United States Department of Labor

Employees’ Compensation Appeals Board

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M.L., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, San Bernardino, CA, 

Employer

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Docket No. 19-0909

Issued: September 17, 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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 26, 2019 appellant filed a timely appeal from a January 9, 2019 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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 9, 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.
2

ISSUE

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

performance of duty on November 29, 2018, as alleged.

FACTUAL HISTORY

On December 3, 2018 appellant, then a 32-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her lower back on November 29, 2018 at 2:30 a.m.

when using a pallet jack and felt a “pop” in her back while in the performance of duty. On the 

reverse side of the claim form, the employing establishment indicated that she stopped work on 

November 29, 2018, and returned on December 3, 2018. 

In a work status report dated November 29, 2018, Kim Bennett, a physician assistant,

placed appellant off work from November 29 to 30, 2018, and noted that appellant was deemed 

able to return to work at full capacity on December 1, 2018. 

In a December 3, 2018 statement, appellant’s supervisor, L.C., recounted that, on 

November 28, 2018, she informed appellant that she would need to see her in the Supervisor 

Distribution Operations office to issue appellant a seven-day suspension. At that point, appellant

informed L.C. that her back was “acting up” and that she would need to go home. In response, 

L.C. indicated that to clear anyone leaving, she would need to speak with the manager of 

distribution operations, D.J. According to L.C., appellant responded, “so this is how we are going 

to play this,” and notified L.C. that she was going to go to the doctor the following day in order to 

be excused from work. D.J. then cleared appellant to go home, and thereafter L.C. issued the 

seven-day suspension. L.C. noted that appellant clocked out and went home at 1:53 a.m. on 

November 29, 2018. 

In a December 3, 2018 statement, appellant explained that, on November 29, 2018, she was 

loading dumpers one and two, and while loading a large box onto a wooden pallet, the pallet 

became stuck. While pulling it out, “she heard her back crack and it hurt.” At 2:30 a.m., appellant

went to stretch and her back continued to hurt. She further explained that, “when I returned to 

work Monday, it got worse and by Wednesday, I couldn’t work anymore” and she asked to see a 

doctor, but was instead sent home when she told her supervisors that she was reporting the incident 

as a work injury. Appellant indicated that she reported the injury as a work injury on 

December 3, 2018. 

In a December 4, 2018 statement, the assistant manager of distribution operations, R.M., 

reiterated the content of supervisor L.C.’s statement of December 3, 2018. He added that appellant

reported back to work on December 3, 2018 at 7:50 p.m. with a work-excuse note for November 29 

through 30, 2018, and was deemed capable to return to work full duty on December 1, 2018. On 

December 3, 2018 appellant had informed her supervisor that she had an accident on 

November 29, 2018. She was brought into the Supervisor Distribution Operations office to file a 

claim and was sent to be treated. After reviewing appellant’s written statement, R.M. noted that 

her statement contradicted the events on the day of her alleged incident. He pointed out that 

appellant stated that the accident had occurred about 2:30 a.m., but she had already clocked out by 

that time. R.M. also noted that appellant claimed that she returned to work on Monday, it got 
3

worse and “by Wednesday, she couldn’t work any longer.” However, R.M. stated that the date of 

the alleged injury was November 29, 2018, a Thursday morning.3 

In a work status report dated December 4, 2018, Hector Veron, a physician assistant, 

indicated that appellant could return to work on December 4, 2018 with restrictions on any 

overhead work and a lifting limit of 10 pounds. In an accompanying duty status report (Form CA17), he diagnosed a lumbar sprain/spasm. 

In a December 6, 2018 statement, a human resources representative from the employing 

establishment indicated that on Wednesday, November 28, 2018, appellant was informed that she

was about to be issued a seven-day suspension for failure to maintain regular attendance and for 

being absent without leave. Appellant reported to work on November 28, 2018 at 7:50 p.m. and 

clocked out on November 29, 2018 at 1:53 a.m. The human resources representative noted that 

appellant informed her supervisor that she was injured at 2:30 a.m. on November 29, 2018, but 

that she had left work to go home at that time. 

On December 7, 2018 the employing establishment submitted a copy of the seven-day 

suspension order for unscheduled and unexcused absences for three consecutive days from 

October 31 through November 2, 2018. The suspension notice stated that appellant’s reason for 

her absence without leave was a work-excuse note from her doctor that kept her off work from 

October 31 to November 4, 2018, which she provided to the employing establishment after her 

absence on November 5, 2018. The employing establishment found this explanation unacceptable 

because appellant had not notified management of her inability to work. The notice was issued to 

appellant on November 29, 2018, which she dated, but refused to sign. 

In a December 13, 2018 development letter, OWCP requested that appellant submit 

additional evidence in support of her claim. It advised her of the type of factual and medical 

evidence needed and provided a questionnaire for her completion, which was required to 

substantiate the factual elements of her claim. The questionnaire inquired as to the circumstances 

of the injury, whether there had been prior similar injuries, and whether there were witnesses who 

could confirm her injury. OWCP also requested that appellant provide a narrative report from her 

attending physician, to include a diagnosis and an explanation as to how the reported work incident 

either caused or aggravated a medical condition. Finally, it attached the controversion letters and 

the suspension from the employing establishment. Appellant was afforded 30 days to submit the 

requested information. 

Subsequent to the development letter, appellant submitted a December 11, 2018 Form CA17, which included a diagnosis of a lumbar spasm and noted lifting restrictions of 10 pounds or 

less. The Form CA-17 was signed by a provider with an illegible signature. 

In a report dated December 11, 2018, Dr. Jung Jin Lee, a Board-certified internist, issued 

restrictions on appellant’s lifting and activity, and limited work to eight hours per day. 

