United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.K., Appellant 

and 

DEPARTMENT OF THE ARMY, ANNISTON 

ARMY DEPOT, Anniston, AL, Employer 

__________________________________________ 

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Docket No. 16-0255 

Issued: August 5, 2016 

Appearances: Case Submitted on the Record

Clarence Dortch, III, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 17, 2015 appellant, through counsel, filed a timely appeal from a May 27, 

2015 decision of the Office of Workers’ Compensation Programs (OWCP).2

 Pursuant to the 

Federal Employees’ Compensation Act3

 (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

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from May 27, 2015, the date of OWCP’s last decision, was 

November 23, 2015. Since using November 24, 2015, the date the appeal was received by the Clerk of the 

Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. 

The date of the U.S. Postal Service postmark is November 17, 2015, rendering the appeal timely filed. See 

20 C.F.R. § 501.3(f)(1). 

3

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant has met his burden of proof to establish a traumatic injury 

in the performance of duty on March 7, 2012, as alleged. 

On appeal counsel argues that appellant was injured in the scope of his employment on 

February 9, 2009 and sustained another injury on March 7, 2012. He argues that appellant has 

been consistent with his allegations regarding the injury, and that the medical evidence supported 

his assertion that he was injured during his employment on March 7, 2012. 

FACTUAL HISTORY 

On June 27, 2012 appellant filed a traumatic injury claim (Form CA-1) alleging that on 

March 7, 2012, as he entered his workstation and as he stepped up into the turret of a M1 tank, 

he slipped, fell, and hurt himself. He listed the nature of the injury as “right side upper leg and 

thigh and pull a hernia.” Appellant did not stop work. The employing establishment 

controverted the claim. 

In support of his claim, appellant submitted a May 7, 2012 attending physician’s report 

(Form CA-2a) wherein Dr. Gordon T. Connor, a Board-certified internist, noted that he first 

examined appellant on March 7, 2012. Dr. Connor diagnosed right inguinal hernia which needed 

repair and indicated that this condition began on the job in 2009.4

 

By letter dated July 16, 2012, OWCP informed appellant that further information was 

necessary to support his current claim and afforded him 30 days within which to submit this 

information. 

Appellant submitted a March 30, 2010 progress note wherein Dr. Jarod E. Speer, a 

Board-certified family practitioner, noted that appellant suffered from asthma, hypertension, 

limb extremity pain, and unspecified chest pain. 

OWCP also received a March 7, 2012 report wherein Dr. Connor indicated that appellant 

complained of right side pain for two days. Dr. Connor diagnosed abdominal pain, unilateral 

inguinal hernia, and allergic rhinitis pollen. Appellant also submitted a page from a May 7, 2012 

report by Dr. Connor. The history portion of the report is complete, but it does note that 

appellant performed heavy lifting on the job from 2005 through 2011 and lists that the diagnosis 

is unilateral inguinal hernia. 

In a supplemental statement dated July 25, 2012, appellant related that he reported the 

incident to his supervisor on the day it occurred and he was sent to the clinic. He noted that after 

the incident he started to hurt and have pains in his leg, back, and inner hip area on the right side 

of his body. 

                                                             4

 The record substantiates that appellant filed a prior claim for a traumatic injury alleging that on February 11, 

2009, while he was stepping into the turret of a M1 tank, he injured his right side, upper leg, and thigh. This claim 

was assigned by OWCP as File No. xxxxxx253. In a decision dated May 9, 2012, OWCP determined that although 

appellant established that the incident occurred as alleged and established a medical diagnosis, he failed to establish 

a causal relationship between the employment incident and the medical diagnosis. Accordingly, OWCP denied this 

claim. 
3

In an August 8, 2012 letter controverting appellant’s claim, the employing establishment 

questioned whether appellant actually experienced the event as alleged, noting that appellant’s 

supervisor was not aware of any injury in March 2012 and that appellant informed him that his 

hernia was related to a 2009 injury. The employing establishment also stated that there was no 

medical evidence indicating that there was a new injury in 2012 which resulted in a hernia. 

