United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.A., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JAMES J. PETERS VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Bronx, NY, Employer

__________________________________________

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Docket No. 19-1036

Issued: November 19, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 April 11, 2019 appellant, through counsel, filed a timely appeal from a February 22, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

 

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

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.3

ISSUE

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

performance of duty on August 30, 2017, as alleged.

FACTUAL HISTORY

On September 8, 2017 appellant, then a 52-year-old food service worker, filed a traumatic 

injury claim (Form CA-1) alleging that on August 30, 2017 at 1:30 p.m., while in the performance 

of duty, his knee buckled from leaning and standing, which aggravated his bilateral knee arthritis, 

a prior occupational back injury, and prior left shoulder and bicep injuries.

4

 He stopped work on 

August 30, 2017. On the reverse side of the claim form, the employing establishment indicated 

that appellant was in the performance of duty when he injured himself on August 30, 2017.

In a September 1, 2017 report, Dr. Sana L. Bloch, a Board-certified neurologist, noted a 

history of a 2012 lumbar injury and left wrist fracture when appellant slipped and fell on ice. He 

related appellant’s description of increased lumbar pain while at work in a light-duty status on 

August 30, 2017. Dr. Bloch diagnosed a “[w]ork-related injury,” lumbar radiculopathy, and 

bilateral chronic knee pain.

T.S., an employing establishment human resources consultant, controverted the claim in a 

September 21, 2017 statement. He indicated that appellant should have filed an occupational 

disease claim (Form CA-2) or claim for recurrence of disability (Form CA-2a) as he attributed the 

claimed conditions to employment events over more than one work shift or a prior employment 

injury.

In a report dated September 25, 2017, Dr. Russell F. Warren, a Board-certified orthopedic 

surgeon, related appellant’s account of stumbling and reaching out to grab something while at 

work on an unspecified date, which increased his shoulder symptoms.

In an October 6, 2017 letter, T.S. contended that appellant provided conflicting accounts 

of the claimed injuries. Appellant had explained to T.S. that repetitive movements at work made 

 

2 5 U.S.C. § 8101 et seq. 

3 The Board notes that, following the February 22, 2019 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 

additional evidence for the first time on appeal. Id.

4 Under File No. xxxxxx778, OWCP accepted that on January 21, 2012 appellant slipped and fell on black ice while 

in the performance of duty and sustained a closed fracture of the lower end of the left radius and ulna. Under File No. 

xxxxxx190, OWCP accepted that on April 2, 2016 appellant pulled a food truck from a food service elevator while in 

the performance of duty and sustained a left rotator cuff strain and a strain of the fascia and long head of the left 

biceps. OWCP has not administratively combined these claims with the current claim.
3

him feel unsteady, but informed Dr. Warren that he had injured himself while reaching out to grab 

something.

In an October 24, 2017 report, Dr. Bloch diagnosed lumbar radiculopathy and right knee 

pain related to an August 30, 2017 employment incident. 

In an October 25, 2017 report, Dr. Arnold B. Wilson, a Board-certified orthopedist, 

diagnosed degenerative joint disease of the bilateral knees caused by a “twisting injury” at work

on August 30, 2017.

5

In an October 28, 2017 report, Dr. Sam J. Yee, a Board-certified physiatrist, noted 

appellant’s history of a knee arthroscopy and a prior occupational left shoulder injury. He related 

appellant’s account that on August 30, 2017, he stumbled while in the “strip room” where used 

meal trays were removed from food trucks, and reached forward with both hands to grab a 

conveyor belt to break his fall. Appellant felt a pop in his left shoulder with the immediate onset 

of pain.

T.S. contended in a November 3, 2017 letter that appellant was not totally disabled from

work, as he had telephoned several times while driving a vehicle. He asserted in a letter dated 

November 7, 2017 that during a telephone conversation regarding his claim form, appellant alleged 

that his knees had given way on August 30, 2017 while at work, and did not mention reaching for 

something as he had reported to Dr. Warren.

