United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

North Metro, GA, Employer

__________________________________________

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Docket No. 17-2001

Issued: March 9, 2018

Appearances: Case Submitted on the Record

Larry Walker, for the appellant1

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 September 26, 2017 appellant, through her representative, filed a timely appeal from a 

June 15, 2017 merit decision and a September 12, 2017 nonmerit 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 over the merits of 

this case.

 

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

ISSUES

The issues are: (1) whether appellant met her burden of proof to establish that she 

sustained a left shoulder and arm injury in the performance of duty on April 25, 2017, as 

alleged; and (2) whether OWCP abused its discretion in denying appellant’s request for an oral 

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

FACTUAL HISTORY

On April 26, 2017 appellant, then a 53-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on April 25, 2017 she sustained a left shoulder strain when a parcel 

fell on her left arm and shoulder. She notified her supervisor on April 26, 2017 and first received 

medical care on April 27, 2017. Appellant did not stop work. Appellant’s supervisor 

controverted the claim reporting that appellant alleged that she was injured while on the back of 

her truck when reaching for a parcel.3 

In an April 26, 2017 narrative statement, appellant reported that she was reloading her 

long life vehicle (LLV) and while she was stretched out a parcel fell on her arm and shoulder. 

An official position description for a city carrier was provided. 

An April 27, 2017 modified work activity report and patient referral for strain of left 

shoulder and arm was submitted from Dr. Olumade Adenupe, a treating physician. 

By development letter dated May 10, 2017, OWCP informed appellant that the evidence 

of record was insufficient to support her claim. Appellant was advised of the factual and medical 

evidence needed and was afforded 30 days to respond. OWCP informed her the evidence of 

record was insufficient to establish that she actually experienced the incident or employment 

factor alleged to have caused injury, there was no diagnosis of any condition, nor was there a 

physician’s opinion as to the cause of her injury. It provided a questionnaire for completion and 

requested that appellant submit a response in order to substantiate the factual basis of her claim. 

The questionnaire requested further information regarding the mechanism of injury including a 

description of how the parcel fell on her arm or shoulder and the weight and dimensions of the 

parcel. Appellant was also asked whether she had a history of injury to the left shoulder and arm 

prior to April 25, 2017; and to provide statements from any persons who witnessed her injury or 

had immediate knowledge of it. She was afforded 30 days to provide the requested information. 

Appellant did not respond to the questionnaire. 

In an April 27, 2017 medical report, Dr. Adenupe reported that a box fell on appellant’s 

left arm, noting an April 25, 2017 date of injury. He diagnosed strain of left shoulder and strain 

of left rotator cuff capsule. A June 7, 2017 modified work activity report was also submitted. 

By decision dated June 15, 2017, OWCP denied appellant’s claim finding that the 

evidence of record failed to establish that the April 25, 2017 employment incident occurred as 

 

3 The record reflects that appellant has seven prior traumatic injury claims with a date of injury ranging from 

May 8, 1998 through September 2, 2014. The record before the Board contains no other information pertaining to 

her prior claims. 
3

alleged. It noted that she failed to respond to the questionnaire that was sent with the May 10, 

2017 development letter.4

In an undated appeal request form, appellant requested an oral hearing before an OWCP 

hearing representative. The request was postmarked August 22, 2017 and received on 

August 25, 2017. 

By decision dated September 12, 2017, an OWCP hearing representative denied 

appellant’s request for an oral hearing finding that her request was not made within 30 days of 

the June 15, 2017 OWCP decision. The hearing representative further determined that the issue 

in the case could equally well be addressed by requesting reconsideration from OWCP and 

submitting evidence not previously considered which established that she sustained an injury. 

LEGAL PRECEDENT -- ISSUE 1

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

disability or specific condition for which compensation is claimed are 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 on a traumatic injury or occupational disease.6 

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.7 The second 

component is whether the employment incident caused a personal injury and generally can be 

established only by medical evidence. 

