United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Edison, NJ, Employer 

__________________________________________ 

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Docket No. 17-0194 

Issued: July 27, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 7, 2016 appellant, through counsel, filed a timely appeal from a 

September 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 over the merits of this case. 

ISSUE 

The issue is whether appellant has met her burden of proof to establish an injury 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

FACTUAL HISTORY 

On July 10, 2015 appellant, then a 58-year-old customer care agent, filed an occupational 

disease claim (Form CA-2) alleging that she developed right knee bone deterioration as a result 

of repetitive walking at work. She explained that she had to walk many steps to get to her desk 

at the call center, and to and from the bathroom and breakroom. Appellant alleged that the 

amount of walking required exceeded her restrictions which were provided due to a meniscal 

operation in 2008. She also alleged that during bad winter weather she slipped many times while 

walking. Appellant reported that she had previously filed recurrence claims (Form CA-2a) under 

OWCP File Nos. xxxxxx7713 and xxxxxx7704 which were denied, and that all her medical 

reports were sent to OWCP under these file numbers. She stopped work on April 26, 20145 and 

retired in February 2015. 

In a handwritten statement, appellant indicated that when she was offered a job as a call 

center agent she did not realize that the call center office was all the way at the back of the plant. 

She explained that her cane got stuck on the turn stile doors and she often tripped on the carpet. 

Appellant also related a specific instance when a young man accidently slammed into her, 

causing her to hit her right knee into the wall. She further described how there was only one 

disability toilet in the bathroom, which was always occupied, so she had to bend her knees more. 

Appellant indicated that she was always rushed to go to the bathroom, to lunch, or on breaks and 

that her right knee had worsened to the point that it went out when she started walking. 

On July 13, 2015 OWCP received a letter from the employing establishment 

controverting appellant’s occupational disease claim. It pointed out that she had previously filed 

a claim for the same condition, which was denied. The employing establishment noted that 

appellant also filed a recurrence claim on July 24, 2014 under OWCP File No. xxxxxx771, 

which was denied. It asserted that her current occupational disease claim should be denied 

because it was for the same injury. 

By letter dated August 19, 2015, OWCP advised appellant that the evidence submitted 

was insufficient to establish her claim. It requested that she provide a detailed description of the 

employment-related activities she believed contributed to her condition and a medical report 

from a physician to establish a medical diagnosis causally related to her employment. Appellant 

was afforded 30 days to submit the additional evidence. A similar letter requesting additional 

information was sent to the employing establishment. 

 3

 OWCP accepted that on April 2, 2008 appellant sustained a right knee medial meniscus tear in the performance 

of duty. In August 2011 appellant was granted a schedule award for 16 percent permanent right lower extremity 

permanent impairment. 

4

 Appellant filed a recurrence claim (Form CA-2a) alleging that on April 18, 2014 she experienced a recurrence 

of the April 2, 2008 employment injury. OWCP denied the recurrence claim in a decision dated January 8, 2015. 

Appellant also requested authorization for right knee surgery, which OWCP denied in a decision dated June 4, 2015. 

5

 Appellant also has two previously accepted traumatic injury claims for a September 1, 2003 employment injury 

(OWCP File No. xxxxxx896) and for an April 6, 2009 employment injury (OWCP File No. xxxxxx545). 
3

Appellant was treated by Dr. Michael Cunningham, a Board-certified orthopedic surgeon. 

In a September 10, 2015 report, Dr. Cunningham related appellant’s complaints of persistent, 

severe right knee pain. He related that appellant reported frequent collapsing episodes and 

mentioned a specific April 9, 2014 collapsing episode on a ramp at work. Dr. Cunningham 

reviewed appellant’s history and provided physical examination findings. He observed that 

appellant’s gait was severely antalgic because of right knee pain. Dr. Cunningham also reported 

tenderness over both the medial and lateral joint lines and some valgus deformity. He noted that 

radiographs taken that day revealed moderately severe degenerative changes, tricompartmentally 

with mild subluxations, subchondral cystic changes, especially in the medial compartment, and 

severe patellofemoral arthrosis. Dr. Cunningham diagnosed right knee osteoarthritis, moderately 

severe, and associated meniscal tears with exacerbation of symptoms by a fall that occurred on 

April 9, 2014. He recommended right total knee replacement surgery. 

In a letter dated September 18, 2015, A.S., appellant’s supervisor, noted that appellant 

was already walking unsteadily with an unusual gait when she first worked at the employing 

establishment. He reported that he also had no knowledge of her alleged near falls while 

walking into work and that she did not report any alleged near fall to him. A.S. explained that 

customer care agents were only required to perform sedentary work, including entering 

information with a keyboard and mouse intermittently. He pointed out that there was no 

requirement to lift, push, pull, bend, or stoop. A.S. related that, prior to filing her claim, 

appellant had not communicated that she was experiencing any pain or difficulty in performing 

her assigned duties, and had not requested any accommodation. The employing establishment 

provided a description of appellant’s position. 

