United States Department of Labor

Employees’ Compensation Appeals Board

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C.Y., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Albuquerque, NM, Employer

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Docket No. 21-1009

Issued: May 1, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 23, 2021 appellant filed a timely appeal from a June 1, 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.

2

ISSUE

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

in the performance of duty on April 15, 2021, as alleged.

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the June 1, 2021 decision, OWCP received additional evidence. 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

FACTUAL HISTORY

On April 16, 2021 appellant, then a 37-year-old mail handler,filed a traumatic injury claim 

(Form CA-1) alleging that on April 15, 2021 he sustained bruising and contusionsto his ribs and 

left elbow when he fell from a dock while in the performance of duty. On the reverse side of the 

claim form, the employing establishment asserted that he had been injured due to his own willful 

misconduct, because he unlocked a trailer, did not utilize a dock ramp, and stepped over a gap onto 

the truck, which it described as a willful safety violation. Appellant stopped work on the date of 

injury. 

In a statement dated April 15, 2021, M.D., appellant’s coworker, recounted that he had just 

finished loading a truck that day with appellant, and was unsure why appellant opened the truck to 

unload it again. He also related that he did not witness the accident. 

In an email to the employing establishment dated April 16, 2021, appellant asserted that on 

April 15, 2021 he was standing on a dock leveler and opened the door of a truck to get it ready to 

unload. He related that the truck then sounded its horn and pulled forward, which caused him to 

fall from the dock. Appellant noted that he landed on his abdomen and ribs and an ambulance was 

called. 

In an undated statement, M.C., an employing establishment supervisor, noted that on 

April 15, 2021 an expeditor advised her of the claimed employment incident when it occurred. 

She then spoke to appellant, who advised her that he opened the trailer door to get an early start 

unloading the truck, and then realized that the truck “had all 871,” so he attempted to exit the 

trailer. Appellantfurther related that the truck started moving as he stepped out, which caused him 

to fall, striking the dock plate with his abdominal area. 

In an investigative interview form dated April 16, 2021, D.I., an employing establishment 

employee and the driver of the truck in question, indicated that, while he was strapping down the 

load, appellant was at the bay door. After the incident, he noticed that the trailer door was opened 

and the straps were loosened. 

OWCP also received a position description of appellant’s duties as a mail handler, which 

included operating a jitney, forklift, or pallet truck for the movement of mail and other mail handler 

functions as required. 

In a development letter dated April 26, 2021, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence required and attached a 

questionnaire for his completion. In the same letter, OWCP requested that the employing 

establishment provide detailed evidence of willful misconduct. It afforded both parties 30 days to 

respond.

OWCP thereafter received emergency room records dated April 15, 2021 by Dr. Anneliese 

Keller, a Board-certified emergency medicine specialist, who noted that appellant related 

complaints of severe pain in his left mid-abdomen, ribs, and chest which he attributed to slipping 

and falling approximately five feet from a loading dock onto a steel beam, landing on his abdomen 

and left arm. Dr. Keller performed a physical examination and documented tenderness to 

palpation in the ribs, abdomen and left arm and abrasions of the mid-abdomen, and left elbow. 
3

She recommended that appellant undergo computerized tomography scans of the chest, abdomen, 

and pelvis, an abdominal ultrasound, and x-rays of the ribs, chest and left elbow. These studies

were negative for any acute injury. In an after-visitsummary of even date, Dr. Keller diagnosed 

contusions of multiple sites and an unspecified fall. 

In a letter dated April 16, 2021, Dr. Keller released appellant to return to work as of

April 19, 2021. 

A report of x-rays of the bilateral ribs dated April 19, 2021,revealed posterior nondisplaced 

lateral left sixth and seventh rib fractures. 

In a letter and separate visit summary dated April 19, 2021, Dr. Anna Kristina Vestling, a 

Board-certified emergency medicine specialist, indicated that appellant was seen in her office on 

that date and could return to work on April 23, 2021. She noted a diagnosis of multiple rib 

fractures due to a fall. 

