United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

DORIS MILLER VA MEDICAL CENTER, 

Waco, TX, Employer

__________________________________________

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Docket No. 21-1296

Issued: March 23, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 28, 2021 appellant filed a timely appeal from an April 5, 2021 merit decision

and an August 24, 2021 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

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the August 24, 2021decision, appellant submitted additional evidence to OWCP. 

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

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish a traumatic 

injury in the performance of duty on January 29, 2021, as alleged; and (2) whether OWCP properly 

denied appellant’s request for an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On February 24, 2021 appellant, then a 61-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that, on January 29, 2021, she sustained injuries to her neck, 

back, hips, right arm, right elbow, right leg, and right knee while in the performance of duty. She 

reported that, as she turned right on the sidewalk toward her car, she stepped into a hole in the 

ground, causing her to lose her balance, twist her body, and fall backwards. Appellant also claimed 

that she experienced blurred vision, difficulty balancing, and intermittent headaches. On the 

reverse side of the claim form, her supervisor, indicated that appellant was not injured in the 

performance of duty because she was leaving work for the day at the time of the fall. She stopped 

work on February 1, 2021.

In a March 2, 2021 development letter, OWCP informed appellant of the deficiencies of 

her claim. It advised her as to the type of factual and medical evidence required and provided a 

questionnaire for her completion. OWCP afforded appellant 30 days to respond. No further 

evidence was received.

By decision dated April 5, 2021, OWCP denied appellant’s traumatic injury claim, finding 

that the submitted evidence did not establish that the January 29, 2021 incident occurred, as 

alleged. It noted that appellant had not completed and returned its factual questionnaire. OWCP

concluded, therefore, that the requirements had not been met to establish an injury as defined by 

FECA.

OWCP subsequently received a February 5, 2021 medical report from Dr. Gilbert 

Mayorga, a Board-certified family medicine specialist, relating that appellant was “performing her 

usual job duties” on or about January 29, 2021 and, as she was exiting the building, lost her footing, 

slipped, and fell backwards, twisting her right knee. He noted appellant’s symptoms of pain, 

discomfort, and loss of range of motion in her neck, thoracic spine, and lumbosacral spine, pain 

and discomfort of the right upper extremity, intermittent numbness and tingling in the upper and 

lower extremities, and pain, discomfort, swelling, and abrasions to her right knee. He examined 

appellant and diagnosed sprains of the cervical spine, thoracic spine, lumbosacral spine, right 

elbow, right shoulder, right wrist, and right knee, as well as lumbar radiculitis, cervical radiculitis, 

and abrasions and contusions of the right arm and right knee. Dr. Mayorga advised that appellant 

should remain off work.3

3 Appellant underwent multiple x-ray scans on February 12, 2021. The cervical spine x-ray revealed C2-3 facet 

fusion and multilevel spondylosis with C4-5 anterior osteophyte formation. The lumbar spine x-ray revealed no acute 

findings. The right knee x-ray revealed a bipartite patella with advanced degenerative change versus old healed 

fracture with advanced degenerative change in the patellofemoral articulation. The right shoulder x -ray revealed 

acromioclavicular arthropathy and probably calcific peritendinitis, but no evidence of fracture. The right elbow and 

right wrist x-rays were negative for fracture or dislocation.
3

On July 2, 2021 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

By decision dated August 24, 2021, OWCP denied appellant’s request for an oral hearing 

as untimely filed, finding that her request was not made within 30 days of the April 5, 2021 OWCP 

decision as it was postmarked on July 2, 2021. It further exercised discretion and determined that 

the issue in this case could equally well be addressed by a request for reconsideration before 

OWCP along with the submission of new evidence.

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 

4

Supra note 1.

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 M.F., Docket No. 18-1162 (issued April9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).
4

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.12 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.13

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish a traumatic 

injury in the performance of duty on January 29, 2021, as alleged.

