United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Lyndhurst, NJ, Employer 

__________________________________________ 

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Docket No. 15-1547 

Issued: November 24, 2015 

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 11, 2015 appellant, through his representative, filed a timely appeal from 

March 23 and June 25, 2015 merit decisions 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 this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish an employmentrelated injury on April 7, 2014. 

On appeal appellant’s representative asserts that an employing establishment manager 

barreled into appellant on April 7, 2014, causing him to fall, which resulted in injuries and 

disability. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 8, 2014 appellant, then a 59-year-old retail associate/window clerk, filed a 

traumatic injury claim (Form CA-1) alleging that on April 7, 2014, Kevin Flynn, customer 

services manager, lowered his shoulder and barreled into him, knocking him to the concrete floor 

causing injury to his right knee, left knee and shoulder down left arm, back, and headaches. He 

stated that he could not get up, and an ambulance was called. Appellant stopped work at that 

time. On the claim form Mr. Flynn stated that, as appellant walked toward him, he leaned into 

Mr. Flynn and made soft contact, then walked quickly backward, and sat on the ground. 

Appellant accused Mr. Flynn, and the police were called. He stated that the claim was being 

challenged. Mr. Flynn maintained that the claim was fraudulent and an investigation would be 

conducted. 

A Lyndhurst Police Department investigation report dated April 7, 2014 found that 

Richard Disanza had called 911 because appellant had fallen to the floor and claimed to be 

injured. The report stated that Mr. Flynn advised that appellant brushed shoulders with him, then 

threw himself backwards, landed on the floor, and claimed to have been shoved by Mr. Flynn. 

The report found that appellant alleged that, while walking past Mr. Flynn, Mr. Flynn lowered 

his shoulder striking appellant’s left shoulder, which caused him to stumble backwards and fall 

to the ground. Appellant stated that he hit the inside of his right knee. He stated that he would 

decide later whether to file a complaint against Mr. Flynn. Appellant was transported to Clara 

Maass Medical Center for evaluation. 

In an April 7, 2014 statement, Mr. Flynn advised that early on April 7, 2014 he had 

talked with appellant about deficiencies noted in a “mystery shopper report” from April 3, 2014. 

He stated that at approximately 3:15 p.m. on April 7, 2014, as he was separating mail for the 

evening dispatch, appellant started walking toward him, and he leaned inward to give appellant 

more room, noting that appellant was a much larger person. Mr. Flynn stated that as appellant 

walked past, he lightly touched Mr. Flynn’s left shoulder with his left shoulder, barely making 

contact. He stated that appellant then became animated and abruptly began walking backwards, 

and carefully and slowly set himself onto the floor and yelled that Mr. Flynn had shoved him and 

called for an ambulance. Mr. Flynn asked Mr. Disanza to call 911. Appellant then asked 

Mr. Disanza to help him up, which he did, and appellant stated that he did not need an 

ambulance. Upon rising, appellant, who was limping, called a shop steward on his cellular 

telephone. Mr. Flynn noted that earlier in the day, he had received a call from another shop 

steward because appellant was unhappy about receiving a work deficiency regarding a mystery 

shopper visit. He attached documentation dated April 7, 2014 where he had informed appellant 

of 94 percent mystery shopper score on April 3, 2014, which was unacceptable. Appellant noted 

that the shopper’s closing comment was, “It is unlikely that I would return to this [employing 

establishment] because I did n[o]t feel that the clerk gave me options before attempting to 

complete my purchase.” 

In an April 7, 2014 statement, Mr. Disanza advised that, as he was sitting at his desk, he 

noticed appellant walking and Mr. Flynn breaking down mail. He stated that, when he turned his 

head, he saw appellant walking backwards really fast, as if he had lost his balance, and then he 

landed on the floor. Mr. Disanza related that, because appellant asked for an ambulance, he 
3

called 911, and then appellant stated that he did not want an ambulance. After getting up, 

appellant was limping, and then the police arrived. 

