United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Pearland, TX, Employer

__________________________________________

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Docket No. 19-1971

Issued: May 20, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 26, 2019 appellant filed a timely appeal from a July 8, 2019 merit decision 

and an August 29, 2019 nonmerit 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

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish that an injury 

occurred in the performance of duty on May 31, 2019, as alleged; and (2) whether OWCP properly 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

denied appellant’s request for a review of the written record by an OWCP hearing representative 

as untimely filed under 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On June 3, 2019 appellant, then a 57-year-old customer services supervisor, filed a 

traumatic injury claim (Form CA-1) alleging that on May 31, 2019 she was injured while in the 

performance of duty. She explained that she was in the letter distribution area of the workroom 

floor when she lifted a tray of letters and sustained a right shoulder strain. On the reverse side of 

the claim form the employing establishment acknowledged that appellant was injured in the 

performance of duty on May 31, 2019, but controverted her claim, stating that its knowledge of 

the facts about the alleged injury did not agree with her statements because in 2014 she sustained 

right hand carpal tunnel syndrome for which she received physical therapy and medical treatment

twice a month.

In a June 6, 2019 development letter, OWCP informed appellant that the evidence received 

to date was insufficient to support her claim for compensation benefits. It advised her of the type 

of factual and medical evidence necessary to establish her claim and attached a questionnaire for 

her completion. OWCP afforded appellant 30 days to submit the necessary evidence.

June 3, 2019 urgent care records signed by Ana Bermea, a nurse practitioner, indicated that 

appellant complained of right shoulder pain. Ms. Bermea noted that on May 31, 2019 appellant 

was injured at work when she lifted a five-pound box of mail. A physical examination of 

appellant’s right shoulder revealed diffuse pain and pain upon abduction. Ms. Bermea diagnosed 

a right shoulder sprain and recommended that appellant take pain medication as needed and return 

to work with restrictions. A June 3, 2019 urgent care visit summary indicated that appellant 

presented with shoulder and right arm pain and noted a diagnosis of a right shoulder sprain/strain.

A June 3, 2019 duty status report (Form CA-17) signed by Ms. Bermea indicated that 

appellant was injured on May 31, 2019 by lifting a box that was over five pounds. She further 

indicated that the injury caused appellant’s right shoulder sprain diagnosis, and that appellant could 

return to work with restrictions.

On June 3, 2019 appellant received a prescription for pain medication authorized by

Dr. Wilner Jeudy, Board-certified in family practice.

June 10, 2019 urgent care records signed by Ms. Bermea indicated that appellant 

complained of right shoulder pain which increased when laying down at night. Ms. Bermea

reported that appellant sustained a work-related injury to her right shoulder and right arm on 

May 31, 2019 while lifting a five-pound box of mail. She continued to diagnose a right shoulder 

sprain and recommended physical therapy. A June 10, 2019 Form CA-17 signed by Ms. Bermea 

indicated that appellant was injured on May 31, 2019 when she lifted a box of mail and experienced 

right shoulder pain. Ms. Bermea repeated the diagnosis of a right shoulder sprain and indicated 

that appellant could resume work with the restrictions.

On June 24 and July 1, 2019 Dr. Haala Hai, an osteopath Board-certified in family 

medicine, indicated that appellant complained of right shoulder pain due to lifting a five-pound 
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box of mail at work on May 31, 2019. She reported that appellant experienced weakness in her 

arm, especially when lifting. Dr. Hai diagnosed a right shoulder sprain, recommended medication, 

and provided work restrictions.

A June 21, 2019 Form CA-17 containing an illegible signature indicated that appellant was 

injured while lifting a box over five pounds on May 31, 2019, diagnosed a right shoulder sprain, 

and provided work restrictions.

By decision dated July 8, 2019, OWCP denied appellant’s traumatic injury claim, finding 

that the evidence of record was insufficient to establish that the events occurred on May 31, 2019, 

as alleged. It concluded, therefore, that the requirements had not been met to establish an injury 

as defined by FECA.

Appellant continued to submit additional medical evidence. By an appeal request form 

dated August 7, 2019, and postmarked on August 8, 2019, she requested a review of the written 

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

By decision dated August 29, 2019, OWCP’s Branch of Hearings and Review denied 

appellant’s request for a review of the written record, finding that it was untimely filed as it was 

not postmarked within 30 days of the issuance of the July 8, 2019 decision. After exercising its 

discretion, the Branch of Hearings and Review further found that the merits of the claim could 

equally well be addressed through the reconsideration process.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3has 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,4that 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.5 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.6

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.7 First, 

 

3 Supra note 1. 

4

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).

5

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

ECAB 312 (1988).

6 R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyet, 41 ECAB 992 (1990).

7 R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2019); 

Bonnie A. Contreras, 57 ECAB 364 (2006).
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the employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident at the time and place, and in the manner alleged.8 Second, the employee 

must submit sufficient evidence, in the form of medical evidence, to establish that the employment 

incident caused a personal injury.9

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.10 The employee has not met his or her burden of proof to establish the occurrence of an 

injury when there are inconsistencies in the evidence that 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 

statements 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.11

ANALYSIS -- ISSUE 1

The Board finds that appellant has established that the May 31, 2019 incident occurred in 

the performance of duty, as alleged.

Appellant’s CA-1 claim form, filed on June 3, 2019, alleged that on May 31, 2019 she 

lifted a tray of letters at work and sustained a right shoulder strain. She sought medical treatment 

from an urgent care center on June 3 and 10, 2019, and urgent care records and a Form CA-17

from those dates signed by Ms. Bermea indicate that appellant complained of right shoulder pain 

and was injured at work when she lifted a box of mail on May 31, 2019. June 24 and July 1, 2019 

urgent care records signed by Dr. Hai noted that appellant complained of right shoulder pain due 

to lifting a box of mail at work on May 31, 2019. 

The Board finds that appellant has established that the incident involving lifting a box of 

mail and experiencing right shoulder pain while at work occurred on May 31, 2019, as alleged. 

Appellant provided consistent statements on her claim form and in her medical records which 

establish that the alleged employment incident occurred on May 31, 2019.12 She has provided a 

single account of the mechanism of injury that has not been refuted by any evidence in the record.13 

On the reverse side of appellant’s claim form the employing establishment acknowledged that 

 

8 S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9 A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008); 

D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 7.

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

11 F.H., Docket No. 18-0869 (issued January 29, 2020); D.B., supra note 8.

12 S.B., Docket No. 19-1499 (issued January 27, 2020). 

13 Id. 
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appellant was injured in performance of duty on May 31, 2019. As stated above, an employee’s 

statements 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.14 The Board 

therefore finds that appellant has established that the May 31, 2019 employment incident occurred 

in the performance of duty, as alleged.

As appellant has established that the May 31, 2019 employment incident factually 

occurred, the question becomes whether this incident caused a personal injury.15 The Board will, 

therefore, 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 a condition causally related to the 

accepted May 31, 2019 employment incident. 

CONCLUSION

The Board finds that that appellant has established that an incident occurred in the 

performance of duty on May 31, 2019, as alleged. The Board further finds, however, that the case 

is not in posture for decision as to whether appellant has established a condition causally related 

to the accepted May 31, 2019 employment incident.16

 

14 Supra note 11.

15 Supra note 12.

16 In light of the disposition for Issue 1, Issue 2 is rendered moot.
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ORDER

IT IS HEREBY ORDERED THAT the July 8, 2019 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: May 20, 2020

Washington, DC

Alec J. Koromilas, 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