United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.O., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

U.S. MERCHANT MARINE ACADEMY,

Kings Point, NY, Employer

__________________________________________

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Docket No. 18-0558

Issued: October 10, 2018

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 19, 2018 appellant filed a timely appeal from a November 21, 2017 merit 

decision and a January 11, 2018 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 the claim.2

ISSUES

The issues are: (1) whether appellant has established that he sustained an injury in the 

performance of duty as alleged; and (2) whether OWCP abused its discretion in denying 

 

1 5 U.S.C. § 8101 et seq. 

2 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 

20 C.F.R. § 501.5(b). By order dated May 16, 2018, the Board exercised its discretion and denied the request, finding 

that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for 

Oral Argument, Docket No. 18-0558 (issued May 16, 2018). 
2

appellant’s request for a hearing before an OWCP hearing representative pursuant to 5 U.S.C.

§ 8124.

FACTUAL HISTORY

On May 1, 2017 appellant, then a 59-year-old security officer, filed an occupational disease 

claim (Form CA-2) alleging that exposure to toxic substances at the site of the World Trade Center 

(“Ground Zero”) shortly after the September 11, 2001 terrorist attacks caused a malignant 

neoplasm of the right choroid. He noted that he was first diagnosed with cancer on November 25, 

2014 by Dr. Paul T. Finger, a Board-certified ophthalmologist. 

In a May 18, 2017 supervisor’s report, the employing establishment noted that appellant 

was separated from employment, effective August 30, 2008. OWCP paid appellant wage-loss 

compensation and medical benefits on the periodic rolls under OWCP File No. xxxxxx614, which 

accepted for traumatic knee contusions, cervical, and lumbar strains sustained on December 3, 

2004 while arresting a suspect.

By development letter dated May 31, 2017, OWCP notified appellant of the type of 

additional evidence needed to establish his claim, including factual evidence corroborating that he 

was in the performance of duty while at Ground Zero, and a medical report from his attending 

physician explaining how appellant’s employment activities would have caused or contributed to 

the claimed condition. It afforded him 30 days in which to submit additional evidence.

In response, appellant submitted his June 14, 2017 statements in which he asserted that it 

was his duty to report to Ground Zero immediately after the September 11, 2001 attacks because 

he had been trained in relevant first response and law enforcement protocols. He provided an 

undated employing establishment award to unspecified personnel for their actions from 

September 11 to 19, 2001. Appellant also provided medical literature regarding cancer diagnoses 

following exposures to various toxins at Ground Zero. He also submitted medical evidence. 

In a report dated December 1, 2014, Dr. Finger noted that he had first diagnosed appellant 

with a T1 right choroidal melanoma on November 25, 2014. In a June 14, 2017 report, he related 

that local radiation treatment had reduced the thickness of the tumor. Dr. Finger did not address 

the etiology of appellant’s condition.

The employing establishment provided several supervisory statements. In a May 17, 2017 

e-mail, Acting Foreman S.F. asserted that he did not recall seeing or working with appellant on 

any vessel or during operations ashore related to the September 11, 2001 attacks. In a May 19, 

2017 e-mail, E.W., the officer in charge of the employing establishment’s September 11, 2001 

response, explained that appellant’s mention in the staff list of the Outstanding Unit Award, and 

an enclosed October 1, 2001 timeline of the employing establishment’s response activities, meant 

that appellant “DID NOT travel down to ‘Ground Zero’ or to NY Harbor as part of any [employing 

establishment] contingent. A separate review of the detailed personnel assignment records used 

to develop the list of OUA [Outstanding Unit Award] recipients further confirms this statement.”

(Emphasis in the original.) 

Assistant Director R.C. noted in a May 22, 2017 e-mail that none of his staff who 

participated in September 11, 2001 operations recalled appellant being on board any employing 
3

establishment vessel. “When the attacks happened [R.C.] was in a meeting with [appellant]. At 

that point [appellant] returned to [his duty station] and began securing the campus.”

In letters dated June 28 and 29, 2017, the employing establishment contended that agency 

documentation demonstrated that appellant performed “shoreside support” activities on and after 

September 11, 2001 at the employing establishment’s Kings Point campus. Appellant never 

“travelled to lower Manhattan as a first responder.”

3

By decision dated August 10, 2017, OWCP denied appellant’s claim, finding that fact of 

injury had not been established. It determined that the factual evidence of record demonstrated 

that he did not travel to Ground Zero in the performance of duty as alleged. OWCP noted that the 

inconsistencies between appellant’s assertions and employing establishment records cast serious 

doubt on the validity of his claim. 