On November 8, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) 

for disability from August 30 to November 16, 2017.

In a development letter dated November 15, 2017, OWCP explained that the evidence 

submitted was insufficient to establish that the alleged employment incident occurred as alleged. 

It also noted that no firm diagnosis of a work-related condition had been provided by a physician. 

OWCP asked appellant to complete a questionnaire and provide further details regarding the 

circumstances of the claimed August 20, 2017 employment injury. It afforded him 30 days to

submit the necessary evidence.

In response, appellant provided a November 16, 2017 magnetic resonance imaging (MRI) 

scan of the left shoulder which demonstrated a supraspinatus tendon tear with retraction and a 

glenoid labral tear. He also submitted a December 11, 2017 report from Dr. Wilson and a 

December 14, 2017 report from Dr. Warren regarding appellant’s progress.

By decision dated December 21, 2017, OWCP denied appellant’s claim finding that the 

factual component of fact of injury had not been established. It concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA. 

 

5

In a November 1, 2017 report, Dr. Wilson diagnosed post-traumatic arthritis of both knees with medial joint space 

narrowing.
4

On January 5, 2018 appellant, through counsel, requested a telephonic oral hearing before 

a representative of OWCP’s Branch of Hearings and Review.

The record indicates that appellant had returned to light-duty work by mid-June 2018.

During the hearing, held on June 12, 2018, appellant asserted that on August 30, 2017 as 

he stood at a conveyor belt, he reached for a tray on top of a food truck and he felt a sharp pain in 

his left shoulder. His back “gave out” and he leaned on a nearby garbage can for support. The 

can rolled away, and appellant’s knee buckled. Appellant then reached forward to lean on the 

conveyor belt to break his fall and hyperextended his right knee. He submitted additional evidence.

Dr. Warren provided reports dated from September 14, 2016 to May 8, 2017 regarding a 

torn left rotator cuff with arthroscopic repair on January 17, 2017. He opined in a January 8, 2018 

report that a recent MRI scan demonstrated a recurrent left rotator cuff tear.

Dr. Wilson opined in reports dated from January 15 to August 1, 2018 that the alleged 

August 30, 2017 employment incident caused direct trauma to both knees and the lumbar spine, 

exacerbating preexisting bilateral knee arthritis.

Dr. Yee reiterated in a May 5, 2018 report that on August 30, 2017 appellant had stumbled 

in the strip room at work, grabbed a conveyor belt, and felt a “pop” in his left shoulder.”

6

By decision dated August 14, 2018, OWCP’s hearing representative affirmed the 

December 21, 2017 decision, finding that fact of injury had not been established as appellant had 

provided several conflicting accounts of the August 30, 2017 incident which cast serious doubt on 

his claim.

On December 26, 2018 appellant, through counsel, requested reconsideration. He 

submitted additional medical evidence.

In October 10, 2018 reports, Dr. Wilson opined that the August 30, 2017 employment 

incident caused a torque injury to both knees, permanently aggravating and accelerating 

degenerative arthritis. In November 28, 2018 and January 17, 2019 reports, he noted that appellant 

sustained lumbar and bilateral knee injuries at work on August 30, 2017.

By decision dated February 22, 2019, OWCP denied modification, finding that the 

additional evidence submitted failed to establish the factual component of fact of injury. It 

concluded, therefore, that the requirements had not been met to establish an injury as defined by 

FECA.

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 

 

6 Appellant also submitted imaging studies, physical therapy treatment notes, February 7 and March 23, 2018 work 

restriction slips, and a March 12, 2018 endocrinology report.
5

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA,7that 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.8 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.9

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. 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.

10

 Second, the employee must 

submit sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.11

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 or her subsequent course of 

action.12 The employee has not met his or her burden of proof in 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 serious doubt on an employee’s statements 

in determining whether a 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.13

ANALYSIS

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

performance of duty on August 30, 2017, as alleged.

