United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.S., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION FACILITY, Clarksburg, WV, 

Employer 

__________________________________________ 

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Docket No. 15-0378 

Issued: August 17, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 9, 2014 appellant, through counsel, filed a timely appeal from an 

October 9, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 

20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. 

Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of 

fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant has established an injury in the performance of duty on 

May 27, 2013. 

FACTUAL HISTORY 

On June 10, 2013 appellant, then a 59-year-old distribution operations supervisor, filed a 

traumatic injury claim (Form CA-1) alleging a back injury in the performance of duty on 

May 27, 2013.3

 By letter dated June 11, 2013, OWCP requested that he respond to questions 

regarding the alleged incident and any medical treatment. 

Appellant submitted a June 4, 2013 e-mail to the employing establishment. He reported 

that he was walking toward the flat sorter machine when he suddenly experienced intense back 

pain. Appellant indicated that he went to the hospital and underwent back surgery. 

Appellant also submitted a form report (Form CA-20) dated June 5, 2013 from Dr. Bill 

Underwood, a Board-certified neurosurgeon, diagnosing lumbar disc herniation and 

radiculopathy. Dr. Underwood checked a box marked “yes” that the conditions were 

employment related, stating that appellant was walking at work and developed back pain. 

Appellant also submitted a duty status report (Form CA-17) from Dr. Underwood dated June 14, 

2013, indicating that appellant was disabled from work. 

In a report dated June 17, 2013, Dr. Dominick Woofter, Board-certified in family 

medicine, indicated that appellant was seen for low back pain. He stated that the etiology was 

spinal stenosis and disc herniation, for which appellant had surgery. Dr. Woofter opined that 

appellant’s condition was longstanding, but that he had an acute flare up. He provided results on 

examination and diagnosed lumbar radiculopathy, degenerative disc disease, and foraminal 

stenosis at L5-S1. 

By decision dated July 15, 2013, OWCP denied the claim for compensation. It found that 

appellant had not properly responded to the request for factual information. 

Appellant requested reconsideration by letter dated July 11, 2014. He submitted a 

June 21, 2013 statement explaining that on May 27, 2013 he was walking toward the flat sorter 

machine, and he turned his head to look both ways down aisles before crossing over into the area 

and may have twisted to look behind him. Appellant indicated that he was not lifting, carrying, 

or bending. 

The medical evidence included a hospital report dated May 27, 2013 from Dr. Woofter, 

which indicated that appellant had been seen for severe low back pain in the emergency room on 

May 15, 2013. By report dated June 4, 2013, Dr. Underwood diagnosed L3-4 herniated disc and 

performed a right sided L3-4 discectomy. 

 3

 The claim form initially provided a date of injury of June 27, 2013, but the reverse of the form indicated that the 

alleged date of injury was May 27, 2013. 
3

In an undated report received on July 11, 2014, Dr. Woofter noted longstanding back 

pain since the 1970’s, with a flare up of lumbar radiculopathy in May 2013. He stated that 

appellant had a great acceleration of his back pain while at work that led to hospitalization and 

surgery. By report dated September 9, 2013, Dr. Underwood found that appellant could work 

light duty, but in a report dated February 19, 2014, Dr. Russell Biundo, a Board-certified 

physiatrist, stated that appellant had a herniated disc and was unable to work. 

By decision dated October 9, 2014, OWCP reviewed the case on its merits. It found that 

appellant had not identified a definitive employment factor as to the incident. OWCP also stated 

that the medical evidence was insufficient to establish the claim. 

LEGAL PRECEDENT 

FECA provides for the payment of compensation for “the disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.”4

 The 

phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the 

commonly found requisite in workers’ compensation law of “arising out of and in the course of 

employment.”5 An employee seeking benefits under FECA has the burden of establishing that 

he or she sustained an injury while in the performance of duty.6 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. The second component is whether the employment incident 

caused a personal injury, and generally this can be established only by medical evidence.7 

OWCP’s procedures recognize that a claim may be accepted without a medical report 

when the condition is a minor one which can be identified on visual inspection.8

 In clear-cut 

traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative 

statement is sufficient and no rationalized opinion on causal relationship is needed. In all other 

traumatic injury claims, a rationalized medical opinion supporting causal relationship is 

required.9

 

Rationalized medical opinion evidence is medical evidence that is based on a complete 

factual and medical background, of reasonable medical certainty and supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant. The weight of medical evidence is 

 4

 5 U.S.C. § 8102(a). 

5 Valerie C. Boward, 50 ECAB 126 (1998). 

6 Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115. 

7 See John J. Carlone, 41 ECAB 354, 357 (1989). 

8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013). 

9 Id., at Chapter 2.805.3(d) (January 2013). 
4

determined by its reliability, its probative value, its convincing quality, the care of the analysis 

manifested and the medical rationale expressed in support of the physician’s opinion.10

ANALYSIS 

In the present case, appellant alleged on his CA-1 form that on Monday, May 27, 2013 he 

was walking toward a flat sorting machine when he sustained an onset of severe back pain. 

There were no witnesses to the event. Appellant indicated that he did not lift, bend, or stoop. 

The employing establishment in a June 10, 2013 letter to OWCP indicated that his statement 

gave no indication that the injury was brought on by anything work related. Appellant was not 

lifting, bending, or stooping, but simply walking. Later, on June 21, 2013 in a statement he 

reported that while walking towards the flat sorter machine he was hit with an intense amount of 

pain. Appellant added that he looked down both aisles and “may have twisted to look behind 

me,” but all he could remember clearly was the pain. In his admission note, Dr. Woofter 

reported that appellant was seen about two weeks prior suffering with acute low back pain. He 

noted that appellant was off work since that time until Saturday, May 25, 2013 and that appellant 

went into work Sunday night and Monday morning and had a sudden onset of pain. Dr. Woofter 

made no mention of how the injury occurred. 

Given the reported facts, the Board finds that appellant has failed to supply an adequate 

description of the alleged incident that caused his back pain. The evidence does not present a 

clear picture of the incident that is alleged to have caused an injury. Particularly concerning is 

the evolving description of the injury, first, just walking, followed later by looking down the 

aisles and the fact that appellant “may have twisted his body.” Lastly, Dr. Woofter is silent as to 

how the injury occurred. 

Such inconsistencies in the evidence are sufficient to cast doubt on the validity of 

appellant’s injury claim. They cast doubt on whether he injured himself as alleged. For these 

reasons, the Board finds that appellant has not met his burden of proof to establish that he 

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

manner alleged. The Board will therefore affirm the October 19, 2014 decision. 

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 an injury in the performance of duty on 

May 27, 2013. 

 10 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 
5

ORDER 

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

Compensation Programs dated October 9, 2014 is affirmed. 

Issued: August 17, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board