United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.T., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Sterling, VA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-0345

Issued: June 21, 2022

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, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On December 2, 2019 appellant filed a timely appeal from a July 12, 2019 merit decision 

and November 1, 2019 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).1 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 The Board notes that appellant’s Application for Review (AB-1)formnotes that he is requesting an appeal from 

a May22, 2019 decision. However, there is no such decision found in the case record. The only OWCP decisions 

within the Board’s jurisdiction are the July 12 and November 1, 2029decisions. 

 

2

5 U.S.C. § 8101 et seq.

3 Appellanttimelyrequested oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to theBoard’s Rules 

of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s 

oral argument request, he asserted that oral argument should be granted because OWCP improperly determined that 

he had abandoned his request for an oral hearing. The Board, in exercising its discretion, denies appellant’s request 

for oral argument because the arguments on appeal can adequately be addressed in a decision based on a review of 

the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve a useful 

purpose. As such, the oral argument request is denied and this decision is based on the case record as submitted to 

the Board.
2

ISSUES

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

the performance of duty on May 22, 2019, as alleged; and (2) whether OWCP properly determined 

that appellant abandoned his request for an oral hearing.

FACTUAL HISTORY

On May 25, 2019 appellant, then a 56-year-old customs and border patrol officer, filed a 

traumatic injury claim (Form CA-1) alleging that on May 22, 2019 he strained his back when he 

lifted a man, who weighed significantly more than himself, up and off a cement floor at a range 

during training while in the performance of duty. He stopped work on the date of injury and 

returned to work on May 25, 2019. No additional evidence was submitted.

In a development letter dated May 31, 2019, OWCP informed appellant that the evidence 

submitted was insufficient to establish his claim. It advised him of the type of evidence necessary 

to establish his claim and afforded him 30 days to submit the necessary evidence.

In a May 24, 2019 provider note, Dr. Jillian H. Call, Board-certified in emergency 

medicine, indicated that appellant presented with moderate low back pain which developed 

suddenly while lifting his 30-pound gun bag on that date. She provided an impression of strain of 

the lumbar region, initial encounter.

OWCP, by decision dated July 12, 2019, denied appellant’s traumatic injury claim, finding 

that the factual evidence of record was insufficient to establish that the claimed incident occurred 

as alleged. It explained that the history of injury provided by appellant was inconsistent with the 

history of injury related by Dr. Call. OWCP concluded, therefore, that the requirements had not 

been met to establish an injury as defined by FECA.

On July 25, 2019 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

Appellant submitted progress notes dated May 31 and July 19, 2019 from Dr. William C. 

Brink, a Board-certified internist. Dr. Brink noted that appellant presented for a follow-up 

examination regarding his May 24, 2019 work-related injury. He indicated that appellant was at a 

shooting range and he injured his back when he reached down to help a 450 -pound man get up 

from his knees. Appellant’s back pain then worsened 30 to 60 minutes later when he lifted his 30-

pound gun belt. Dr. Brink diagnosed work-related lumbago and provided a 20-pound lifting 

restriction.

In a September 11, 2019 notice, OWCP’s hearing representative informed appellant that 

his telephonic hearing was scheduled for October 21, 2019 at 9:00 a.m. Eastern Standard Time 

(EST). OWCP provided a toll-free number and passcode for access to the hearing. It mailed the 

notice to appellant’s last known address of record.

By decision dated November 1, 2019, an OWCP hearing representative found that 

appellant had abandoned his request for an oral hearing as he had received written notification of 

the hearing 30 days in advance, but failed to appear. It further noted that there was no indication 
3

in the record that appellant had contacted the Branch of Hearings and Review either prior to, or 

subsequent to, the scheduled hearing to explain his failure to appear.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4 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,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 fact of injury has been established. 8 Fact 

of injury consists of two components that must be considered in conjunction with one another.

First, 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.9 Second, the employee 

must submit sufficient evidence to establish that the employment incident caused a personal 

injury.10

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.11 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.12 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 

4

Supra note 2.

5

J.P., Docket No. 19-0129 (issued April26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); JoeD. 

Cameron, 41 ECAB 153 (1989).

6

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

ECAB 312 (1988).

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

DeloresC. Ellyett, 41 ECAB 992 (1990).

8 E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9 L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

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

11 L.Y., Docket No. 21-0221 (issued June30, 2021); M.W., Docket No. 20-1489 (issued March 29, 2021); M.F.,

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

12 See L.Y., id.; M.W., id.; V.J., Docket No. 19-1600 (issued March 13, 2020); E.C.,Docket No. 19-0943 (issued 

September 23, 2019).
4

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

statements in determining whether a prima facie case has been established.13 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

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish an injury in the 

performance of duty on May 22, 2019, as alleged.

