United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.J., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

San Diego, CA, Employer 

__________________________________________ 

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Docket No. 16-1018 

Issued: September 1, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On April 14, 2016 appellant filed a timely appeal from the January 28, 2016 merit 

decision and March 17, 2016 nonmerit 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. 

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish a right ear 

injury on August 20, 2015 while in the performance of duty; and (2) whether OWCP properly 

denied his request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a). 

On appeal, appellant contends that he sustained an insect bite on his right ear in the 

performance of his official work duties. 

 

 1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On September 9, 2015 appellant, then a 29-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained a possible insect bite on his right ear while 

working in the field at 8:00 a.m. on August 20, 2015. The employing establishment indicated 

that it first had notice of the claimed injury on September 9, 2015. 

In a September 15, 2015 attending physician’s report, Dr. Jason R. Hess, Board-certified 

in plastic surgery, provided a history that on August 20, 2015 appellant developed a puncture 

wound infection for which he underwent surgery on September 10, 2015. He reported findings 

of an insect bite that was possibly related to walking in the Tijuana River. Dr. Hess diagnosed an 

abscess, not otherwise specified. He indicated with a checkmark that the diagnosed condition 

was caused or aggravated by an employment activity. Dr. Hess noted that appellant had returned 

to his regular-duty work on September 11, 2015. 

In a September 10, 2015 medical report, Dr. Marc E. Kobernick, Board-certified in 

emergency medicine, provided a history that two weeks previously appellant had a possible bug 

bite to the helix of his right ear while walking in the Tijuana River. Dr. Kobernick related that 

appellant did not think much of it, however, two days later his ear became more painful. 

Subsequently, his ear became red, warm to the touch, and swollen. Dr. Kobernick noted that 

appellant had lost some of the natural folds to the helix and antihelix of his ear. He reported 

appellant’s family and social history, physical examination findings, and laboratory test results. 

Dr. Kobernick provided an impression of infected auricular hematoma and otalgia. 

In a September 13, 2015 operative report, Dr. Hess indicated that on September 10, 2015 

he had performed an incision and drainage of the right auricular fluctuance and abscess of the 

right auricular helix. He also performed a simple repair of a surgical wound measuring one 

centimeter in the right ear. 

By letter dated December 18, 2015, OWCP notified appellant of the deficiencies in his 

claim. He was advised of the medical and factual evidence needed and was afforded 30 days to 

respond. A questionnaire attached to the letter asked appellant to describe in detail the factual 

circumstances of the claimed injury including where he was and what he was doing when the 

claimed bug bite occurred. 

Appellant submitted hospital reports regarding his September 10, 2015 right ear surgery 

and laboratory test results dated October 19, 2015. 

In a January 28, 2016 decision, OWCP denied appellant’s claim. It found that the 

claimed work event did not occur as alleged. OWCP noted that appellant had not responded to 

the questions provided in its December 18, 2015 development letter. 

In an appeal request form dated March 4, 2016, appellant requested reconsideration. In a 

letter of the same date, he stated that while tracking a group northbound through the brush on 

August 20, 2015, he was bitten by an unknown insect. Appellant related that this bite later 

developed into an infection which necessitated medical treatment. He asserted that this injury 
3

occurred in the performance of his official duties as a border patrol agent and he should be 

covered under OWCP rules and guidelines. 

A Form CA-16, an authorization for examination and/or treatment, dated August 19, 

2015 and issued by the employing establishment provided a description of injury that on 

August 20, 2015 appellant sustained an insect bite to the right ear that became swollen and 

painful.2

Appellant resubmitted Dr. Hess’ reports regarding his September 10, 2015 right ear 

surgery. In a September 24, 2015 operative report, Dr. Hess indicated that he performed an 

aspiration of the right antihelica fold and bolster dressing to the right antihelical fold on that date. 

Appellant submitted laboratory test results dated September 12 and 15 and October 19 

and 20, 2015. 

In a March 17, 2016 decision, OWCP denied further merit review of appellant’s claim. It 

found that the evidence submitted did not support that it had erroneously applied or interpreted a 

point of law or advance a relevant legal argument not previously considered. OWCP further 

found that the evidence submitted was repetitious. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim, including: 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.3 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.4

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 evidence, in the 

form of medical evidence, to establish that the employment incident caused a personal injury.5

 2

 The Form CA-16 initially noted that appellant’s date of injury was August 19, 2015. However, the employing 

establishment corrected the date to August 20, 2015. 

3 Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). 

4 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, id.

5 T.H., 59 ECAB 388 (2008). 
4

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.6 

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.7

ANALYSIS -- ISSUE 1 

Appellant alleged that on August 20, 2015 he sustained a possible insect bite while 

working in the field. OWCP did not accept that the claimed work event occurred as alleged. 

