United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.Q., Appellant

and

U.S. POSTAL SERVICE, NETWORK 

DISTRIBUTION CENTER, Greensboro, NC, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 16-1703

Issued: March 5, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 23, 2016 appellant filed a timely appeal from a July 26, 2016 merit 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.

ISSUE

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

performance of duty on November 13, 2014, as alleged.

FACTUAL HISTORY

On December 23, 2015 appellant, then a 52-year-old mail processing clerk, filed a 

traumatic injury claim (Form CA-1) for a torn right rotator cuff that she allegedly sustained in 

 

1 5 U.S.C. § 8101 et seq.
2

the performance of duty on the morning of November 13, 2014. She attributed her right shoulder 

injury to pushing, pulling, and lifting parcels and equipment. Appellant stopped work on 

November 24, 2015 to undergo right shoulder surgery.

In a December 23, 2015 employing establishment injury/medical condition notification 

form, appellant’s supervisor, S.A., noted a November 13, 2014 date of injury and a history of 

injury as follows: “Doing regular duties (keying, processing mail, moving equipment/lifting 

parcels) start having pain in right shoulder down to fingers.” The reported medical condition 

was right rotator cuff tear and appellant was noted to be totally disabled.

The employing establishment controverted appellant’s entitlement to continuation of pay 

(COP) and argued there was no evidence that the injury occurred within a one-day period. It also 

noted that, although appellant claimed to have injured her shoulder at work on November 13, 

2014, she had been receiving treatment for a right shoulder condition dating back to 

September 23, 2014. The employing establishment submitted a November 17, 2015 Family and 

Medical Leave Act (FMLA) request, which noted that appellant had been receiving treatment 

since September 23, 2014, and was scheduled for surgery on November 24, 2015. The FMLA 

request also noted that appellant received treatment on November 13, 2014 and on December 9, 

2014 from Dr. Marcus V. Duda, a Board-certified orthopedic surgeon, diagnosed right shoulder 

impingement.

In a December 8, 2015 report, Dr. Duda diagnosed right rotator cuff tear, and noted that 

appellant was status post right shoulder arthroscopic debridement. He advised that appellant had 

been totally disabled since November 24, 2015, and that her condition was employment related.

In a January 4, 2016 claim development letter, OWCP informed appellant of the type of 

factual and medical evidence needed to support her claim, and requested that she submit such 

evidence within 30 days. In the attached factual questionnaire, it noted that it was unclear 

whether appellant sustained a traumatic injury or an occupational disease. OWCP asked that she 

clarify which type of injury she was claiming.

In a January 19, 2016 statement, appellant indicated that she previously had shoulder pain 

and arm numbness from lifting, reaching, pulling, pushing, and she became cautious of what she 

did. She noted that she first consulted Dr. Duda on March 19, 2015. In response to why it took 

her over a year to file her claim, appellant indicated that her condition had worsened. She

explained that she medicated herself and took Aleve, Tylenol, and compresses hoping her pain 

would get better. Appellant also specified that she was claiming a traumatic injury.

OWCP received a January 4, 2016 attending physician’s report (Form CA-20) from

Dr. Duda. He did not specify a date of injury, but noted a history of shoulder pain and decreased 

range of motion. He diagnosed right rotator cuff tear, and noted that appellant had undergone 

surgery. Dr. Duda also indicated that he did not believe appellant’s condition was caused or 

aggravated by an employment activity. He noted that he first examined appellant on 

November 13, 2014. Dr. Duda further indicated that appellant was totally disabled beginning 

November 24, 2015, and he anticipated a return to work on January 11, 2016. Additionally, he

provided a January 4, 2016 duty status report (Form CA-17).
3

On January 12, 2016 appellant accepted a full-time, limited-duty assignment as a 

modified distribution clerk. She was restricted to lifting no more than 25 pounds.

In a January 14, 2016 report, Dr. Duda noted that appellant first presented with 

impingement symptoms of her shoulder on March 19, 2015. He advised that since then he saw 

her on June 18, October 15, November 10, and December 8, 2015, and January 4, 2016. 

Dr. Duda explained that on her initial presentation, she had impingement symptoms of her right 

shoulder. Appellant advised Dr. Duda that her symptoms started with work-related activities and 

she was given work restrictions for her shoulder. Dr. Duba noted that on June 18, 2015 appellant 

underwent a subacromial injection, which provided temporary relief. However, on October 15, 

2015 he noted that she still had pain on testing and he recommended a magnetic resonance 

imaging (MRI) scan to rule out a rotator cuff tear. Dr. Duda treated appellant on November 10, 

2015 and reviewed the MRI scan, which revealed subacromial bursitis with severe supraspinatus 

and infraspinatus tendinopathy, but no full-thickness rotator cuff tear. He explained that due to 

her pain with activities of daily living, appellant decided to proceed with arthroscopic 

intervention, which was performed on November 24, 2015. Dr. Duda indicated that arthroscopic 

findings revealed a rotator cuff tear, a superior labrum anterior to posterior (SLAP) lesion, and 

subacromial bursitis. Appellant underwent subacromial decompression, debridement of a rotator 

cuff tear, and debridement of a SLAP lesion. Dr. Duda explained that appellant underwent 

physical therapy for strengthening and stabilization and achieved full range of motion of her 

shoulder and was given a return to work note effective January 11, 2016, with a 25-pound lifting 

restriction. He related that appellant reported that her symptoms started from work-related 

activities, and he noted that her arthroscopic findings were consistent with rotator cuff pathology 

caused by work-related activities.

