United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________

L.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

White Plains, NY, Employer 

_________________________________________ 

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Docket No. 15-0125 

Issued: August 7, 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 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 22, 2014 appellant filed a timely appeal from a June 23, 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 over the merits of this case. 

ISSUE 

The issue is whether appellant met her burden of proof to establish a traumatic injury in 

the performance of duty on June 2, 2013. 

FACTUAL HISTORY 

On June 3, 2013 appellant, then a 52-year-old mail handler, filed a traumatic injury claim 

alleging that at 6:00 p.m. on June 2, 2013 she reinjured her left arm while unloading a machine.2

 

 1

 5 U.S.C. § 8101 et seq. 

2

 The record reflects that appellant had prior rotator cuff surgery on the same shoulder under claim number 

xxxxxx341. This other claim is not presently before the Board. 
2

She stopped work on June 3, 2013. The employing establishment controverted the claim. It 

checked a box “yes” that appellant was in the performance of duty, but noted “according to her 

statement, no specific time.” The employing establishment advised that she had rotator cuff 

surgery on the same shoulder and could not pinpoint the time or a specific incident. 

In a June 3, 2013 statement, appellant indicated that on June 2, 2013 she was working on 

“SPBS (one) and was dumping, loading and pushing hampers.” She indicated that she was using 

a staff to remove the mail from the pallet and felt okay at 6:00 p.m. Appellant explained that she 

was informed to report to the “AI” at 8:45 p.m. and she felt pain and discomfort in her left 

shoulder as she was prepping mail. She indicated that she immediately reported this to her 

supervisor and was told to sit down for a minute to see if she might feel better. However, the 

pain remained and appellant did not feel better, so she asked if she could go home. She 

explained that she still had pain the next day and was going to see a physician. 

In a June 7, 2013 statement, Dolores Nesmith, a health and resource management 

specialist, noted that appellant returned to full duty with no restrictions on August 27, 2012 after 

OWCP proposed to terminate her benefits under Claim No. xxxxxx341. She indicated that such 

benefits were terminated on September 27, 2012, and now appellant claimed another injury to 

the left shoulder. Ms. Nesmith noted that appellant’s statement was in conflict with that of her 

supervisor, who indicated that appellant never informed her of a June 2, 2013 injury, but instead 

indicated that she wanted to go home because “she wasn’t feeling well” as her arm and shoulder 

would hurt in bad or rainy weather. She stated that another employee, Stephanie St. Clair, 

submitted a statement explaining that, when she asked appellant what was wrong with her, 

appellant grabbed her left shoulder and responded, “I had surgery and every now and then my 

shoulder bothers me.” Ms. Nesmith noted that Ms. St. Clair related that appellant did not 

mention that she aggravated the injury or that she just had an accident that caused a left shoulder 

injury. She questioned why appellant did not seek medical attention until the next day. 

Additionally, Ms. Nesmith explained that no lifting was involved at the time of the incident, 

unless it was the pallet bundles that came into the area. She noted that appellant would use a 

metal pole to pull the bundles off the pallets onto the belt for processing and removing plastic 

straps or wrapping bundles and placing them into trays on a conveyor belt. Ms. Nesmith advised 

that appellant had a discussion with her supervisor about her work attendance and untimely 

absences the day before the alleged injury. She asserted that appellant filed her traumatic injury 

claim to avoid discipline. 

Ms. Nesmith stated that appellant felt okay at 6:00 p.m., and did not report feeling left 

shoulder pain or discomfort until 8:45 p.m. when she was prepping mail. She questioned that, “if 

a serious injury had taken place, why did n[o]t [appellant] simply say she had experienced an 

accident which caused her injury to her shoulder and seek medical attention?” Ms. Nesmith 

asserted that the alleged incident was “suspect” as to where and how appellant injured her 

shoulder. 

Ms. Nesmith provided statements dated June 3, 2013 from Juanita Sumpter, a supervisor, 

and Ms. St. Clair. Ms. St. Clair noted that on June 2, 2013 at 9:00 p.m. she and her supervisor 

were discussing work matters when appellant walked up and stood there for a moment. 