On August 22, 2017 appellant requested reconsideration. He contended that the employing 

establishment officials who provided statements in evidence were not in his chain of command 

and had no direct knowledge of his activities. Appellant explained that his immediate supervisor, 

J.J., had authorized his participation in law enforcement liaison groups and had paid for him to 

attend law enforcement training.

In support of his request, appellant provided an April 6, 2016 statement from K.V., an 

emergency management technician, who asserted that, on September 11, 2001, she spoke with 

appellant by telephone and he advised her that “he was currently at Ground Zero.” In a 

September 22, 2015 affidavit, M.M., appellant’s former partner in the New York Police 

Department (NYPD), recalled that on “a few occasions” between September 15 and October 30, 

2001, appellant met him at Ground Zero “while [appellant] was present in his capacity as police 

chief of a federal agency. We also went to lunch on Canal Street on a few occasions.”

Supervisor E.W. responded to appellant’s statement on September 12, 2017. He asserted

that he supervised all employing establishment personnel assigned official duties at Ground Zero. 

E.W. reiterated that appellant was not a part of any official waterborne or on-site support activities. 

Supervisor J.J. contended in a September 6, 2017 statement that “the only personnel 

authorized to be part of any of the trips to the WTC [World Trade Center] site were those 

[employing establishment] staff and midshipmen placed on an official record sheet of 

participation.”

In a letter dated September 13, 2017, the employing establishment contended that there 

were no records which indicated that appellant participated in any official activities at or near

 

3 The employing establishment also provided an unsigned log of command center activities on September 11 

and 12, 2001. These records do not mention appellant.
4

Ground Zero. Rather, appellant performed “dockside service” on the employing establishment’s 

grounds in King’s Point.

By development letter dated September 18, 2017, OWCP requested that appellant answer

the employing establishment’s September 13, 2017 controversion of his claim. It afforded him 30 

days to submit additional evidence or argument.

In response, appellant submitted a September 21, 2017 statement contending that he was 

officially authorized to visit One Police Plaza following the September 11, 2001 attacks as part of 

assigned intelligence gathering activities. He asserted that the employing establishment officials 

who controverted his claim were not in his chain of command. Appellant argued that only his 

immediate supervisor J.J, and institutional staff advisor V.M., who signed his official position 

description on January 26, 2000, were competent to comment on the scope of his official duties. 

Human resources specialist R.V. replied in an October 16, 2017 e-mail that appellant was 

not assigned to gather or share intelligence with local police at any time after the September 11, 

2001 attacks. Additionally, no employee recalled appellant “mentioning to them that he was at 

Ground Zero, nor does [E.W.] remember him being assigned any task that would take him there.” 

The employing establishment also explained in an October 17, 2017 letter that as supervisor E.W. 

was the commanding officer in charge on September 11, 2001, it was “preposterous to believe that 

[E.W.] would not have been aware of any high-level meetings with any other State or Federal 

agencies or law enforcement [appellant] alleges [that] he attended while at Ground Zero.”

By development letter dated October 18, 2017, OWCP requested that appellant respond in 

writing to the employing establishment’s October 17, 2017 letter controverting his claim. 

Appellant was afforded 30 days to submit additional evidence or argument.

In response, appellant submitted letters dated October 23, 25, and November 10, 2017 

alleging that he frequently communicated with state and federal law enforcement officials as part 

of his official duties, and that he was in charge of communicating with the governor’s office to 

establish a federally staffed security perimeter for the employing establishment following the 

September 11, 2001 attacks. He alleged that R.V. had lied in his statements to OWCP, and that 

E.W. was not present at meetings in which appellant requested and “secured shotguns for the police 

department.”

In a letter dated November 10, 2017, appellant’s coworker J.C. asserted that commander 

E.W. was not in his chain of command. He contended that, on an unspecified date, he and appellant 

were assigned to assist in a criminal investigation on Long Island. 

By decision dated November 21, 2017, OWCP denied modification of its prior decision, 

finding that the additional evidence submitted failed to establish that appellant was in the 

performance of duty when he visited Ground Zero following the September 11, 2011 attacks. It

found that, while M.M.’s September 22, 2015 affidavit indicated that appellant was present at or 

near the World Trade Center site, it did not establish that he was there in an official capacity or 
5

while on duty. OWCP further found that the employing establishment’s multiple statements cast 

significant doubt on the validity of appellant’s claim.

