United States Department of Labor

Employees’ Compensation Appeals Board

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J.D., Appellant

and

U.S. POSTAL SERVICE, ORINDA POST 

OFFICE, West Sacramento, CA, Employer

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Docket No. 22-0479

Issued: March 1, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 7, 2022 appellant filed a timely appeal from a January 5, 2022 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 her burden of proof to establish an injury in the 

performance of duty. 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 5, 2022 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

FACTUAL HISTORY

On October 27, 2021 appellant, then a 46-year-old postal distributor, filed an occupational 

disease claim (Form CA-2) alleging that she sustained neuropraxia of the right ulnar nerve causally 

related to her federal employment. She did not indicate what specific duties of her federal 

employment were alleged to have caused or aggravated this condition. Appellant indicated that 

she first became aware of her condition and its relationship to her federal employment on 

September 7, 2021.

OWCP received a work status report dated September 30, 2021 from Dr. Kanwal Kher, a 

pediatric nephrologist, which noted appellant’s complaints of neck, right shoulder, and right wrist 

pain. Dr. Kher related that appellant could return to modified work that day.

Appellant submitted physical therapy records dated from October 1 through 26, 2021.

In a work status report dated October 11, 2021, Matthew Dong, a physician assistant, 

related diagnoses of neck pain and neuropraxia of the right ulnar nerve. He noted a history of 

injury that on September 7, 2021 appellant experienced right upper extremity pain from the right 

side of her neck, into the shoulder, elbow, wrist and fingers while lifting and moving parcels into 

bins. 

On October 26, 2021 appellant was seen for a follow-up examination by Akram Esmaeili, 

a physician assistant. Mr. Esmaeili noted that appellant was a laborer and had been working 

modified duty. Appellant’s diagnosis was listed as cervicalgia, and neuropraxia of the right ulnar 

nerve. 

In a development letter dated November 5, 2021, OWCP informed appellant that the 

evidence submitted was insufficient to establish her claim. It advised her of the type of factual 

and medical evidence needed and requested that she complete a provided questionnaire in order to 

substantiate the factual elements of her claim. OWCP afforded appellant 30 days to respond and 

submit additional evidence. It did not receive a completed questionnaire from her during this time 

frame.

On reports dated December 7, 2021 Mr. Esmaeili repeated appellant’s history of injury on 

September 7, 2021. He again noted diagnoses of neuropraxia of the right ulnar nerve, and neck 

pain. 

By decision dated January 5, 2022, OWCP denied appellant’s occupational disease claim, 

finding that the evidence of record was insufficient to establish the factual basis of her claim, as 

she did not provide any description or explanation of work-related activities alleged to have caused 

or aggravated her claimed condition. 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 the fact that the individual is an employee of the 

3

Supra note 2.
3

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.4 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.

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit: (1) a factual statement identifying employment factors 

alleged to have caused or contributed to the presence or occurrence of 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 identified employment factors.5

An employee has the burden of establishing the occurrence of an injury at the time, place, 

and in the manner alleged, by a preponderance of the reliable, probative, and substantial evidence. 6 

An injury does not have to be confirmed by eyewitnesses to establish 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. 7 It is well 

established that a claimant cannot establish fact of injury if there are inconsistencies in the evidence 

that cast serious doubt as to whether the specific event or incident occurred at the time, place, and 

in the manner alleged.8 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 However, 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 not met her burden of proof to establish an injury in the 

performance of duty. 

4 C.K., Docket No. 19-1549 (issued June 30, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); Elaine 

Pendleton, 40 ECAB 1143 (1989).

5 L.D., Docket No. 19-1301 (issued January 29, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. 

Woodhams, 41 ECAB 345, 352 (1989).

6

J.R., Docket No. 18-1079 (issued January 15, 2019); William Sircovitch, 38 ECAB 756, 761 (1987); JohnG. 

Schaberg, 30 ECAB 389, 393 (1979).

7 Charles B. Ward, 38 ECAB 667, 67-71(1987).

8 Gene A. McCracken, 46 ECAB 593 (1995); Mary Joan Coppolino, 43 ECAB 988 (1992).

9

S.D., Docket No. 21-0458 (issued September 14, 2021); RobertA. Gregory, 40 ECAB 478, 483 (1989).

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

Appellant has not provided a factual statement identifying employment factors alleged to 

have caused or contributed to the presence or occurrence of the disease or condition. 11 Although 

by development letter dated November 5, 2021 OWCP advised appellant that the evidence of 

record was insufficient to establish that she was injured while performing any specific duty of her 

employment, appellant did not complete OWCP’s questionnaire and explain her alleged factors of 

employment. No specific employment factors have been identified by appellant. As such, the 

Board finds that appellant has not established the factual basis for her occupational disease claim.

As the Board finds that appellant has not established the factual basis for her occupational 

disease claim, it is unnecessary to address the medical evidence of record regarding causal 

relationship.

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 an injury in the 

performance of duty. 

11 Supra note 6.

12 See D.S., Docket No. 22-0257 (issued September 9, 2022); M.P., Docket No. 15-0952 (issued July 23, 2015); 

Alvin V. Gadd, 57 ECAB 172 (2005).
5

ORDER

IT IS HEREBY ORDERED THAT the January 5, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 1, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board