United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________ 

J.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Newcastle, DE, Employer 

___________________________________________

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Docket No. 16-1114 

Issued: October 25, 2016 

Appearances: Case Submitted on the Record 

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 4, 2016 appellant, through counsel, filed a timely appeal of a March 22, 2016 

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. 

ISSUE 

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

the performance of duty on February 19, 2015. 

 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

FACTUAL HISTORY 

On March 13, 2015 appellant, then a 49-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on February 19, 2015 he stepped on a snow-covered 

brick while working and fractured his left ankle. The employing establishment controverted the 

claim. Appellant’s supervisor, Donna Smalls, indicated that she noticed appellant walking with a 

limp before the date of injury. She questioned whether appellant had a preexisting injury. 

Appellant stopped work on February 19, 2015. 

In a March 19, 2015 letter, the employing establishment again controverted the claim. 

Ms. Smalls explained that she walked with appellant on his route on February 2, 2015 and 

noticed that he was walking with a limp then. 

By letter dated April 2, 2015, OWCP informed appellant of the type of evidence needed 

to support his claim and requested that he submit such evidence within 30 days. Included with 

the letter was a questionnaire in which OWCP asked appellant to describe in detail how the 

claimed injury occurred and why he waited three weeks to report his injury to the employing 

establishment and to seek medical treatment. 

In a February 9, 2015 report, Dr. Cynthia Good, a Board-certified family practitioner, 

noted that an x-ray of the left ankle revealed a sprain/strain. She advised that they would keep a 

splint on it for three weeks. Dr. Good recommended an orthopedic surgeon if the ankle did not 

heal.3

 In another February 9, 2015 report, she advised that appellant “stepped in hole in yard one 

week ago” and still had moderate left ankle medial pain. Dr. Good diagnosed ankle sprain/strain 

and noted ankle swelling on examination. 

In a February 26, 2015 report, Dr. Anthony M. Caristo, a podiatric surgeon, noted that 

appellant presented with pain for about one month in the left ankle and lateral foot. He indicated 

that appellant was a mail carrier and injured the left ankle twice over the last month, but denied 

hearing a snap or crack. Dr. Caristo diagnosed degenerative joint disease (DJD), limb pain, 

tenosynovitis of the foot and ankle, and capsulitis. February 27, 2015 left foot x-rays revealed 

no evidence of fracture, dislocation, or osteomyelitis. In a March 2, 2015 report, Dr. Caristo 

advised that appellant presented with left lateral foot and ankle pain of one month’s duration. 

Appellant noted that his right foot was painful due to him favoring his left foot. Dr. Caristo 

diagnosed bursitis, tibialis tendinitis, DJD, and limb pain. On March 3, 2015 he stated that right 

foot x-rays showed no evidence of fracture, dislocation, or osteomyelitis. Dr. Caristo saw 

appellant on March 9, 2015 and found tibialis tendinitis, ankle sprain, limb pain, and DJD. 

In a March 12, 2015 progress note, Dr. Caristo stated that appellant presented with 

complaints of left ankle and foot pain for more than six months. He noted that it was aggravated 

by any physical activity. Dr. Caristo noted that appellant was a mail carrier and injured his left 

ankle two times over the past month, but denied hearing a pop, snap or crack. He diagnosed 

stress fracture of tibia or fibula, capsulitis, limb pain, and foot and ankle tenosynovitis. 

Dr. Caristo prescribed a removable cast.4

 In a March 19, 2015 attending physician’s report, he 

 3

 A February 9, 2015 left ankle x-ray read by Dr. Lloyd D. Wagner, a Board-certified diagnostic radiologist, 

revealed no acute bone abnormality. 

4

 A March 10, 2015 magnetic resonance imaging (MRI) scan report found a fracture of the distal end of the tibia 

that was either a nondisplaced fracture or insufficiency fracture with prominent surrounding marrow edema. 
3

advised that there was no preexisting injury. Dr. Caristo diagnosed stress fracture and placed 

appellant off work for six to eight weeks. He saw appellant on April 9, 2015 and noted that 

appellant related that he had almost 60 percent improvement with the removable cast from his 

last visit. Dr. Caristo continued to treat appellant. 

In an April 27, 2015 letter, appellant explained that he believed that he had a bad sprain 

and reported it to his supervisor, who gave him a week off for rest. He indicated that there was 

no improvement with a week off and he sought treatment, which revealed a fracture to the left 

ankle. Appellant explained that he had no other injuries and that he reported that he twisted his 

ankle in a hole two weeks prior on the job. He advised that he stepped on a snow-covered brick 

while delivering mail and his ankle twisted. Appellant advised that he continued to work 

thinking it was only a bad sprain. He indicated that he had been off work since February 19, 

2015, as his physician had not cleared him to return to work. 

By decision dated May 12, 2015, OWCP denied appellant’s claim, finding that he had not 

established the factual component of his claim. It noted that the evidence was insufficient to 

establish the specific event or events that he was claiming. OWCP noted that appellant, on his 

claim form, identified his injury as occurring on February 19, 2015, but that Dr. Good saw him 

on February 9, 2015 for an injury to his ankle while Dr. Caristo indicated that he had pain in his 

foot and ankle for over six months before the reported injury. It explained that it appeared that 

he had a preexisting injury. 

