United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer

__________________________________________

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Docket No. 17-0161

Issued: June 15, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 1, 2016 appellant, through counsel, filed a timely appeal from a 

September 12, 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.

 

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 has met her burden of proof to establish an injury in the 

performance of duty on July 20, 2015, as alleged.

FACTUAL HISTORY

On August 3, 2015 appellant, a 61-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1), alleging an injury to her right knee on July 20, 2015 while in the performance of 

duty. She stated that the floor was wet, as it was raining that day, and she slipped and fell on her 

knees, badly injuring her postoperative right knee. Appellant has a previously accepted claim 

under OWCP File No. xxxxxx448 for right knee arthritis and lateral meniscus tear and underwent 

an authorized right knee replacement surgery in February 2015. She had returned to full-duty 

work on July 20, 2015 after working in a light-duty capacity. On July 23, 2015 appellant returned 

to work in a light-duty capacity for a second time.

In an August 14, 2015 narrative statement, appellant indicated that on July 20, 2015 she 

had returned from her route after completing her deliveries, carried her dispatch mail into the 

office, and sorted it before returning to her mail truck. She stated that it had been raining most of 

that afternoon and, upon returning to the office through the back double doors, he slipped on the 

wet floor and fell. Appellant asserted that she landed on her right knee, for which had undergone 

replacement surgery in February 2015. She further indicated that she was trying to get up when 

she heard T.M., a clerk, yelling at her to stay down and not move. T.M. then informed appellant’s

supervisor P.S. of the fall. P.S. came running over and helped appellant up. Appellant stated that 

her knee immediately began to swell and she could not bend it. She was not offered any 

paperwork, but she did go to the hospital and had an x-ray.

In an August 3, 2015 attending physician’s report (Form CA-20), Dr. Sara Vizcay, a 

Board-certified family practitioner, reported that appellant had a partial knee replacement in 

February 2015 and was returned to work on a full-duty capacity. She asserted that on July 20, 

2015 appellant sustained a blunt force hit to her postoperative right knee when she slipped and fell 

on a wet floor at work injuring her right knee. Dr. Vizcay diagnosed meniscal tear and knee 

contusion. In reports dated August 4 and September 8, 2015, she reiterated appellant’s factual 

history of the claim and diagnosed postoperative partial knee replacement with aggravation due to 

new injury, right knee medial meniscal tear, and depression secondary to chronic pain and workrelated injuries.

On August 19, 2015 Dr. Kevin Scott, a Board-certified orthopedic surgeon, diagnosed 

postoperative partial knee replacement with aggravation due to new injury, right knee medial 

meniscal tear, depression secondary to chronic pain and work-related injuries, and right knee pain 

status post reinjury and unilateral knee replacement. He opined that overstretching, blunt force, 

and/or strain that appellant sustained upon the fall of July 20, 2015, to an already weak 

musculature, caused a contusion, synovial fluid leakage, and possible tear.

On September 4, 2015 appellant, through counsel, filed a claim for wage-loss 

compensation (Form CA-7).
3

In a September 18, 2015 development letter, OWCP indicated that when appellant’s claim 

was received it appeared to be a minor injury that resulted in minimal or no lost time from work 

and, based on these criteria and because the employing establishment did not controvert 

continuation of pay or challenge the case, payment of a limited amount of medical expenses was 

administratively approved. It stated that it had reopened the claim for consideration because she

filed a claim for wage-loss compensation. OWCP requested additional evidence and afforded 

appellant 30 days to respond to its inquiries.

In response, appellant submitted a narrative statement dated October 12, 2015 reiterating 

the factual history of her claim. She also submitted a September 24, 2015 statement from D.D., 

her daughter and coworker, who stated that appellant asked her to speak with T.M., a clerk who 

witnessed the fall. D.D. asked T.M if he could give her a witness statement and he replied, “I can’t 

believe that they were questioning [appellant’s] work accident. I saw her coming in the doors 

[when] she slipped and fell and I told her to stay down.” D.D. indicated that T.M had stated that

he had to see his union representative before he would give his statement in writing to avoid any 

retaliation.

