United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Davenport, FL, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1366

Issued: October 26, 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 June 9, 2017 appellant filed a timely appeal from a January 3, 2017 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 this case.2

ISSUE

The issue is whether appellant has met his burden of proof to establish an injury causally 

related to a March 16, 2016 employment incident, as alleged. 

 

1

5 U.S.C. § 8101 et seq.

2 Appellant submitted new evidence on appeal. As the Board’s jurisdiction is limited to evidence that was before 

OWCP at the time of the final decision, the Board may not consider this evidence for the first time on appeal. 20 

C.F.R. § 501.2(c)(1).
2

FACTUAL HISTORY

On November 21, 2016 appellant, then a 53-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained pain in his right upper bicep. The date of the 

injury was reported on the claim form as May 16, 2016, based on “accumulation of work that 

day.” The reverse side of the claim form indicated that appellant had not stopped working.

In a November 11, 2016 letter, an employing establishment supervisor wrote that 

appellant had filed a prior claim for a right shoulder and bicep injury on November 12, 2014. 

The supervisor indicated that a June 2, 2016 recurrence of disability claim had been denied by 

OWCP, that appellant had “retried” by filing another Form CA-2a that was also denied, and was

now filing a Form CA-1. According to the supervisor, appellant had worked light duty until 

June 8, 2015, and had worked regular duty since, with no issues. As to the alleged date of injury 

of May 16, 2016, the supervisor reported that appellant was off work and used sick leave, 

without reporting any type of incident.

An employing establishment human resources specialist indicated in a November 18, 

2016 letter that appellant had claimed that the injury occurred on or about the middle of 

May 2016. The human resources specialist noted that appellant was off work on May 16, 2016.

OWCP also received an unsigned accident form report on November 21, 2016.3 The 

report related that appellant had a prior claim for injury on November 12, 2014, and appellant 

had filed a notice of recurrence of disability (Form CA-2a) with respect to that claim. According 

to the report, OWCP had advised appellant to submit a Form CA-1 for a new injury.

As to medical evidence, appellant submitted an October 13, 2016 report from Dr. David 

Lamoreaux, a Board-certified orthopedic surgeon. Dr. Lamoreaux reported that appellant was 

last seen in September 2015, and was now reporting right bicep pain.4 He reported a date of 

injury as November 10, 2014, and wrote that the “reviewed problems” were right shoulder pain, 

shoulder bursitis, right biceps tendinitis, right rotator cuff tear, and strain of the supraspinatus 

muscle or tendon.

By letter dated November 22, 2016, OWCP advised appellant that additional factual and 

medical evidence was necessary to establish his claim. Appellant was afforded 30 days to 

submit the necessary additional evidence.

On November 28, 2016 appellant submitted a note dated November 22, 2016 from

Dr. Lamoreaux, relating that appellant was limited to 15 pounds lifting, with no repetitive 

motion. 

By decision dated January 3, 2017, OWCP denied appellant’s claim for compensation. 

The decision found that the incident or events occurred as alleged. However, OWCP denied the 

 

3 The report contains the name of a supervisor and appears to have been completed by a supervisor. 

4 The record contains a September 22, 2015 report from Dr. Lamoreaux indicating that appellant was seen for 

treatment of his right shoulder.
3

claim as the medical evidence was insufficient to establish the claim. Thus, fact of injury was 

not established.

LEGAL PRECEDENT

FECA provides for the payment of compensation for the disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.5 The phrase 

“sustained while in the performance of duty” in FECA is regarded as the equivalent of the 

commonly found requisite in workers’ compensation law of arising out of and in the course of 

employment.6 An employee seeking benefits under FECA has the burden of establishing an 

injury occurred while in the performance of duty.7 In order to determine whether an employee 

actually sustained an 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 

which must be considered in conjunction with one another. The first component to be 

established is that the employee actually experienced the employment incident which is alleged 

to have occurred. The second component is whether the employment incident caused a personal 

injury, and generally this can be established only by medical evidence.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.9 An injury does not have to be confirmed by eyewitnesses to establish that an 

employee sustained an injury in the performance of duty, but the employee’s statements must be 

consistent with the surrounding facts and circumstances and his subsequent course of action.10

A claimant must provide detailed factual information regarding the alleged employment 

incident or incidents.11 It must be clear what specific incidents appellant is alleging, when they 

occurred, and other relevant details of the circumstances surrounding the claimed injury.12 The 

Board has also held that a claimant cannot establish fact of injury if there are inconsistencies in 

the evidence that cast serious doubt as to whether the specific event or incident occurred at the 

time, place, and in the manner alleged.13 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 

 

5

5 U.S.C. § 8102(a). 

6 Valerie C. Boward, 50 ECAB 126 (1998). 

7 Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

8

See John J. Carlone, 41 ECAB 354, 357 (1989).

9 William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979). 

10 Charles B. Ward, 38 ECAB 667, 67-71 (1987). 

11 J.N., Docket No. 17-0032 (issued April 21, 2017).

12 D.F., Docket No. 15-1745 (issued February 11, 2016).

13 Gene A. McCracken, 46 ECAB 593 (1995); Mary Joan Coppolino, 43 ECAB 988 (1992).
4

doubt on an employee’s statements in determining whether a prima facie case has been 

established.14

ANALYSIS

Appellant filed a traumatic injury claim alleging a right biceps injury on May 16, 2016. 

As noted above, he must establish that an incident occurred as alleged, and submit medical 

evidence establishing an injury causally related to the employment incident.

Although OWCP found that the incident occurred as alleged, the Board finds that 

appellant has not met his burden of proof to establish an employment incident as alleged. 

Appellant did not provide a clear statement as to what specific activity contributed to a 

right biceps injury. He did not describe any specific incident occurring on May 16, 2016, or any 

work activity he performed on that day. A traumatic injury is defined 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.

15

 Appellant failed to establish when any alleged incident occurred. The claim form reports 

an injury date of May 16, 2016, but the employing establishment indicated that appellant was not 

at work on that date. To establish the factual component of his claim, appellant must provide a 

detailed description of any alleged work activity, when it occurred, and other relevant details.

16

 

OWCP advised appellant on November 22, 2016 that further factual evidence was necessary to 

establish his claim, but appellant did not submit the evidence necessary to establish his claim. 

The Board accordingly finds that appellant has not met his burden of proof to establish 

his claim for compensation. Appellant did not establish that an employment incident occurred 

on May 16, 2016. As he has not established an incident occurred as alleged, the Board will not 

address the medical evidence.17 

On appeal appellant refers to a mistake in case numbers and his doctor’s opinion on 

causal relationship. The record indicated that he had a prior claim, but the decision on appeal 

adjudicated the traumatic injury claim filed on November 21, 2016 for an injury alleged to have 

occurred on May 16, 2016. For the reasons discussed above, appellant did not meet his burden 

of proof to establish the claim. 

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.

 

14 Robert A. Gregory, 40 ECAB 478, 483 (1989). 

15 20 C.F.R. § 10.5(ee).

16 See D.F., supra note 12.

17 See M.P., Docket No. 15-0952 (issued July 23, 2015); Alvin V. Gadd, 57 ECAB 172 (2005).
5

CONCLUSION

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

the performance of duty on March 16, 2016, as alleged.

ORDER

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

Compensation Programs dated January 3, 2017 is affirmed as modified.

Issued: October 26, 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