 

3 Although R.M. stated that the clock rings for November 28 and 29, 2018 were included with his statement, this 

document is not in the record.
4

In a medical report dated December 26, 2018, Dr. Lee remarked that appellant’s job 

responsibilities included lifting, pushing, pulling, and upper extremity repetitive work. He

reported that appellant indicated that, on November 29, 2018, “she was trying to pull the pellet 

[sic] jack that got stuck due to broken pellet [sic] that reportedly weighed about 50 pounds and 

immediately noticed lower back pain.” After a physical examination, Dr. Lee diagnosed a lumbar 

sprain. 

By decision dated January 9, 2019, OWCP denied appellant’s traumatic injury claim

finding that the evidence of record was insufficient to establish that the November 29, 2018

incident occurred as alleged. It noted that she failed to respond to the questionnaire attached to 

the development letter, which included the controversion letters submitted by the employing 

establishment.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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 of FECA,5that 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.6 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.7

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.8 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.9 An employee has not met his or her burden of proof of establishing the employment 

incident when there are such inconsistencies in the evidence as to cast serious doubt upon the 

validity of the claim.10 The second component is whether the employment incident caused a 

personal injury.11 An employee may establish that an injury occurred in the performance of duty 

 

4 Supra note 2.

5

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). 

6

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

ECAB 312 (1988). 

7 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). 

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

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

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

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

as alleged, but fail to establish that the disability or specific condition for which compensation is 

being claimed is causally related to the injury.12

ANALYSIS

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

performance of duty on November 29, 2018, as alleged. 

On her Form CA-1, appellant alleged that she injured her lower back on November 29, 

2018 at 2:30 a.m., when she was using a pallet jack and felt a pop in her back. In a December 3, 

2018 statement from appellant, she recounted that, on November 29, 2018, she was loading 

dumpers one and two, and while loading a large box onto a wooden pallet, the pallet became stuck. 

When appellant was pulling it out, “she heard her back crack and it hurt.” At 2:30 a.m., she went 

to stretch and her back continued to hurt. Appellant wrote that, “when I returned to work Monday, 

it got worse and by Wednesday, I couldn’t work anymore” and she asked to see a doctor, but was 

instead sent home when she told her supervisors that she was reporting the incident as a work 

injury. 

The employing establishment, including appellant’s supervisor, submitted consistent 

statements that appellant was not at work on 2:30 a.m. on November 29, 2018, as she had clocked 

out at 1:53 a.m. on that day after receiving a suspension notice. The suspension notice indicated 

that, from October 31 to November 1, 2018, appellant was absent without leave, and although she 

proffered a work-excuse note after the fact, she had not informed her supervisors before or during 

the period of absence. When L.C. informed appellant that there would be a meeting to discuss the 

suspension, L.C., supervisor, and R.M., assistant manager of distribution operations, related that 

appellant responded, “so that’s how you want to play this?” and informed L.C. that she should 

expect that appellant’s doctor would issue another work-excuse note. 

In a development letter dated December 13, 2018, OWCP notified appellant that 

completion of the questionnaire was needed to substantiate the factual basis for her claim. 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.

13

 

Moreover, when an employing establishment makes a detailed allegation of duplicity on the part 

of a claimant with regard to the claim and supports the allegation with some documentary evidence 

contradicting the claim, the failure to object to such allegations when presented with an opportunity 

to do so casts doubt on a claimant’s statements of fact.14 Absent supporting evidence from 

appellant, as was requested in the development questionnaire, it cannot be determined that the 

incident occurred as alleged.15

 

12 J.P., Docket No. 19-0129 (issued April 26, 2019); L.T., Docket No. 18-1603 (issued February 21, 2019); 

Shirley A. Temple, 48 ECAB 404, 407 (1997).

13 M.S., Docket No. 18-0059 (issued June 12, 2019).

14 See id.

15 H.O., Docket No. 17-1176 (issued November 27, 2018).
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Without adequate evidence from appellant, the Board finds that the medical evidence offers 

insufficient support to establish the factual component of fact of injury.16 The only medical 

evidence mentioning the claimed event is Dr. Lee’s report of December 26, 2018. Dr. Lee 

reported that appellant indicated that, on November 29, 2018, “she was trying to pull the pellet 

[sic] jack that got stuck due to broken pellet [sic] that reportedly weighed about 50 pounds and 

immediately noticed lower back pain.” The Board has held that a vague recitation of the facts does 

not support an allegation that a specific event occurred and caused a work-related injury.17 A

single, non-contemporaneous medical report which merely records appellant’s own statements is 

insufficient to establish that the specific incident occurred in the time, place, and manner alleged.18 

Finally, the Board has held that an employee has not met his or her burden of proof to 

establish the occurrence of an event when inconsistencies in the evidence cast serious doubt upon 

the validity of the claim.19 Here, the evidence strongly suggests that appellant went home before 

2:30 a.m. on November 29, 2018. Evidence that the claimant was not working at the time of the 

alleged injury presents a serious contradiction of her factual account of the employment incident.20 

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 or causal relationship.

21

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 November 29, 2018 as alleged.

 

16 K.M., Docket No. 19-0367 (issued June 26, 2019).

17 M.B., Docket No. 11-1785 (issued February 15, 2012).

18 See also R.R., Docket No. 18-1562 (issued February 5, 2019) (a medical report did not warrant timely merit 

reconsideration because it did no more than “report appellant’s beliefs”).

19 K.M., Docket No. 19-0367 (issued June 26, 2019).

20 Id.

21 Id.
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ORDER

IT IS HEREBY ORDERED THAT the January 9, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 17, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board