United States Department of Labor

Employees’ Compensation Appeals Board

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E.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

San Diego, CA, Employer

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Docket No. 19-0943

Issued: September 23, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 28, 2019 appellant filed a timely appeal from a December 11, 2018 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 record provided to the Board includes evidence received after OWCP issued its December 11, 2018 decision. 

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 his burden of proof to establish right shoulder and 

neck injuries in the performance of duty on October 17, 2018, as alleged.

FACTUAL HISTORY

On October 25, 2018 appellant, then a 50-year-old Air Marine Agent, filed a traumatic 

injury claim (Form CA-1) alleging that on October 17, 2018 he sustained injuries to his right 

shoulder and neck when participating in a mat room workout during “ground robin and ground 

proficiency training” while in the performance of duty. On the reverse side of the claim form, the

employing establishment checked a box marked “yes” indicating that appellant was in the 

performance of duty when the claimed injury occurred.

In a development letter dated November 9, 2018, OWCP informed appellant that the 

available evidence of record was insufficient to establish that the claimed October 17, 2018 

employment incident occurred as alleged. It advised him of the type of factual and medical 

evidence necessary to establish his claim. OWCP attached a questionnaire for appellant’s 

completion. It afforded him 30 days to provide the necessary information.

OWCP received a November 5, 2018 urgent care note from Dr. Gerard Francis Blake, a 

Board-certified family physician. Dr. Blake noted that appellant presented with upper extremity 

weakness and reported that he injured his neck on October 17, 2018 while completing physical 

training at work. He indicated that he initially had significant bruising following the employment

incident and continued to have increasing neck pain with range of motion. Dr. Blake diagnosed a 

neck injury, neck pain, and weakness of the right upper extremity. He transferred appellant to the 

hospital emergency department for an advanced examination and the completion of a work status 

report.

In an emergency room report of even date, Dr. Douglas Ballesteros, Board-certified in 

emergency medicine, noted that appellant presented with shoulder and neck pain. He reported that 

he was injured on October 17, 2018 while grappling hand-to-hand during combat training at work. 

Dr. Ballesteros suspected a right rotator cuff injury as a result of hyperextension of the right upper 

extremity.

A magnetic resonance imaging (MRI) scan study of appellant’s cervical spine revealed a 

small disc herniation at T2-3 and no significant acute injuries.

In a November 26, 2018 statement, appellant explained that he was temporarily on duty to 

a national training center in Harper’s Ferry, West Virginia, during the alleged incident and that his 

injury occurred while participating in advanced less lethal instructor training. He contended that 

his two instructors were aware of his injury. Since the incident, appellant stated that he suffered 

from a sore neck and shoulder and it had become more difficult to perform his work duties. He 

indicated that he had not sustained any other injury between the date of the employment incident 

and date of reporting it. Appellant further noted that he did not have any similar disabilities or 

symptoms prior to the alleged employment incident.
3

In an excuse from work note dated November 27, 2018, Dr. Fatma Deif, Board-certified in 

internal medicine, noted that she saw appellant on that date. She asked that he be excused from 

work and restricted him to light-duty work with no lifting over 10 pounds beginning November 26,

2018 through at least December 7, 2018. 

By decision dated December 11, 2018, OWCP denied appellant’s claim finding that the 

evidence of record was insufficient to establish that the October 17, 2018 employment incident 

occurred as alleged. As appellant had not established the factual element of his claim, it found 

that he had not met the requirements for establishing 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 

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 

To determine whether an employee sustained a traumatic injury in the performance of duty, OWCP 

begins with an analysis of whether “fact of injury” has been established.6 Fact of injury consists 

of two components that must be considered conjunctively. First, the employee must submit 

sufficient evidence to establish that he actually experienced the employment incident that is alleged 

to have occurred.7 An employee has not met his or 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.8 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.9

 

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).

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

7 C.B., Docket No. 18-0071 (issued May 13, 2019); D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine 

Pendleton, 40 ECAB 1143 (1989).

8 D.R., Docket No. 19-0072 (issued June 24, 2019); T.M., Docket No. 17-1194 (issued February 4, 2019).

9 B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).
4

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. The employee’s statement, 

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

course of action. An employee has not met his 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. 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 

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

determining whether a prima facie case has been established.11

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish right shoulder 

and neck injuries in the performance of duty on October 17, 2018, as alleged.

Appellant has not established the factual component of his claim as he has not sufficiently

explained how and when the claimed injury occurred. In his CA-1 form, he alleged that he 

sustained an injury to his right shoulder and neck in the performance of duty when he participated 

in a mat room workout during “ground robin and ground proficiency” training. Appellant provided

no detailed account of the alleged injury or corroborating evidence, such as witness statements. 

He presented no evidence regarding the specific mechanism of injury, as required in a claim for 

traumatic injury, nor did he allege that he experienced a specific event, incident, or exposure at a 

definite time, place, and manner.12 Appellant did not advise whether his injury was caused by a 

fall, lifting, pulling, or otherwise. He did not describe the exact and immediate consequences of 

the injury (e.g., whether his shoulder was twisted or pulled, whether his neck was overextended). 

Appellant’s vague recitation of the facts does not support his allegation that a specific incident 

occurred which caused a work-related injury.13

In a development letter dated November 9, 2018, OWCP requested that appellant describe 

the factual circumstances of his injury and provided him with a factual development questionnaire 

for completion. However, in his November 26, 2018 statement, appellant did not provide a 

detailed account of the alleged injury or explain how the injury occurred. He also indicated that 

he did not have statements from any witnesses or supervisors to corroborate the underlying facts 

of the alleged employment incident. As noted, an employee has not met his or her burden of proof 

 

10 M.S., Docket No. 18-0059 (issued June 12, 2019); D.B., 58 ECAB 464, 466-67 (2007).

11 D.R., Docket No. 19-0072 (issued June 24, 2019); T.M., supra note 8.

12 See M.C., Docket No. 18-1278 (issued March 7, 2019); see also Tracey P. Spillane, 54 ECAB 608 (2003); 

Betty J. Smith, 54 ECAB 174 (2002).

13 See M.C., id.; M.B., Docket No. 11-1785 (issued February 15, 2012).
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where circumstances such as lack of confirmation of injury cast doubt on an employee’s statement 

in determining whether a prima facie case has been established.14

In support of his claim, appellant submitted multiple medical records, including the 

November 5, 2018 medical reports from Drs. Blake and Ballesteros noting that appellant claimed 

his injury occurred on October 17, 2018 during grappling hand-to-hand combat training. The 

Board finds that these medical records are insufficiently detailed to meet his burden of proof to 

establish the factual basis of his claim.15

As appellant has not adequately 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.16

The Board notes that, because appellant has not established the first component of fact of 

injury, it is unnecessary to discuss whether he submitted medical evidence sufficient to establish 

that a medical condition existed and whether the condition was causally related to an alleged 

employment incident.

17

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 right shoulder 

and neck injuries in the performance of duty on October 17, 2018, as alleged.

 

14 Supra note 11.

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

16 Supra note 10; John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 

ECAB 200 (1974).

17 M.S., supra note 10; 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 incident occurred as alleged, it is unnecessary 

to discuss the probative value of medical evidence).
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ORDER

IT IS HEREBY ORDERED THAT the December 11, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board