United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.A., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, City of Industry, CA, 

Employer 

__________________________________________ 

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Docket No. 15-1913 

Issued: July 20, 2016 

Appearances: Case Submitted on the Record

Max Guest, 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 September 22, 2015 appellant, through counsel, filed a timely appeal from a June 1, 

2015 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 met his burden of proof to establish an injury in the 

performance of duty on December 12, 2014. 

FACTUAL HISTORY 

On December 18, 2014 appellant, then a 43-year-old casual mail handler, filed a 

traumatic injury claim (Form CA-1) alleging that he sustained a compound fracture of his left 

lower leg (at the ankle) on December 12, 2014.3

 He indicated that an unmanned Powered 

Industrial Truck (PIT) rolled backwards, crushing his left lower leg against a pole. On the same 

form, appellant’s immediate supervisor checked a box marked “yes,” indicating that appellant’s 

injury was caused by his “willful misconduct, intoxication, or intent to injure another” and added 

the comment, “Unauthorized use of a [PIT].” 

Medical records from December 2014 listed appellant’s date of injury as December 12, 

2014 and contained the diagnosis of left open ankle fracture/dislocation.4

 On December 17, 

2014 appellant underwent open reduction and internal fixation of his left ankle fracture, and left 

ankle irrigation and debridement. He underwent additional left ankle surgeries on December 23, 

24, 2014, and January 7, 2015. These procedures were not authorized by OWCP.5

In a January 5, 2015 letter, OWCP requested that appellant submit additional factual and 

medical evidence. It provided a questionnaire to be completed by appellant, which asked 

appellant to clarify whether his use of a PIT on December 12, 2014 was needed to perform his 

duties. On January 5, 2015 OWCP also requested that the employing establishment submit 

additional information, including whether appellant was specifically prohibited from using a PIT 

while on duty. 

In a January 22, 2015 statement, appellant responded to the questions posed by OWCP 

regarding his claim for a work injury on December 12, 2014. He indicated that his job required 

him to quickly place pallets on the floor and then to place boxes on top of the pallets so that 

coworkers could place packages into the appropriate boxes. Appellant noted that on 

December 12, 2014 a PIT was blocking his work area such that he “could not work fast with the 

machine there.” He asserted that he had driven PITs many times in the past (maybe 15 times) 

and that people, including supervisors, had previously seen him driving them without prohibiting 

him from doing so. Appellant reported that no one was around to move the PIT, which was 

running at the time, and that he decided to move it so that he could do his job and not lose time. 

He indicated that the PIT started going very fast and making jerking movements when he tried to 

move it to the right in order to avoid other traffic. Appellant noted that these fast, jerking 

movements made him fall off the PIT and that his left leg became caught between an iron pole 

 3

 Appellant was a temporary employee who was hired to work for the holiday season of December 2014. 

4

 A December 12, 2014 emergency room report noted that appellant reported his “[left lower extremity] being 

pinned by a fork lift while at work.” 

5

 Appellant also submitted records of his physical therapy sessions beginning in December 2014. 
3

and the back left corner of the PIT. He indicated that emergency medical technicians arrived to 

treat him and that he was taken to the hospital in an ambulance. Appellant noted: 

“To do my job that day, the machine needed to be moved. No one was around to 

move it for me and it was already running. Because I had moved it many times 

before and people said I did a good job moving it and no one, including 

supervisors, had stopped me before, I went ahead and tried to move it again so I 

could get on with my work. I was never told not to move the machine in the past. 

I did not have malicious intent, I was just trying to do my job properly. I was 

trying to be a good hard worker and not waste time. No supervisor, and nobody 

else, had ever told me not to drive the machine or that driving it was 

‘unauthorized use.’ I never heard the words ‘unauthorized use’ before.” 

Appellant also submitted additional medical evidence in support of his claim. In a form 

report dated March 10, 2015, an attending physician listed appellant’s period of total disability as 

December 12, 2014 to June 1, 2015. 

In a January 21, 2015 letter, a health and resources official indicated that the employing 

establishment was contesting appellant’s claim for a work-related injury on December 12, 2014. 

