United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.B., Appellant 

and 

U.S. POSTAL SERVICE, WESTLAKE 

BRANCH POST OFFICE, Westlake, OH, 

Employer 

__________________________________________ 

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Docket No. 16-1315 

Issued: June 21, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 June 9, 2016 appellant, through counsel, filed a timely appeal of an April 27, 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 to consider 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

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish a right shoulder injury 

in the performance of duty on February 8, 2015, as alleged. 

On appeal counsel argues that the decision is contrary to law and fact. 

FACTUAL HISTORY 

On February 9, 20153 appellant, then a 50-year-old postal clerk support employee, filed a 

traumatic injury claim (Form CA-1) alleging that on February 8, 2015 she injured her right 

shoulder when a heavy tub she was holding slipped and pulled her shoulder down. On the back 

of the claim form, M.I., supervisor, checked a box marked “yes” that appellant was in the 

performance of duty when injured. He further indicated that he received notice of injury on 

February 24, 2015, that she had filed a Form CA-1 form with a January 15, 2015 incident date, 

and then filed a second Form CA-1 with an incident date of February 8, 2015. M.I. also noted 

that appellant had attendance problems. 

In an undated statement, B.M., appellant’s first line supervisor, reported that the first time 

appellant advised her “of any on[-the-]job injuries from January 15, 2015 through February 9, 

2015” was on February 9, 2015. At that time, appellant claimed to have hurt her shoulder in 

January “and then changed it to February. B.M. indicated that appellant worked continuously 

during the period January 15 through February 9, 2015 with no complaints of being injured. 

OWCP also received a statement from F.G., the employing establishment’s station 

manager, controverting appellant’s claim. F.G. noted that appellant was a temporary employee 

with attendance issues, which were being addressed by the employing establishment. According 

to F.G., appellant notified management on February 9, 2015 that she had injured herself at work. 

Initially, appellant indicated that January 15, 2015 was the date of injury and that she had 

previously apprised the employing establishment’s managers of this injury on her “first CA-1” 

form. However, F.G. noted that appellant had not previously apprised management of this 

alleged January 15, 2015 injury, but did include a January 2015 date of injury on the first CA-1 

form.4

 She went on to say that at no point during the period January 15 to February 9, 2015 had 

appellant informed management of an injury or exhibit any difficulty while working until 

February 9, 2015 when she completed the second CA-1 form with a different supervisor. It was 

at that time when appellant included an injury date of February 8, 2015. 

By letter dated March 2, 2015, OWCP informed appellant that the evidence of record was 

insufficient to establish her claim. Appellant was advised as to the medical and factual evidence 

required. OWCP requested that she complete a questionnaire as to how the injury occurred. It 

afforded appellant’s 30 days to provide the requested information and copied the employing 

establishment. 

 3

 Appellant noted February 9, 2015 as the date of notice, but signed the form on February 24, 2015. 

4

 The Board notes that the referenced “first CA-1” form is not contained in the case record as transmitted to the 

Board. 
3

On March 5, 2015 OWCP received a March 5, 2015 letter from D.M. of the employing 

establishment’s Health Resource Management office, controverting appellant’s claim. D.M. 

noted that his office received a CA-1 form with a date-of-injury listed as January 2015 with no 

date. He related that, after contacting appellant on several occasions regarding the date of injury, 

she ultimately completed a CA-1 form with February 8, 2015 listed as the date of injury. D.M. 

added that the medical evidence did not establish a causal relationship and concluded that her 

claim should be denied. 

Subsequently, OWCP received reports dated February 9 and March 26, 2015 from 

Dr. Irwin A. Mandel, an examining Board-certified orthopedic surgeon, who diagnosed right 

shoulder strain/sprain, which he opined was work related. Dr. Mandel noted that appellant 

attributed her condition to a work-related lifting injury as her shoulder pain began two weeks ago 

when her arm was yanked when a heavy tub of mail she was carrying slipped. He noted that her 

pain and limited range of motion were aggravated by excessive lifting and use. Physical 

examination revealed right deltoid tenderness, no right acromioclavicular joint, subacromion, or 

bicep long head tenderness, and full range of motion. Dr. Mandel related his concern that 

appellant might have a right acute rotator cuff tear as a result of the injury. 

