United States Department of Labor

Employees’ Compensation Appeals Board

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B.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Kansas City, KS, Employer

__________________________________________

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Docket No. 19-0524

Issued: August 8, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 1, 2019 appellant filed a timely appeal from an October 5, 2018 merit decision 

and a November 16, 2018 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 an injury in 

the performance of duty on August 8, 2018, as alleged; and (2) whether OWCP properly denied 

appellant’s request for an oral hearing before an OWCP hearing representative as untimely filed

pursuant to 5 U.S.C. § 8124(b).

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the October 5, 2018 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

FACTUAL HISTORY

On August 8, 2018 appellant, then a 54-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on that date she sustained a right knee injury while in the 

performance of duty. She described the incident as “barrier post across from towline.” Appellant 

notified her supervisor, stopped work, and sought medical treatment on the date of the incident. 

On the reverse side of the claim form appellant’s supervisor indicated that appellant was in the 

performance of duty when she reached out to catch herself by grabbing a maintenance bike and 

the bike moved as she tried to break her fall. She responded, “yes” when asked if she agreed with 

appellant’s statements surrounding the incident.

In an August 8, 2018 witness statement, E.G., appellant’s coworker, reported that on that 

same date she witnessed appellant fall. She stated that appellant tried to catch her balance and fell 

into a maintenance bike, causing her to hit the floor.

On August 8, 2018 the employing establishment executed an OWCP authorization for 

examination and/or treatment (Form CA-16) authorizing appellant to obtain treatment for her right 

knee injury at a medical facility. Hospital discharge instructions dated August 8, 2018 were 

provided for a right patella fracture.

In an August 9, 2018 medical report, Dr. Cong Zhao, Board-certified in occupational 

medicine, reported that on August 8, 2018 appellant tripped over a two-foot barrier at work and 

landed on her right knee. Appellant reported seeking emergency medical treatment on the date of 

the incident and was informed that she sustained a right kneecap fracture following an x-ray of the 

right knee. Dr. Zhao reviewed the ER x-ray and noted that it did not reveal acute bony 

abnormalities. He diagnosed right knee injury and contusion of right knee. In reports dated 

August 8, 9, and 13, 2018, Dr. Zhao provided restrictions of no driving, squatting, kneeling, 

climbing stairs, and walking on uneven terrain.

By development letter dated August 23, 2018, OWCP advised appellant that the evidence 

of record was insufficient to establish her claim. It further advised her of the factual and medical 

evidence necessary to establish her claim and provided a questionnaire for completion. OWCP 

afforded appellant 30 days to provide the necessary information.

In support of her claim, appellant submitted an August 13, 2018 medical report from

Dr. Ronda Warren, Board-certified in family medicine, who discussed the August 8, 2018 

employment incident of appellant tripping over a barrier and falling on her right knee at work. 

Dr. Warren noted that appellant’s ER records revealed a right knee patellar fracture, although a 

copy of the x-ray report was still pending. She diagnosed right knee contusion and right patellar 

fracture. An August 28, 2018 consultation report and September 14, 2018 right knee x-ray study

were also submitted.

By decision dated October 5, 2018, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the August 8, 2018 employment incident 

occurred as alleged. It noted that she had not responded to the August 23, 2018 questionnaire and,

therefore, had not substantiated the factual element of her claim. OWCP concluded, therefore, that 

the requirements had not been met to establish an injury as defined by FECA.
3

OWCP subsequently received an August 8, 2018 right knee x-ray report and work 

restrictions dated October 4, 2018.

On November 2, 2018 appellant responded to OWCP’s August 23, 2018 development 

questionnaire and described the circumstances surrounding the claimed August 8, 2018 

employment incident. She noted no prior injuries to her knees and no history of falling.

In an undated appeal request form received on November 13, 2018, appellant requested an 

oral hearing before an OWCP hearing representative.

