United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

DEPARTMENT OF JUSTICE, DRUG 

ENFORCEMENT ADMINISTRATION, 

Springfield, VA, Employer 

__________________________________________ 

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Docket No. 16-1513 

Issued: January 11, 2017 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 18, 2016 appellant filed a timely appeal of a February 5, 2016 merit decision and 

a July 8, 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 to consider the merits of this case.2

On appeal appellant argues the evidence he submitted establishes his claim. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the July 8, 2016 nonmerit decision, OWCP received additional evidence. 

Appellant also submitted new evidence with his appeal to the Board. 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

ISSUES 

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

injury in the performance of duty on August 17, 2015; and (2) whether OWCP abused its 

discretion in denying appellant’s request for review of the written record. 

FACTUAL HISTORY 

On August 20, 2015 appellant, then a 55-year-old Unit Chief 1811, filed a traumatic 

injury claim (Form CA-1) alleging that on August 17, 2015 he sustained a left knee injury during 

a training session. He did not stop work. The employing establishment checked a box marked 

“yes” to the question of whether the injury was sustained in the performance of duty. 

In an August 31, 2015 report, Dr. Erik M. Krushinski, a treating Board-certified 

orthopedic surgeon, reported that appellant had been seen for left knee pain complaints, which 

began at work. He noted that appellant was an instructor with the employing establishment and 

that he provided instruction in personal defense. Appellant related his left knee pain had been 

present for about two weeks with no specific injury at the time the pain began. Physical 

examination findings of the left knee included mild effusion, pain with patellar compression, and 

medial and lateral joint tenderness. A review of x-ray interpretations revealed mild degenerative 

changes in the left patellofemoral joint and left medial and lateral knee compartments. 

Dr. Krushomski provided a differential diagnosis of aggravation of early osteoarthritis versus a 

meniscal tear. 

Dr. Krushinski, in a November 5, 2015 report, diagnosed medial and lateral meniscal 

tears and medial and patellofemoral osteoarthritis. Physical examination findings were 

unchanged from the prior report. A review of an October 30, 2015 magnetic resonance imaging 

(MRI) scan revealed small medial and lateral meniscus tears, and moderate-to-high grade 

patellofemoral joint chondromalacia. 

By letter dated January 4, 2016, OWCP informed appellant that at the time his claim had 

been filed it had been considered to be a minor injury and the merits of the claim had not been 

considered. It informed appellant that his claim had been reopened for a review on the merits 

and that the evidence of record was insufficient to establish his claim. Appellant was advised as 

to the medical and factual evidence required to establish his claim. He was afforded 30 days to 

provide the requested information. 

In a January 12, 2016 statement, appellant described how the injury occurred. He noted 

the duties of his position and related that on August 17, 2015 he was involved in a basic agent 

training class. The training session required that appellant review various defensive tactic 

techniques which included full-body search, armed kneeling compliant handcuffing, and 

standing compliant handcuffing. At approximately 8:30 a.m. appellant stated he felt left knee 

pain and that his left knee gave out while he was walking. He attributed the injury to the 

physical activity he had performed during the training session. 

By decision dated February 5, 2016, OWCP denied appellant’s traumatic injury claim. It 

found that he had failed to establish that the event occurred as alleged, and also found the 
3

medical evidence failed to contain a diagnosed condition causally related to the alleged injury or 

incident. 

In a March 9, 2016 report, Dr. Krushinski noted treating appellant for a left knee injury 

sustained on August 17, 2015 which occurred while appellant was participating as an instructor 

in a defensive tactics session. Dr. Krushomski explained that pain developed during the session 

even though there had been no definitive injury. He opined that appellant’s knee injury had been 

caused by the August 17, 2015 incident as there had be no prior complaints of knee pain. 

On March 15, 2016 OWCP received appellant’s request for a review of the written 

record, by an OWCP hearing representative. This request was postmarked March 8, 2016. 

By decision dated July 8, 2016, OWCP’s Branch of Hearings and Review denied 

appellant’s request for review of the written record as it was untimely filed. OWCP considered 

appellant’s request and determined that his case could equally well be addressed by requesting 

reconsideration and submitting new evidence. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA3

 has the burden of proof to establish 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.4 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.5 

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.6 

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.7 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.8

 

To establish that an injury occurred as alleged, the injury need not be confirmed by 

eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and 

 3

 5 U.S.C. § 8101 et seq. 

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

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

6 B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4. 

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

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

note 4. 
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circumstances and his subsequent course of action.9

 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 

doubt on an employee’s statements.10 However, an employee’s statement regarding the 

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

strong or persuasive evidence.11

ANALYSIS -- ISSUE 1 

Appellant alleged that he sustained a left knee injury in the performance of duty on 

August 17, 2015. A proper analysis of the issue is to first determine whether the evidence 

establishes an employment incident.12 If the details of an employment incident are established, 

then the medical evidence is reviewed to determine if a diagnosed condition is causally related to 

the employment incident.13 

In his statement, appellant related that on the date of the incident he had been involved in 

a training session showing various defensive tactic techniques including full-body searches, 

armed kneeling compliant handcuffing, and standing compliant handcuffing. During the training 

session, his left knee went out while he was walking and he developed left knee pain. Appellant 

attributed the injury to physical activity involved during the training session and immediately 

notified his supervisor. On the back of the CA-1 form, his supervisor checked a box marked 

“yes” to the question of whether he was injured in the performance of duty. There are no 

inconsistencies in the record. 

