United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.J., Appellant 

and 

U.S. POSTAL SERVICE, MIAMI VEHICLE 

MAINTENANCE FACILITY, Miami, FL, 

Employer 

__________________________________________ 

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Docket No. 14-1597 

Issued: June 17, 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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 16, 2014 appellant filed a timely appeal of an April 7, 2014 merit decision of the 

Office of Workers’ Compensation Programs (OWCP).1

 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.3

 1

 Appellant filed a timely request for oral argument. After exercising its discretion the Board, by order dated 

April 27, 2015, denied her request for oral argument finding that the arguments on appeal could be adequately 

addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket 

No. 14-1597 (issued April 27, 2015). 

2

 5 U.S.C. § 8101 et seq. 

3

 The Board notes that, following the April 7, 2014 decision, OWCP received additional evidence. However, the 

Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. 

§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 

389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish that she sustained an 

injury in the performance of duty on July 22, 2013. 

FACTUAL HISTORY 

On February 5, 20144 appellant, then a 30-year-old mail handler, filed a traumatic injury 

claim alleging that on July 22, 2013 she injured her back while opening a gate in the 

performance of duty. 

In support of her claim, appellant submitted Florida Workers’ Compensation Medical 

Forms dated August 12 and 20, 2013 from Dr. Arturo J. Gazo, a treating Board-certified family 

medicine practitioner, who diagnosed lower back pain and lumbar strain and noted an injury date 

of August 1, 2013. 

The employing establishment submitted a January 31, 2014 case summary investigative 

report by Special Agent, Kevin Tatton, Office of Inspector General, who related an employment 

injury history which included that appellant had been disabled from working due to an accepted 

February 21, 2011 employment injury. Mr. Tatton related that appellant accepted the employing 

establishment’s offer of a modified mail handler position, returned to work on July 18, 2013, and 

stopped work on July 23, 2013. 

In a statement dated February 5, 2014, appellant detailed her return to a light-duty job 

following being off work on disability and sustaining a new work injury on July 22, 2013. She 

stated that her modified job assignment involved driving trucks to stations and exchanging a 

functioning truck for one that needed service. Appellant stated that she had to open the stations 

gates, drive into the station, and exchange the truck she had been driving for the one that 

required service. While making an exchange at one location, she stated that she had difficulty 

opening the gate and could not get it open by herself. An unidentified male waiting in his car at 

this location helped appellant to open the gate which was rusty and would not open without 

being forced. Appellant then went to a different location. It had a tall gate on wheels which 

barely moved when she tried to open it. Appellant related that she had to push the gate with all 

her strength and finally opened it. She felt a strain in her back. Appellant stated that she took 

medicine when she got home and called her supervisor in the morning to let him know that she 

was in pain and could not work. 

In a February 19, 2014 letter, the employing establishment noted that appellant had 

accepted a modified job offer and began the position on July 18, 2013 before she stopped work 

on July 23, 2013. On July 22, 2013 appellant worked from 2:45 p.m. to 3:09 p.m. The 

employing establishment contested the reported date of injury because she “did not have enough 

time to report to a station that day.” It noted that another modified job had been created on 

August 1, 2013 for appellant based on her complaints that she had difficulty with opening gates 

 4

 This was the date of notice. At the bottom of page one on the form appellant noted January 29, 2014 as the date 

she signed the form. 
3

at various stations. Appellant accepted this position and began work on August 10, 2013 before 

she again stopped work on August 16, 2013. 

In a March 3, 2014 letter, OWCP informed appellant that the evidence of record was 

insufficient to establish her claim. Appellant was advised as to the medical and factual evidence 

required and given 30 days to provide this information. 

In a February 5, 2014 investigation report, Mr. Tatton detailed surveillance findings from 

October 2013 to January 2014. He also provided a background of appellant’s employment injury 

history from 2011 to the present as well as a synopsis of his findings. The report stated that 

appellant had been disabled from working due to an accepted February 21, 2011 employment 

injury prior to returning to a modified job. Mr. Tatton noted that appellant accepted a modified 

mail handler position, returned to work on July 18, 2013, and then stopped work on 

July 23, 2013. 

By decision dated April 7, 2014, OWCP denied appellant’s claim as the evidence of 

record failed to establish that the incident occurred as alleged. It found that she failed to provide 

the requested factual evidence addressing questions regarding the alleged July 22, 2013 incident. 

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 

States within the meaning of FECA; that the claim was filed within the applicable time 

limitation; that an injury was sustained while in the performance of duty as alleged and that any 

disability and/or specific condition for which compensation is claimed are causally related to the 

employment injury.6 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7

 

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

performance of duty it must first be determined whether a fact of injury has been established.8

 

First, the employee must submit sufficient evidence to establish that he or she actually 

experienced the employment incident at the time, place, and in the manner alleged.9

 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.10 

 5

 5 U.S.C. § 8101 et seq. 

6 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006). 

7 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 

8 B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 6. 

9 D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005). 

10 C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra

note 6. 
4

ANALYSIS 

The Board finds that the factual evidence is insufficient to establish that the employment 

incident occurred as alleged. Appellant reported that she injured her back while opening gates 

on July 22, 2013. 

Appellant alleged that she injured her lower back on July 22, 2013, but she delayed filing 

her claim for a traumatic injury until February 5, 2014. The only medical evidence submitted 

was two form reports by Dr. Gazo dated August 12 and 20, 2013. Dr. Gazo reported an injury 

date of August 1, 2013 and diagnosed lower back pain and lumbar strain. He did not provide any 

history of the injury other than noting the date it allegedly occurred, August 1, 2013. This was 

not the July 22, 2013 injury date appellant identified on her claim. 

Appellant notified the employing establishment of the injury some six and one-half 

months after the fact. She did not seek immediate medical attention and has only provided vague 

information regarding the incident. Appellant identifies the duty of opening up gates at postal 

locations, but does not specifically name the locations or provide further details regarding her 

alleged incidents. She also reported that she received assistance in opening a gate at one 

location, but provided no witness statement or identification for the person who assisted her. 

The employing establishment stated that on July 22, 2013 the record indicated that appellant 

worked from 2:45 p.m. to 3:09 p.m. Because appellant worked less than an hour on July 22, 

2013, this raises questions about what job duties she performed in that narrow window of time. 

The defects noted by the Board in the factual evidence are sufficient to conclude that the events 

alleged by appellant are not proven. 

The Board therefore finds that appellant has failed to establish fact of injury. Appellant 

did not submit sufficient evidence to establish that she actually experienced an employment 

incident at the time, place, and in the manner alleged.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 has failed to meet her burden of proof to establish that she 

sustained an injury in the performance of duty. 

 11 V.H., Docket No. 12-1621 (issued December 21, 2012); Alvin V. Gadd, 57 ECAB 172 (2005); Barbara R. 

Middleton, 56 ECAB 634 (2005). 
5

ORDER 

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

Compensation Programs dated April 7, 2014 is affirmed. 

Issued: June 17, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board