United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Nokomis, FL, Employer

__________________________________________

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Docket No. 19-0367

Issued: June 26, 2019

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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 10, 2018 appellant, through counsel, filed a timely appeal from a 

September 24, 2018 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 to consider the merits of this case.

ISSUE

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

performance of duty on September 26, 2016 as alleged.

 

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

FACTUAL HISTORY

On November 16, 2017 appellant, then a 42-year-old part-time clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on September 26, 2016 at 4:53 a.m., she injured her left 

foot while in the performance of duty. She attributed her injury to “just walking in, unloading a 

truck.” Appellant identified the injury as a torn ligament in her left foot. On the reverse side of 

the claim form, the employing establishment indicated that she was not working on the date of the 

alleged injury, and contested that she was injured in the performance of duty. The employing 

establishment did not indicate whether appellant continued to work. 

On November 20, 2017 OWCP received documentation from the employing establishment

indicating that appellant had taken annual leave on the alleged date of injury. Included was a note 

from Postmaster S.D., who wrote that appellant had taken annual leave every day between 

September 24 and 30, 2016, with the exception of September 27, 2016 when appellant worked for 

21⁄2 hours between 8:11 a.m. and 10:46 a.m. S.D. indicated that the employing establishment first 

became aware of appellant’s injury when presented with a work excuse note dated December 12, 

2016 from Dr. Susan C. Jannou, a Board-certified podiatrist. She indicated that appellant was 

being treated for an acute plantar fasciitis with a partial tear. Dr. Jannou noted that appellant was 

confined to a walking boot, and advised that she be limited to sedentary work for a maximum of 

four hours per day. 

A November 16, 2017 note from Dr. Daniel J. Howard, a Board-certified podiatric 

surgeon, limited appellant to sedentary work for a maximum of four hours per day. 

In a development letter dated November 21, 2017, OWCP notified appellant of the type of 

additional factual and medical evidence needed to establish her traumatic injury claim. It attached 

a questionnaire that inquired about the alleged traumatic event itself and its immediate aftermath, 

the existence and nature of any preexisting or intervening conditions, and witnesses to the injury. 

OWCP also requested that appellant provide a narrative report from her attending physician, which 

included a diagnosis and an explanation as to how the reported work incident either caused or 

aggravated a medical condition. It afforded her 30 days to submit the requested information. No 

response was received.

By decision dated January 4, 2018, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish that the September 26, 2016 

incident occurred as alleged. As appellant had not established the factual element of her claim, 

OWCP found that she had not met the requirements for establishing an injury as defined by FECA.

On January 30, 2018 appellant, through counsel, requested a hearing before an OWCP 

hearing representative.

During the hearing held on July 19, 2018, appellant testified that on September 26, 2016

she was unloading trucks and pushing equipment when her foot started to cramp, and that while 

she was alone and there were no witnesses to her injury, she reported it promptly to the postmaster

when she arrived. She further testified that she waited over a year and seven months to file a claim 

because she believed filing a claim to be discouraged, and that it would cause a rift with the 

employing establishment. When asked whether she was actually working on the date of the injury, 

appellant testified that the date of injury she provided, September 26, 2016, was the product of an 
3

estimation by Dr. Jannou that her injury occurred about a week prior to the date of first treatment. 

When questioned about the discrepancies highlighted by the employing establishment as to the 

reporting of the injury and whether she could produce any person who either witnessed the injury 

or to whom she promptly reported the injury, she responded she would look into it. 

In October 4, 2016 treatment notes, Dr. Jannou recorded appellant’s statements that her 

foot pain worsens with activity, and that appellant had a similar problem with her right foot six 

years prior, which improved after three injections, but months later spontaneously tore her plantar 

fascia. She reported that appellant works on her feet most of the day, and that her pain started after 

a four-mile run. Dr. Jannou diagnosed bursitis of the left ankle and foot, plantar fascial 

fibromatosis, and pain in left foot. 

A series of follow-up reports from Dr. Jannou dated from October 25, 2016 to April 29, 

2017 repeat much of the patient history from the prior reports, and note the results of diagnostic 

studies taken within that period. The diagnoses include: (1) spontaneous rupture of other tendons, 

left ankle and foot; (2) plantar fascial fibromatosis; (3) other acquired deformity of the left foot, 

and (4) pain in the left foot. Dr. Jannou prescribed a walking boot with a transition to orthotic

footwear, physical therapy, and strengthening exercises. These reports also include her

recommendations regarding the limitations on appellant’s ability to work.

In the April 26, 2017 follow-up report, Dr. Jannou reported that two weeks prior, appellant

felt a sudden sharp pain/cramp at the distal medial aspect of the plantar fascia and had returned to 

wearing the walking boot. 

An April 28, 2017 MRI scan taken on appellant’s left foot revealed an abnormal 

appearance of the plantar fasciitis with further progression of high grade partial tearing with a 

macerated appearance of the central cord at the calcaneal attachment with surrounding soft tissue 

edema, and few remaining intact fibers of the central cord attachment inferiorly. 

