United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.C., Appellant

and

DEPARTMENT OF COMMERCE, 

CENSUS BUREAU, Marietta, GA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 21-1361

Issued: July 21, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On September 16, 2021 appellant filed a timely appeal from a May 25, 2021 merit 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.

ISSUE

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

in the performance of duty on August 10, 2020, as alleged. 

FACTUAL HISTORY

On October 29, 2020 appellant, then a 56-year-old miscellaneous clerk, filed an 

occupational disease claim (Form CA-2) alleging that he developed heel spurs and that he first 

became aware of his condition and realized its relation to his federal employment on 

1

5 U.S.C. § 8101 et seq.
2

August 10, 2020. He indicated that he was “getting in my car injured left foot.” Appellant

indicated that he did not file his notice within 30 days of August 10, 2020 because he was seeking 

medical treatment. The employing establishment controverted the claim, noting that appellant did 

not have work hours on August 10, 2020.

OWCP received employing establishment pay records for the time period January 4, 

through October 31, 2020 which indicated that appellant had worked on August 1, 2, 3, 8, 15, and 

September 3 and 4, 2020.

By development letter dated November 2, 2020, OWCP informed appellant of the 

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

establish his claim and provided a questionnaire for his completion. OWCP afforded appellant 30 

days to submit the requested evidence. 

In an August 31, 2020 letter to appellant, Dr. Toan T. Nguyen, Board-certified in internal 

medicine, advised that a review of appellant’s x-rays revealed heel spurs and recommended that 

appellant see a podiatrist for treatment.

In an October 23, 2020 treatment note, and a letter of even date, Dr. Mohsen 

Khoshneviszadeh, a podiatrist, noted that appellant had been having left heel pain since August 10,

2020 due to plantar fasciitis. He recommended arch supports with shoe wear of choice and to 

avoid prolonged standing and walking until the condition resolved.

By decision dated December 14, 2020, OWCP denied appellant’s claim, finding that the 

medical evidence was insufficient to establish a condition causally related to the accepted work 

events.

On May 10, 2021 appellant requested reconsideration.

In November 23, 2020 progress notes, Dr. Nguyen related that appellant was a census 

worker who began work on August 1, 2020. He noted that appellant was evaluated on August 31, 

2020, and by a colleague on September 10, 2020 for persistent heel pain. Appellant’s x-rays 

revealed heel spurs. He was unable to work from August 10 through November 8, 2020.

In progress notes dated October 23, 2020, Dr. Khoshneviszadeh related that appellant had 

left heel pain which was sharp in nature, and which began abruptly approximately two months 

prior. He indicated that he had discussed the etiology and course of appellant’s plantar fasciitis 

and explained that it was an over-use injury.

Progress notes from Sheera Destin, a licensed practical nurse, dated December 17, 2020,

indicated that appellant was seen in follow up for left heel pain. She noted that appellant’s 

symptoms were chronic and recurrent. 

By decision dated May 25, 2021, OWCP modified its December 14, 2020 decision to find 

that the evidence of record was insufficient to establish that the incident occurred on August 10, 

2020 as alleged.
3

LEGAL PRECEDENT

An employee seeking benefits under FECA2 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 of FECA, that the claim was timely filed within the applicable time 

limitation of FECA, that 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.3 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.4

To determine whether an employee 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 is whether the employee actually 

experienced the employment incident that allegedly occurred at the time and place and in the 

manner alleged. The second component is whether the employment incident caused a personal 

injury.5

To establish that an injury occurred as alleged, the injury need not be confirmed by 

eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and 

circumstances and his or her subsequent course of action.6 The employee has not met his or her 

burden of proof in establishing the occurrence of an injury when there are such inconsistencies in 

the evidence as to cast serious doubt upon the validity of the claim. Such circumstances such 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 serious doubt on an employee’s statement in determining whether a prima facie

case has been established.7 An employee’s statement alleging that an injury occurred at a given 

2

Id.

3

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

ECAB 312 (1988).

4 B.H., Docket No. 20-0777 (issued October 21, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);

L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

5 M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. 

§ 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q) (traumatic injury and occupational disease defined, 

respectively).

6

S.W., Docket No. 17-0261 (issued May 24, 2017).

7 C.M.,Docket No. 20-1519 (issued March 22, 2019);S.A.,Docket No. 19-0613 (issued August 22, 2019); Betty J. 

Smith, 54 ECAB 174 (2002).
4

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

persuasive evidence.8

ANALYSIS

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

injury in the performance of duty on August 10, 2020, as alleged. 

Appellant alleged on his claim form, “getting in my car injured left foot.” He identified 

August 10, 2020 as the date he became aware of his condition and its relationship to his federal 

employment. The employing establishment controverted the claim noting that appellant did not 

have work hours on August 10, 2020. Its payroll records which OWCP received confirmed that 

he did not work on August 10, 2020. 

In progress reports dated October 23, 2020,Dr. Khoshneviszadeh related that appellant had 

plantar fasciitis and that it was an overuse injury. Appellant however failed to submit a detailed 

factual statement.

9

 In its November 2, 2020 development letter, OWCP specifically requested that 

he provide a detailed description of the alleged injury. No response was received.10

As the evidence of record is insufficient to establish a traumatic injury in the performance 

of duty on August 10, 2020, as alleged, the Board finds that appellant has not met his burden of 

proof. 

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 and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

injury in the performance of duty on August 10, 2020, as alleged. 

8 A.C., Docket No. 18-1567 (issued April 9, 2019); D.B., 58 ECAB 529 (2007); GregoryJ. Reser, 57 ECAB 

277 (2005).

9 Dennis M. Darensbourg, Docket No. 97-2167 (issued April 27, 1999).

10 See J.D., Docket No. 22-0286 (issued June 15, 2022).
5

ORDER

IT IS HEREBY ORDERED THAT the May 25, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 21, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board