United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Magna, UT, Employer 

__________________________________________ 

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Docket No. 14-1986 

Issued: March 18, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 15, 2014 appellant filed a timely appeal of an August 14, 2014 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met her burden of proof in establishing that she 

sustained a traumatic injury on April 30, 2014 in the performance of duty. 

FACTUAL HISTORY 

On May 2, 2014 appellant, then a 52-year-old clerk, filed a traumatic injury claim 

alleging that on April 30, 2014 she was throwing bundles of mail when her right elbow began to 

hurt. She continued to work and, by the following morning, Thursday, she could not move her 

 1

 5 U.S.C. § 8101 et seq.
2

arm. Appellant provided a duty status report dated May 2, 2014 completed by the employing 

establishment with a typewritten date of injury of May 2, 2014. The handwritten history 

indicated that she injured her right elbow while throwing bundles of mail on Wednesday. 

Carol Rasmussen, a nurse practitioner, diagnosed lateral epicondylitis and indicated that 

appellant’s oral history corresponded to the form. Appellant found right elbow pain and reduced 

range of motion. Ms. Rasmussen recommended light duty with no lifting. In a separate form 

dated May 20, 2014, with a typewritten date of injury of June 2, 2014, a physician’s assistant 

released appellant to return to work on June 2, 2014. 

On June 10, 2014 the employing establishment disputed appellant’s claim noting that 

there was no medical evidence signed by a physician and that she was released to return to full 

duty on June 2, 2014. 

OWCP requested additional factual and medical evidence in a letter dated July 10, 2014. 

Specifically, it requested that appellant provide additional factual evidence substantiating the 

employment events and medical evidence of a diagnosed condition resulting from the injury 

from a physician. OWCP requested that she complete an attached questionnaire and informed 

her that neither a nurse practitioner nor a physician’s assistant was considered a physician for the 

purposes of FECA. 

Dr. Peter R. Silvero, a Board-certified orthopedic surgeon, examined appellant on 

July 25, 2014 and stated that she sustained a right arm injury on April 28, 2014. He stated that 

she was lifting heavy bundles of mail on that date and that, the next morning, her right elbow 

was very sore. Dr. Silvero diagnosed right elbow lateral epicondylitis due to heavy lifting at the 

employing establishment. He provided work restrictions of no lifting more than five pounds 

with her right hand and no pushing or pulling with her right hand. Dr. Silvero further 

recommended that appellant have a 15-minute break every hour or be limited to six hours of 

work a day. He completed a form report dated July 25, 2014 and repeated his restrictions. This 

form was completed in part by the employing establishment and indicated that appellant’s date of 

injury as May 2, 2014. 

By decision dated August 14, 2014, OWCP denied appellant’s traumatic injury claim 

finding that she had not submitted sufficient factual evidence to establish that the employment 

incident occurred as alleged. It noted that she did not respond to the request for additional 

necessary information and that there was conflicting evidence regarding the date of injury. 

LEGAL PRECEDENT 

OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific 

event or incident, or series of events or incidents, within a single workday or shift. Such 

condition must be caused by external force, including stress or strain which is identifiable as to 

time and place of occurrence and member or function of the body affected.”2 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 

 2

 20 C.F.R. § 10.5(ee). 
3

component to be established is that the employee actually experienced the employment incident 

which is alleged to have occurred.3 The second component is whether the employment incident 

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

With respect to the first component of fact of injury, the employee has the burden of 

establishing the occurrence of an injury at the time, place, and in the manner alleged, by a 

preponderance of the reliable, probative and substantial evidence. 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, but the employee’s statements must be consistent with the surrounding 

facts and circumstances and her subsequent course of action. An employee has not met his or 

her burden of proof of 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. 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. However, an employee’s statement alleging 

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.4

ANALYSIS 

Appellant filed a claim on May 2, 2014 and alleged that on April 30, 2014 she injured her 

right elbow throwing mail in the performance of duty. She asserted that her elbow began to hurt 

performing this duty and that, the following morning, she could not move her arm. The 

employing establishment provided her with a series of duty status reports completed with 

typewritten dates of injury including May 2 and June 2, 2014. Appellant consistently reported 

her injury occurring on Wednesday, April 30, 3014 to her medical providers and on her claim 

form. She also consistently stated that she had increased arm pain on Thursday, May 1, 2014. 

The Board finds that appellant has provided sufficient factual evidence in support of her claim 

that she injured her right elbow on April 30, 2014 while throwing bundles of mail in the 

performance of duty. Appellant’s statements are consistent with the surrounding facts and 

circumstances and her subsequent course of action. The only inconsistencies in the evidence 

arise from the employing establishment’s selection of May 2 or June 2, 2014 as the date of injury 

on the duty status forms that it completed. Appellant provided timely notification of injury to the 

employing establishment and OWCP, sought treatment with medical providers and stopped work 

shortly after her employment incident. The Board finds that the weight of the evidence 

establishes that the employment incident occurred as alleged and that her statement has not been 

refuted by strong or persuasive evidence. 

However, the Board finds that appellant has not submitted the necessary medical 

evidence to establish a causal relationship between her accepted employment event of throwing 

bundles of mail on May 30, 2014 and her diagnosed right lateral epicondylitis. The only medical 

 3 Elaine Pendleton, 40 ECAB 1143 (1989). 

4 D.B., 58 ECAB 464, 466-67 (2007). 
4

evidence in the record is the July 25, 2014 report from Dr. Silvero.5

 While Dr. Silvero provides 

an opinion that appellant’s diagnosed lateral epicondylitis was due to her employment activities, 

stating that her right elbow lateral epicondylitis was due to heavy lifting at the employing 

establishment, this opinion is not sufficiently rationalized to establish her claim. There is no 

factual evidence in the record regarding the weight of the bundles of mail which appellant threw 

and whether these bundles were in fact heavy. Appellant also failed to indicate the number of 

bundles she processed on April 30, 2014. Furthermore, Dr. Silvero did not provide the necessary 

medical rationale to establish how and why lifting bundles of mail in the performance of duty 

would result in right lateral epicondylitis on April 30, 2014. A medical report is of limited 

probative value on a given medical question if it is unsupported by medical rationale.6 Medical 

rationale includes a physician’s detailed opinion on the issue of whether there is a causal 

relationship between the claimant’s diagnosed condition and the implicated employment activity. 

The opinion of the physician must be based on a complete factual and medical background of the 

claim, must be one of reasonable medical certainty, and must be supported by medical reasoning 

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

employment activity or factors identified by the claimant.7

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 established the first element of a traumatic injury 

claim, that the employment incident occurred on April 30, 2014. The Board further finds that 

she has not submitted the necessary detailed medical opinion evidence to establish that the 

April 30, 2014 incident resulted in a medical condition. 

 5

 The Board notes that neither Ms. Rasmussen, a nurse practitioner, nor the physician assistant who released 

appellant to work are physicians for the purposes of FECA and their reports cannot constitute medical evidence. See

5 U.S.C. § 8101(2); K.C., Docket No. 14-757 (issued August 4, 2014); Vickey C. Randell, 51 ECAB 357 (2000) 

(regarding physical therapists); Lyle E. Dayberry, 49 ECAB 369 (1998) (regarding physician’s assistants). 

6 T.F., 58 ECAB 128 (2006). 

7 A.D., 58 ECAB 149 (2006). 
5

ORDER 

IT IS HEREBY ORDERED THAT the August 14, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed as modified. 

Issued: March 18, 2015 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board