When an employee claims that he or she sustained an injury in the performance of duty 

he or she must submit sufficient evidence to establish that he or she experienced a specific event, 

incident, or exposure occurring at the time, place, and in the manner alleged. He or she must 

 

4 Following OWCP’s June 15, 2017 decision, appellant submitted a properly executed Form CA-16, authorization 

for examination, from the employing establishment dated April 27, 2017. The form contained an accompanying 

attending physician’s report dated April 27, 2017 from Dr. Adenupe. Appellant also submitted medical reports 

dated April 27 and June 7 and 28, 2017 documenting treatment for her left shoulder and arm. In a statement of 

certification dated June 17, 2017 and received on July 14, 2017, she responded to OWCP questionnaire regarding 

the circumstances surrounding the April 25, 2017 employment incident. 

5 Gary J. Watling, 52 ECAB 278 (2001).

6 Michael E. Smith, 50 ECAB 313 (1999).

7 Elaine Pendleton, 40 ECAB 1143 (1989).
4

also establish that such event, incident, or exposure caused an injury.8 Once an employee 

establishes that he or she sustained an injury in the performance of duty, he or she has the burden 

of proof to establish that any subsequent medical condition or disability for work, for which he 

or she claims compensation, is causally related to the accepted injury.9

ANALYSIS -- ISSUE 1

The Board finds that appellant has failed to meet her burden of proof to establish an

injury in the performance of duty on April 25, 2017, as alleged.

10

 

Appellant has not provided sufficient detail to establish that a traumatic incident occurred 

in the performance of duty, as alleged.11 On her Form CA-1 she stated that on April 25, 2017 

she sustained a left shoulder strain when a parcel fell on her left arm and shoulder. Appellant’s

accompanying statement noted that she was reloading her LLV and while she was stretched out a 

parcel fell on her shoulder and arm. The Board notes that her vague description of the traumatic 

incident fails to provide any detail to determine the circumstances surrounding her injury.12 The 

alleged mechanism of injury could not be determined as essential information such as the size 

and weight of the package was not provided.13 Moreover, appellant’s supervisor controverted 

the claim regarding appellant’s description of the mechanism of injury. By letter dated May 10 

2017, OWCP requested that she describe the factual circumstances of her injury and provided 

her with a questionnaire for completion. Appellant did not respond to the questionnaire prior to 

OWCP’s June 15, 2017 decision and failed to provide a detailed narrative statement describing

the traumatic incident.14 The only explanation provided pertaining to the claimed April 25, 2017 

traumatic incident was the vague statement noted in her Form CA-1. By failing to describe the 

employment incident and circumstances surrounding her alleged injury, appellant has not 

established that the traumatic injury occurred at the time, place, and in the manner alleged.15 

The Board notes that appellant submitted additional evidence following the June 15, 2017 

merit decision. The Board, however, may not consider new evidence which was not before 

OWCP at the time it issued its final decision.16 As appellant’s statements were not part of the 

 

8 See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. 

§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41 

ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.

9 Supra note 5.

10 J.L., Docket No. 16-1114 (issued October 25, 2016).

11 Dennis M. Mascarenas, 49 ECAB 215, 218 (1997); see also G.L., Docket No. 17-1635 (issued 

December 5, 2017). 

12 T.R., Docket No. 12-0012 (issued May 16, 2012).

13 See R.V., Docket No. 17-1286 (issued December 5, 2017). 

14 G.L., supra note 11; K.W., Docket No. 16-1656 (issued December 15, 2016).

15 P.T., Docket No. 14-0598 (issued August 5, 2014).

16 20 C.F.R. § 501.2(c).
5

record considered by OWCP in its June 15, 2017 decision, the Board may not consider this 

evidence for the first time on appeal. 

