United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.B., Appellant

and

DEPARTMENT OF THE ARMY, PUEBLO 

CHEMICAL DEPOT, Pueblo, CO, Employer

__________________________________________

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Docket No. 19-0596

Issued: August 6, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 January 22, 2019 appellant filed a timely appeal from a September 10, 2018 merit 

decision and a January 3, 2019 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 over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq. 

2 The Board notes that, following the January 3, 2019 decision, OWCP received additional evidence. Appellant 

also submitted new evidence accompanying her request for appeal to the Board. However, the Board’s Rules of 

Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before 

OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first 

time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for 

the first time on appeal. Id.
2

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish an injury in

the performance of duty as alleged; and (2) whether OWCP properly denied appellant’s request 

for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On May 9, 2018 appellant, then a 52-year-old security guard, filed a traumatic injury claim 

(Form CA-1) alleging that on May 8, 2018 she sustained a right knee condition performing lunges

at the employing establishment’s gymnasium while in the performance of duty. The employing 

establishment acknowledged that the claimed injury occurred during appellant’s scheduled work 

shift from 7:00 p.m. to 7:00 a.m.

In support of her claim, appellant submitted medical reports dated from May 9 to July 10, 

2018 from Dr. Daniel Olson, an occupational medicine specialist, who noted appellant’s account 

of feeling her knee crack while performing lunges on May 8, 2018. She also submitted a May 23, 

2018 right knee magnetic resonance imagining (MRI) scan and physical therapy treatment notes. 

In a development letter dated August 7, 2018, OWCP informed appellant that the evidence 

submitted was insufficient to establish that the claimed May 8, 2018 employment incident 

occurred as alleged or that she had been injured within the performance of duty. It notified her of 

the type of additional factual and medical evidence needed to establish her traumatic injury claim. 

OWCP attached a questionnaire for appellant’s completion. It afforded her 30 days to provide the 

necessary information. 

In response, appellant submitted additional physical therapy treatment notes and copies of 

medical documents previously of record.

By decision dated September 10, 2018, OWCP denied appellant’s traumatic injury claim,

finding that the evidence of record was insufficient to establish that the May 8, 2018 incident 

occurred as alleged. As appellant had not established the factual element of her claim, it found 

that she had not met the requirements for establishing an injury as defined by FECA.

On December 4, 2018 appellant requested reconsideration. In a November 27, 2018 

statement, she contended that she had been “injured at work on May 8, 2018” and had immediately 

completed a Form CA-1 online. In support of her claim, appellant provided copies of medical 

evidence previously of record as well as additional physical therapy notes.

By decision dated January 3, 2019, OWCP denied appellant’s request for reconsideration 

of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), finding that the medical reports, imaging 

studies, and physical therapy treatment notes were irrelevant to the underlying factual issue in the 

claim.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA 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 
3

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

time limitation period of FECA,3that an injury was sustained in the performance of duty, as 

alleged, and that any disability or medical condition for which compensation is claimed is 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 upon 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 fact of injury has been established.6 First, 

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

employment incident at the time, place, and in the manner alleged.7 Second, the employee must 

submit sufficient evidence to establish that the employment incident caused a personal injury.8

An employee has the burden of establishing the occurrence of an injury at the time, place, 

and in the manner alleged, by a preponderance of the reliable, probative, and substantial evidence. 

An injury does not have to be confirmed by eyewitnesses in order to establish the fact that an 

employee sustained an injury in the performance of duty, as alleged, but the employee’s statements 

must be consistent with surrounding facts and circumstances and his or her subsequent course of 

action.9 The employee has not met her burden of proof of 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. 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 fact of injury has been established. 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.10

 

3 C.B., Docket No. 18-0071 (issued May 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 

ECAB 178 (issued 2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 C.B., supra note 3; K.M., Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41 ECAB 

992 (1990).

6 D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7 C.B., supra note 3; D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 

1143 (1989).

8 B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9 D.R., Docket No. 19-0072 (issued June 24, 2019); T.M., Docket No. 17-1194 (issued February 4, 2019).

