United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Milwaukee, WI, Employer

__________________________________________

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Docket No. 17-1286

Issued: December 5, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 24, 2017 appellant filed a timely appeal from February 28, 2017 merit and 

May 10, 2017 nonmerit decisions 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.

ISSUES

The issues are: (1) whether appellant met his burden of proof to establish a left shoulder

injury in the performance of duty on August 26, 2016 as alleged; and (2) whether OWCP 

properly denied appellant’s request for a telephonic hearing before an OWCP hearing 

representative as untimely filed under 5 U.S.C. § 8124.

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On January 12, 2017 appellant, then a 56-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that he strained his left shoulder on August 26, 2016 when he

tried to pick up a carrier case that had tipped over. He explained that he did not initially feel any 

major pain, but his left shoulder got heavier. Appellant did not stop work. 

In a September 6, 2016 left shoulder magnetic resonance imaging (MRI) scan report,

Dr. Austin Belton, a Board-certified diagnostic radiologist, noted a clinical history of left 

shoulder pain. He related that appellant “lifted a 120-pound box and heard a ‘pop.’” Dr. Belton 

indicated that appellant had left shoulder surgery on July 12, 2007. He reported a large fullthickness tear of the distal-anterior supraspinatus tendon with extensive fraying of the torn 

tendon margins, partial-thickness tear of the distal-superior fibers of the subscapularis tendon 

with associated medial subluxation of the long head of the biceps tendon, tendinopathy of the 

intrascapular portion of the long head of the biceps tendon, mild degenerative hypertrophy of the 

acromioclavicular (AC) joint, mild degenerative changes of the glenohumeral joint, and a thin 

layer of fluid in the subacromial-subdeltoid bursa. 

By letter dated January 25, 2017, OWCP advised appellant that the evidence of record 

was insufficient to establish his claim. It requested that he respond to the attached factual 

development questionnaire in order to substantiate that the claimed August 26, 2016 work

incident occurred as alleged and to provide medical evidence to establish a diagnosed condition 

causally related to the alleged incident. Appellant was afforded 30 days to submit this evidence. 

Appellant was treated by Dr. Douglas J. Keele, an orthopedic surgeon. In a January 30, 

2017 attending physician’s report (Form CA-20), Dr. Keele noted a date of injury of 

August 26, 2016. He explained that appellant squatted down to lift a case, approximately

weighing 120 pounds, and felt immediate pain in his left shoulder. Dr. Keele reported clinical 

findings as noted in the September 6, 2016 left shoulder MRI scan and diagnoses of other injury 

of muscles and tendons of the left shoulder rotator cuff (ICD-840.4). He checked a box marked 

“yes” indicating that appellant’s condition was caused or aggravated by the described 

employment activity. Dr. Keele noted: “directly related to lifting 120-pound case at work” and 

indicated that appellant was able to resume regular work on September 21, 2016. 

OWCP denied appellant’s claim by decision dated February 28, 2017, finding that the 

evidence of record was insufficient to establish that the August 26, 2016 incident occurred as 

alleged. It noted that he failed to respond to the specific questions posed in the January 25, 2017 

development letter and attached questionnaire. 

Following OWCP’s February 28, 2017 decision, appellant submitted a September 1, 2016 

report by Shauna L. Christopherson, a nurse practitioner. Ms. Christopherson related that on 

August 26, 2016 appellant squatted down to lift a box, weighing approximately 120 pounds, and 

felt immediate pain in his left shoulder once he was standing up and holding the box at waist 

level. Appellant indicated that he still experienced pain in the lateral aspect of his shoulder 

radiating halfway down the upper arm. Upon physical examination of appellant’s left shoulder,

Ms. Christopherson noted tenderness in the left shoulder in the infraspinatus and supraspinatus 

tendons and pain on range of motion with flexion and abduction. She related that shoulder x-ray 
3

examination showed no acute avulsions, fractures, or dislocation. Ms. Christopherson diagnosed 

left shoulder pain. 