By decision dated August 24, 2012, OWCP denied appellant’s claim, finding that the 

evidence did not support that the injury and/or event occurred as alleged. 

On August 21, 2013 appellant, through counsel, requested reconsideration. Counsel 

argued that appellant was initially injured at work on February 9, 2009. He discussed the 

medical evidence and contended that appellant experienced right inguinal pain every day which 

was exacerbated with exertion at work, but that he worked full time through the pain. 

Appellant continued to submit medical reports dated from March 7, 2012 through 

April 3, 2013 wherein Dr. Connor noted treatment for numerous conditions including asthma, 

hypertension, hyperlipidemia, chronic obstructive pulmonary disease (COPD), and lumbosacral 

spondylosis. These reports included a complete copy of the May 7, 2012 report wherein 

Dr. Connor indicated that appellant developed right groin pain on the job with some heavy 

lifting. Dr. Connor noted that appellant did a lot of heavy lifting on the job from 2005 until 

2011. He indicated that appellant felt a knot down in his groin and subsequently went to the 

doctor and the hernia was diagnosed. 

Dr. Connor referred appellant to Dr. Richard E. Abernathy, a Board-certified surgeon, for 

a consultation, and he submitted treatment notes from August 9, 2012 through May 3, 2013. In 

an August 9, 2012 report, Dr. Abernathy indicated that appellant came in for a consultation for 

inguinal bulge and pain, and noted that he hurt himself in 2009 at work and did not report it at 

that time. He listed his impression as right inguinal hernia, symptomatic; and pretty severe 

asthma. In a May 3, 2013 report, Dr. Abernathy noted that appellant returned after hernia repair 

in August of 2012. He noted that appellant had a typically well-healed hernia, and that he had 

had no good explanation for his pain. 

Appellant submitted notes from Dr. Speer dated from October 9, 2010 through May 25, 

2012, noting treatment for asthma, hypertension, fatigue, and hyperlipidemia. 

Finally, appellant submitted a May 24, 2012 report by Dr. Josh C. Kilpatrick, a Boardcertified internist, noting treatment of appellant for asthma, hypertension, hyperlipidemia, and 

COPD. Appellant also submitted diagnostic tests that did not address his employment history. 

By decision dated December 19, 2013, OWCP denied modification of its prior decision. 

It found that appellant did not establish that the incident occurred as alleged due to 

inconsistencies in the evidence. OWCP noted that, since the facts surrounding appellant’s case 

had not been established, the medical evidence was not considered. 

By letter dated June 9, 2014, appellant’s counsel argued that appellant initially sustained 

a right inguinal hernia in February 2009, that he exacerbated this injury in March 2012, and that 

the medical evidence established appellant’s claim. He also submitted a December 11, 2013 

report wherein Dr. Robert C. Cain, a Board-certified neurologist, assessed appellant with COPD, 

hypertension, shortness of breath, headaches, chest pain, abdominal discomfort, and cervical pain 
4

that affected him on standing and sitting. In a May 19, 2014 note, Dr. Cain opined that 

appellant’s constant pain and disability did not allow him to work efficiently and comfortably 

and probably was caused by the work injury he suffered in 2009. He indicated that appellant 

would not be able to work due to his shortness of breath and possible cardiac disease. 

On May 27, 2015 OWCP denied modification of its earlier decision, finding that 

appellant did not establish that the incident occurred as alleged on March 7, 2012. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA5 has the burden of proof to establish that 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 timely filed within the applicable 

time limitation period of FECA, that an injury was caused 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 upon 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. 

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.8 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.9

OWCP cannot accept fact of injury if there are such inconsistencies in the evidence as to 

seriously question whether the specific event or events occurred at the time, place, and in the 

manner alleged, or whether the alleged injury was in the performance of duty,10 nor can it find 

fact of injury if the evidence fails to establish that the employee sustained an injury within the 

meaning of FECA. 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 as alleged, but 

the employee’s statements must be consistent with surrounding facts and circumstances and his 

subsequent course of action.11 However, an employee’s statement regarding the occurrence of 

                                                             5 Id. 

6 Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). 