By decision dated November 16, 2018, OWCP denied appellant’s request for an oral 

hearing before an OWCP hearing representative, finding that she was not entitled to a hearing as 

a matter of right because her request was not made within 30 days of the issuance of its October 5, 

2018 decision. It exercised its discretion and determined that the issue in the case could equally 

well be addressed by requesting reconsideration and submitting evidence not previously 

considered which established that she sustained an injury.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3 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,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 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.7 Generally, 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.8 The second component is whether the employment incident caused a personal 

injury.9

 

3

Id.

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

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

8 D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

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

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.10 

Moreover, 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, as alleged, but the employee’s 

statements must be consistent with the surrounding facts and circumstances and his or her 

subsequent course of action.11 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.12

ANALYSIS -- ISSUE 1

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

On her CA-1 claim form appellant indicated that she sustained a right knee injury on 

August 8, 2018 due to a “barrier post across from towline.” On the reverse side of the claim form 

appellant’s supervisor indicated that her injury occurred in the performance of duty. She explained 

that appellant reached out to catch herself from falling, she grabbed a maintenance bike, but the 

bike moved as she attempted to break her fall. Appellant’s supervisor also responded “yes” to the 

question of whether her knowledge of the facts about the injury was in agreement with statements 

of the employee and/or witnesses. 

E.G., a witness to the incident, provided an August 8, 2018 statement indicating that she 

witnessed appellant’s fall. She explained that appellant attempted to catch herself, but she fell into 

a maintenance bike, and hit the floor. 

The Board finds that, while appellant vaguely described her injury on the Form CA-1 in 

workplace jargon, the description of the alleged incident from appellant’s supervisor and the 

August 8, 2018 witness statement from E.G. are sufficient to establish that the August 8, 2018

employment incident occurred at the time, place, and in the manner alleged. These statements 

provided a single account of the mechanism of injury that has not been refuted by any evidence in 

the record.13 Medical evidence of record also substantiated appellant’s description of the August 8, 

2018 incident. Appellant was treated on August 8, 2018 for a right knee injury. Subsequently, on 

August 9, 2018 Dr. Zhao reported a history of injury that on August 8, 2018 appellant tripped over 

a two-foot barrier at work and landed on her right knee. Dr. Warren related the same history of 

injury in her August 13, 2018 report. As noted above, a claimant’s statement that an injury 

occurred at a given time, place, and in a given manner is of great probative value and will stand 

 

10 A.C., Docket No. 18-1567 (issued April 9, 2019); D.B., 58 ECAB 529 (2007); Gregory J. Reser, 57 ECAB 

277 (2005).

11 Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued 

March 9, 1995).

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

13 See S.W., Docket No. 17-0261 (issued May 24, 2017) (the Board found that appellant had established that the 

employment incident occurred as alleged when appellant provided consistent accounts of the claimed incident and 

there was no evidence to refute her detailed description); see also J.L., Docket No. 17-1712 (issued 

February 12, 2018).
5

unless refuted by strong or persuasive evidence.14 The Board finds, therefore, that appellant has 

established that the August 8, 2018 employment incident occurred in the performance of duty, as

alleged. 

As appellant has established that the August 8, 2018 employment incident factually 

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

therefore, set aside OWCP’s October 5, and November 16, 2018 decisions 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 a diagnosed medical condition causally related to the accepted 

employment incident and any attendant disability.16

CONCLUSION

The Board finds that this case is not in posture for decision.17

 

14 Supra note 10. 

15 See Willie J. Clements, 43 ECAB 244 (1991).

16 The Board notes that the employing establishment issued an authorization for examination and/or treatment

(Form CA-16). A completed Form CA-16 authorization may constitute a contract for payment of medical expenses 

to a medical facility or physician, when properly executed. The form creates a contractual obligation, which does not 

involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the 

claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 

608 (2003).

17 In light of the Board’s disposition in Issue 1, Issue 2 is rendered moot. 
6

ORDER

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’

decisions dated November 16 and October 5, 2018 are set aside and this case is remanded for 

further proceedings consistent with this decision.

Issued: August 8, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board