Ms. Sumpter asked appellant what was wrong and she responded that she had surgery and “every 
3

now and then her shoulder bothers” her. She stated that on June 2, 2013 appellant never told her 

that she had an accident. Ms. Sumpter stated that appellant told her she wanted to go home 

because she was not feeling well. She noted that appellant indicated that her shoulder bothered 

her when the weather was bad and rainy. 

In a June 8, 2013 statement, Joseph Maresca, a distribution operations supervisor, 

indicated that he had spoken to appellant about her excessive absences on May 31, 2013. He 

advised her that her attendance record was unacceptable. 

In June 4, 2013 emergency room notes and discharge instructions, Dr. Shideh Parsa, an 

emergency medicine specialist, noted that appellant arrived with complaints of left shoulder pain. 

She indicated that appellant related “[t]he pain began [three] days ago, worse with movement 

and no recollection of injury.” Dr. Parsa diagnosed left shoulder strain.3

By letter dated June 13, 2013, OWCP advised appellant that additional evidence was 

needed to establish her claim. It particularly asked her to explain the specific tasks she believed 

caused her injury and how this occurred. OWCP also asked that appellant respond to the 

employing establishment’s challenge to the claim and explain why she did not seek medical 

treatment sooner. 

A June 14, 2013 magnetic resonance image (MRI) scan read by Dr. Reza Hedayari, a 

diagnostic radiologist, revealed a cystic lesion in the head of the humerus and signal 

abnormalities in the supraspinatus tendon. A June 17, 2013 duty status report and disability 

certificate, from an individual whose signature is illegible, noted that appellant had left shoulder 

pain and limited range of motion. The provider advised that appellant could return to work on 

June 28, 2013. 

In a June 27, 2013 report, Dr. Paul G. Kleinman, a Board-certified orthopedic surgeon, 

noted that on June 2, 2013 appellant was lifting and pulling things and developed left shoulder 

pain. He advised that she had open shoulder surgery for a rotator cuff tear two and a half years 

ago and was not working since the June 2, 2013 accident. Dr. Kleinman examined appellant and 

determined that she had left shoulder impingement syndrome status post rotator cuff repair. In a 

separate June 27, 2013 report, he indicated that she could not work until further notice. 

In a June 29, 2013 statement, appellant explained her duties and noted that she believed 

that what contributed to her condition were the multiple tasks that she was doing on the “AI” 

machine and the “SPBS” machine, in which she received no assistance. She stated that it was 

repetitive work and contributed to her pain. Appellant denied that she informed her supervisor 

that she was not feeling well. She stated that she told her supervisor that she had left shoulder 

pain. Appellant denied that she was given a discussion the day before her injury related to her 

absences, but that it had occurred about two weeks before her injury. She denied any other 

injury. Appellant indicated that, before her June 2, 2013 injury, she had no symptoms of pain or 

discomfort. She also stated that her regular physician could not see her, so she went to the 

emergency room. OWCP also received notes from a physician assistant. 

 3

 The report actually indicates the right shoulder strain but this appears to be a typographical error. 
4

By decision dated July 17, 2013, OWCP denied appellant’s claim and found that the 

medical evidence did not demonstrate that the claimed medical condition was related to 

established work-related events. 

On August 13, 2013 appellant requested a review of the written record. She indicated 

that she misinterpreted what OWCP asked in its development letter with regard to whether she 

had symptoms before June 2, 2013. Appellant explained that the answer should have been “yes” 

as she experienced symptoms related to her May 11, 2010 job-related injury. She also reiterated 

that she believed that her injury on June 2, 2013 was caused by her job duties. 

OWCP received a June 23, 2011 report and a January 26, 2012 report pertaining to a 

May 11, 2010 injury from Dr. Stuart Remer, a Board-certified orthopedic surgeon. It also 

received a September 14, 2010 operative report for a left rotator cuff tear, synovitis and 

impingement, and several reports and treatment notes from 2010 and 2011. OWCP also received 

copies of previously submitted reports. 