Dr. Mandel, in a letter dated February 9, 2015, recommended a magnetic resonance 

imaging (MRI) scan be performed. He further advised that appellant was disabled from work 

until a revaluation or MRI scan was performed. 

In a February 25, 2015 duty status (Form CA-17), Dr. Mandel diagnosed right shoulder 

strain and provided work restrictions. He noted an injury date of February 8, 2015 and described 

the injury as occurring when appellant was holding a heavy tub, which slipped and pulled her 

shoulder down. 

By decision dated April 9, 2015, OWCP denied appellant’s claim as it found that she had 

not established that the February 8, 2015 incident occurred as alleged. It noted that the 

employing establishment controverted the claim, that appellant had provided no information or 

witness statements as to how the injury occurred, and that the record contained conflicting 

evidence regarding the date of the injury. 

In an April 25, 2015 statement, appellant alleged that she never received the March 2, 

2015 development letter from OWCP. She related that on January 4, 2015 she had been directed 

by M.I. to empty full tubs of mail into the dumpster outside on a snowy/cold rainy day. While 

lifting and emptying heavy tubs weighing approximately 40 to 50 pounds, appellant felt her right 

arm being yanked down and immediately felt right shoulder pain. She claimed to have informed 

M.I. of this incident that day, that at the time “it did not seem to be anything serious,” and that 

she took measures to alleviate the soreness when she went home. Appellant continued that when 

she returned to work on January 6, 2015 she reminded M.I. that her shoulder was sore, that he 

assigned her lighter tasks that day, and that she continued her regularly assigned duties in the 

“next few weeks” while continuing to experience shoulder pain on an intermittent basis. She 

related that the second incident occurred on February 8, 2015 around 2:00 p.m. while lifting a 

heavy tub of mail overhead when her right shoulder gave out and she felt a shooting pain. 

Appellant alleged that the next morning she was in intense pain, but went to work at 5:30 a.m. on 
4

February 9, 2015 to inform her supervisor regarding the severity of the injury sustained the day 

before. She then followed her supervisor’s instructions and went to the emergency room. 

On May 4, 2015 OWCP received a February 9, 2015 emergency room visit report by 

Dr. Patrick H. Fairley, a Board-certified emergency room physician for complaints of right 

shoulder pain. Appellant related that she had experienced right shoulder pain for three to four 

weeks. She noted that she had lifted a large tub of mail to be dumped into a tub, which jerked 

her shoulder downward. A physical examination revealed right shoulder tenderness and pain 

with range of motion. 

OWCP also received a February 9, 2015 right shoulder MRI scan, which found no 

evidence of acute fracture or dislocation. The MRI scan did find hypertrophic changes along the 

greater right humerus tuberosity and acromion underside. 

On April 28, 2015 appellant requested a review of the written record by an OWCP 

hearing representative. 

By decision dated October 8, 2015, an OWCP hearing representative affirmed the 

April 9, 2015 decision. She found that the inconsistencies in the record were sufficient to raise 

doubt as to whether the claimed incident occurred as alleged. 

On November 12, 2015 counsel requested reconsideration and submitted additional 

evidence. 

In an accompanying September 18, 2015 statement, appellant disputed the employing 

establishment’s statements regarding her injury. She stated that her records established that her 

shift was from 5:30 a.m. to 3:00 p.m. on February 8, 2015 and that she was processing Amazon 

packages for delivery. According to appellant there were four other people besides herself, three 

carriers and M.I., present at the time. On the following Monday morning M.I. sent her to the 

emergency room “knowing, and agreeing that my injury was sustained just 14-16 hours prior on 

Sunday afternoon.” Appellant observed that neither B.M. nor F.G. had been present when she 

injured herself on February 8, 2015, that she did not speak to them on February 9, 2015, and, 

thus, she did not understand why they were controverting her claim. She reported that an 

investigation by the employing establishment’s Office of Inspector General (OIG) found no 

evidence that a fraudulent claim had been filed. 