The Board finds that appellant has not met his burden to prove the claimed employment incident 

occurred as alleged. 

Appellant filed a traumatic injury claim on September 9, 2015 alleging that at 8:00 a.m. 

on August 20, 2015 he sustained a “possible” insect bite on his right ear while working in the 

field as a border patrol agent. Likewise, the history of injury provided by Dr. Hess and 

Dr. Kobernick is speculative and general in nature. Dr. Hess reported that appellant had an 

insect bite “possibly” related to walking in the Tijuana River. Dr. Kobernick reported that 

appellant had a “possible” bug bite to the helix of his right ear while walking in the Tijuana 

River. Further, neither physician described the work duties appellant was performing at the time 

of injury. There were no witnesses to the alleged incident. Appellant did not report his injury to 

the employing establishment until September 9, 2015. He did not receive medical treatment for 

his claimed injury until September 10, 2015 by Dr. Kobernick. While Dr. Kobernick noted that 

appellant initially did not think much of his medical condition until his ear later became more 

painful, red, warm to the touch, and swollen, appellant did not respond to the questions provided 

in OWCP’s December 18, 2015 development letter regarding his claimed injury prior to the 

issuance of the January 28, 2016 decision. 

The Board thus finds that appellant has not established that the August 20, 2015 incident 

occurred as alleged. Because appellant has not established that the August 20, 2015 incident 

occurred, it is unnecessary for the Board to consider the medical evidence regarding causal 

relationship that was submitted prior to OWCP’s January 28, 2016 decision.8

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. 

 6 R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005). 

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

8 B.W., Docket No. 13-244 (issued May 13, 2013). 
5

LEGAL PRECEDENT -- ISSUE 2 

Section 8128 of FECA vests OWCP with a discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.9 Section 10.608(b) of OWCP’s regulations provide that a timely 

request for reconsideration may be granted if OWCP determines that the claimant has presented 

evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).10 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (1) shows that OWCP 

erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument 

not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.11 Section 10.608(b) provides that when a request for 

reconsideration is timely but fails to meet at least one of these three requirements, OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits.12

ANALYSIS -- ISSUE 2 

Appellant disagreed with OWCP’s denial of his traumatic injury claim and requested 

reconsideration. 

In his March 4, 2016 request for reconsideration, appellant described the circumstances 

surrounding his injury. He stated that on August 20, 2015 he was bitten by an unknown insect 

while tracking a group northbound through the brush in the performance of his work duties as a 

border patrol agent. Appellant also explained his delay in seeking medical treatment. He stated 

that he sought medical treatment after his insect bite became infected. Appellant also submitted 

a Form CA-16 issued by the employing establishment, which described appellant’s injury on 

August 20, 2015 as an insect bite to the right ear that became swollen and painful. 

In order to require reopening a claim for merit review, appellant does not have to submit 

all evidence necessary to discharge his burden of proof.13 If OWCP determines that the new 

evidence lacks substantive probative value, it may deny modification of the prior decision, but 

only after the case has been reviewed on the merits.14 Appellant’s March 4, 2016 letter and the 

employing establishment’s Form CA-16 constitute relevant factual evidence not previously 

considered and pertinent to the issue of whether he has established that the employment incident 

occurred as alleged. The Board, therefore, finds that appellant has submitted sufficient evidence 

 9

 5 U.S.C. § 8128(a). 

10 20 C.F.R. § 10.608(a). 

 11 Id. at § 10.606(b)(3). 

12 Id. at § 10.608(b). 

13 Paul Kovash, 49 ECAB 350 (1998). 

14 Id.
6

to require OWCP to reopen the case for merit review. The Board will set aside the March 17, 

2016 OWCP decision and remand the case for a review of the merits of appellant’s claim.15

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish a right ear 

injury on August 20, 2015 while in the performance of duty. The Board finds, however, that 

appellant has submitted sufficient evidence in support of his request for reconsideration to 

warrant merit review of his claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the March 17, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision by the Board. The decision dated January 28, 2016 is affirmed. 

Issued: September 1, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 15 As noted, the employing establishment executed a Form CA-16 on August 19, 2015 authorizing medical 

treatment. The record indicates that appellant first sought medical treatment on September 10, 2015 from Dr. Hess 

and Dr. Kobernick. The Board has held that where an employing establishment properly executes a Form CA-16, 

which authorizes medical treatment as a result of an employee’s claim for an employment-related injury, it creates a 

contractual obligation, which does not involve the employee directly, to pay the cost of the examination or treatment 

regardless of the action taken on the claim. See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. 

§§ 10.300, 10.304. Although OWCP denied appellant’s claim for an injury, it did not address whether he is entitled 

to reimbursement of medical expenses pursuant to the Form CA-16. Upon return of the case, OWCP should further 

address this matter.