7 Victor J. Woodhams, 41 ECAB 345 (1989). 

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

9 Id. 

10 Pendleton, supra note 6. 

11 See D.T., Docket No. 15-143 (issued February 18, 2015); see also Joseph H. Surgener, 42 ECAB 541, 

547 (1991). 
5

an employment incident is of great probative force and will stand unless refuted by strong or 

persuasive evidence.12 

ANALYSIS 

 OWCP denied appellant’s claim as he had not established that the claimed incident 

occurred at the time, place, and in the manner alleged. The Board finds that he has failed to 

establish a traumatic injury in the performance of duty on March 7, 2012, as the evidence is 

inconsistent as to his allegation that he sustained an injury on March 7, 2012. 

 Appellant alleged that on March 7, 2012, he fell and hurt himself while stepping up into 

the turret of a tank. However, he did not file a traumatic injury claim until June 27, 2012, over 

three and one-half months later. There were no witnesses to appellant’s alleged accident. 

Although appellant indicated that he reported the incident to his supervisor on the same date, 

there is no evidence to support this assertion. Rather, the employing establishment, through its 

compensation specialist, indicated that appellant came to the compensation office in April 2012 

and stated that he had a hernia and that the doctor told him that it was related to the alleged 2009 

injury. The employing establishment noted that in July 2012 appellant filed a new traumatic 

injury claim addressing the same injury he had in 2009, but changed the date of injury to 

March 7, 2012. 

Medical evidence submitted by appellant also does not provide timely support for the 

factual component of appellant’s claim. Appellant saw Dr. Connor on March 7, 2012, 

complaining of right-sided pain for two days. Although Dr. Connor saw appellant on the very 

same date as the alleged incident, he did not indicate any new accident on that date in his report. 

In fact, he indicated that as of March 7, 2012, appellant had pain for two days. Dr. Kilpatrick 

saw appellant on May 24, 2012 and did not note the March 7, 2012 employment incident. The 

next physician to see appellant was Dr. Abernathy, and in an August 9, 2012 report, 

Dr. Abernathy indicated that appellant hurt himself in 2009 at work. Appellant did not see 

Dr. Cain until December 11, 2013, over 18 months after the alleged incident. 

 Although appellant’s statement as to how the alleged incident occurred is entitled to great 

weight, there are too many inconsistencies surrounding his account of the incident of 

March 7, 2012. The fact that there were no witnesses, that his supervisor was not promptly 

notified of the incident, that he did not stop work, that appellant saw Dr. Connor on the date of 

the alleged incident yet Dr. Connor did not mention the incident, and that no doctor that he saw 

in close proximity to the date of the incident mentioned the employment incident, all cast doubt 

on appellant’s assertions that he suffered an injury at work on March 7, 2012. 

The Board also notes that appellant filed his claim on June 27, 2012, shortly after 

OWCP’s May 9, 2012 decision denying appellant’s similar claim in OWCP File No. xxxxxx253. 

Accordingly, the Board finds that the evidence contains such inconsistencies as to cast doubt on 

the validity of appellant’s claim.13 

                                                             12 See Gregory J. Reser, 57 ECAB 277 (2005); D.B., Docket No. 14-924 (issued November 3, 2014). 

13 See C.O., Docket No. 13-224 (issued June 12, 2013). 
6

Therefore, the Board finds that appellant has not met his burden of proof to establish that 

he experienced an employment-related incident at the time, place, and in the manner alleged.14

 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 not met his burden of proof to establish a traumatic 

injury in the performance of duty on March 7, 2012, as alleged. 

ORDER 

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

Compensation Programs dated May 27, 2015 is affirmed. 

Issued: August 5, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             14 Given that appellant did not establish an employment incident, further consideration of the medical evidence is 

unnecessary. See Bonnie A. Contreras, 57 ECAB 783, 789-90 (2003).