As exhibits, appellant attached the second page of a CA-1 form, which was signed by 

M.I. and noted February 9, 2015 as the date notice of injury was received. The date of injury 

was blank. Another exhibit was a case summary report of an investigation from the OIG 

conducted during the period March 6 to 23, 2015 based on an allegation of claimant fraud on the 

part of appellant. M.I. closed the investigation finding that the allegation of fraud in pursuit of 

her claim for compensation benefits was unfounded. 

In a November 16, 2015 report, Dr. Brant Holtzmeier, a treating osteopath Boardcertified in osteopathic manipulation medicine, opined that appellant sustained a right shoulder 

injury on February 8, 2015 due to unloading approximately 30 boxes of mail. He reported that 

each box of mail weighed approximately 20 pounds, which she had to lift overhead into 

overfilled bins. While attempting to lift a box that had been dislodged appellant felt a sudden 
5

pain in her right shoulder, which then gave out. Dr. Holtzmeier diagnosed right rotator cuff tear 

based on physical examination findings and an MRI scan. He concluded that appellant’s right 

rotator cuff tear had been caused by the February 8, 2015 employment incident. 

By decision dated April 27, 2016, OWCP denied modification. It found that while 

appellant had reported and described a work incident on February 8, 2015 from lifting a tub of 

mail, this was not the mechanism of injury she provided on her CA-1 form. Furthermore, she 

had initially submitted a Form CA-1 for a January 15, 2015 injury date, but then had submitted a 

second CA-1 form with the date of injury as February 8, 2015. OWCP concluded that the 

inconsistencies regarding the circumstances of the alleged injury of February 8, 2015 were 

sufficient to create doubt as to whether the alleged incident occurred at the time, place, and in the 

manner alleged. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA5

 has the burden of proof to establish the 

essential elements of 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.6 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.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.8 

First, the employee must submit sufficient evidence to establish that she actually experienced the 

employment incident at the time, place, and in the manner alleged.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 

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 

circumstances and her subsequent course of action.11 Such circumstances as late notification of 

injury, lack of confirmation of injury, continuing to work without apparent difficulty following 

 5 Supra note 2. 

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

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

8 B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 6. 

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

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

note 6. 

11 See Betty J. Smith, 54 ECAB 174 (2002). 
6

the alleged injury, and failure to obtain medical treatment may, if otherwise unexplained, cast 

doubt on an employee’s statements.12 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.13

ANALYSIS 

Appellant filed a traumatic injury claim alleging that she sustained a right shoulder injury 

in the performance of duty on February 8, 2015. OWCP denied her claim as it found that she 

had not established that the incident occurred at the time, place, and in the manner alleged. The 

Board finds that appellant failed to establish a traumatic injury in the performance of duty on 

February 8, 2015. Appellant’s presentation of the facts is not supported by the evidence of 

record and does not establish her allegation that a specific event occurred in the performance of 

duty which caused an injury on the date in question.14

In an April 25, 2015 statement, appellant stated that M.I. directed her to empty tubs of 

mail into a dumpster on January 4, 2015. While performing this duty of lifting heavy tubs 

weighing between 40 to 50 pounds she felt right shoulder pain when she felt her right arm 

yanked down. Appellant pointed out that, upon her return to work on January 6, 2015, M.I. 

assigned her light duty that day as she had reminded him of the injury, and that she continued to 

perform her regularly assigned duties over the following weeks with intermittent shoulder pain. 

She alleged that on February 8, 2015 her right shoulder gave out while lifting a heavy tub of mail 

overhead. Appellant stated that she was in intense pain the following morning, but went to work 

to inform her supervisor that her injury from the previous day was more severe than initially 

thought. After explaining this to her supervisor, he instructed her to go to the emergency room. 

In a subsequent statement, appellant noted that she was processing Amazon packages for 

delivery on February 8, 2015 when she was injured and there were four other people present. 

She noted that an investigation by the OIG determined that she had not filed a fraudulent claim. 