In a letter dated April 27, 2021, Dr. Richard J. Roche, a Board-certified internist, noted that 

appellant was seen in his office on that date and recommended that appellant remain out of work 

for four weeks due to his injury. 

In a May 26, 2021 response to OWCP’s development letter, the employing establishment 

asserted that appellant’s willful misconduct consisted of ignoring established procedures and 

safety rules by opening a vehicle that had been cleared to pull away from the dock and stepping

over the open gap between the dock and the trailer to access the mail in the truck. It noted that all 

established safety rules and regulations are put in place to prevent injuries, and that employees 

should know that willfully violating these rules and procedures would likely lead to injury. 

By decision dated June 1, 2021, OWCP found that appellant had established that the 

April 15, 2021 incident occurred, as alleged, and that a medical condition had been diagnosed in 

connection with the accepted employment incident. However, it denied his claim, finding that he 

was not in the performance of duty at the time of the incident, because the evidence indicated 

willful misconduct by him for ignoring established procedures and safety rules. Thus, OWCP

found that the incident did not arise in the course of employment and within the scope of 

compensable work factors 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 of FECA, that the claim was timely filed within the applicable time 

limitation 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 

3

Supra note 1.

4 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989). 
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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

The Board has interpreted the phrase “sustained while in the performance of duty” to be 

the equivalent of the coverage formula commonly found in workers’ compensation laws, namely, 

arising out of and in the course of employment.7 The phrase “in the course of employment” relates 

to the elements of time, place, and work activity.8 To arise in the course of employment, an injury 

must occur at a time when the employee may reasonably be stated to be engaged in his or her 

master’s business, at a place when he or she may reasonably be expected to be in connection with 

his or her employment, and while he or she was reasonably fulfilling the duties of employment, or 

engaged in doing something incidental thereto.9

Section 8102(a)(1) of FECA provides:

“The United States shall pay compensation as specified by this subchapter for the 

disability or death of an employee resulting from personal injury sustained while in 

the performance of his duty, unless the injury or death is --

(1) caused by willful misconduct of the employee.”

10

The Board has defined willful misconduct as deliberate conduct involving premeditation, 

obstinacy, or intentional wrongdoing with the knowledge that it is likely to result in serious injury 

or conduct that is in wanton or reckless disregard of probable injurious consequences.11 The 

allegation of willful misconduct is an affirmative defense which OWCP must invoke in the original 

adjudication of the claim,

12 and OWCP has the burden to prove such a defense.

With respect to the affirmative defense of willful misconduct, OWCP’s procedures 

provide:

“The question of willful misconduct arises where at the time of the injury the 

employee was violating a safety rule, disobeying other orders of the employer, or 

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 This construction makes the statute effective in those situations generally recognized as properly within the scope 

of workers’ compensation law. D.T., Docket No. 19-1486 (issued January 17, 2020); BernardD. Blum, 1 ECAB 

1 (1947).

8 R.E., Docket No. 18-0515 (issued February 18, 2020); J.G., Docket No. 17-0747 (issued May 14, 2018).

9 M.T., Docket No. 19-1546 (issued March 5, 2020); see J.B., Docket No. 17-0378 (issued December 22, 2017).

10 5 U.S.C. § 8102(a)(1).

11 I.A., Docket No. 15-1913 (issued July 20, 2016); W.S., Docket No. 15-1271 (issued October 5, 2015).

12 See M.D., Docket No.19-0841 (issued December 2, 2020); S.M., Docket No. 18-1574 (issued March 27, 2019); 

see also Bruce Wright, 43 ECAB 284, 295 (1991).
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violating a law. Safety rules have been promulgated for the protection of the worker 

-- not the employer -- and, for this reason, simple negligent disregard of such rules 

is not enough to deprive a worker or the worker’s dependents of any compensation 

rights. All employees are subject to the orders and directives of their employers in 

respect to what they may do, how they may do certain things, the place or places 

where they may work or go, or when they may or shall do certain things. 