In a July 2017 request under the Family and Medical Leave Act (FMLA), Dr. Howard 

placed the approximate date of injury as October 2016, and noted that he treated appellant on 

May 11 and June 15, 2017. He listed the diagnosis as a high grade plantar fascial tear of the left 

foot, and noted that she could not stand or walk on her left foot. Dr. Howard limited appellant to 

sedentary work until further notice. 

In a March 29, 2018 visit summary, Dr. Howard noted that appellant had left foot pain in 

her heel and Achilles, which had improved. The history of patient injury states that the condition 

is made worse by her job, hard floor, extended hours, and duties. Appellant was diagnosed with: 

plantar fasciitis, metatarsalgin of the left foot, contracture of the left ankle, and, contracture of the 

right ankle. She was prescribed physical therapy and nonsteroidal anti-inflammatory drugs. 

By decision dated September 24, 2018, the hearing representative found that the factual 

evidence of record was insufficient to establish that the alleged incident occurred as described. He

noted that appellant had not responded to OWCP’s request for a detailed explanation of the work 

incident, and despite a request at the hearing that appellant produce evidence to refute the 

discrepancies highlighted by the employing establishment, appellant failed to do so. The hearing 

representative found appellant had satisfied neither component of fact of injury. He found that the 

inconsistencies produced serious doubt as to appellant’s factual allegations concerning the 
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incident, and while medical diagnoses were provided, nothing in the record connected the 

diagnoses to the alleged incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA3has 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 of FECA,4that an injury was sustained in the performance of duty as alleged, and 

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

the employment injury.5 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

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.7 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.8 The second component is whether the employment incident caused a personal 

injury.9

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.10 

Moreover, an injury does not have to be confirmed by eyewitnesses.11 The employee’s statement, 

however, must be consistent with the surrounding facts and circumstances and her subsequent 

course of action. An employee has not met 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.12 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 

 

3

Id.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. 

Cameron, 41 ECAB 153 (1989). 

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988). 

6 R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990). 

7 E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008). 

8 L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9 B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10 R.T., Docket No. 08-0408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

11 L.A., Docket No. 17-0138 (issued April 5, 2017).

12 Id.
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medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in 

determining whether a prima facie case has been established.13

ANALYSIS

The Board finds that appellant has not established that the September 26, 2016 incident 

occurred in the performance of duty as alleged.

On her Form CA-1, appellant alleged that she injured her left foot from “just walking in 

and unloading a truck” on September 26, 2016 at 4:53 a.m. In a development letter dated 

November 21, 2017, OWCP advised her of the need for factual information. It specifically 

inquired about the circumstances of the alleged employment incident, which had only been 

vaguely described in her Form CA-1. The letter’s attached questionnaire included questions 

regarding the alleged traumatic event itself and its immediate aftermath, the existence and nature 

of any preexisting or intervening conditions, and witnesses to the injury. Appellant did not 

respond. 

During the hearing, in response to the employing establishment’s contention that appellant 

was on leave on the date of the alleged injury, she testified that the date she listed was actually a 

rough estimate provided to her by Dr. Jannou, who estimated that her plantar fascia had been torn 

for approximately one week. Moreover, even though appellant claimed that she promptly reported 

the incident on the date of its occurrence, S.D., appellant’s postmaster who signed the Form CA1, stated that the employing establishment was first made aware of the condition in midDecember 2016. While appellant stated that she would look into producing witnesses who either 

observed the incident or to whom she reported the incident, she produced none.

As noted, the employee’s statement must be consistent with the surrounding facts and 

circumstances and her subsequent course of action. An employee has not met 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.14

The medical evidence of record also offers no support to the occurrence of the incident as 

alleged. In successive reports beginning on October 4, 2016, Dr. Jannou reported that appellant

worked on her feet and that the pain started after a four-mile run. She offered no opinion as to the 

cause of appellant’s injury, and noted only a temporal relationship between her condition and a 

four-mile run, presumptively unrelated to her employment. Neither Dr. Jannou nor Dr. Howard 

mentioned a workplace incident.

The fact that appellant did not work on the sworn-to date of the alleged injury is a serious 

contradiction of her factual account of the workplace incident. Appellant testified that the date of 

injury was September 26, 2016. When the employing establishment contended that she was on 

annual leave on that date, appellant responded only that the date was a rough estimation from

 

13 L.D., Docket No. 16-0199 (issued March 8, 2016); Betty J. Smith, 54 ECAB 174 (2002).

14 L.A., supra note 9.
6

Dr. Jannou. Second, her hearing testimony that she reported the incident on the date of injury to 

S.D. is contradicted by S.D.’s notations on the Form CA-1 and in S.D.’s letter to OWCP.

As such, the Board finds appellant has not met her burden of proof to establish the factual 

component of fact of injury. Therefore the Board need not address the medical component of fact 

of injury.15

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 September 26, 2016 as alleged.

ORDER

IT IS HEREBY ORDERED THAT the September 24, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 26, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

15 Id.