She noted that on November 18, 2014 appellant received 16 hours of training for newly hired 

employees, including 4 hours of safety orientation training which specifically covered the use of 

PITs. The health and resources official reported that two safety specialists advised all new hires, 

including appellant, that they were not permitted to operate PITs, including mechanized forklifts 

and electric pallet jacks,6

 without the proper training and certification. She indicated that from 

November 24 to 26, 2014 appellant also received one-on-one training from two certified 

instructors on the subjects of facility orientation, facility specific safety topics, and office duties. 

The health and resources official noted that, during this training in November 2014, appellant 

asked one of the instructors whether he was allowed to drive the electric pallet jack. She 

indicated that the instructor responded “no” and informed appellant that he was not authorized to 

operate the machinery because he was not a regular employee and only regular employees who 

were trained and licensed were allowed to operate such machinery. 

In her January 21, 2015 letter, the health and resources official further noted that in early 

December 2014 appellant asked a coworker whether he could drive a PIT and the coworker told 

him that he could not drive it and that he needed to be certified in order to operate any PIT. She 

indicated that on many occasions appellant asked a supervisor whether he could operate or ride 

on a PIT and the supervisor told him that he could not do so under any circumstances. The 

health and resources official pointed out that none of appellant’s job duties required the use of 

any type of PIT. She indicated that a coworker reported that on December 12, 2014 she parked a 

PIT in order to talk to another coworker and that, a few minutes later, she observed appellant 

crying out in pain next to the PIT which had been moved from the spot where she had left it. 

The health and resources official noted that another coworker had witnessed appellant shifting 

the PIT’s acceleration handle downward and that it appeared his left foot slipped off the PIT and 

became stuck between the PIT and a pole, resulting in him sustaining a broken left ankle. She 

 6

 The Board notes that the type of PIT appellant operated in December 12, 2014 was an electric pallet jack. 
4

asserted that appellant was untruthful when he indicated on his December 18, 2014 claim form 

that he was injured by an unmanned PIT which rolled backwards and noted, “It is clear that he 

intentionally and maliciously rode the [PIT] to satisfy his own passion, nothing else.” 

The employing establishment submitted a copy of a safety guide indicating that it had 

been provided to appellant prior to December 12, 2014. The safety guide discussed the 

employing establishment’s safety protocol (EL-814, Section VIII) which provided that operation 

of PITs was prohibited unless one had the required training and certification. The PIT operating 

practices handout notes, “Before employees are allowed to operate PITs, they must be trained in 

accordance with [Occupational Safety and Health Administration] standard 1910.178 and 

Chapter 7, EL-804, Safe Driver Program. Employees must receive training for each type of PIT 

they are required to operate. Employees must be evaluated and certified to operate the PIT.” 

The employing establishment submitted statements of employees who reported that, prior 

to December 12, 2014, appellant had been advised to not use a PIT. In a December 12, 2014 

statement, a safety specialist for the employing establishment who co-taught a training session 

for new employees on November 18, 2014 noted that appellant was in attendance when a safety 

module was conducted. She noted that she had informed appellant and the other employees that 

they were not authorized to operate any PIT because operation of such machines required 

specialized training and certification. The safety specialist told the new employees about an 

instance when an untrained employee injured himself while operating a PIT. In a December 18, 

2014 statement, the other safety specialist who taught the training session for new employees on 

November 18, 2014 indicated that she advised the employees that they were not allowed to 

operate PITs, mechanized forklifts, or pallet jacks without having undergone proper training for 

those machines. 

In a December 12, 2014 statement, a supervisor noted that appellant “has continuously 

asked me on several occasions to operate the [PIT]....” He indicated that he informed appellant 

“many times flat out that he cannot use any operating machinery under any circumstances as per 

his orientation.” The supervisor noted that he informed appellant that, if mail had to be moved 

by a PIT, he would have to locate a supervisor and inform him or her of this circumstance.7

 In a 

December 12, 2014 statement, a coworker noted that on that day he witnessed appellant shifting 

a PIT’s acceleration handle downward and that it appeared his left foot slipped off the PIT and 

became stuck between the PIT and a pole, resulting in him sustaining a broken left ankle. 