Disobedience of such orders may destroy the right to compensation only if the 

disobedience is deliberate and intentional as distinguished from careless and 

heedless.”

13

ANALYSIS

The Board finds that appellant has met his burden of proof to establish a traumatic incident 

in the performance of duty on April 15, 2021, as alleged.

OWCP accepted, and the evidence supports, that appellant sustained multiple left rib 

fractures as a result of an April 15, 2021 fall while on the premises of the employing establishment. 

The employing establishment controverted the claim alleging an affirmative defense of 

willful misconduct.14 It asserted that appellant violated established safety rules and procedures 

when he attempted to unlocked and access a cleared vehicle located on a loading dock. When 

claiming an affirmative defense in denying a claim, the defense must be invoked in the original 

adjudication of the claim, and the employing establishment has the burden to pro ve such a 

defense.15 The evidence required to establish this defense must be reliable, probative, and 

substantial.16 

The Board finds that the evidence submitted fails to establish that appellant’s actions rose 

to the level of willful misconduct. At the time of the incident, appellantwas performing his regular 

duties as a mail handler. His coworker, M.D., noted that he was unsure as to why appellant had 

opened the truck to unload it again. However, appellant’s supervisor, M.C., indicated that he

explained that appellant mistakenly opened the truck to load it and once appellant realized the 

mistake, he tried to disembark the truck and it pulled away, causing him to fall. Thus, appellant’s

statement and the various witness statements suggest he mistakenly reopened a truck, which had 

already been cleared to depart. This simple negligent disregard of a safety rule is not enough to 

deprive him of compensation rights. As noted above, all employees are subject to the orders and 

directives of their employers, and disobedience of such orders may destroy the right to 

compensation only if the disobedience is deliberate and intentional as distinguished from careless 

and heedless.17 The evidence does not establish that appellant had an intent to violate a safety rule, 

disobey other orders of the employer, or violate the law. Under the circumstances of this case, the 

13 Federal (FECA) Procedure Manual, Part 2 --Claims, Performance of Duty, Chapter 2.804.14 (September 1995).

14 Supra note 12.

15 See B.P., Docket No. 17-0580 (issued March 12, 2018).

16 See A.S., Docket No. 10-0514 (issued April 12, 2011).

17 Supra note 13.
6

Board finds that his conduct was not deliberate and intentional with regard to his actions leading 

to injury on that date. Thus, the affirmative defense of willful misconduct is denied.

The Board further finds that appellant’s injury occurred in the performance of duty as it 

occurred at a time and place where he was reasonably expected to be, and he was reasonably 

fulfilling the employment duties he had been assigned.18 The statements of record confirmed that 

the fall occurred on the employing establishment’s premises and that his duties included opening 

trucks to prepare them to be unloaded. Appellant indicated that he was standing on a dock leveler 

and opened the door of a truck to get it ready to unload, and the truck pulled away, causing him to 

fall. An employee’s statement 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. 19 The Board 

finds that the evidence does not establish that appellant’s actions constituted a departure from his 

assigned duties. 

The Board, therefore,finds that the claimed injury occurred in the performance of duty and 

thus the issue of causal relationship between the accepted employment incident and the diagnosed 

conditions must be considered by OWCP.20 Upon return of the case record OWCP shall undertake 

such further development as deemed necessary to be followed by a de novo decision on appellant’s 

entitlement to compensation. 

CONCLUSION

The Board finds that appellant has established a traumatic incident in the performance of 

duty on April 15, 2021, as alleged.

18 Supra note 12.

19 See A.C., Docket No. 18-1567 (issued April 9, 2019); Gregory J. Reser, 57 ECAB 277 (2005).

20 A.G., Docket No. 18-1560 (issued July 22, 2020).
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ORDER

IT IS HEREBY ORDERED THAT the June 1, 2021 decision of the Office of Workers’

Compensation Programs is reversed and the case is remanded to OWCP for further proceedings 

consistent with this decision of the Board.

Issued: May 1, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board