A Clara Maass Medicine Center Emergency Department record dated April 7, 2014 noted 

a history that appellant was involved in an altercation at work that day and was pushed to the 

floor, sustaining an injury to the right knee. Dr. Allison Lam, Board-certified in emergency 

medicine, provided a history that appellant stated that he was hit in the head with a manager’s 

elbow and pushed to the ground. Appellant related that during the assault, he twisted his right 

knee and injured his low back during the fall, and now complained of right knee and low back 

pain, and a mild headache. Physical examination demonstrated lumbar paravertebral tenderness, 

and tenderness to the lateral aspect of the right knee with limited range of motion with flexion, 

secondary to pain. There was no knee swelling or ecchymosis. Gait was normal. A right knee 

x-ray demonstrated no evidence of acute bony abnormality. Discharge diagnosis was right knee 

sprain, and appellant was advised to follow-up with his primary care provider. 

A notice, signed by appellant on April 9, 2014, indicated that appellant had filed a civil 

complaint and trial was scheduled on April 22, 2014. 

An April 28, 2014 investigative memorandum from the postal inspection service reported 

that appellant alleged that Mr. Flynn had bumped into him and knocked him to the floor, but that 

Mr. Flynn had denied the allegation. On April 9, 2014 two postal inspectors interviewed 

appellant at the Lyndhurst Police Department where he was making a complaint against 

Mr. Flynn about the April 7, 2014 incident. Appellant was wearing a brace on his right knee and 

was represented by a union representative. The report stated that appellant alleged that 

Mr. Flynn dropped his shoulder and hit him with a hard shot that leveled him, he fell to floor, he 

did not know if he hit his head, and he could not get up. He was then transported to the hospital 

via ambulance and reported that since the incident, he has back, bilateral knee, and left elbow 

pain, a twitching eye, and headaches. The report states that the investigators interviewed both 

Mr. Disanza and Mr. Flynn who disputed appellant’s description of the incident. 

In statements dated May 6 and 14, 2014 statement, appellant maintained that he was not 

upset by the mystery shopper score on April 7, 2014. He stated that, throughout that day 

Mr. Flynn had berated and harassed him, that he had called a union steward about it, and that, 

after the steward called Mr. Flynn about it, the incident happened. Appellant maintained that 

part of the mystery shopper grade was for things outside his control such as a dirty lobby and 

insufficient forms in the lobby. He reiterated that Mr. Flynn knocked him to the floor and 

discussed events that happened prior to the April 7, 2014 incident. Attached was a retail 

customer experience shopper evaluation dated April 3, 2014,2

 and postal policies regarding 

mystery shopper evaluations. 

In a May 7, 2014 statement, Mr. Flynn reiterated that he did not assault appellant. He 

noted that appellant had reported different versions of the scenario on his Form CA-1, on the 

police report, and in an assault charge that he filed with the police. Mr. Flynn maintained that 

appellant was approximately five inches taller and 125 pounds heavier, which made it 

 2

 Appellant was not identified in the evaluation. 
4

logistically impossible for appellant to sustain the claimed injuries from sitting on the floor after 

walking backwards. 

In an April 10, 2014 report, Dr. David N. Feldman, a Board-certified orthopedic surgeon, 

reported a history that appellant was involved in an altercation at work when a man bumped into 

his left shoulder, dropping him to the floor, and presented for evaluation of left elbow, back, and 

bilateral knee pain, which occurred suddenly after the work injury. He noted a past history of 

three knee arthroscopic procedures, that appellant used crutches to ambulate, and walked with an 

antalgic gait. Dr. Feldman described examination findings and reviewed x-rays of the left knee, 

lumbar spine, and cervical spine. He diagnosed cervical spondylosis without myelopathy; 

sprains and strains of the neck; lumbago; sacroiliitis; lumbar sprains and strains; osteoarthrosis of 

the left knee; chondromalacia patella; lower leg effusion, pain, and stiffness; sprains and strains 

of the elbow and forearm with pain and stiffness; and dislocation knee tear of medial cartilage or 

meniscus. Dr. Feldman recommended further studies. 

An April 12, 2014 magnetic resonance imaging (MRI) scan of the right knee 

demonstrated full-thickness cartilage loss, prior surgical changes, a partial thickness tearing of 

the proximal patellar tendon, and an intact lateral meniscus. An April 16, 2014 MRI scan study 

of the left elbow demonstrated degenerative changes and chronic intrasubstance tearing. 

