United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Lyndhurst, NJ, Employer 

__________________________________________ 

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Docket No. 16-1864 

Issued: February 8, 2017 

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant1

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 September 17, 2016 appellant, through his representative, filed a timely appeal from a 

May 10, 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 his burden of proof to establish that he sustained an 

injury on April 7, 2014 in the performance of duty. 

 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

On appeal appellant’s representative asserts that the evidence of record establishes that 

appellant was injured at work on April 7, 2014 when his supervisor barreled into him, causing 

him to fall or, in the alternative, that his fall on April 7, 2014 was unexplained and, therefore, 

compensable. 

FACTUAL HISTORY 

This case has previously been before the Board. In a November 24, 2015 decision, the 

Board affirmed June 25 and March 23, 2015 merit decisions of OWCP. The Board found that, 

because there were significant inconsistencies in appellant’s description of a claimed assault and 

how he fell, this cast serious doubt as to whether the employment incident occurred as alleged. 

Therefore, appellant had not met his burden of proof to establish an employment-related injury 

on April 7, 2014.3

 

On February 10, 2016 appellant, through his representative, requested reconsideration 

before OWCP. He submitted evidence previously of record that had been reviewed by both 

OWCP and the Board. New evidence which he submitted included a statement dated 

February 8, 2016 in which appellant alleged that an April 7, 2014 emergency room report 

contained an incorrect history of injury, noting that an emergency room doctor recorded that 

appellant was hit in the head. Appellant maintained that this was not what he told the physician 

and that, due to pain and a long wait for treatment, he was disoriented. He insisted that the 

physician did not record a correct history of injury and that he had told the physician that the 

supervisor banged into him with his shoulder. A “Probable Cause Statement,” filed with the 

Lyndhurst Municipal Court, completed and signed by appellant on April 9, 2014, provided as a 

history of the incident. Appellant reported that he was walking to his window position, that K.F. 

was coming in the opposite direction, and that as appellant neared, K.F. lowered his shoulder and 

barreled into appellant knocking him to the floor. 

On February 1, 2016 Dr. Deborah Eisen, Board-certified in family medicine, diagnosed a 

proximal patellar tendon tear of each knee. She opined, “It is still my opinion, with a reasonable 

degree of medical certainty, the injuries to the knees that only include patellar tendon tear would 

have only occurred due to the incident involving his supervisor as was described above. The 

reason for this opinion is the act of being pushed or bumped by his supervisor shoulder to 

shoulder unprepared would cause the patient’s upper body to move before the lower portion 

without having control causing both patellar tendons to tear.” 

By merit decision dated May 10, 2016, OWCP found that, because the factual evidence 

of record did not support that the April 7, 2014 incident occurred as alleged, the issue of whether 

 

 3 Docket No. 15-1547 (issued November 24, 2015). On April 8, 2014 appellant, then a 59-year-old retail 

associate/window clerk, filed a traumatic injury claim alleging that on April 7, 2014, K.F., a customer services 

manager, lowered his shoulder and barreled into appellant knocking him to the concrete floor. Appellant stated that 

he could not get up, and an ambulance was called. Appellant stopped work at that time. An emergency department 

record dated April 7, 2014 Dr. Allison Lam, Board-certified in emergency medicine, provided a history that 

appellant stated he was hit in the head with a manager’s elbow and pushed to the ground. The discharge diagnosis 

was “right knee sprain.” In an April 7, 2014 statement, R.D., a supervisor, advised that, as he was sitting at his desk, 

he noticed appellant walking and K.F. breaking down mail. R.D. noted that when he turned his head, he saw 

appellant walking backward really fast, as if he had lost his balance, and then appellant landed on the floor. 
3

appellant had an unexplained fall that day was not an issue before OWCP. It denied appellant’s 

claim that he was injured on April 7, 2014 in the performance of duty. 

LEGAL PRECEDENT 

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

essential elements of his or her claim by the weight of reliable, probative, and substantial 

evidence,4

 including that he or she is an “employee” within the meaning of FECA, and that the 

claim was filed within the applicable time limitation.5 The employee must also establish that he 

sustained an injury in the performance of duty as alleged, and that disability for work, if any, was 

causally related to the employment injury.6

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 medical evidence 

to establish that the employment incident caused a personal injury.7

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.8 

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.9

ANALYSIS 

The Board finds that, because the record contains contradictory evidence regarding the 

claimed work incident of April 7, 2014, appellant has not established that this incident occurred 

as alleged. 

 4

 J.P., 59 ECAB 178 (2007). 

5 R.C., 59 ECAB 427 (2008). 

6 Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

7

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

8 R.T., Docket No. 08-408 (issued December 16, 2008). 

9 Betty J. Smith, 54 ECAB 174 (2002). 
4

In his February 8, 2016 statement submitted on reconsideration, appellant alleged that an 

emergency room physician recorded an incorrect history of injury. In the emergency department 

record on April 7, 2014 Dr. Lam recorded a history that appellant was hit in the head by a 

manager’s elbow and was pushed to the ground.10 In his February 8, 2010 statement, appellant 

maintained that he told the doctor that his supervisor had banged into him with his shoulder. In 

the previously submitted “Probable Cause Statement” signed by appellant on April 9, 2014 and 

submitted with his February 6, 2016 reconsideration request, appellant maintained that, as he was 

walking to his window position, K.F. was coming in the opposite direction and, as appellant 

neared, K.F. lowered his shoulder and barreled into appellant and knocked him to the floor. 

Appellant also resubmitted an April 7, 2014 statement, from R.D, another supervisor. 

This was described in the Board’s November 24, 2015 decision. R.D. did not witness an assault 

or any physical contact between appellant and K.F.11 

There continues to be significant inconsistencies in appellant’s description of the claimed 

assault and how he fell, sufficient to cause serious doubt as to whether the employment injury 

occurred as alleged.12 The Board therefore concludes that the evidence submitted on 

reconsideration, together with the evidence previously of record, continues to provide different 

versions of the April 7, 2014 event. 

As appellant has failed to establish that the alleged April 7, 2014 employment incident 

occurred as alleged, it is unnecessary to review the medical evidence of record.13

As to appellant’s assertion on appeal that the fall was unexplained, OWCP procedures 

explain that in cases where a fall may have been caused by a personal and non-occupational 

pathology, OWCP must address whether the fall was idiopathic or unexplained.14 Such is not at 

issue in this case as appellant has consistently maintained that he was assaulted by K.F. and this 

caused the fall. 

CONCLUSION 

The Board finds that appellant failed to meet his burden of proof to establish an 

employment-related injury on April 7, 2014. 

 10 Supra note 3. 

11 Id. 

12 Supra note 9. 

13 See D.R., Docket No. 15-1281 (issued September 16, 2015). 

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Idiopathic Falls, Chapter 2.804.9 (August 1992). 
5

ORDER 

IT IS HEREBY ORDERED THAT the May 10, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 8, 2017 

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