 

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

153 (1989).

8

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

ECAB 312 (1988).

9 See J.C., Docket No. 18-1803 (issued April 19, 2019); 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).

10 M.M., Docket No. 17-1522 (issued April 25, 2018); John J. Carlone, 41 ECAB 354 (1989).

11 M.H., Docket No. 18-1737 (issued March 13, 2019); J.N., Docket No. 18-0675 (issued December 10, 2018); 

E.H., Docket No. 16-1786 (issued January 30, 2017).

12 K.R., Docket No. 19-0477 (issued August 14, 2019); B.P., Docket No. 19-0306 (issued August 9, 2019); 

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

13 See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).
6

Appellant sought medical treatment on September 1, 2017 with Dr. Bloch, who related 

appellant’s account of increased pain while at work on August 30, 2017, but did not describe any 

mechanism of injury. In his September 8, 2017 claim form, he alleged that on August 30, 2017 at 

1:30 p.m., leaning caused his knee to buckle, aggravating prior lumbar, bilateral knee, and left 

upper extremity conditions. However, appellant informed Dr. Warren on September 25, 2017 that 

he injured himself while reaching forward to grab something. On October 25, 2017 he reported 

an alleged August 30, 2017 “twisting injury” to Dr. Wilson. Additionally, appellant advised

Dr. Yee on October 28, 2017 and May 5, 2018 that on August 30, 2017, he injured his left shoulder 

when he stumbled and reached forward with both arms to grab a conveyor belt to break his fall.

T.S. contended in a November 7, 2017 statement that appellant initially stated that his knees had 

given way on August 30, 2017, causing him to stumble. 

Appellant offered another account of the alleged August 30, 2017 employment incident 

during the June 12, 2018 hearing. He asserted that he experienced shoulder pain and his back 

“gave out” when he reached for a food tray. Appellant leaned on a garbage can for support, but 

the can rolled, causing his knees to buckle. He then reached forward to the conveyor belt for 

support, hyperextending his right knee. 

The Board has held that inconsistent responses cast serious doubt on the validity of the 

claim.14 Additionally, OWCP requested in its November 15, 2017 development letter that 

appellant submit clarifying information describing how the claimed injury occurred. However, 

appellant did not complete and return the questionnaire. By failing to respond to the questionnaire, 

appellant did not sufficiently explain the circumstances surrounding his alleged injury.15 

While Dr. Wilson noted in reports beginning October 25, 2017 that appellant sustained

August 30, 2017 lumbar and bilateral knee injuries and Dr. Yee indicated on October 28, 2017 and 

May 5, 2018 that appellant experienced an August 30, 2017 left shoulder injury, these statements 

are insufficient to establish appellant’s claim because they are not contemporaneous with the 

alleged work incident and failed to identify specific details of that event.16

Because of the factual inconsistencies of record, the Board finds that appellant has not 

established that an injury occurred in the performance of duty on August 30, 2017, as alleged. 

Allegations alone by a claimant are insufficient to establish a factual basis for a claim.17 A claimant

must substantiate such allegations with probative and reliable evidence.18 

 

14 K.R. supra note 12; see L.L., Docket No. 18-0861 (issued April 5, 2019); Mary A. Payne, Docket No. 00-1615 

(issued March 15, 2002).

15 K.R. supra note 12.

16 D.R., Docket No. 19-0072 (issued June 24, 2019).

17 K.R. supra note 12; see generally M.C., Docket No. 18-1354 (issued April 2, 2019); W.F., Docket No. 17-0640 

(issued December 7, 2018); Charles E. McAndrews, 55 ECAB 711 (2004).

18 Id.
7

On appeal counsel contends that OWCP’s February 22, 2019 decision was contrary to fact 

and law. However, for the reasons set forth above, appellant has not met his burden of proof to 

establish fact of injury.

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 his burden of proof to establish an injury in the 

performance of duty on August 30, 2017, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the February 22, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 19, 2019

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