written record by a representative of the Secretary.17 A claimant is entitled to a hearing or 

review of the written record as a matter of right only if the request is filed within the requisite 30 

days as determined by the postmark or other carrier’s date marking and before the claimant has 

requested reconsideration.18 Although there is no right to a review of the written record or an 

oral hearing if not requested within the 30-day time period, OWCP may within its discretionary 

powers grant or deny appellant’s request and must exercise its discretion.19 

ANALYSIS -- ISSUE 2 

Appellant requested a review of the written record in a request dated and postmarked on 

April 17, 2014. However, 30 days from the date of the March 17, 2014 decision is 

April 16, 2014. Thus, appellant’s request, postmarked on April 17, 2014, was made after the 

30-day time period had elapsed.20 As the request for a review of the written record was made 

more than 30 days after issuance of the March 17, 2014 OWCP decision, appellant’s request for 

a review of the written record was untimely filed and he is not entitled to an oral hearing as a 

matter of right. 

OWCP also notified appellant that it had considered the matter in relation to the issue 

involved and indicated that additional argument and evidence could be submitted with a request 

for reconsideration. It has broad administrative discretion in choosing a means to achieve its 

 16 5 U.S.C. § 8124(b)(1). 

17 20 C.F.R. §§ 10.616, 10.617. 

18 Id. at § 10.616(a). 

19 Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999). 

20 The 30th day from Monday, March 17, 2014 was Wednesday, April 16, 2014. The Board has held that, in 

computing a time period, the date of the event from which the designated period of time begins to run shall not be 

included while the last day of the period so computed shall be included unless it is a Saturday, a Sunday or a legal 

holiday. John B. Montoya , 43 ECAB 1148 (1992). 
7

general objective of ensuring that an employee recovers from his or her injury to the fullest 

extent possible in the shortest amount of time. An abuse of discretion is generally shown 

through proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken 

which are contrary to both logic and probable deductions from established facts.21 There is no 

indication that OWCP abused its discretion in this case in finding that appellant could further 

pursue the matter through the reconsideration process. 

Consequently, OWCP properly denied appellant’s request for a review of the written 

record. 

CONCLUSION 

The Board finds that appellant has failed to establish that he sustained an injury on 

December 23, 2013 in the performance of duty, causally related to factors of his federal 

employment. The Board further finds that OWCP properly denied appellant’s request for review 

of the written record. 

ORDER 

IT IS HEREBY ORDERED THAT the May 22 and March 17, 2014 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: February 2, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 21 Samuel R. Johnson, 51 ECAB 612 (2000).