In a December 18, 2014 statement, a coworker, who was a licensed PIT operator, noted 

that appellant asked her one to two weeks before December 12, 2014 if he could drive the “ride 

along” machine. She indicated that she told appellant that “he could not, that he had to be 

certified to operate any PITs” and that he was unlikely to have the opportunity to undergo PIT 

training because he was a Christmas season casual employee. The coworker indicated that on 

December 12, 2014 she parked a PIT in order to talk to another coworker and that, a few minutes 

 7

 In a February 27, 2015 statement, this supervisor indicated that, due to appellant’s continuous requests to 

operate a PIT, he gave him a direct order to cease requests to use a PIT. He noted that he had never seen appellant 

operate a PIT and that, to do so, would violate the union contract given that carrying out this task was restricted to 

regular employees (rather than temporary casual employees, such as appellant). 
5

later, she observed appellant crying out in pain next to the PIT which had been moved from the 

spot where she had left it.8

In a January 15, 2015 statement, a certified instructor indicated that, during the training 

session held on November 24, 2014, appellant had asked whether he could learn to operate the 

electric pallet jack machine and she had responded that it could only be operated by a regularstatus employee with the appropriate license. She believed that appellant understood the content 

of the training session. In a January 15, 2015 statement, a supervisor advised that appellant was 

not required to operate electric or powered industrial equipment to perform his job duties. On 

January 27, 2015 a DVD containing surveillance video of appellant’s December 12, 2014 

accident was added to the record. 

In a February 25, 2015 letter, OWCP requested that the employing establishment respond 

to appellant’s claim that he had driven PITs many times in the past (maybe 15 times) and that 

people, including supervisors, had previously seen him driving them without prohibiting him 

from doing so. In response, the employing establishment submitted statements from more than 

30 employees, including supervisors, who indicated that they had not witnessed or heard of 

appellant operating a PIT. 

In a March 11, 2015 statement, the employing establishment further discussed its reasons 

for controverting appellant’s claim for a December 12, 2014 work injury, noting that the witness 

statements of record showed that, on numerous occasions prior to December 12, 2014, appellant 

had been advised to not operate the PITs. 

In an undated statement received on March 19, 2015, appellant’s immediate supervisor 

indicated that he regularly advises all new employees, including temporary seasonal employees 

such as appellant, that they are not to touch any powered equipment. He indicated that appellant 

never asked him to operate a PIT. The supervisor noted that he had not seen or heard of 

appellant operating a PIT and asserted that, if he had in fact operated a PIT, disciplinary action 

would have been taken. 

In an April 24, 2015 letter, counsel asserted that the evidence of record was sufficient to 

establish appellant’s claim for a compound fracture of his left leg. 

In a May 20, 2015 statement, appellant asserted that the employing establishment placed 

a great deal of pressure on him to complete his work tasks as quickly as possible. He indicated 

that, due to this pressure, he moved the PIT on December 12, 2014 to allow him and his 

coworkers to carry out their work tasks. Appellant acknowledged that he did not know how to 

use the PIT to move pallets or boxes, but that he only operated the PIT to move it out of the way. 

He indicated, “The PIT was running. It was in a place where it was a danger to other people. It 

was blocking my ability to do my work. Therefore, after no one responded to [a supervisor’s] 

request, I simply tried to move the PIT to be able to do my work.” Appellant asserted that his 

supervisor did not see him move PITs prior to December 12, 2014 because the supervisor 

worked in another area. He noted that no supervisor ever told him not to move a PIT and that he 

 8

 In a February 26, 2015 statement, the coworker indicated that she had not seen appellant operate a PIT prior to 

December 12, 2014. 
6

never asked a supervisor whether he could operate a PIT.9

 Appellant indicated that he did attend 

training, but that he struggled to hear and understand two full days of fast-talking lectures. He 

asserted that his English language skills were very limited and noted, “I occasionally attempted 

to get clarification concerning written items which I did not understand or statements made by 

supervisors and trainers which I did not understand. But the subject of use of machines was 

never made clear to me.” Appellant indicated that he tried to ask questions during the training, 

but that the instructors said that they did not have time to explain things to the trainees, and they 

told them to sign some documents. He noted that he signed the documents as instructed but that 

he “did not know what some of the documents actually said.” Appellant asserted that he would 

never knowingly violate rules of the employing establishment. 