On March 28, 2017 OWCP also received a September 13, 2016 report from Dr. Keele. 

Dr. Keele noted that appellant was evaluated for causation of left shoulder pain following an 

August 26, 2016 work injury. He described that appellant squatted down to lift a case, weighing 

approximately 120 pounds, and felt immediate pain in his left shoulder when he stood up and 

held the case at waist level. Dr. Keele reviewed appellant’s history and conducted an 

examination. He reported tenderness on the left shoulder and abnormal impingement test 

bilaterally. Dr. Keele also noted that O’Brien’s test caused mild discomfort in the anterior 

shoulder. He diagnosed other injury of muscles and tendon of the left shoulder rotator cuff 

(ICD-840.4), left shoulder primary osteoarthritis (ICD-715.11), and left shoulder pain (ICD719.41). Dr. Keele noted that appellant did not have any problems or pain in his left shoulder 

until after he lifted the 120-pound object at work. He opined that, if the history given by 

appellant was accurate, “the medical presentation [was] a direct result of a work-related activity, 

specifically the work injury event as described above.”

OWCP did not receive any correspondence or additional evidence from appellant from 

March 28 to May 1, 2017.

In an appeal request form dated April 25, 2017, postmarked on April 27, 2017, and 

received by OWCP’s Branch of Hearings and Review on May 2, 2017, appellant requested a 

telephonic hearing before an OWCP hearing representative.

By decision dated May 10, 2017, an OWCP hearing representative denied appellant’s 

request for a telephone hearing, finding that it was untimely filed as it was not postmarked within 

30 days of the issuance of the February 28, 2017 OWCP merit decision. After exercising its 

discretion, the hearing representative further found that the issue in the case could be equally 

well addressed through the reconsideration process.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA2has the burden of proof to establish the 

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

evidence,3including that he or she is an “employee” within the meaning of FECA,

4

and that a 

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

or she sustained an injury in the performance of duty and that any specific condition or disability 

for which compensation is claimed is causally related to that employment injury.6

 

2

Supra note 1.

3

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

4

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercardo), 4 ECAB 357, 359 (1951).

5 R.C., 59 ECAB 42 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954).

6 G.T., 59 ECAB 447 (2008); M.M., Docket No. 08-1510 (issued November 25, 2010).
4

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.7 

There are two components involved in establishing fact of injury. First, an 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.8 Second, an employee must submit 

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

employment incident caused a personal injury.9

The employee has the burden of proof to establish 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 the surrounding facts and circumstances and his or her 

subsequent course of action.10 An employee has not met his or her burden of proof in 

establishing the occurrence of an injury where 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.11

ANALYSIS -- ISSUE 1

Appellant alleged that he sustained a left shoulder injury when he tried to pick up a heavy

case at work on August 26, 2016. In its February 28, 2017 decision, OWCP denied the claim, 

finding that he had not established that the incident occurred at the time, place, or in the manner 

alleged. 

The Board finds that appellant failed to establish that he sustained a left shoulder injury 

in the performance of duty on August 26, 2016, as alleged. The only description of the alleged 

August 26, 2016 work incident is contained in appellant’s Form CA-1. Appellant indicated that 

on August 26, 2016 at 6:30 a.m. he strained his left shoulder when he tried to pick up a carrier 

case that had tipped over. The Board finds that appellant’s description of the traumatic incident 

is vague and fails to provide any specific detail or evidence establishing that the August 26, 2016 

 

7

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

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

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

10 Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued 

March 9, 1995).