In reports dated July 25 and August 1, 2013, Dr. Kleinman noted that appellant still had 

left shoulder pain with forward elevation, although she had good forward elevation. He 

indicated that he provided a return to work note and opined that her current symptoms were 

related to the June 2, 2013 accident and her previous accident of May 11, 2010. Dr. Kleinman 

opined that the incident appellant described was the competent medical cause of her injury and 

her complaints were consistent with her history of injury. He also indicated that the history of 

injury was consistent with his objective findings. Dr. Kleinman indicated that appellant was 100 

percent disabled until August 3, 2013 and not disabled after August 4, 2013. In an August 1, 

2013 disability certificate, he indicated that she could return to full duty on August 4, 2013. 

In an April 25, 2014 letter, Ms. Nesmith noted appellant’s prior injury and that a second 

opinion physician had found her capable of returning to her date-of-injury job, full time, and 

without restrictions. She reiterated that appellant did not request immediate medical attention at 

the time of the most recent claimed injury. 

By decision dated June 23, 2014, an OWCP hearing representative modified the June 17, 

2013 decision. She found that the evidence did not demonstrate that a specific event, incident, or 

exposure occurred at the time, place, and in the manner alleged.4

LEGAL PRECEDENT 

An employee seeking benefits under FECA5

 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 

 4

 The hearing representative noted that appellant attributed her condition to dumping, loading, pushing, and using 

a staff to unload mail. She noted that the employing establishment and a coworker both indicated that appellant 

advised them she was not feeling well and never informed them that she had injured herself. The hearing 

representative also indicated that, while appellant denied being warned to about her leave usage on May 31, 2013, a 

supervisor confirmed that he had spoken to her on that date about her attendance. She concluded that the 

inconsistent accounts of the alleged work incident disputed the factual component of the claim. 

5

 5 U.S.C. §§ 8101-8193. 
5

States” within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation period of FECA,6 and that an injury was sustained in the performance of duty.7 These 

are the essential elements of each compensation claim, regardless of whether the claim is 

predicated upon a traumatic injury or an occupational disease.8

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

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

There are two components involved in establishing the 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.9 In some traumatic injury cases, this component can 

be established by an employee’s uncontroverted statement on the Form CA-1.10 Second, the 

employee must submit sufficient evidence, generally only in the form of medical evidence, to 

establish that the employment incident caused a personal injury.11

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.12 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.13 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.14 Although 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,15 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.16

 6 Joe D. Cameron, 41 ECAB 153 (1989). 

7 James E. Chadden, Sr., 40 ECAB 312 (1988). 

8 Delores C. Ellyett, 41 ECAB 992 (1990). 

9 Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of 

Injury, Chapter 2.803.2a (June 1995). 

10 John J. Carlone, 41 ECAB 354 (1989). 

11 See id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(ee). 

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

13 Id. at 255-56. 

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

15 Id. 

16 Joseph A. Fournier, 35 ECAB 1175 (1984). 
6

ANALYSIS 

The Board finds that appellant has not established fact of injury due to inconsistencies in 

the evidence that cast serious doubt as to whether the specific traumatic incident occurred at the 

time, place, and in the manner alleged. 

The Board finds that appellant’s statements are insufficient to establish fact of injury due 

to the conflicting evidence regarding the time, place, and manner in which the alleged incident 

occurred. On her traumatic injury claim form, which was filed on June 3, 2013, appellant 

claimed to have reinjured her left arm unloading a machine in the performance of duty. The 

employing establishment specifically controverted the claim and noted that no specific time of 

injury had been provided. In June 3 and 29, 2013 statements, appellant explained that on June 2, 

2013 she felt okay at 6:00 p.m., but she felt pain and discomfort in her left shoulder as she was 

prepping mail around 8:45 p.m. She stated that she immediately reported this to her supervisor 

and, when the pain did not subside, she asked if she could go home. Appellant then sought 

medical treatment the next day when she still had pain. She denied informing her supervisor that 

she was not feeling well, but rather alleged that she informed her supervisor of left shoulder 

pain.17 Appellant also denied having a recent supervisory discussion related to her absences. 