In a May 22, 2015 letter, counsel asserted that appellant’s actions on December 12, 2014 

did not take him out of the performance of duty because he did not engage in willful misconduct 

which resulted in his injury. He argued that the case of L.R.10 Supported a finding that appellant 

had not engaged in willful misconduct on December 12, 2014 when he operated the PIT, but 

rather was carrying out his work duties in the performance of duty at the time of his accident. In 

L.R., the employee suffered injury while operating a postal vehicle without wearing a seat belt 

and with the driver’s side door of his vehicle open.11 The Board found that the employee’s 

actions of not wearing a seat belt and leaving the door open constituted lapses in judgment, not 

deliberate acts of wanton or reckless disregard of probable injurious consequences. Counsel also 

argued that the case of Karen Cepec12 supported a finding that appellant had not engaged in 

willful misconduct on December 12, 2014. In Karen Cepec, the employee sustained injury while 

violating a conduct rule, i.e., deviating from her mail delivery route, but the Board found that the 

employee’s actions did not constitute willful misconduct as her conduct did not show wanton or 

reckless disregard for probable injurious consequences. Counsel argued that OWCP had not 

made a showing that appellant knew that his conduct was likely to result in serious injury or that 

he wantonly or recklessly disregarded probable injurious consequences. He asserted, rather, that 

appellant was simply attempting to do his job to the best of his ability. 

In a June 1, 2015 decision, OWCP denied appellant’s claim for a work-related injury on 

December 12, 2014. It noted that he had established the occurrence of an accident on 

December 12, 2014 which caused a diagnosed medical condition, but found that this injury was 

not shown to have occurred in the performance of duty. OWCP found that appellant’s operation 

 9

 Appellant acknowledged that, as a means of exploring opportunities for career advancement, he did talk to a 

coworker about getting training and certification to operate a PIT. He asserted that he did not ask this coworker for 

permission to operate a PIT and noted that he understood he could not undergo PIT training while he was in 

temporary employee status. 

10 Docket No. 08-0084 (issued April 23, 2008). 

11 The accident occurred when the employee lost control of his vehicle while swerving to avoid collision with 

another motorist and an investigating police officer attributed the employee’s accident to inattention. The Board 

noted that the employee’s safety violations did not cause the accident. 

12 52 ECAB 156 (2000). 
7

of a PIT on December 12, 2014 constituted willful misconduct which took him out of the 

performance of duty at the time of his accident and noted: 

“Our office finds that on [December 12, 2014], your injury occurred out of your 

performance of duties because the operation of a PIT was not part of your duties 

on that day and you willfully operated it and knowing that a safety protocol was 

being violated. Therefore, it appears that your injury was a result of your willful 

misconduct. [FECA] states that an injury caused by the claimant’s willful 

misconduct is not compensable and not in the performance of duty.” 

LEGAL PRECEDENT 

 Section 8102(a)(1) of FECA states: 

“The United States shall pay compensation as specified by this subchapter 

for the disability or death of an employee resulting from personal injury 

sustained while in the performance of his duty, unless the injury or death 

is -- 

(1) caused by willful misconduct of the employee....”13

 The Board has defined willful misconduct as deliberate conduct involving premeditation, 

obstinacy, or intentional wrongdoing with the knowledge that it is likely to result in serious 

injury or conduct that is in wanton or reckless disregard of probable injurious consequences.14 

The allegation of willful misconduct is an affirmative defense which OWCP must invoke in the 

original adjudication of the claim and OWCP has the burden to prove such a defense.15

With respect to the affirmative defense of willful misconduct, OWCP procedures 

provide: 

“The question of willful misconduct arises where at the time of the injury the 

employee was violating a safety rule, disobeying other orders of the employer, or 

violating a law. Safety rules have been promulgated for the protection of the 

worker -- not the employer -- and, for this reason, simple negligent disregard of 

such rules is not enough to deprive a worker or the worker’s dependents of any 

compensation rights. All employees are subject to the orders and directives of 

their employers in respect to what they may do, how they may do certain things, 

the place or places where they may work or go, or when they may or shall do 

certain things. Disobedience of such orders may destroy the right to 

 13 5 U.S.C. § 8102(a)(1). 