In an October 4, 2015 witness statement, appellant’s supervisor, P.S, reported that on 

July 20, 2015 appellant had reported to work for the first time in two years following a previous 

work injury. At approximately 5:00 p.m., he was standing at the supervisor’s desk which was 

situated approximately 40 feet from the double doors through which the carriers entered when 

returning from the street. P.S. was working on the computer at the time of appellant’s arrival and 

he heard moaning noises coming from the direction of the double doors. He recalled looking up 

in the direction of the moaning and seeing appellant on the floor. P.S did not recall hearing any 

noise prior to the moaning: no commotion, no noise from a fall. Appellant did not appear to be 

contorted in any form and was in a seated position. P.S immediately went over to her at which 

point she stated that she slipped while coming in through the doors. He noted that a couple of thin, 

empty plastic trays and her purse where on the ground beside her, but he had not heard any noise 

from these objects hitting the ground during the alleged fall.

In a statement received by OWCP on October 5, 2015, K.B., appellant’s coworker, 

indicated that on July 20, 2015 at approximately 9:00 a.m. she had reported to work as scheduled. 

She was not informed that appellant was returning to full-duty status that day. K.B. was casing 

mail when appellant approached her after she returned to the office and advised her that she fell 

when she walked into the office while bringing her mail inside. She stated that she “did not witness 

her fall” and noted that to the best of her knowledge, no one else witnessed the incident. 

Appellant also submitted medical evidence, including an October 12, 2015 report from

Dr. Vizcay and an October 15, 2015 report from Dr. Scott.

By decision dated October 22, 2015, OWCP denied appellant’s claim for an employmentrelated injury, finding that the evidence of record failed to establish that she fell on a wet floor on 

July 20, 2015 in the performance of duty, as alleged.

On November 10, 2015 counsel requested an oral hearing before a representative of

OWCP’s Branch of Hearings and Review. A telephonic hearing was held before an OWCP 
4

hearing representative on June 29, 2016. Appellant provided testimony and the hearing 

representative held the case record open for 30 days for the submission of additional evidence. 

Subsequently, appellant submitted a July 28, 2016 report from Dr. Vizcay who reiterated 

her diagnoses and opinions. She also submitted an April 5, 2016 report from Dr. Andrew Cooper, 

a Board-certified orthopedic surgeon, who asserted that appellant was injured on July 20, 2015 

and diagnosed mechanical complication of internal right knee prosthesis and prosthetic joint 

implant, right.

In an August 22, 2016 narrative statement, appellant indicated that P.S.’s October 4, 2015 

statement confirmed that he was made aware of the situation as he heard noise coming from the 

door area and there still remained a question as to why he never asked T.M. what he witnessed the 

day of the incident.

In a statement dated June 29, 2016, T.M. stated that he “witnessed a carrier fall down.” He 

indicated that he was working at the employing establishment and remembered it was a rainy day. 

T.M. was not able to recall the “time, date, or the lady’s name.”

In a July 20, 2016 letter, the employing establishment controverted appellant’s claim and 

indicated that the employees understood that retaliation for providing information to an 

investigation was not tolerated and would be considered a violation. Employees were asked if 

they witnessed anything that had happened and none of the employees replied that they were 

witnesses to the alleged July 20, 2015 incident. The employing establishment noted that T.M. was 

a union steward and, as such, had knowledge of contract issues, rules, regulations, and what actions 

could be taken if there were an issue of harassment or retaliation.

By decision dated September 12, 2016, OWCP’s hearing representative affirmed the prior 

decision on the basis that the evidence submitted was insufficient to establish fact of injury as 

appellant did not submit factual evidence to support that the injury and/or events occurred. He

found that the evidence cast serious doubt on the claim, particularly P.S. statement that he did not 

hear any noise from the alleged fall.

LEGAL PRECEDENT

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 timely filed within the applicable 

time limitation period of FECA, that an injury4 was sustained in the performance of duty as alleged, 

 

3

Id.

4 OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or 

series of events or incidents, within a single workday or shift. Such condition must be caused by external force, 

including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body 

affected. 20 C.F.R. § 10.5(ee).
5

and that any disability or medical condition for which compensation is claimed is causally related 

to the employment injury.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. A 

fact of injury determination is based on two elements. First, the employee must submit sufficient 

evidence to establish that he or she actually experienced the employment incident at the time and

place, and in the manner alleged. 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. An employee may establish that the employment incident occurred as alleged, but fail to 

show that the claimed condition relates to the employment incident.6

An employee has the burden of proof to establish the occurrence of an injury at the time

and 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 her subsequent course 

of action.7 An employee has not met his or her burden of proof to establish 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 statement 

in determining whether a prima facie case 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.8

The employee must also submit sufficient evidence, generally only in the form a medical 

evidence, to establish that the employment incident caused a personal injury.9

ANALYSIS

In her narrative statements, appellant alleged that on July 20, 2015 she had returned back 

from her route after completing her deliveries, carried her dispatch mail into the office, and sorted 

it before returning to her mail truck. She stated that it had been raining most of the late afternoon 

and she slipped on the wet floor and fell down when returning to the office through the back double 

doors. Appellant asserted that she landed on her right knee, which had undergone replacement 

surgery in February 2015. She further indicated that she was trying to get up when she heard the 

clerk, T.M., yelling at her to stay down and not move. T.M. then informed her supervisor, S.B

 

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

6

Id.