Additionally, the history of the work incident was confirmed by contemporaneous 

medical reports. The Board notes that appellant reported the injury immediately to his 

supervisor. Appellant sought medical treatment for a diagnosed left knee condition on 

August 31, 2015 and provided Dr. Krushinski with a consistent history of his injury. In his 

August 31, 2015 report, Dr. Krushinski noted under history of injury that appellant had 

developed left knee pain while working as an instructor for personal defense and physical 

exercise. In his November 5, 2015 report, he diagnosed medial and lateral meniscal tears and 

medial and patellofemoral osteoarthritis. The Board finds that the evidence establishes that on 

August 17, 2015 appellant was performing his work duties as an instructor, which included 

demonstrating various defensive tactics during a training session. Thus, contrary to OWCP’s 

finding in its February 5, 2016 decision, the Board finds that appellant has established the 

 9 See Betty J. Smith, 54 ECAB 174 (2002). 

10 Linda S. Christian, 46 ECAB 598 (1995). 

11 Gregory J. Reser, 57 ECAB 277 (2005) 

12 Supra note 7. 

13 Supra note 8. 
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employment incident occurred, as alleged, in the performance of his employment on 

August 17, 2015.14

However, with regard to the medical evidence, the Boards finds that it is insufficiently 

rationalized to establish the second component of fact of injury. The medical evidence contains 

no reasoned explanation of how the specific employment incident either caused or aggravated an 

injury. Dr. Krushinski reviewed the medical evidence of record. He noted that x-rays of 

appellant’s left knee revealed mild degenerative changes in the left patellofemoral joint and left 

medial and lateral knee compartments. Dr. Krushomski provided a differential diagnosis of 

aggravation of early osteoarthritis versus a meniscal tear. He however offered no medical 

explanation as to how the employment incident of August 17, 2015 would have caused 

appellant’s left knee condition. Medical evidence that does not offer any opinion regarding the 

cause of an employee’s condition is of limited probative value on the issue of causal 

relationship.15 An opinion provided by a physician without the necessary rationale explaining 

how and why the incident caused the diagnosed medical condition is insufficient to meet a 

claimant’s burden of proof to establish a claim.16 Appellant therefore did not meet his burden of 

proof to establish an injury on August 17, 2015 causally related to the accepted employment 

incident. 

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. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with 

a decision of the Secretary is entitled, on request made within 30 days after the date of the 

issuance of the decision, to a hearing on his claim before a representative of the Secretary.17 

Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA 

provide that a claimant shall be afforded a choice of an oral hearing or a review of the written

record by a representative of the Secretary.18 A claimant is entitled to a hearing or review of the 

written record as a matter of right only if the request is filed within the requisite 30 days as 

determined by postmark or other carrier’s date marking and before the claimant has requested 

reconsideration.19 Although there is no right to a review of the written record or an oral hearing 

 14 R.K., Docket No. 15-1524 (issued August 10, 2016). 

15 See S.E., Docket No. 08-2214 (issued May 6, 2009). 

16 T.D., Docket No. 16-1178 (issued November 9, 2016). 

17 5 U.S.C. § 8124(b)(1). 

18 20 C.F.R. §§ 10.616, 10.617 

19 Id. at § 10.616(a). 
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if not requested within the 30-day time period, OWCP may within its discretionary powers grant 

or deny appellant’s request and must exercise its discretion.20

ANALYSIS -- ISSUE 2 

OWCP received a request for review of the written record postmarked March 8, 2016.

As this postmark date was more than 30 days after the February 5, 2016 OWCP decision, it was 

untimely. Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.21 

Because the hearing request was untimely filed, appellant was not entitled to a review of the 

written record as a matter of right. 

OWCP has the discretionary power to grant an oral hearing or review of the written 

record when a claimant is not entitled to one as a matter of right. It exercised this discretion in 

its July 8, 2016 decision, finding that appellant’s issue could equally well be addressed by 

requesting reconsideration and submitting additional evidence. This basis for denying his 

request for a review of the written record is a proper exercise of OWCP’s authority.22 

Accordingly, the Board finds that OWCP properly denied appellant’s request for a review of the 

written record as untimely filed. 

CONCLUSION 

The Board finds that appellant has established that the employment incident occurred as 

alleged on August 17, 2015. The Board further finds that appellant has not established that he 

sustained an injury causally related to this accepted incident. The Board further finds that 

OWCP did not abuse its discretion in denying appellant’s request for review of the written record 

as it was untimely filed. 

 20 Delmont L. Thompson, 51 ECAB 155 (1999); Eddie Franklin, 51 ECAB 223 (1999). 

21 William F. Osborne, 46 ECAB 198 (1994). 

22 A.M., Docket No. 16-1307 (issued October 27, 2016). 
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ORDER 

IT IS HEREBY ORDERED THAT the July 8, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed and the February 5, 2016 decision is affirmed as modified. 

Issued: January 11, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board