United States Department of Labor

Employees’ Compensation Appeals Board

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M.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Beverly Hills, CA, Employer

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Docket No. 18-0059

Issued: June 12, 2019

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 October 10, 2017 appellant filed a timely appeal from a September 7, 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 her burden of proof to establish an injury in the 

performance of duty, as alleged.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the September 7, 2017 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

evidence for the first time on appeal. Id.
2

FACTUAL HISTORY

On July 21, 2017 appellant, then a 53-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that she experienced “nausea and sweating” at 7:00 a.m. on July 15, 2017

while in the performance of duty. On the reverse side of the form, the employing establishment 

indicated that her regular work hours were from 8:00 a.m. to 4:30 p.m., that she was not on the 

clock when she allegedly experienced vomiting and nausea which had occurred one hour before 

her shift. Appellant did not stop work. The employment establishment controverted the claim 

arguing that it was a “personal issue.”

In a July 15, 2017 narrative statement, appellant indicated that at approximately 8:00 a.m. 

she went into work and “it felt like everything was spinning.” She reported to her supervisor that 

she did not feel well, as her head and neck were in excruciating pain, she could not breathe, she 

felt weak, and her body would not stop trembling. Appellant stated that she could not stand up, 

and then her supervisor called 9-1-1 and she was taken to the hospital. 

In an emergency room report dated July 15, 2017, Dr. Anthony J. Loffredo, a Boardcertified emergency medicine physician, diagnosed vertigo. 

In a development letter dated August 1, 2017, OWCP notified appellant of the deficiencies 

of her claim and requested that she submit additional factual and medical evidence in support of 

her claim. It requested a physician’s opinion as to how her injury resulted in her condition and 

asked her to complete an attached questionnaire. Appellant did not respond.

On July 28, 2017 the employing establishment controverted appellant’s claim, contending

that her disability was not caused by a work-related injury.

By decision dated September 7, 2017, OWCP denied the claim, finding that appellant had 

not met her burden of proof to establish that the injury and/or events occurred on July 15, 2017 as 

alleged. 

LEGAL PRECEDENT

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 timely filed within the applicable 

time limitation period of FECA,3that 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.4 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.5 

 

3 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

4

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

ECAB 312 (1988).

5 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).
3

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty it must first be determined whether fact of injury has been established.6 

Generally, fact of injury consists of two components that must be considered in conjunction with 

one another. First, the employee must submit sufficient evidence to establish that he or she actually 

experienced the employment incident at the time, place, and in the manner alleged.7 Second, the 

employee must submit sufficient evidence to establish that the employment incident caused a 

personal injury.8 

An injury does not have to be confirmed by eyewitnesses in order to establish the fact 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.9 

The employee has not met her burden of proof of establishing the occurrence of an injury when 

there are such inconsistencies in the evidence as to cast serious doubt upon the validity of the 

claim. 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. 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.10

ANALYSIS

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

performance of duty. 

Appellant has not established the factual component of her claim as she failed to explain 

how and when her claimed injury occurred. In a development letter dated August 1, 2017, OWCP 

requested that she submit clarifying information describing how and when her claimed injury 

occurred. However, appellant did not complete and return the questionnaire and there is no 

consistent statement in the record describing the specific alleged employment-related incident and 

the time it occurred.11 As she has not responded to the request for factual information, the Board 

finds that the record lacks sufficient factual evidence to establish specific details of how the 

claimed injury occurred.12

The Board further finds that because appellant failed to establish the first component of 

fact of injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to 

 

6 D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7 D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

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

9 M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

10 See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

11 See D.C., Docket No. 18-0082 (issued July 12, 2018).

12 See H.B., Docket No. 18-0278 (issued June 20, 2018); John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 

ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
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establish that a medical condition existed and whether the condition was causally related to the 

employment factors as alleged.13 

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.

ORDER

IT IS HEREBY ORDERED THAT the September 7, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 12, 2019

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

 

13 See R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997) 

(as appellant failed to establish that the claimed event occurred as alleged, it is unnecessary to discuss the probative 

value of medical evidence).