7 See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995).

8 See D.B., 58 ECAB 463 (2007).

9 See J.Z., 58 ECAB 529 (2007).
6

who came running over and helped her up. Appellant stated that her knee immediately began to 

swell and she could not bend it.

The employing establishment controverted appellant’s claim based on the findings of an 

investigation. In a July 20, 2016 letter, it indicated that the employees understood that retaliation 

for providing information to an investigation was not tolerated and would be considered a 

violation. Employees were asked if they witnessed anything that had happened and none of the 

employees stated that they were witness to the alleged July 20, 2015 incident. K.B., appellant’s 

coworker, asserted in her October 5, 2015 statement that she “did not witness her fall.” The 

employing establishment noted that T.M. was a union steward and, as such, had knowledge of 

contract issues, rules, regulations, and what actions could be taken if there were an issue of 

harassment or retaliation. In his June 29, 2016 statement, T.M. asserted that he witnessed a carrier 

fall down, but was unable to recall the “time, date, or the lady’s name.”

The Board finds that the weight of the evidence is insufficient to establish that the 

employment incident of July 20, 2015 occurred as alleged.10 Appellant stated that as she slipped 

and fell on a wet floor on July 20, 2015 when returning to the office through back double doors. 

T.M. indicated that he saw a carrier fall down, but his statement is not sufficient to establish 

appellant’s claim because he could not remember the time, date, or name of the carrier.

In a September 24, 2015 statement D.D. indicated that she asked T.M. if he could give her 

a witness statement and he replied, “I can’t believe that they were questioning [appellant’s] work 

accident. I saw her coming in the doors [when] she slipped and fell and I told her to stay down.” 

However, there is no corroborating evidence to establish that T.M. actually made this statement 

which comes before the Board wrapped in multiple levels of hearsay.11

Furthermore, P.S, appellant’s supervisor, asserted in his October 4, 2015 statement that at 

approximately 5:00 p.m. on July 20, 2015 he was standing at the supervisor’s desk which was 

situated approximately 40 feet from the double doors through which the carriers entered when 

returning from the street. He was working on the computer at the time of her arrival and he heard 

moaning noises coming from the direction of the double doors. P.S. recalled looking up in the 

direction of the moaning and seeing appellant on the floor. He did not recall hearing any noise 

prior to the moaning: no commotion, no noise from a fall. S.B. noted that a couple of thin, empty 

plastic trays and her purse where on the ground beside her, but he had not heard any noise from 

these objects hitting the ground during the alleged fall. The Board finds that S.B.’s statement casts 

serious doubt on appellant’s claim, particularly that he did not hear any noise from her body or the 

 

10 See A.B., Docket No. 14-0522 (issued November 9, 2015) (fact of incident not established where there was

substantial inconsistency between appellant’s account of events and the accounts of coworkers and supervisor with 

regard to the time and place of his alleged injury); V.J., Docket No. 13-1460 (issued January 7, 2014) (claimed incident 

not established where employing establishment investigation revealed inconsistencies between appellant’s account of 

the claimed incident and those of coworkers); J.W., Docket No. 12-0926 (issued October 1, 2012) (claimed incident 

not established where there were inconsistencies between appellant’s statements and evidence at the scene of the 

alleged incident).

11 See K.A., Docket No. 15-0684 (issued August 27, 2015) (where the claimant submitted a witness statement from 

his coworker who advised that another coworker had stated that B.T. was trying to get him fired, the Board found that 

there was not corroborating evidence to establish that B.T. actually made this statement).
7

objects she was holding hitting the ground when she fell. Thus, the Board finds that appellant has 

failed to provide sufficient factual evidence to establish that she fell on a wet floor at work on 

July 20, 2015, as alleged.

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 employment incident as alleged.12 

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

performance of duty on July 20, 2015, 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.

CONCLUSION

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

performance of duty on July 20, 2015, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the September 12, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 15, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

12 See Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). As appellant failed to establish that the claimed event 

occurred as alleged, it is not necessary to discuss the probative value of medical evidence. Id.