11 D.B., 58 ECAB 529 (2007).
5

incident occurred as alleged.12 By letter dated January 25, 2017, OWCP requested that appellant 

respond to its factual development questionnaire and provide a more detailed description of the 

alleged employment incident in order to establish the factual element of his claim. Appellant did 

not respond to the questionnaire, nor did he provide any supplemental statement or detailed 

information surrounding the alleged August 26, 2016 work incident.13 The evidence of record 

does not contain a detailed account of the alleged injury sufficient to establish that the incident 

occurred at the time, place, and in the manner alleged.14 Appellant related that he tried to pick 

up a carrier case that had tipped over. He did not describe the mechanism of injury, including

whether he had to reach up or down to reach the carrier case, the weight of the case, or why he 

was not able to actually pick up the case.15 Accordingly, the Board finds that appellant has not 

provided sufficient detail to establish that the August 26, 2016 traumatic incident occurred as 

alleged.16

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.

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with 

a decision of the Secretary is entitled, on request made within 30 days after the date of the 

issuance of the decision, to a hearing on his or her claim before a representative of the 

Secretary.17 Sections 10.617 and 10.618 of the federal regulations implementing this section of 

FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the 

written record by a representative of the Secretary.18 A claimant is entitled to a hearing or 

review of the written record as a matter of right only if the request is filed within the requisite 30 

days as determined by postmark or other carrier’s date marking and before the claimant has 

requested reconsideration.19 Although there is no right to a review of the written record or an 

oral hearing if not requested within the 30-day time period, OWCP may within its discretionary 

powers grant or deny a claimant’s request and must exercise its discretion.20 Its procedures 

 

12 See C.E., Docket No. 17-0106 (issued April 20, 2017).

13 See R.V., Docket No. 15-1911 (issued December 11, 2015).

14 See S.R., Docket No. 15-1274 (issued August 25, 2015); M.B., Docket No. 11-1785 (issued February 15, 2012).

15 Supra note 13. 

16 P.T., Docket No. 14-598 (issued August 5, 2014); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

17 5 U.S.C. § 8124(b)(1).

18 20 C.F.R. §§ 10.616, 10.617.

19 Id. at § 10.616(a).

20 Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).
6

require that it exercise its discretion to grant or deny a hearing when the request is untimely or 

made after reconsideration under section 8128(a).21

ANALYSIS -- ISSUE 2

On February 28, 2017 OWCP denied appellant’s traumatic injury claim, finding that he

had not established work-related left shoulder injury in the performance of duty on 

August 26, 2016, as alleged. Appellant requested a telephonic hearing by appeal request form 

dated April 25, 2017, postmarked April 27, 2017, and received by OWCP on May 2, 2017. 

OWCP denied appellant’s request for a telephone hearing by decision dated May 10, 2017 

because the request was untimely filed. 

The Board finds that OWCP properly determined that appellant’s request for a telephone 

hearing was untimely as it was filed more than 30 days after the issuance of OWCP’s 

February 28, 2017 merit decision. Because the postmark date was more than 30 days after the 

date of OWCP’s February 28, 2017 decision, he was not entitled to a hearing as a matter of 

right.22 Although appellant’s request for hearing before an OWCP hearing representative was 

untimely, OWCP has the discretionary authority to grant the request and it must exercise such 

discretion.23 In its May 10, 2017 decision, OWCP properly considered the matter in relation to 

the issue involved and that additional evidence and argument could be submitted with a request 

for reconsideration. The Board has held that the only limitation on OWCP’s authority is 

reasonableness. An abuse of discretion is generally shown through proof of manifest error, a 

clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and 

probable deductions from established facts.24 In this case, the evidence of record does not

indicate that OWCP abused its discretion by denying appellant’s request for a telephone hearing. 

Accordingly, the Board finds that OWCP properly denied appellant’s request for a telephonic

hearing.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a left shoulder 

injury in the performance of duty on August 26, 2016, as alleged. The Board also finds that 

OWCP properly denied appellant’s request for a telephonic hearing before an OWCP hearing 

representative as untimely filed pursuant to 5 U.S.C. § 8124.

 

21 See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).

22 The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review 

commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989).

23 Supra note 21.

24 Samuel R. Johnson, 51 ECAB 612 (2000).
7

ORDER

IT IS HEREBY ORDERED THAT the May 10 and February 28, 2017 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: December 5, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board