On April 28, 2014 Dr. Feldman noted appellant’s complaint of continued left elbow and 

bilateral knee pain. He reviewed the MRI scan studies, performed physical examination, and 

reiterated his diagnoses. An April 30, 2014 MRI scan of the left knee demonstrated severe 

medial tibiofemoral compartment degenerative change, a degenerative tear of the medial 

meniscus, and a partial thickness intrasubstance tear of the proximal patellar tendon. In a 

treatment note dated May 15, 2014, Dr. Feldman discussed appellant’s MRI scan findings. He 

reported that appellant, who was assaulted and knocked to the ground, was being treated for 

partial patellar tendon tear, contusions of the knees, meniscus tears of the left knee, a left elbow 

sprain, and low back pain. Dr. Feldman advised that appellant was unable to return to work. 

In correspondence dated May 16, 2014, Gary Dalton, a union vice president, described 

meeting with appellant and two postal inspectors at the Lyndhurst Police Department on 

April 9, 2014. He stated that appellant was on crutches with a brace on his right knee. 

Mr. Dalton disagreed with the investigation report and Mr. Flynn’s assertions. He discussed 

“mystery shopper” policy and maintained that Mr. Flynn had a history of harassing employees, 

including appellant. Mr. Dalton concluded by stating that Mr. Disanza’s statement fully 

supported appellant’s claim. 

On May 19, 2014 Deborah Wagner, Ph.D., a licensed clinical psychologist, stated that 

appellant was receiving psychotherapy following an incident when he was assaulted at work by 

his supervisor and was seriously injured. She related that since the incident he suffered from 

extreme anxiety, depression, suicidal ideation, insomnia, problems with concentration, and more. 

Dr. Wagner diagnosed post-traumatic stress disorder and opined that his symptoms were a direct 

result of the April 7, 2014 assault. 
5

By decision dated May 27, 2014, OWCP denied appellant’s claim because there were 

conflicting versions of how the claimed incident occurred. Appellant timely requested a hearing 

before an OWCP hearing representative. 

On June 5, 2014 Dr. Feldman advised that appellant was scheduled for knee surgery on 

June 10, 2014 and would be out of work until August 15, 2014. 

On June 20, 2014 the U.S. District Court, District of New Jersey, dismissed a civil action 

with prejudice, filed by the State of New Jersey against Mr. Flynn, as the municipal prosecutor 

would not prosecute, the complaint. 

In an undated report, Dr. Deborah Eisen, Board-certified in family medicine, stated that 

she examined appellant on June 2, 2014. Appellant reported a history that on April 7, 2014 he 

was assaulted by his supervisor who pushed him, causing him to fall to the floor injuring his left 

elbow, neck, back, and both knees. Dr. Eisen noted that he had identical findings on knee MRI 

scan studies of patellar tendon tears, and this could have only have occurred due to the April 7, 

2014 incident when, following being pushed or bumped by his supervisor, appellant’s upper 

body moved before his lower portion, causing both patellar tendons to tear. 

At the hearing, held on January 7, 2015, appellant testified that on April 7, 2014 he was 

returning to his workstation as a window clerk and Mr. Flynn was approaching from the opposite 

direction. He stated that Mr. Flynn dropped his shoulder, barreled into him, banged into him, 

and hit him below his left shoulder, knocking him backwards, spinning him around, and 

knocking him to the floor. Appellant stated that he asked for an ambulance, and Mr. Disanza 

called 911. He related that he was helped up and went in the back and sat on the platform, and 

that two policemen came and he gave a statement, alleging that Mr. Flynn assaulted him. 

Appellant was then transported by ambulance to an emergency room. He stated that he had left 

knee surgery on June 17, 2014 to repair a torn patella tendon. Appellant discussed the mystery 

shopper assessment and maintained that he was constantly harassed by Mr. Flynn. He stated that 

he had just returned to work three weeks prior to the hearing. Appellant’s representative argued 

that Mr. Flynn’s statement was totally false and that Dr. Eisen’s report was totally supportive of 

appellant’s claim. 

By decision dated March 23, 2015, an OWCP hearing representative affirmed the 

May 27, 2014 decision, finding that, as there was no evidence that an assault occurred, appellant 

did not establish that the incident occurred as reported. 

On April 17, 2015 appellant, through his representative, requested reconsideration. He 

asserted that, whether or not an assault took place, the evidence supported that on April 7, 2014 

appellant fell at work and, therefore, appellant established fact of injury. In support, appellant 

submitted duplicates of Mr. Disanza’s statement, and the reports from Dr. Eisen and Dr. Wagner. 