10 M.S., Docket No. 18-0059 (issued June 12, 2019); D.B., 58 ECAB 464, 466-67 (2007).
4

ANALYSIS -- ISSUE 1

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

performance of duty on May 8, 2018, as alleged.

Appellant has not established the factual component of her claim as she failed to explain 

how and when the claimed injury occurred. On her Form CA-1 she alleged that she sustained an 

injury to her right knee in the performance of duty on May 8, 2018 when she performed lunges in 

the employing establishment’s gymnasium during her scheduled work shift. In a development 

letter dated August 7, 2018, OWCP advised appellant of the need for additional factual information

and provided a questionnaire for her completion. In response, appellant submitted physical therapy 

treatment notes and copies of medical documents previously of record. However, she did not 

complete and return the questionnaire.11 

In support of her claim, appellant submitted medical reports from Dr. Olson dated from 

May 9 to July 10, 2018 relating that she had felt her knee crack while performing lunges at the 

employing establishment’s gymnasium on May 8, 2018. The Board finds that these medical 

reports are insufficiently detailed to meet her burden of proof to establish the factual basis of her 

claim.

As appellant has not responded to the request for factual information, the Board finds that 

the record lacks sufficient factual evidence to establish specific details of how the claimed injury 

occurred.12 

The Board notes that, because appellant failed to establish the first component of fact of 

injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to establish 

that a medical condition existed and whether the condition was causally related to the employment 

factors as alleged.13

On appeal appellant contends that the employing establishment encouraged security guards 

to attend the gymnasium to maintain physical fitness and agility required for the position. As set 

forth above, she failed to submit sufficient factual evidence to establish that the claimed May 8, 

2018 injury occurred as alleged.

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.

 

11 Id.

12 Id., John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 

200 (1974).

13 M.S., supra note 10; see R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 

ECAB 215, 218 (1997) (as appellant failed to establish that the claimed event occurred as alleged, it is unnecessary to 

discuss the probative value of medical evidence).
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LEGAL PRECEDENT -- ISSUE 2

Under section 8128(a) of FECA,14 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal 

regulations, which provide that a claimant may obtain review of the merits if the written application 

for reconsideration, including all supporting documents, sets forth arguments and contains 

evidence which: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered by 

OWCP.”

15

Section 10.608(b) provides that any application for review of the merits of the claim which 

does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP 

without review of the merits of the claim.16

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a). 

Appellant’s timely request for reconsideration did not show that OWCP erroneously 

applied or interpreted a specific point of law, or advance a new and relevant legal argument not 

previously considered by OWCP. Consequently, she was not entitled to a review of the merits 

based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 

The chart notes, imaging studies, and physical therapy treatment notes submitted on 

reconsideration are irrelevant to the underlying merit issue of whether appellant established that 

the claimed injury occurred at the time, place, and in the manner alleged. The submission of 

evidence or argument which does not address the particular issue involved does not constitute a 

basis for reopening a case.17 Additionally, the copies of evidence previously submitted would not 

require reopening appellant’s case for merit review as the Board has held that the submission of 

evidence or argument which repeats or duplicates evidence or argument already in the case record 

 

14 Id. at § 8128(a).

15 20 C.F.R. § 10.606(b).

16 Id. at § 10.608.

17 M.B., Docket No. 17-1980 (issued May 14,2019); see E.G., Docket No. 18-0270 (issued August 24, 2018); 

Eugene F. Butler, 36 ECAB 393, 398 (1984).
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does not constitute a basis for reopening the case.18 Thus, appellant is not entitled to a review of 

the merits of her claim based on the third above-noted requirement under section 10.606(b)(3).19

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

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

performance of duty on May 8, 2018, as alleged. The Board further finds that OWCP properly 

denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the January 3, 2019 and September 10, 2018 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: August 6, 2019

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

 

18 A.D., Docket No. 18-0497 (issued July 25, 2018); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

19 See H.H., Docket No. 18-1660 (issued March 14, 2019).