United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Calexico, CA, Employer

__________________________________________

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Docket No. 18-0624

Issued: February 24, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 30, 2018 appellant filed a timely appeal from a November 22, 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 a traumatic injury 

in the performance of duty on September 26, 2017, as alleged.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the November 22, 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 September 27, 2017 appellant, then a 55-year-old customs and border protection 

officer, filed a traumatic injury claim (Form CA-1) alleging that, on September 26, 2017, she 

sustained a left shoulder injury while in the performance of duty when, during defensive tactics 

training, she pulled/strained her left shoulder muscle near the rotator cuff. She did not stop work. 

On the reverse side of the claim form, appellant’s supervisor checked a box marked “Yes”

indicating that appellant had been injured while in the performance of duty as his knowledge of 

the facts about the claimed injury agreed with her statement. 

In an October 17, 2017 development letter, OWCP advised appellant of the factual and 

medical deficiencies in her claim. It informed her of the type of evidence necessary to establish 

her claim and provided a questionnaire for her completion regarding the facts and circumstances 

of the injury. OWCP afforded appellant 30 days to respond.

In response appellant submitted reports dated September 28 and October 11, 2017 from

Dr. Christopher C. Lai, a Board-certified orthopedic surgeon, who diagnosed strain of muscles and 

tendons of the rotator cuff of the left shoulder. Dr. Lai noted that appellant had complained of left 

shoulder pain since September 26, 2017 after performing training where she was “attacking and 

also being defensive” at work. He further indicated that she was doing a significant amount of 

stabbing and defending motions and following those activities she had severe pain of the left 

shoulder. The pain was anteriorly and laterally and appellant subsequently had pain with overhead 

activities and reaching behind her back. She had no numbness, tingling, or instability. Dr. Lai 

opined that her symptoms were due to the injury she sustained on September 26, 2017 while 

working as an officer. 

On September 27, 2017 the employing establishment executed an authorization for medical 

examination and/or treatment (Form CA-16) allowing treatment for left shoulder muscle strain. 

An x-ray report dated September 27, 2017 noted a normal left shoulder. 

By decision dated November 22, 2017, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the September 26, 2017 employment incident 

occurred as alleged. It noted that she had not responded to the questionnaire provided with the 

October 17, 2017 development letter. OWCP 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 

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 

 

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

153 (1989).
3

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 or she actually experienced the employment incident 

that is alleged to have occurred.7 Second, the employee must submit sufficient medical evidence 

to establish that the employment incident caused a personal injury.8

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.9 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 or her subsequent course 

of action. An employee has not met his or her 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.10

ANALYSIS

The Board finds that this case is not in posture for decision.

Appellant’s September 27, 2017 Form CA-1 alleged that she sustained a left shoulder 

injury during defensive tactics training when she pulled/strained her left shoulder muscle near the 

rotator cuff. The employing establishment noted its agreement with the claimed mechanism of 

injury. Dr. Lai’s medical reports diagnosed strain of muscles and tendons of the rotator cuff of the 

left shoulder and noted that appellant had complained of left shoulder pain since September 26, 

2017 after performing training in which she was “attacking and also being defensive” at work. He

further indicated that she was doing a significant amount of “stabbing and defending motions” and 

following that she had severe pain of the left shoulder. Appellant’s description of the employment 

 

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

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

10 D.R., Docket No. 19-0072 (issued June 24, 2019).
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incident is not contradicted by her medical reports or any other evidence of record. Moreover, she 

sought medical treatment shortly after her injury, just two days following the employment incident. 

Appellant’s account of the alleged incident is consistent with the surrounding facts and 

circumstances and her subsequent course of action does not cast doubt on the validity of the claim. 

Thus, the Board finds that given the above-referenced evidence, she has alleged with specificity 

that the incident occurred at the time, place, and in the manner alleged.11

As appellant has established that the September 26, 2017 employment incident occurred as 

alleged, the question becomes whether this incident caused a personal injury.12 Thus, the Board 

will set aside OWCP’s November 22, 2017 decision and remand the case for consideration of the 

medical evidence. Following this and other such further development as deemed necessary, 

OWCP shall issue a de novo decision addressing whether appellant has met her burden of proof to 

establish causal relationship. 

CONCLUSION

The Board finds that this case is not in posture for decision.

 

11 Id.

12 See B.S., Docket No. 19-0524 (issued August 8, 2019); Willie J. Clements, 43 ECAB 244 (1991).
5

ORDER

IT IS HEREBY ORDERED THAT the November 22, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: February 24, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board