In his Form CA-1 dated May 25, 2019, appellant claimed that on May 22, 2019 he 

sustained a back strain as a result of lifting a man, who weighed significantly more than himself, 

up and off a cement floor at a range during training while in the performance of duty. However, 

on May 24, 2019 he told Dr. Call, that he suddenly developed moderate low back pain at work 

while lifting his 30-pound gun bag on that date and on May 31 and July 19, 2019 he explained to

Dr. Brink that he injured his back at work on May 24, 2019 when he reached down to help a 450-

pound man get up from his knees, but that later that same day he experienced worsening back pain 

when he lifted his 30-pound gun belt.

The Board finds that appellant’s description of the incident on his Form CA-1 is 

inconsistent with the account he related to Dr. Call and Dr. Brink. Appellant has not provided a 

singular account of the mechanism of injury.15 As appellant has not provided a consistent 

description of the alleged employment incident and the mechanism by which he sustained an 

injury, the Board finds that he has not met his burden of proof.16

As appellant has not met his burden of proof to establish that the May 22, 2019 incident 

occurred in the performance of duty, as alleged, it is unnecessary to address the medical evidence 

of record regarding causal relationship.17

LEGAL PRECEDENT -- ISSUE 2

Under FECA and its implementing regulations, a claimant who has received a final adverse 

decision by OWCP is entitled to receive a hearing by writing to the address specified in the 

decision within 30 days of the date of the decision for which a hearing is sought.18 Unless 

otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a notice 

of the time and place of the hearing to the claimant and any representative at least 30 days before 

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

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

15 Id.

16 L.Y. and M.W., supra note 11; H.D.,Docket No. 15-1698 (issued May 4, 2016).

17 L.Y. and M.W., supra note 11; J.C.,Docket No. 19-0542 (issued August 14, 2019);see M.P.,Docket No. 15-0952 

(issued July 23, 2015); Alvin V. Gadd, 57 ECAB 172 (2005).

18 20 C.F.R. § 10.616(a).
5

the scheduled date.19 OWCP has the burden of proving that it properly mailed to a claimant and 

any representative of record.20

A claimant who fails to appear at a scheduled hearing may request in writing, within 10 

days after the date set for the hearing, that another hearing be scheduled. Where good cause for 

failure to appear is shown, another hearing will be scheduled and conducted by teleconference.21 

The failure of the claimant to request another hearing within 10 days, or the failure of the claimant 

to appear at the second scheduled hearingwithout good cause shown, shall constitute abandonment 

of the request for a hearing.22

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly determined that appellant abandoned his request for 

an oral hearing.

Following OWCP’s July 12, 2019 decision denying appellant’s traumatic injury claim, he 

filed a timely request for an oral hearing before a representative of OWCP’s Branch of Hearings 

and Review. In a September 11, 2019 notice, OWCP’s Branch of Hearings and Review notified 

him that it had scheduled a telephonic hearing for October 21, 2019 at 9:00 a.m. EST. OWCP 

mailed the notice to appellant’s last known address of record. The Board has held that absent 

evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business 

is presumed to have been received. This is called the mailbox rule.23 Appellant failed to call in 

for the scheduled hearing using the provided telephone number. He did not request a postponement 

or provide an explanation to OWCP for failure to appear for the hearing within 10 days of the 

scheduled hearing. As appellant failed to call in to the scheduled hearing or provide notification 

to OWCP’s Branch of Hearings and Review within 10 days of the scheduled hearing explaining 

failure to appear, the Board finds that OWCP properly determined that he abandoned his request 

for an oral hearing.24

19 Id. at § 10.617(b).

20 L.L., Docket No. 21-1194(issuedMarch 18, 2022); V.C.,Docket No. 20-0798 (issued November 16, 2020); L.T.,

Docket No. 20-1539 (issued August 2, 2021); M.R., Docket No. 18-1643 (issued March 1, 2019); T.P., Docket No. 

15-0806 (issued September 11, 2015); MichelleR. Littlejohn, 42 ECAB 463 (1991).

21 20 C.F.R. § 10.622(f).

22 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 

2.1601.6(g) (September 2020); see also L.L. and V.C. supra note 20; K.H.,Docket No. 20-1198 (issued February 8, 

2021); A.J.,Docket No. 18-0830 (issued January 10, 2019).

23 See L.L.; V.C.; and L.T.,supra note 20.

24 Id.
6

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish an injury in the 

performance of duty on May 22, 2019, as alleged. The Board further finds that OWCP properly 

determined that appellant abandoned his request for an oral hearing.

ORDER

IT IS HEREBY ORDERED THAT the July 12 and November 1, 2019 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: June 21, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board