Appellant provided the case summary report of the investigation which was conducted by the 

special agent during the period March 6 to 23, 2015, about a month following the occurrence of 

the alleged injury of February 9, 2015. 

The employing establishment controverted appellant’s claim. Both F.G. and M.I., in 

controverting the claim, noted that appellant had filed a CA-1 form with an incident date of 

January 15, 2015 before filing a CA-1 form with February 8, 2015 as the date of the incident. 

B.M. and F.G. both reported that appellant alleged that she had sustained right shoulder injuries 

from January 15 to February 9, 2015, but continued to work with no complaints of an injury until 

February 9, 2015. 

Additionally, D.M. of the employing establishment’s Health and Resource Management 

office confirmed that appellant had initially filed a CA-1 form with his office and only included 

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

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

14 Bonnie A. Contreras, supra note 6; Dennis M. Mascarenas, 49 ECAB 215 (1997). 
7

the month of January and the year 2015 as to the date of injury. After several attempts to secure 

the date of injury from her, he related that it was not until February 9, 2015 that she provided that 

date of injury as February 8, 2015 on a second CA-1 form. 

The evidence of record also contains inconsistencies that cast serious doubt as to the date 

of the alleged work incident. The early medical evidence submitted by appellant noted that the 

injury occurred two to four weeks prior to the February 8, 2015 incident. Dr. Mandel, in 

February 9 and 26, 2015 reports noted that she attributed her right shoulder condition to her arm 

being yanked when a heavy tub of mail she was carrying slipped two weeks prior. On a 

February 25, 2015 CA-17 form, he noted an injury date of February 8, 2015 and described the 

injury as occurring when a heavy tub of mail appellant was holding slipped and pulled her 

shoulder down. Similarly, Dr. Lee C. Zeiszler M.D., and Dr. Fairley, in a February 9, 2015 

emergency report, noted that she was seen for right shoulder pain. They noted that appellant’s 

right shoulder pain had been present for the past three to four weeks and she related that her 

shoulder had been jerked downward while lifting a large tub of mail to be dumped into a tub. 

Dr. Holtzmeier, in a November 16, 2015 report, described the injury as occurring from her 

unloading about 30 boxes of mail weighing about 20 pounds each on February 8, 2015. The 

record does not support that Drs. Mandel, Holtzmeier, Zeiszler, and Dr. Fairley had consistent 

accurate histories of the February 8, 2015 incident as they related differing accounts of how the 

incident occurred and when it occurred.15

There also are no contemporaneous statements from witnesses supporting that the 

February 8, 2015 incident occurred as alleged. While an injury does not have to be confirmed by 

eyewitnesses to establish that an employee sustained an injury in the performance of duty, the 

employee’s statement must be consistent with the surrounding facts and circumstances and her 

subsequent course of action. Appellant claimed that there were four other people present at the 

time of the alleged February 8, 2015 employment incident, which included M.I., but she did not 

submit any statements from these witnesses. Moreover, as noted above, although M.I. checked a 

box marked “yes” indicating that appellant was in the performance of duty, he noted on the CA-1 

form for the alleged February 8, 2015 employment injury that she had filed two CA-1 forms 

containing two different dates of injury, i.e., January 15 and February 8, 2015. 

As the foregoing inconsistencies cast serious doubt concerning whether appellant was 

injured at work on February 8, 2015 in the performance of duty, the Board finds that she has not 

met her burden of proof to establish an injury in the performance of duty. Since appellant failed 

to establish the first component of fact of injury, it is not necessary to discuss whether she 

submitted medical evidence sufficient to establish that a medical condition existed and whether 

the condition was causally related to the alleged employment incident of February 8, 2015.16 

On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based 

on the findings and reasons stated above, the Board finds that the counsel’s arguments are not 

substantiated.

 15 See Geraldine H. Johnson, 44 ECAB 745 (1993). 

16 See Dennis M. Mascarenas, supra note 14. 
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. 

CONCLUSION 

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

shoulder injury in the performance of duty on February 8, 2015, as alleged. 

ORDER 

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

Compensation Programs dated April 27, 2016 is affirmed. 

Issued: June 21, 2017 

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