By decision dated February 5, 2016, OWCP found that appellant established fact of 

injury, but it denied her traumatic injury claim because the medical evidence was insufficient to 

establish that the claimed condition was causally related to the accepted November 13, 2014 

work incident.

On February 24, 2016 appellant requested a review of the written record by an OWCP 

hearing representative. 

By decision dated July 26, 2016, OWCP’s hearing representative modified the 

February 5, 2016 decision to reflect that the claim was denied based on fact of injury, rather than 

causal relationship. He explained that there was no factual basis upon which to base the claim 

for either a traumatic injury or an occupational disease.

LEGAL PRECEDENT

A claimant seeking benefits under FECA2 has the burden of proof to establish the 

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

 

2

Id.
4

evidence, including that an injury was sustained in the performance of duty as alleged, and that 

any specific condition or disability claimed is causally related to the employment injury.3

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of 

injury consists of two components that must be considered in conjunction with one another. The 

first component is whether the employee actually experienced the employment incident that 

allegedly occurred.4 The second component is whether the employment incident caused a 

personal injury.5

An alleged work incident does not have to be confirmed by eyewitnesses in order to 

establish that an employee sustained an injury in the performance of duty, but the employee’s 

statement must be consistent with the surrounding facts and circumstances and his or her 

subsequent course of action.6 A consistent history of the injury as reported on medical reports to 

the claimant’s supervisor and on the notice of injury can also be evidence of the occurrence of 

the incident.7 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 a prima facie case has been established.8 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.9 However, an 

employee has not met his or her burden when there are inconsistencies in the evidence such as to 

cast serious doubt upon the validity of the claim.10

ANALYSIS

OWCP initially found that appellant established both the factual and medical components 

of fact of injury, but it denied her claim because she failed to establish causal relationship. The 

hearing representative subsequently affirmed the denial, but instead found that appellant had 

failed to establish that the employment incident occurred as alleged. Accordingly, the hearing 

representative modified the original decision to reflect that appellant had not established the 

factual component of fact of injury. The Board finds that appellant failed to meet her burden of 

proof to establish an injury in the performance of duty on November 13, 2014, as alleged.

 

3 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4 Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

6 Rex A. Lenk, 35 ECAB 253, 255 (1983). 

7

Id. at 255-56.

8 Dorothy M. Kelsey, 32 ECAB 998 (1981). 

9

Id.

10 Joseph A. Fournier, 35 ECAB 1175 (1984). 
5

Appellant claimed to have torn her right rotator cuff on November 13, 2014 at 10:30 a.m. 

while pushing, pulling, and lifting parcels and equipment in the performance of duty. She did 

not stop work at the time, and, in fact, waited more than a year before filing her claim. The 

record indicated that appellant had been treated for a right shoulder condition more than a month 

prior to the alleged November 13, 2014 injury. 

In its January 4, 2016 claim development letter, OWCP asked that appellant provide 

witness statements and/or other documentation to support her claim, but she did not provide any 

additional documentation. Appellant merely noted that she experienced shoulder pain and 

forearm numbness “lifting, reaching, pulling, [and] pushing....” She failed to provide a detailed 

description of the alleged November 13, 2014 employment incident. Dr. Duda initially indicated 

in his January 4, 2016 attending physician’s report that appellant’s right shoulder condition was 

not employment related. And, while he later attributed appellant’s shoulder condition to 

unspecified work-related activities, he did not identify a particular date of injury, or even

mention that he had previously examined appellant on September 23 and November 13, 2014.

The Board finds that appellant has not submitted sufficient evidence to establish that she 

actually experienced the alleged November 13, 2014 employment incident at the time, place, and 

in the manner alleged. Appellant’s description of the alleged injury is vague. And while she 

reportedly received medical attention on November 13, 2014, those records have not been 

submitted in support of her claim. Lastly, Dr. Duda’s contradictory statements regarding the 

cause of appellant’s right shoulder condition further undermine her allegation that she suffered a 

right rotator cuff tear in the performance of duty on November 13, 2014. As such, the Board 

finds that appellant failed to meet her burden of proof to establish her claim.

11

 

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 failed to meet her burden of proof to establish an injury in 

the performance of duty on November 13, 2014, as alleged.

 

11 See V.F., 58 ECAB 321, 326-27 (2007).
6

ORDER

IT IS HEREBY ORDERED THAT the July 26, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 5, 2018

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