14 W.S., Docket No. 15-1271 (issued October 5, 2015). 

15 Bruce Wright, 43 ECAB 284, 295 (1991). 
8

compensation only if the disobedience is deliberate and intentional as 

distinguished from careless and heedless.”16

ANALYSIS 

On December 18, 2014 appellant filed a traumatic injury claim alleging that he sustained 

a compound fracture of his left lower leg (at the ankle) on December 12, 2014.17 He indicated on 

the form that an unmanned PIT rolled backwards, crushing his left lower leg against a pole. 

However, appellant later acknowledged that he had in fact, operated the PIT on 

December 12, 2014. A coworker indicated that he witnessed appellant shifting the PIT’s 

acceleration handle downward and that it appeared his left foot slipped off the PIT and became 

stuck between the PIT and a pole. The employing establishment controverted appellant’s claim 

by asserting that appellant willfully disobeyed instructions not to operate a PIT. It raised the 

affirmative defense of willful misconduct in the original adjudication of the claim and, in its 

June 1, 2015 decision, OWCP found that this willful misconduct took appellant out of the 

performance of duty on December 12, 2014. 

The Board finds that appellant did not meet his burden of proof to establish an injury in 

the performance of duty on December 12, 2014. 

The employing establishment presented substantial evidence, including numerous witness 

statements, showing that appellant was informed on multiple occasions, by training instructors, 

supervisors, and coworkers, that he could not operate a PIT without proper training and 

certification. It noted that no one had ever seen appellant operate a PIT before December 12, 

2014 and confirmed that, in the event a supervisor had seen appellant operating a PIT, he or she 

would have taken disciplinary action against him. Appellant asserted that he did not understand 

the prohibition against operating a PIT because his English language skills were limited. 

However, the Board has reviewed the evidence of record, including appellant’s communications 

with OWCP, and finds that there is no indication that language problems prevented appellant 

from understanding the prohibition against operating a PIT, particularly given the numerous 

times he was advised of this fact. For example, on November 18, 2014 appellant received 16 

hours of training for newly hired employees, including 4 hours of safety orientation training 

which specifically covered the use of PITs. Two safety specialists advised all new hires, 

including appellant, that they were not permitted to operate PITs, including mechanized forklifts 

and electric pallet jacks, without the proper training and certification. From November 24 to 26, 

2014 appellant also received one-on-one training from two certified instructors on the subjects of 

facility orientation, facility specific safety topics, and office duties. During this training in 

November 2014, appellant asked one of the instructors whether he was allowed to drive the 

electric pallet jack. The instructor responded “no” and informed appellant that he was not 

authorized to operate this type of machinery because he was not a regular employee and only 

 16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 8.804.14 

(September 1995). 

17 Appellant was a temporary employee who was hired to work for the holiday season of December 2014. 
9

regular employees who were trained and licensed were allowed to operate such machinery.18 

Appellant was also advised by supervisors and coworkers on several other occasions prior to 

December 12, 2014 that he could not operate a PIT. He indicated that he operated the PIT 

because it was in the way and prevented him from performing his work duties. However, a 

witness statement reveals that appellant’s immediate supervisor advised him prior to 

December 12, 2014 that he was not to operate a PIT under any circumstances and that, if he felt 

that the use of a PIT was necessary, he needed to contact a supervisor and advise him or her of 

such a circumstance. 