He also submitted documentation regarding the complaint he filed against Mr. Flynn and its 

resolution and excerpts of OWCP procedure manual. 

In a merit decision dated June 25, 2015, OWCP denied modification of the prior decision. 
6

LEGAL PRECEDENT 

An employee seeking compensation under FECA has the burden of establishing the 

essential elements of his or her claim by the weight of reliable, probative, and substantial 

evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or 

she filed his or her claim within the applicable time limitation.4 The employee must also 

establish that he sustained an injury in the performance of duty as alleged and that his disability 

for work, if any, was causally related to the employment injury.5

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. 

There are two components involved in establishing fact of injury. First, the employee must 

submit sufficient evidence to establish that he actually experienced the employment incident at 

the time, place, and in the manner alleged. Second, the employee must submit medical evidence 

to establish that the employment incident caused a personal injury.6

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.7

 

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 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.8

ANALYSIS 

The Board finds that, based on contradictory testimony, the record does not establish that 

an incident occurred at work on April 7, 2014 as alleged. Mr. Flynn advised that appellant 

leaned into him, brushed, or bumped into him as he was walking past. In various reports, 

appellant provided different versions of the incident. On the claim form, he stated that Mr. Flynn 

lowered his shoulder, barreled into him, and this knocked him to the floor. In personal 

statements, appellant stated that Mr. Flynn knocked him to the floor. At the hearing, he testified 

that on April 7, 2014 as he was returning to his work station, Mr. Flynn was walking toward him, 

 3

 J.P., 59 ECAB 178 (2007). 

4 R.C., 59 ECAB 427 (2008). 

5 Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

6

 T.H., 59 ECAB 388 (2008). 

7 R.T., Docket No. 08-408 (issued December 16, 2008). 

8 Betty J. Smith, 54 ECAB 174 (2002). 
7

dropped his shoulder, barreled into him, banged into him, and hit him below his left shoulder, 

knocking him backwards, spinning him around, and knocking him to the floor. 

The police reported on April 7, 2014 that appellant stated that, while walking past 

Mr. Flynn, he lowered his shoulder, striking appellant’s left shoulder, and this caused him to 

stumble backwards and fall to the ground. In the emergency department record on April 7, 2014, 

Dr. Lam reported a history that appellant was hit in the head with a manager’s elbow and was 

pushed to the ground. In a postal service investigative memorandum dated April 28, 2014, 

appellant reported that Mr. Flynn dropped his shoulder and hit him with a hard shot that leveled 

him, and he fell to the floor and could not get up. Dr. Feldman reported a history that appellant 

was assaulted at work and knocked to the ground. Dr. Wagner reported a history that appellant 

was assaulted at work by his supervisor and seriously injured. Dr. Eisen reported a history that 

appellant was assaulted by his supervisor who pushed him, and this caused him to fall to the 

floor. 

The only witness statement is from Mr. Disanza. Mr. Disanza related on April 7, 2014 

that, as he was sitting at his desk, he noticed that appellant was walking and that Mr. Flynn was 

breaking down mail. He stated that when he turned his head, he saw appellant walking 

backwards really fast, as if he had lost his balance, and then he landed on the floor. 

Physical contact by a coworker or supervisor may give rise to a compensable work factor, 

if the incident occurred as alleged.9

 Mr. Disanza did not witness any touching, and appellant 

provided different versions of the event. Because there are significant inconsistencies in his 

description of the claimed assault and how he fell, they are sufficient to cast serious doubt as to 

whether the employment incident occurred as alleged. Thus, the Board finds that appellant has 

not met his burden of proof to establish an employment-related incident on April 7, 2014.10

 As appellant has not established that the alleged April 7, 2014 employment incident 

occurred, it is not necessary to review the medical evidence of record.11

 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 failed to meet his burden of proof to establish an 

employment-related injury on April 7, 2014. 

 

 9 Denise Y. McCollum, 53 ECAB 647 (2002). 

10 See supra note 8. 

11 See D.R., Docket No. 15-1281 (issued September 16, 2015). 
8

ORDER 

IT IS HEREBY ORDERED THAT the June 25 and March 23, 2015 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: November 24, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board