United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Portland, ME, Employer

__________________________________________

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Docket No. 22-0370

Issued: July 21, 2022

Appearances: Case Submitted on the Record

Brice Simon, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 14, 2022appellant, through counsel,filed a timely appeal from a December 15, 

2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that,followingthe December 15, 2021 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 his burden of proof to establish a traumatic injury 

in the performance of duty on October 6, 2021, as alleged. 

FACTUAL HISTORY

On October 19, 2021 appellant, then a 56-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 6, 2021 he developed a hernia when he lifted a 

package from the loading dock into a delivery vehicle while in the performance of duty. His

supervisor indicated that he was unsure whether appellant’s injury occurred in the performance of 

duty and noted that there was not enough information. Appellant stopped work on 

October 7, 2021.

In support of his claim, appellant submitted return to work notes dated October 9, 2021 

from Emily LeVan, a nurse practitioner, and October 14, 2021 from Dr. Donald E. Dupuis, a 

Board-certified general surgeon. Ms. LeVan advised that appellant remain off from work until 

cleared by a general surgeon. Dr. Dupuis held appellant off work until November 8, 2021 pending 

a post-surgical evaluation.

In a letter dated October 25, 2021, the employing establishment controverted appellant’s 

claim. It noted that he had reported a hernia injury in June 2021, that he had not filed a claim at 

that time, and that he had worked consistently since June 2021. The employing establishment

attached an e-mail, which indicated that on October 7, 2021, the day after appellant’s alleged 

employment incident, appellant called offwork stating that he had a bad cough and was notfeeling 

well. On October 9, 2021 appellant called in and reported that he was going to seek treatment at 

an emergency room as coughing had aggravated his hernia.

In a development letter dated October 26, 2021, OWCP advised appellant that additional 

factual and medical evidence was necessary to establish his claim. It requested that he submit a 

narrative medical report from his attending physician, which included the physician’s opinion 

supported by a medical explanation as to how the reported employment incident caused or 

aggravated the claimed injury. OWCP also attached a questionnaire for appellant’s completion.

It afforded him 30 days to submit the necessary evidence.

In response, appellant submitted an emergency department report dated October 9, 2021 

from Ms. LeVan. Ms. LeVan related that appellant was seen for abdominal pain, now resolved, 

which suddenly began four days prior due to an umbilical hernia which “developed after heavy 

lifting at work.” She also noted that he had a previous incident, one month prior, but did not 

receive a medical evaluation at that time. Ms. LeVan indicated appellant’s diagnoses as reducible 

umbilical hernia and left-sided lumbago and sciatica. She held him off work until cleared by a 

general surgeon.

In a medical report dated October 14, 2021, Dr. Dupuis related that appellant was seen in 

the emergency department and diagnosed with a reducible umbilical hernia. He stated that, over 

a month ago, appellant experienced profound pain and bulging at his bellybutton while at work

but that it had become “acutely larger and uncomfortable” on October 9, 2021, thereby prompting 

his visit to the emergency department. In an operative report dated October 21, 2021, Dr. Dupuis 

related that he had performed laparoscopic ventral hernia repair on appellant.
3

By a letter dated October 28, 2021, the employing establishment controverted appellant’s 

claim. It noted that he had reported a hernia in June 2021, but had not filed a claim at that time.

In notes dated November 8 and 22, 2021, Dr. Dupuis provided appellant with a work 

excuse indicating that he was recovering from hernia surgery.

OWCP, in a letter dated December 3, 2021, again requested that appellant provide the 

information requested in the October 26, 2021 development letter. It afforded him 10 days to 

respond. No response was received. 

By decision dated December 15, 2021, OWCP denied appellant’s claim as the evidence 

did not establish that the incident occurred on October 6, 2021, as alleged. It concluded, therefore, 

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

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including that the individual is an employee of the United 

States within the meaning FECA, that the claim was timely filed within the applicable time 

limitation period 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 whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether a fact of injury has been established. 

There are two components involved in establishing fact of injury. The first component is that 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. The second component is 

whether the employment incident caused a personal injury and can be established only by medical 

evidence.8

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 

4

Id.

5 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); Joe D. 

Cameron, 41 ECAB 153 (1989).

6 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

7 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

8 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).
4

action.9 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.10 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

The Board finds that appellant has met his burden of proof to establish that a traumatic 

incident occurred in the performance of duty on October 6, 2021, as alleged.

Appellant has maintained that he experienced pain on October 6, 2021 as result of lifting a 

package from the loading dock into a delivery vehicle while in the performance of duty. He 

indicated that he suffered a hernia. The medical evidence contemporaneous with the alleged 

employment incident establishes that appellant was treated in an emergency department on 

October 9, 2021, a few days later, for sciatica and a reducible umbilical hernia. The history of 

injury provided by Ms. LeVan that day was that appellant developed these conditions “after heavy 

lifting at work.” Appellant returned to the emergency department on October 14, 2021, where

Dr. Dupius reported that appellant remained uncomfortable due to the hernia.

Although the employing establishment controverted the claim indicating that appellant had 

complained of a hernia one month prior to October 6, 2021, it has not provided any strong or 

persuasive evidence to refute the occurrence of the October 6, 2021 lifting incident at the time and 

place and in the manner alleged by appellant. Since there are no inconsistencies in the evidence 

that cast serious doubt upon the validity of the claim, the Board finds that appellant has established 

a traumatic incident in the performance of duty on October 6, 2021, as alleged.

As appellant has established that the October 6, 2021 employment incident factually 

occurred as alleged, the question becomes whether the incident caused an injury. 12 Because 

OWCP found that he had not established fact of injury, it did not evaluate the medical evidence.

The case must, therefore, be remanded for consideration of the medical evidence of record.13 After 

this and other such further development as deemed necessary, OWCP shall issue a de novo decision 

addressing whether appellant has met his burden of proof to establish an injury causally related to 

the accepted October 6, 2019 employment incident.

9 M.F., Docket No. 18-1162 (issued April9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

10 Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

11 See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

12 See C.B., Docket No. 21-0670 (issued January 27, 2022); L.O., Docket No. 20-0280 (issued October 1, 2021);

M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67(2007).

13 Id.
5

CONCLUSION

The Board finds that appellant has met his burden of proof to establish that a traumatic 

incident occurred in the performance of duty on October 6, 2021, as alleged. The Board further 

finds that this case is not in posture for decision regarding whether appellant has established an 

injury causally related to the accepted October 6, 2021 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the December 15, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed in part and set aside in part; the case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: July 21, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board