On May 20, 2015 counsel requested a telephonic hearing, which was held before an 

OWCP hearing representative on January 12, 2016. During the hearing, appellant explained that 

he recalled stepping on a brick at work on February 19, 2015, while being with his supervisor, 

and he did not want to report it because he was new on the job and he thought it was just a bad 

sprain. He explained that his reason for not going to the hospital was that he would see if it 

would get better. On questioning by the hearing representative with regard to the February 9, 

2015 date of injury reported by doctors on February 9, 2015, appellant indicated that he was 

unsure of the date. He was informed that there were inconsistencies regarding his date of injury. 

Dr. Caristo continued to treat appellant and submit reports. He released appellant to full 

duty with no restrictions on May 22, 2015. OWCP also received copies of previously submitted 

reports. 

In a March 22, 2016 decision, an OWCP hearing representative affirmed the May 12, 

2015 decision. She found that the evidence did not refer to any injury occurring on 

February 19, 2015. The hearing representative explained that the medical evidence referred to 

pain beginning from three days to a week prior to February 9, 2015. However, appellant did not 

report the injury until March 13, 2015. The hearing representative also noted that, while 

appellant reiterated at the hearing that the incident occurred on February 19, 2015 he had no 

explanation for the medical evidence dated before that. She found that because of the 

inconsistencies in the medical and factual evidence appellant did not meet his burden of proof to 

establish an injury as claimed. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA 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

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

limitation period of FECA5 and that an injury was sustained in the performance of duty.6 These 

are the essential elements of each 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 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.8 In some traumatic injury cases, this component can 

be established by an employee’s uncontroverted statement on the Form CA-1.9

 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

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.11 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.12 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.13 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,14 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.15

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

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

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

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

Injury, Chapter 2.803.2a (August 2012). 

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

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

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

12 Id. at 255-56. 

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

14 Id. 

15 Joseph A. Fournier, 35 ECAB 1175 (1984). 
5

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 on February 19, 2015. 

The Board finds that appellant’s statements are insufficient to establish the claimed 

incident due to the conflicting evidence regarding when the claimed injury occurred. On the 

March 13, 2015 traumatic injury claim form, appellant indicated that on February 19, 2015 he 

injured his left ankle when he stepped on a snow-covered block. However, the employing 

establishment controverted the claim and Ms. Smalls advised that she noticed that appellant had 

been walking with a limp prior to that date. Ms. Smalls explained that on February 21, 2015 she 

walked with him and she suggested that his medical history should be reviewed. She also 

indicated that appellant drove a car with a handicap permit and it was possible that appellant had 

a prior injury before he came to the employing establishment. Ms. Smalls further noted in a 

March 19, 2015 letter that she had walked his route on February 2, 2015 and noticed that at that 

time he was walking with a limp then. 

On April 27, 2015 appellant explained that he believed he had a bad sprain and reported 

it to his supervisor, who gave him a week off for rest. He indicated there was no improvement 

with a week off and he sought treatment which revealed a fracture. Appellant explained that he 

had no other injuries and that he reported that he twisted his ankle two weeks prior on the job, 

noting that he stepped on a snow covered brick and his ankle twisted. He was questioned during 

the January 12, 2016 hearing and explained that he recalled stepping on a brick at work on 

February 19, 2015, while being with his supervisor, and he did not want to report it because he 

was new on the job and he thought it was just a bad sprain. Appellant reiterated that he did not 

seek medical treatment sooner because he wanted to see if it would improve. However, when 

OWCP’s hearing representative questioned him with regard the February 9, 2015 date of injury 

reported by doctors on February 9, 2015, appellant indicated that he was unsure of the date. The 

Board notes that the contemporaneous medical evidence suggests that appellant had an injury 

before February 9, 2015. For example on February 9, 2015 appellant was examined by 

Dr. Good, who noted that appellant “stepped in hole in yard one week ago” and continued to 

have left ankle pain. In a February 26, 2015 report, Dr. Caristo noted that appellant had 

presented with left ankle pain for about one month. The Board notes that these statements and 

supporting documents show inconsistencies regarding the date of injury and with regard to 

appellant’s account of how the claimed injury occurred and events occurring near the time of the 

claimed injury. 

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

February 19, 2015 incident in the manner as described by appellant. Given the inconsistencies in 

the evidence regarding how he sustained his injury, the Board finds that there is insufficient 

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

duty on February 19, 2015, as alleged.16 As appellant has not established that the claimed 

 16 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). 
6

incident occurred, it is not necessary to consider the medical evidence with respect to causal 

relationship.17

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 this appellant did not meet his burden of proof to establish that he 

sustained a traumatic injury in the performance of duty on February 19, 2015. 

ORDER 

IT IS HEREBY ORDERED THAT the March 22, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 25, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 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).