In a letter dated and received by OWCP on November 28, 2017, appellant requested an 

oral hearing or a review of the written record by OWCP’s Branch of Hearings and Review.

4

 He 

submitted a September 25, 2001 U.S. Marshals Service special deputation appointment “valid only 

while patrolling the roadways that run through the [employing establishment] or adjacent to it.”

Appellant also provided April 21, 2004 announcements of employing establishment law 

enforcement training seminars for which he was the instructor, his undated statement asserting that 

he responded to the World Trade Center attacks in the performance of duty, a document related to 

OWCP File No. xxxxxx614, a May 16, 2016 letter from a security contractor who affirmed that 

appellant attended a counter-terrorism seminar on Long Island in early 2002, a November 29, 2017 

employing establishment statement confirming the September 25, 2001 special deputation, and a 

December 5, 2017 letter from coworker L.S. contending that E.W. was not in his chain of 

command.

By decision dated January 11, 2018, a representative of OWCP’s Branch of Hearings and 

Review denied appellant’s request for an oral hearing as he had previously requested 

reconsideration. After exercising her discretion, the hearing representative further denied the 

request, finding that the issue could be equally well addressed through a request for reconsideration 

before OWCP’s district office.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA5 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 filed within the applicable time 

limitation, that the injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is 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 establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence or 

occurrence of the disease or condition; and (3) medical evidence establishing that the employment 

factors identified by the claimant were the proximate cause of the condition for which 

 

4 On December 5, 2017 appellant also requested reconsideration. In a letter dated and received by OWCP on 

December 9, 2017, he requested that OWCP subpoena J.G., an official of the employing establishment’s chief 

counsel’s office.

5 Supra note 1.

6

Joe D. Cameron, 41 ECAB 153 (1989).

7 See Irene St. John, 50 ECAB 521 (1999).
6

compensation is claimed, or, stated differently, medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the claimant.8 

An employee’s statement 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.9 The 

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

and his or her subsequent course of action. 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. 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.10

ANALYSIS -- ISSUE 1

The Board finds that appellant has not established that he sustained an occupational disease 

in the performance of duty, as alleged. 

Appellant alleged that the claimed neoplasm of the right choroid was caused by his 

exposure to unspecified toxins at the World Trade Center attacks site from September 11 through 

November 2011 during the performance of assigned law enforcement or first responder duties. 

The Board has held that to establish that an injury occurred in the performance of duty the 

employee must provide sufficient detail to establish that an occupational exposure occurred as 

alleged.11 The only evidence appellant provided corroborating his presence at the attack site was 

a September 22, 2015 affidavit from M.M., appellant’s former partner in the NYPD, who asserted 

that on “a few occasions” between September 15 and October 30, 2001, he met appellant at 

Ground Zero and then went to lunch with him. In this case, however, appellant’s assertion that his 

duties required his presence at Ground Zero on or after September 11, 2001 was strongly refuted 

by the employing establishment.

Several employing establishment officials provided detailed statements controverting 

appellant’s account of events. E.W., the employing establishment officer in charge of the 

employing establishment’s response to the September 11, 2001 attacks, explained that records and 

coworker statements confirmed that appellant did not travel to Ground Zero after the attack. 

Appellant had received an Outstanding Unit Award given only to personnel who performed 

“shoreside support” on the premises of the employing establishment at King’s Point. E.W. noted 

that as office in charge, he would have been aware if appellant had left the employing 

establishment or had been assigned to do so. E.W. emphasized that appellant had not been part of 

any official waterborne or attack site support. Assistant Director R.C. recalled that appellant was 

 

8

Id.

9 E.G., Docket No. 17-1364 (issued April 19, 2018); R.T., Docket No. 08-0408 (issued December 16, 2008); 

Gregory J. Reser, 57 ECAB 238, 241 (2005).

10 E.G., id.; Betty J. Smith, 54 ECAB 174 (2002).

11 E.G., supra note 9; see Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).
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at the employing establishment securing the premises following the September 11, 2001 attacks. 

Supervisor J.J. noted that appellant was not listed in the official records of employing 

establishment personnel who participated in rescue or support activities.