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.17

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides that, before review under section 8128(a) of this 

title, 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.18 Section 10.615 of the federal regulations 

implementing this section of FECA provides that a claimant shall be afforded a choice of an oral 

hearing or a review of the written record.19 OWCP regulations provide that the request must be 

sent within 30 days of the date of the decision for which a hearing is sought, as determined by 

postmark or other carrier’s date marking, and also that the claimant must not have previously 

submitted a reconsideration request (whether or not it was granted) on the same decision.20

The Board has held that OWCP, in its broad discretionary authority in the administration 

of FECA,21 has the power to hold hearings in certain circumstances where no legal provision was 

made for such hearings and that OWCP must exercise this discretionary authority in deciding 

whether to grant a hearing.22 OWCP procedures, which require OWCP to exercise its discretion 

to grant or deny a hearing when the request is untimely or made after reconsideration, are a 

proper interpretation of FECA and Board precedent.23

 

17 The record contains a Form CA-16 signed by the employing establishment official on April 27, 2017. When 

the employing establishment properly executes a Form CA-16 which authorizes medical treatment as a result of an 

employee’s claim for an employment-related injury, the CA-16 form creates a contractual obligation, which does not 

involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on 

the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of 

issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003). 

The record is silent as to whether OWCP paid for the cost of appellant’s examination or treatment for the period 

noted on the form.

18 5 U.S.C. § 8124(b)(1).

19 20 C.F.R. § 10.615.

20 Id. at § 10.616(a).

21 Supra note 2. 

22 Marilyn F. Wilson, 52 ECAB 347 (2001).

23 Teresa M. Valle, 57 ECAB 542 (2006).
6

ANALYSIS -- ISSUE 2

In the present case, appellant requested an oral hearing before an OWCP hearing 

representative. The hearing representative found that the request was postmarked on 

August 22, 2017 and, was thus made more than 30 days after the date of issuance of OWCP’s 

prior June 15, 2017 merit decision. The time limitation to request an oral hearing from OWCP’s 

Branch of Hearings and Review expired on July 15, 2017, 30 days after the June 15, 2017 

decision.24 Therefore, OWCP’s hearing representative properly found in her September 12, 2017 

decision that appellant was not entitled to an oral hearing as a matter of right because her request 

was not made within 30 days of its June 15, 2017 decision.25

OWCP’s hearing representative then properly exercised her discretion by finding that she 

had considered the matter and denied appellant’s request for a hearing because the issue could be 

equally well addressed through a reconsideration application.26 The Board has held that the only 

limitation on OWCP’s authority is reasonableness and an abuse of discretion is generally shown 

through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken 

which are contrary to both logic and probable deduction from established facts.27 In this case, 

the evidence of record does not indicate that OWCP’s hearing representative abused her 

discretion in denying appellant’s request for an oral hearing. Accordingly, the Board finds that 

OWCP properly denied her request.28

On appeal appellant argues that she did not know that OWCP had not received her 

documentation until her claim was denied and that she resent the documentation. The Board 

notes that OWCP’s June 15, 2017 denial of her claim was accompanied with appeal rights which 

provided a timeline and instructions pertaining to the different forms of appeal. The additional 

evidence cannot be reviewed by the Board for the first time on appeal which was not before 

OWCP at the time it issued its June 15, 2017 merit decision.29

CONCLUSION

The Board finds that appellant did not meet her burden of proof to establish that she 

sustained a left shoulder and arm injury in the performance of duty on April 25, 2017, as alleged. 

The Board also finds that OWCP properly denied her request for an oral hearing as untimely

filed under 5 U.S.C. § 8124.

 

24 T.T., Docket No. 15-1397 (issued December 3, 2015).

25 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 

2.1601.4(a) (October 2011).

26 M.H., Docket No. 15-0774 (issued June 19, 2015).

27 Daniel J. Perea, 42 ECAB 214, 221 (1990).

28 D.P., Docket No. 14-0308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013).

29 Supra note 16.
7

ORDER

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’

decisions dated September 12 and June 15, 2017 are affirmed.

Issued: March 9, 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