Dr. Cunningham provided a duty status note dated October 8, 2015, which reported a 

diagnosis of right knee osteoarthritis. He indicated that a magnetic resonance imaging (MRI) 

scan showed meniscal tear and osteoarthritis of appellant’s right knee. Dr. Cunningham noted 

that appellant was on total disability beginning April 19, 2014. 

In a decision dated October 21, 2015, OWCP denied appellant’s occupational disease 

claim because the evidence was insufficient to establish fact of injury. It determined that 

appellant did not provide sufficient details regarding the employment factors which she believed 

caused her condition. OWCP noted that appellant had not responded to questions regarding the 

employment-related activities appellant believed caused her condition, therefore the factual 

portion of her claim remained vague. It further found that the medical evidence failed to 

establish a diagnosed condition causally related to appellant’s federal employment. 

On November 18, 2015 OWCP received appellant’s response to its development letter. 

Appellant described the employment-related activities which she believed contributed to her 

condition as walking down a ramp on cracked concrete with a cane, walking through the plant to 

the call center built in the back, and walking to her locker. She alleged that there were not 

enough handicap parking spaces in the employing establishment parking lot and therefore she 

had to walk 450 steps. Appellant reported that it took her approximately 20 minutes to walk 

slowly. She related that she did not have any hobbies or activities outside of federal 

employment. Appellant also pointed out that she had previously accepted claims for a right knee 

medial meniscus injury and a rotator cuff injury. She indicated that she did not experience any 

pain until January 2014 and after approximately six months, the pain worsened and she had to 
4

see her orthopedic surgeon every three months. Appellant also noted that her left knee was being 

aggravated due to her right knee injury. 

Appellant provided a right knee MRI scan report dated August 19, 2015 by Dr. Paresh 

Rijsinghani, a Board-certified diagnostic radiologist. Dr. Rijsinghani observed moderate medial 

and lateral compartment arthritic changes, grade III signal lateral meniscus tear within the 

anterior horn, and partial anterior cruciate ligament (ACL) tear. 

On November 19, 2015 OWCP received appellant’s request, through counsel, for a 

telephone hearing before an OWCP hearing representative. 

Appellant submitted a July 22, 2014 report by Dr. Cunningham. Dr. Cunningham 

indicated that a recent MRI scan of appellant’s right knee showed osteoarthritic changes of the 

mediolateral and patellofemoral compartments, a lateral meniscus tear, and partial ACL tear. He 

reported that appellant was prevented from returning to her regular-duty job position because it 

required driving for an extended period of time. Dr. Cunningham noted that appellant could no 

longer live with her current symptoms and stumbled during her gait due to right knee pain. He 

provided examination findings and diagnosed right knee osteoarthritis, chondromalacia, medial 

and lateral meniscal tears, status post right shoulder rotator cuff repair, and status post left knee 

arthroscopy. Dr. Cunningham opined that the diagnoses “developed as a result of a work-related 

injury, which was previously described, that occurred on April 2, 2008.” He further reported that 

appellant had “further exacerbations of this injury from more minor twisting, near falling 

episodes which occurred over this past winter at her most recent job site.” 

Appellant also resubmitted Dr. Cunningham’s September 10, 2015 report. 

On July 14, 2016 a telephone hearing was held. Counsel participated and noted that 

appellant had a previously accepted condition for a right knee meniscal tear in 2008. Appellant 

explained that when she returned to light duty at the call center, walking and tripping worsened 

her right knee problems. She indicated that she sought medical treatment from Dr. Cunningham 

and was advised that with the bone-on-bone problem, she needed a new knee. Appellant 

reported that in January 2014 she almost slipped on a bit of ice on the disability ramp while 

walking to work and caught herself from falling. She related that within seven months’ time she 

slipped, tripped, and banged into a wall because work was very busy and she had to get back to 

her desk. Appellant further described that the walk to the call center inside the building was very 

long. She asserted that the walk was approximately the length of half a football field. Appellant 

also alleged that getting up to go on breaks, which they were required every two hours, going to 

the bathroom, and going to lunch also contributed to the deterioration of her right knee because 

she had to stand up and sit back down. She stated that she had not worked since April 2014 and 

was currently receiving social security disability benefits. 

By decision dated September 27, 2016, an OWCP hearing representative affirmed 

OWCP’s October 21, 2015 decision, finding that appellant had failed to establish fact of injury. 