Appellant has not established the factual component of her claim as she has insufficiently 

explained how and where the claimed injury occurred.14 In her February 24, 2021 Form CA-1, 

she indicated that on January 29, 2021 she sustained multiple injuries when she turned right on the 

sidewalk toward her car, stepped into a hole in the ground, lost her balance, twisted, and fell 

backwards. On the reverse side of the claim form her supervisor indicated that appellant was 

leaving work for the day at the time of her injury. Appellant did not submit a detailed account of 

the alleged injury or any additional corroborating factual evidence describing how and where she 

sustained an injury on January 29, 2021. The Board has held that such a vague recitation of facts 

does not support a claimant’s allegation that a specific event occurred to cause a work-related 

injury.15

OWCP, in its March 2, 2021 development letter, informed appellant of the type of factual 

and medical evidence needed to establish hertraumatic injury claim. It requested that she complete 

an attached questionnaire and provide a detailed factual description of the alleged employment 

incident. Appellant, however, did not respond.

16

Appellant has not provided a sufficient description of the alleged employment incident and 

the mechanism by which she sustained an injury; therefore, the Board finds that she has not met 

her burden of proof.17 As appellant has not met her burden of proof to establish that an incident 

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

of record regarding causal relationship.18

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

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

14 See E.C., Docket No. 19-0943 (issued September 23, 2019).

15 M.C., supra note 13; M.B., Docket No. 11-1785 (issued February 15, 2012).

16 See M.F., supra note 11.

17 H.D., Docket No. 15-1698 (issued May 4, 2016).

18 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).
5

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with 

a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance 

of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”

19

 

Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide 

that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a 

representative of the Secretary.20 A claimantis entitled to a hearing or review of the written record 

as a matter of right only if the request is filed within the requisite 30 days as determined by 

postmark or other carrier’s date marking and before the claimant has requested reconsideration. 21 

Although there is no right to a review of the written record or an oral hearing if not requested 

within the 30-day time period, OWCP may within its discretionary powers grant or deny 

appellant’s request and must exercise its discretion.

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for an oral hearing as 

untimely filed pursuant to 5 U.S.C. § 8124(b).

OWCP’s regulations provide that the request for an oral hearing must be made within 30 

days of the date of the decision for which review is sought.22 Because appellant’s hearing request 

was postmarked on July 2, 2021, it post-dated OWCP’s April 5, 2021 decision by more than 30 

days and, therefore, is untimely. Appellant was, therefore, not entitled to an oral hearing as a 

matter of right.23

OWCP, however, has the discretionary authority to grant the request and it must exercise 

such discretion.24 The Board finds that, in the August 24, 2021 decision, OWCP properly 

exercised its discretion by determining that the issue in the case could be equally well addressed 

through a request for reconsideration before OWCP, along with the submission of additional 

evidence.

The Board has held that the only limitation on OWCP’s authority is reasonableness. An 

abuse of discretion is generally shown through proof of manifest error, clearly unreasonable 

19 5 U.S.C. § 8124(b)(1).

20 20 C.F.R. §§ 10.616, 10.617.

21 Id. at § 10.616(a).

22 Supranote 19; Federal (FECA) Procedure Manual, Part 2 --Claims, Hearings and Reviews of the Written Record, 

Chapter 2.1601.4(a) (September 2020).

23 See P.C., Docket No. 19-1003 (issued December 4, 2019).

24 Id.
6

exercise of judgment, or actions taken which are contrary to both logic and probable deductions 

from established facts.25 In this case, the evidence of record does not indicate that OWCP abused 

its discretion by denying appellant’s request for an oral hearing. Accordingly, the Board finds that 

OWCP properly denied her request for an oral hearing pursuant to 5 U.S.C. § 8124(b) as untimely 

filed.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a traumatic 

injury in the performance of duty on January 29, 2021, as alleged. The Board further finds that 

OWCP properly denied her request for an oral hearing as untimely filed pursuant to 5 U.S.C. 

§ 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the April 5 and August 24, 2021 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: March 23, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

25 Id.