The employing establishment’s statements cast significant doubt on the validity of 

appellant’s claim. There is no evidence from appellant’s supervisor, coworkers, or in 

contemporaneous records that appellant was assigned to report to Ground Zero at any time 

following the September 11, 2001 terrorist attacks. OWCP provided appellant the opportunity to 

clarify this matter, but he did not provide sufficient evidence corroborating that his employment 

duties required him to be present at or near the site of the World Trade Center attacks at any time. 

Appellant’s response to the employing establishment’s assertions was to accuse the officials who 

provided statements of lying or of being unfamiliar with his duties. Given the serious 

inconsistencies in the evidence, the Board finds that appellant has not established the incident 

component of fact of injury.

12

 Appellant has therefore failed to meet his burden of proof.13

On appeal appellant contends that police powers and a U.S. Marshal deputation had 

required him to travel to the World Trade Center site immediately after the September 11, 2001 

attack, and to meetings at various locations in Manhattan through November 1, 2001. The Board 

notes, however, that the deputation was not conferred until September 25, 2001, and that the 

remainder of the employing establishment’s statements and supporting documents do not 

demonstrate that appellant was authorized to participate in any off-site activities related to the 

attacks.

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, concerning a claimant’s entitlement to hearing before an 

OWCP hearing representative, states: Before review under section 8128(a) of this title, a claimant 

for compensation not satisfied with a decision of the Secretary under subsection (a) of this section 

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

hearing on his claim before a representative of the Secretary.14 A hearing is a review of an adverse 

decision by an OWCP hearing representative. Initially, the claimant can choose between two 

formats: an oral hearing or a review of the written record. In addition to the evidence of record, 

the claimant may submit new evidence to the hearing representative.15

 

12 J.K., Docket No. 17-0300 (issued August 9, 2017).

13 As appellant did not establish an incident as alleged, the Board need not discuss the probative value of the medical 

evidence. J.K., id.

14 5 U.S.C. § 8124(b)(1).

15 20 C.F.R. § 10.615.
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A claimant is entitled to a hearing or review of the written record as a matter of right only 

if the request is field within the requisite 30 days as determined by postmark or other carriers’ date 

marking and before the claimant has requested reconsideration (whether or not reconsideration 

was granted).16 Although there is no right to a review of the written record or an oral hearing as a 

matter of right if claimant had previously sought reconsideration, OWCP may, within tis 

discretionary powers, grant or deny a hearing when the request is untimely or made after 

reconsideration under section 8128(a).17

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for an oral hearing before 

the Branch of Hearings and Review under 5 U.S.C. § 8124(b)(1).

Because appellant previously requested reconsideration on August 22, 2017 he was not 

entitled to a hearing as a matter of right under section 8124(b)(1) of FECA.18

The Board further finds that OWCP’s hearing representative did not abuse her discretion 

in denying appellant’s request for an oral hearing in her January 11, 2018 decision.19 The Board 

has held that the only limitation on OWCP’s discretionary 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 logic and probably deduction from established 

facts.20 Appellant was advised that his case could be equally well addressed by requesting 

reconsideration before OWCP and submitting new evidence not previously considered, that he 

sustained an injury in the performance of duty. In this case, the evidence of record does not 

indicate that OWCP’s hearing representative abused her discretion in denying appellant’s request 

for a hearing under these circumstances. Accordingly, the Board finds that OWCP properly denied 

his request for a hearing. 

CONCLUSION

The Board finds that appellant has not established an injury in the performance of duty as 

alleged. The Board further finds that OWCP properly denied his request for a hearing before an 

OWCP hearing representative pursuant to 5 U.S.C. § 8124.

 

16 Id. at 10.616(a); L.S., Docket No. 18-0115 (issued May 10, 2018); S.F., Docket No. 17-0463 (issued September 8, 

2017); Eddie Franklin, 51 ECAB 223 (1999); Delmont I. Thompson, 51 ECAB 155 (1999).

17 20 C.F.R. § 616(a); L.S., id., Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the 

Written Record, Chapter 2.1601.2(a) (October 2011).

18 L.S., supra note 16, S.F., supra note 16; J.M., Docket No. 16-0669 (issued October 24, 2016); Marilyn F. Wilson, 

52 ECAB 347 (2001).

19 L.S., supra note 16, S.F., supra note 16. 

20 L.S., supra note 16. See R.G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542 

(2006); Daniel J. Perea, 42 ECAB 214 (1990).
9

ORDER

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

Compensation Programs dated January 11, 2018 and November 21, 2017 are affirmed.

Issued: October 10, 2018

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