She found that appellant failed to submit sufficient evidence to corroborate her account that she 

performed extensive walking in the workplace and that she had several episodes of twists and 

near falls at work. OWCP also determined that the medical evidence of record was insufficient 

to establish a worsening of appellant’s right knee condition as a result of her employment. 
5

LEGAL PRECEDENT 

An employee seeking benefits under FECA6 has the burden of proof to establish the 

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

evidence7 including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.8

 In an occupational disease claim, appellant’s burden requires 

submission of the following: (1) a factual statement identifying employment factors alleged to 

have caused or contributed to the presence or occurrence of the disease or condition; (2) medical 

evidence establishing the presence or existence of the disease or condition for which 

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is 

causally related to the employment factors identified by the employee.9

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.10 

There are two components involved in establishing the fact of injury. First, the employee must 

submit evidence sufficient to establish that he or she actually experienced the employment 

incident at the time, place and in the manner alleged.11 Second, the employee must submit 

evidence, generally only in the form of probative medical evidence, to establish that the 

employment incident caused a personal injury.12 

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.13

ANALYSIS 

Appellant alleged that her right knee condition deteriorated as a result of repetitive 

walking and bending to sit as was required at work. OWCP denied her claim because she failed 

to establish fact of injury that she experienced the alleged employment factors. The Board finds 

that appellant has not met her burden of proof to establish that she sustained an injury in the 

performance of duty. 

 6 Supra note 2. 

7 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 

8 M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 

ECAB 1143, 1145 (1989). 

9 R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000). 

10 S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005). 

11 Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968). 

12 David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989). 

13 L.D., Docket No. 16-0199 (issued March 8, 2016); Betty J. Smith, 54 ECAB 174 (2002). 
6

In her Form CA-2 and various statements, appellant described the factors of employment 

that she believed caused her right knee condition, including slipping on ice and snow in bad 

weather, tripping on carpet, getting her cane stuck on turn stile doors, walking to her desk, and 

walking to and from the bathroom and breakroom. She related an incident when a young man 

bumped into her and caused her to slam her right knee into a wall. Appellant alleged that she 

had medical restrictions from a 2008 injury which precluded the amount of walking she 

performed at work. She has alleged that the employing establishment parking lot did not contain 

enough handicap parking spots, which caused a longer walk. Appellant has also alleged that the 

employing establishment’s toilet facilities did not provide enough handicap stalls, which resulted 

in additional bending of her knee. 

Appellant’s supervisor, A.S., however, was unable to corroborate appellant’s account of 

her employment factors. In a September 18, 2015 letter, he reported that he had no knowledge of 

any of appellant’s alleged near falls while walking into work and noted that she did not report 

any alleged near fall to him. A.S. explained that customer care agents were only required to 

perform sedentary work, such as entering information with a keyboard and mouse intermittently, 

and that appellant had not communicated any difficulty in performing her assigned duties. He 

also noted that appellant had never requested any accommodation. 

The Board finds that the evidence of record does not contain any evidence to substantiate 

appellant’s described employment factors of extensive walking, near-slips, trips, and knee 

bumping. Appellant has not provided any witness statements or occupational hazard documents 

to corroborate that these employment factors occurred. She has also not submitted probative 

evidence that her position as a customer care agent required extensive walking.14 There is no 

probative evidence of record to support that appellant walked extensively to the call center office 

or to and from the bathrooms and breakroom or had many near-slips or trips at work. Appellant 

has also noted in the submitted evidence that she was restricted walking at work from the parking 

lot to the call center, or restroom. However, she has not submitted any evidence to establish that 

the employing establishment lacked handicap parking spots or toilet facilities. The Board, 

therefore, finds that appellant has failed to substantiate the employment factors alleged.15

As appellant has not established the factual component of her claim, the Board will not 

address the medical evidence with respect to causal relationship.16

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

statement, however, does not provide any corroboration or clarification of the described 

employment factors that appellant believed attributed to her alleged right knee condition. 

Because appellant has not established the existence of any employment factors which she 

believed caused or aggravated her preexisting right knee condition, she has not met her burden of 

proof to establish her claim. 

 14 See A.S., Docket No. 16-0944 (issued November 2, 2016). 

15 See B.J., Docket No. 14-1028 (issued September 17, 2014); M.H., Docket No. 07-1453 (issued 

October 18, 2007). 

16 See B.G., Docket No. 16-1454 (issued November 22, 2016). 
7

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. §§ 10.606 through 10.607. 

CONCLUSION 

The Board finds that appellant has not met her burden of proof to establish an injury in 

the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the September 27, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 27, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board