The employing establishment disputed the claim in June 7, 2013 and April 25, 2014 

statements. Ms. Nesmith advised that appellant’s supervisor had never been informed by 

appellant of a June 2, 2013 injury but instead advised that appellant wanted to go home because 

“she wasn’t feeling well” as her arm and shoulder would hurt in bad weather. She indicated that 

Ms. St. Clair, a coworker, stated that, when she asked appellant what was wrong, she grabbed her 

left shoulder and responded, “I had surgery and every now and then my shoulder bothers me.”18 

Ms. Nesmith asserted that appellant filed her traumatic injury claim to avoid disciplinary action 

as, the day before the alleged injury, appellant’s supervisor had a discussion with appellant about 

her attendance.19 The Board notes that these statements and supporting documents provided by 

the employing establishment show inconsistencies with appellant’s account of how the claimed 

injury occurred and events occurring near the time of the claimed injury. 

Furthermore, Dr. Parsa’s June 4, 2013 emergency room report reflects appellant’s claim 

that the left shoulder pain began “[three] days ago, worse with movement and no recollection of 

injury.” While Dr. Kleinman’s June 27, 2013 report provided a history of appellant developing 

 17 Appellant initially indicated that before her June 2, 2013 injury, she had no symptoms. On August 13, 2013 she 

indicated that she misinterpreted what was asked of her and acknowledged that she had symptoms related to her 

May 11, 2010 injury. Appellant reiterated that she believed that her injury on June 2, 2013 was caused by her job 

duties. 

18 In a June 3, 2013 statement, Ms. St. Clair noted that on June 2, 2013 at 9:00 p.m. appellant stated that she had 

undergone surgery and told Ms. St. Clair that “every now and then her shoulder bothers” her when she asked 

appellant what was wrong. In another June 3, 2013 statement, Ms. Sumpter stated that, on June 2, 2013, appellant 

did not tell her that she had an accident. She stated that appellant told her she wanted to go home because she was 

not feeling well, indicating that her shoulder bothered her when the weather was bad and rainy. 

19 In a June 8, 2013 statement, Mr. Maresca, a distribution operations supervisor, indicated that he spoke to 

appellant on May 31, 2013 about her unacceptable attendance record. 
7

left shoulder pain while lifting and pulling things, the Board has held that contemporaneous 

evidence is entitled to greater probative value than later evidence.20

The circumstances of this case, therefore, cast serious doubt upon the occurrence of a 

June 2, 2013 incident in the manner as described by appellant. Given the inconsistencies in the 

evidence regarding how she sustained this injury, the Board finds that there is insufficient 

evidence to establish that appellant sustained a traumatic incident in the performance of duty as 

alleged.21

As appellant has not established that the claimed incident occurred, it is not necessary to 

consider the medical evidence with respect to causal relationship.22

On appeal, appellant argued that Ms. St. Clair was a part of management and was not 

telling the truth. She questioned why she was not written up if that was the case. Appellant 

argued that management engaged in a “witch hunt.” She also denied that she got hurt to avoid 

discipline. As explained, the weight of the evidence submitted to OWCP does not establish that 

the claimed incident occurred as alleged. 

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 her burden of proof in establishing that she 

sustained a traumatic injury in the performance of duty on June 2, 2013. 

 20 S.S., 59 ECAB 315 (2008). 

21 See Matthew B. Copeland, 6 ECAB 398, 399 (1953) (where the Board found that discrepancies and 

inconsistencies in appellant’s statements describing the injury created serious doubts that the injury was sustained in 

the performance of duty); see also Mary Joan Coppolino, 43 ECAB 988 (1992). 

22 S.P., 59 ECAB 184 (2007) (where a claimant did not establish an employment incident alleged to have caused 

his or her injury, it was not necessary to consider any medical evidence). 
8

ORDER 

IT IS HEREBY ORDERED THAT the June 23, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 7, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board