United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

White River Junction, VT, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 21-1117

Issued: February 17, 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 July 15, 2021 appellant filed a timely appeal from a July 8, 2021 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.3

1 The Board notesthat on July 15, 2021 appellant also requested review of the written record and reconsideration.

In an August18, 2021 letter, OWCP’s Branch of Hearings and Review advised appellant that it could not proceed 

with her hearing request because it cannot have concurrent jurisdiction with the Board over an appeal. Appellant 

subsequently appealed from that correspondence and that appeal is currently pending before the Board under Docket 

No. 21-1281.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the July 8, 2021 decision, 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

ISSUE

The issue is whether appellant has met her burden of proof to establish that an injury 

occurred in the performance of duty, as alleged.

FACTUAL HISTORY

On June 7, 2021 appellant, then a 30-year-old mail processing clerk, filed an occupational 

disease claim (Form CA-2) alleging that she sustained an injury to her rotator cuff due to factors 

of her federal employment. She noted that she experienced pain and limited use of her shoulder 

and that she believed the condition was likely due to overuse. Appellant indicated that she first 

became aware of her condition on May 27, 2021, and of its relation to her federal employment on 

May 31, 2021. She stopped work on May 28, 2021 and returned to limited-duty work on 

May 31, 2021 with lifting restrictions and no repetitive work involving her right shoulder.

In a June 7, 2021 development letter, OWCP advised appellant of the factual and medical 

deficiencies of her claim. It asked her to complete a questionnaire to provide further details 

regarding the circumstances of her claimed injury and requested a narrative medical report from 

her treating physician, containing a detailed description of findings and diagnoses, explaining how 

her work activities caused, contributed to, or aggravated her medical condition. In a separate 

development letter of even date, OWCP requested that the employing establishment provide 

comments from a knowledgeable supervisor regarding the accuracy of appellant’s allegations. It 

afforded both parties 30 days to respond.

A May 28, 2021 medical form by Vanessa Smist, a physician assistant, related appellant’s 

history of lifting a tray and hurting her right shoulder. Ms. Smist diagnosed a rotator cuff injury 

and provided work restrictions. In a report of even date, she noted that appellant experienced 

occasional numbness in her right hand, limited range of motion in the shoulders and neck, pain 

with lateral lifting motions, inability to turn her head to the left, and difficulty sleeping through the 

pain. Appellant experienced shoulder pain with abduction greater than 90 degrees and with the 

empty can test. 

Tiffany A. McAvoy, a registered nurse, diagnosed acute right shoulder pain and opined 

that appellant had likely sustained an overuse injury through irritation of the supraspinatus of the 

rotator cuff. 

On June 14, 2021 OWCP received a letter from P.N., an employing establishment 

supervisor, recounting that on May 27, 2021 appellant reported visiting a doctor for her right 

shoulder. P.N. noted that appellant initially reported that her shoulder condition arose before 

May 27, 2021, however, claimed on her accident report that it arose on May 27, 2021.

In a June 22, 2021 duty status report (Form CA-17), appellant’s supervisor indicated that 

appellant injured her right shoulder as a result of “sweeping machine, reaching, [and] pushing.”

Dr. Andrew John Milbridge, an internist, diagnosed a right rotator cuff injury. He advised that 

appellant was able to work full-time modified-duty work. In an attending physician’s report (Form 

CA-20) of even date, Dr. Milbridge affirmed that the diagnosed condition was caused or 
3

aggravated by the reported employment activity, noting that reaching and grasping aggravated the 

condition.

By decision dated July 8, 2021, OWCP denied appellant’s occupational disease claim,

finding that the factors of her federal employment had not been established. It noted that she had 

not completed and returned its developmental questionnaire. OWCPconcluded, therefore, that the 

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

LEGAL PRECEDENT

An employee seeking benefits under FECA 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,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 establish that an injury was sustained in the performance of duty in an occupational 

disease claim, an employee must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence o f the 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the employee. 7

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that an injury 

occurred in the performance of duty, as alleged.

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

sufficiently describe the circumstances surrounding the employment factors, which she believed 

caused or contributed to her alleged right shoulder condition. To establish a claim for 

4

S.B., Docket No. 17-1779 (issued February7, 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);

DeloresC. Ellyett, 41 ECAB 992 (1990).

7

See A.S., Docket No. 19-1766 (issued March 26, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019). See 

also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994);Victor J. Woodhams, 41 

ECAB 345 (1989).
4

compensation in an occupational disease claim, an employee must submit a statement, which 

identifies the factors of employment believed to have caused his or her condition.8

Appellant provided no description of the specific factors of her federal employment she 

believed had caused or contributed to her right shoulder condition, indicating only that she 

experienced pain and limited use of her shoulder and that she believed the condition was due to 

overuse.9

In its June 7, 2021 development letter, OWCP informed appellant that the evidence 

submitted was insufficient to establish that she suffered from an occupational disease in the 

performance of duty, as alleged. It asked her to complete an attached questionnaire describing 

what employment factors she believed caused or contributed to her condition and requested 

medical evidence establishing that her medical condition was causally related to employment 

factors. However, appellant failed to provide a narrative statement describing the employment 

factors, which she believed contributed to her condition.10 As noted, she bears the burden of 

submitting a factual statement identifying employment factors alleged to have caused or 

contributed to the presence or occurrence of a disease or condition. 11

As appellant has not described the employment factors alleged to have caused her injury, 

the Board finds that she has not met her burden of proof to establish an occupational disease in the 

performance of duty, as alleged. As such, the medical evidence need not be addressed.12

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.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish that an injury 

occurred in the performance of duty, as alleged.

8

See S.W., Docket No. 19-1609 (issued February 12, 2020); A.M., Docket No. 19-1269 (issued December 4, 2019);

C.L., Docket No. 19-0042 (issued April17, 2019); D.M., Docket No. 18-0335 (issued June 18, 2018); S.J., Docket 

No. 17-1798 (issued February 23, 2018).

9

Id.

10 See supra note 8.

11 Id.; Victor J. Woodhams,supra note 7.

12 See S.W.,supra note 8; A.M.,supra note 8; S.J.,supranote 8;E.V., Docket No. 19-0447 (issued June 25, 2019);

see also Bonnie A. Contreras, 57 ECAB 364, 368 n.10 (2006).
5

ORDER

IT IS HEREBY ORDERED THAT the July 8, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 17, 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