By operating the PIT without the proper authorization, training, and certification, 

appellant engaged in an action which wantonly or recklessly disregarded probable injurious 

consequences.19 During his training on November 18, 2014, he was informed of the serious 

consequences that could occur if an unauthorized and untrained person operated a PIT. For 

example, appellant was advised about an instance when an untrained employee injured himself 

while operating a PIT. The Board finds that it is reasonable to conclude that operating a heavy, 

moving machine such as a PIT without any training carries with it a significant risk of injury and 

appellant was reasonably aware of such risk when he deliberately chose to violate numerous 

clearly expressed prohibitions against operating a PIT. Under these circumstances, appellant’s 

disobedience of safety orders was deliberate and intentional as distinguished from careless and 

heedless.20 Because he engaged in willful misconduct by operating a PIT on December 12, 2014 

and this willful misconduct led to his injury on that date, OWCP properly found that appellant’s 

actions took him out of the performance of duty at the time of his accident on 

December 12, 2014.21

On appeal, counsel argued that several cases, including L.R.,22 supported a finding that 

appellant was carrying out his work duties in the performance of duty when he operated the PIT 

on December 12, 2014. He noted that the Board found that OWCP had not shown that the 

employee in L.R. knew that his conduct was likely to result in serious injury or that he wantonly 

or recklessly disregarded probable injurious consequences. However, the facts of this case can 

be easily distinguished. In L.R., the employee was deemed to have engaged in a momentary 

lapse of judgment when he failed to follow safety regulations (to close the door of his vehicle 

and to wear his seat belt) and this failure was not considered to have caused the injury.23 In the 

present case, appellant knowingly and willfully engaged in an activity, operating a PIT, which he 

 18 In a May 20, 2015 statement, appellant acknowledged that he understood he could not undergo PIT training 

while he was in temporary employee status. He also acknowledged that he did not know how to use the PIT to 

move pallets or boxes. 

19 See supra note 13. 

20 See supra note 15. 

21 See supra note 12. 

22 See supra note 9. 

23 The accident in L.R. occurred when the employee lost control of his vehicle while swerving to avoid collision 

with another motorist and an investigating police officer attributed the employee’s accident to inattention. The 

Board noted that the employee’s safety violations did not cause the accident. 
10

was explicitly told not to operate on numerous occasions. This action goes well beyond the 

simple action of inadvertently failing to follow a safety rule. Appellant understood or reasonably 

should have understood the possible injurious consequences of operating a form of machinery, 

even for a brief period, for which he did not have proper approval, training, and certification. On 

appeal, counsel also argued that the case of Karen Cepec24 supported a finding that appellant did 

not engage in willful misconduct on December 12, 2014. In Karen Cepec, the employee 

sustained injury while violating a conduct rule, i.e., deviating from her mail delivery route, but 

the Board found that the employee’s actions did not constitute willful misconduct as the actions 

did not show wanton or reckless disregard for probable injurious consequences. However, the 

employee’s actions in Karen Cepec bear little resemblance to appellant’s actions in the present 

case as the employee’s mere deviation from her mail delivery route in Karen Cepec, a rule 

violation which does not involve safety matters, is not the type of action which would show 

wanton or reckless disregard for probable injurious consequences. 

On appeal, counsel cites several other cases in which the Board found that OWCP had 

not established willful misconduct, but these cases involved negligent actions by employees 

rather than willful and deliberate actions. On appeal, he asserts that the case of D.T.25 contains 

facts and findings which show that appellant’s actions on December 12, 2014 did not constitute 

willful misconduct. In this case, the Board remanded the case to OWCP to gather more 

information regarding whether the employee’s injury while taking a postal vehicle to a repair 

shop occurred while carrying out an off-premises special errand authorized by the employing 

establishment. However, neither OWCP nor the Board carried out a willful misconduct analysis 

in this case and counsel’s citing of the case is not relevant to the disposition of the present case. 

For these reasons, appellant did not meet his burden of proof to establish an injury in the 

performance of duty on December 12, 2014. 

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 did not meet his burden of proof to establish an injury in 

the performance of duty on December 12, 2014. 

 24 See supra note 12. 

25 Docket No. 11-0751 (issued March 12, 2012). 
11

ORDER 

IT IS HEREBY ORDERED THAT the June 1, 2015 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: July 20, 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