United States Department of Labor

Employees’ Compensation Appeals Board

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C.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bedford Park, IL, Employer

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Docket No. 21-0200

Issued: June 16, 2021

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 November 15, 2020 appellant filed a timely appeal from an October 16, 2020 merit 

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.

ISSUE

The issue is whether appellant has met his burden of proof to establish a traumatic injury 

in the performance of duty on August 8, 2020, as alleged.

 

1 The Board notes that, following the October 16, 2020 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 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On August 24, 2020 appellant, then a 63-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on August 8, 2020 he injured his left shoulder when lifting a heavy 

parcel while in the performance of duty. On the reverse side of the claim form, appellant’s 

supervisor affirmatively indicated that appellant was injured in the performance of duty, and that 

he stopped work on August 11, 2020. 

In support of his claim, appellant submitted a report dated August 10, 2020 from Dr. Lulu 

Husain, a family medicine specialist. Dr. Husain related that on August 8, 2020 appellant lifted a 

heavy parcel and complained of left shoulder pain which he described as a throbbing pain which 

radiated to his left arm, elbow, hand, and scapula. She diagnosed left shoulder strain and noted 

that this resulted from lifting at work. 

Appellant submitted a report dated August 25, 2020 from Nicholas Wesolowski, a physical 

therapist. Mr. Wesolowski related that appellant was diagnosed with left cervical radiculopathy 

and cervicalgia following a work-related incident when lifting a box off of his mail truck. He 

noted that appellant had residual pain in his left shoulder and numbness down the left upper 

extremity to the fingers. In physical therapy notes dated August 25 and 27, 2020, Mr. Wesolowski 

detailed appellant’s physical therapy sessions. 

OWCP also received a physical therapy note dated August 28, 2020 from Kimberly 

O’Hare, a physical therapist, which detailed another physical therapy session. 

In a development letter dated September 9, 2020, OWCP advised appellant that additional 

factual and medical evidence was necessary to establish his claim. It advised him of the type of 

factual and medical evidence needed and afforded appellant 30 days to submit the necessary 

evidence. 

In response, appellant submitted physical therapy notes dated September 3 and 8, 2020 

from Mr. Wesolowski and a physical therapy note dated September 4, 2020 from Ms. O’Hare. 

By decision dated October 16, 2020, OWCP denied appellant’s claim as fact of injury had 

not been established. It noted that appellant failed to provide a detailed statement establishing that 

the incident occurred as described. 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 FECA3 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 

 

3 Supra note 2.
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limitation period 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. There 

are two components involved in establishing fact of injury. The first component to be established 

is that the employee must submit sufficient evidence to establish that he or she actually experienced 

the employment incident at the time, 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.7

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.8 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.9 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

ANALYSIS

The Board finds that appellant has met his burden of proof to establish an incident in the 

performance of duty on August 8, 2020, as alleged. 

 

4 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. 

Cameron, 41 ECAB 153 (1989).

5 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).

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

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

7 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).

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

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

10 See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).
4

OWCP denied appellant’s traumatic injury claim, finding that he had not provided a 

detailed statement establishing that the events occurred as described. 

As noted, an employee’s statement alleging that an injury occurred at a given time, place, 

and in a given manner is of great probative value and will stand unless refuted by strong or 

persuasive evidence.11 Appellant alleged that he sustained a left shoulder injury on August 8, 2020 

while lifting a heavy box at work and the employing establishment filed an affirmative response 

that he was in the performance of duty when injured. Additionally, he sought medical care on 

August 10, 2020 with Dr. Husain, who diagnosed a left shoulder strain which occurred on 

August 8, 2020 after lifting a heavy parcel at work. Mr. Wesolowski’s evaluation dated 

August 25, 2020 also indicated that appellant had a left shoulder injury from lifting at work. The 

injuries appellant claimed are consistent with the facts and circumstances he set forth, his actions,

and the evidence he submitted. The Board, thus, finds that appellant has met his burden of proof 

to establish an employment incident in the performance of duty on August 8, 2020, as alleged. 

As appellant has established that the August 8, 2020 employment incident factually 

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

will, therefore, set aside OWCP’s October 16, 2020 merit decision and remand the case for 

consideration of the medical evidence of record.13 After such further development as deemed 

necessary, OWCP shall issue a de novo decision addressing whether appellant has met his burden 

of proof to establish a medical condition causally related to the accepted employment incident. 

CONCLUSION

The Board finds that appellant has met his burden of proof to establish an incident in the 

performance of duty on August 8, 2020, as alleged. The Board further finds that the case is not in 

posture for decision regarding whether he has established an injury causally related to the accepted 

employment incident. 

 

11 See id.

12 See M.H., Docket No, 20-0576 (issued August 6, 2020); M.A., Docket No. 19-0616 (issued April 10, 

2020); C.M., Docket No. 19-0009 (issued May 24, 2019).

13 A.B., Docket No. 20-1567 (issued April 30, 2021); S.M., Docket No. 16-0875 (issued December 12, 2017).
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ORDER

IT IS HEREBY ORDERED THAT the October 16, 2020 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: June 16, 2021

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