United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.E., Appellant

and

U.S. POSTAL SERVICE, ARCADIA POST 

OFFICE, Phoenix, AZ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-0110

Issued: March 8, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 1, 2021 appellant, through counsel, filed a timely appeal from a 

September 1, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

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.

ISSUE

Whether appellant has met his burden of proof to establish that an employment incident 

occurred on March 31, 2020 in the performance of duty, as alleged.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 6, 2020 appellant, then a 38-year-old city carrier assistant technician, filed a 

traumatic injury claim (Form CA-1) alleging that on March 31, 2020 he injured his upper right 

arm while in the performance of duty. On the reverse side of the claim form, appellant’s supervisor 

acknowledged that appellant was injured in the performance of duty and that her knowledge of the 

facts comported with the statements made by appellant.

In a statement dated April 1, 2020, appellant noted that, as he was removing mail from his 

bag to put in a mailbox, he felt pain in his right upper arm. 

In a report dated March 31, 2020, Dr. Jeffrey Zacher, a Board-certified family medicine 

specialist, related that appellant was seen that day for complaints of intermittent right shoulder, 

upper arm, and elbow pain, followinga work-related injury that day. He related that appellant was 

a mail carrier and felt sudden pain while delivering mail that day. Dr. Zacher diagnosed strain of 

the muscles, fascia, and tendons of the right shoulder and upper arm. He also completed a duty 

status report (Form CA-17) of even date wherein he related that appellant could return to full-duty 

work. 

Dr. Matthew Shores, Board-certified in family practice, evaluated appellant on 

April 10, 2020. He noted appellant’s history of sudden right shoulder pain while delivering mail

on March 31, 2020. Dr. Shoresreviewed x-rays of appellant’s right shoulder, which did not reveal 

fractures, avulsions, dislocations, soft tissue swelling, foreign bodies or calcifications. He limited 

appellant to left-handed duty only. 

On April 27, 2020 appellant was seen by Jonathan Halley, a physician assistant. 

Mr. Halley again noted appellant’s history of injury on March 31, 2020. He indicated that 

appellant had a probable right shoulder biceps and rotator cuff tear. 

Appellant was seen on May 11, 2020 by Dr. Michael Domer, a Board-certified orthopedic 

surgeon. Dr. Domer related that appellant was seen for evaluation of right shoulder pain which 

had been ongoing since March 31, 2020, when he was pulling mail from his saddle to place in a 

mailbox, felt a pinch, and pulled his arm, appellant denied a prior right shoulder injury. In a followup report dated June 23, 2020, he related that appellant’s right shoulder pain was worsening, 

following his March 31, 2020 injury. 

In a development letter dated July 6, 2020, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence needed and provided a factual development questionnaire for his completion. OWCP 

afforded appellant 30 days to submit the requested evidence and return its completed 

questionnaire. 

By decision dated August 17, 2020, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish that the claimed injury occurred

on March 31, 2020, as alleged. It concluded, therefore, that the requirements had not been met to 

establish an injury as defined by FECA.

On February 3, 2021 appellant, through counsel, requested reconsideration and submitted 

additional evidence. 
3

By decision dated February 10, 2021, OWCP denied appellant’s request for reconsideration

of the merits of his claim. 

In a report dated May 28, 2021, Dr. Frank Moussa, a Board-certified orthopedic surgeon, 

noted that appellant indicated that he was injured at work on March 31, 2020. He stated that 

appellant’s chondral and labral injury was potentially caused by the repetitive overuse nature of 

appellant’s work as a postal carrier. Dr. Moussa explained that repetitive movements of the upper 

extremity such as those employed by postal carriers could be associated with early degeneration 

of the shoulder, which would manifest itself in chondral and labral pathology.

On July 2, 2021 appellant, through counsel, again requested reconsideration. Attached to 

the reconsideration request was a statement from appellant dated June 21, 2021. Appellant stated 

that on March 31, 2020 the pain returned as he was delivering mail at full duty. He also attached 

additional medical evidence. 

By decision dated September 1, 2021, OWCP denied modification of its August 17, 2020 

decision.

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 filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific 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 on a traumatic injury or an occupational disease.4

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. A 

fact of injury determination is based on two elements. 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.5 Second, the employee must submit sufficient medical evidence 

to establish that the employment incident caused a personal injury.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 

3 A.F., Docket No. 18-1154 (issued January 17, 2019); C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine 

Pendleton, 40 ECAB 1143 (1989).

4 A.F., id.; S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); JoeD. Cameron, 41 ECAB 

153 (1989).

5 Elaine Pendleton, supranote 3.

6

John J. Carlone, 41 ECAB 354 (1989).

7 Charles B. Ward, 38 ECAB 667, 67-71(1987).
4

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, 

and 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 serious 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 met his burden of proof to establish that an employment 

incident occurred on March 31, 2020 in the performance of duty, as alleged.

Appellant has consistently described a specific incident occurring on March 31, 2020 while 

delivering mail in the performance of duty. An employee’s statements alleging that an incident 

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.11 

On the reverse side of the Form CA-1, appellant’s supervisor acknowledged that appellant 

was injured in the performance of duty and that her knowledge of the facts comported with the 

statements made by appellant.

The contemporaneous medical evidence of record also supports appellant’s allegations 

regarding a work-related incident in the performance of duty on March 31, 2020. In his March 31, 

2020 report, Dr. Zacher related that appellant experienced sudden pain on that day while delivering 

mail. Dr. Shores, in his April 10, 2020 report, noted that appellant experienced incidents of right 

shoulder pain on March 31, 2020. In his reports beginning on May 11, 2020, Dr. Domer related 

that on March 31, 2020 appellant was pulling mail from his saddle to place in a mailbox, felt a 

pinch, and pulled his arm. On May 28, 2021 Dr. Moussa noted that appellant indicated that he 

was injured at work on while delivering mail on March 31, 2020.

The Board therefore finds that appellant has met his burden of proof to establish that the 

March 31, 2020 employment incident occurred in the performance of duty, as alleged.

As appellant has established that the March 31, 2020 employment incident occurred as 

alleged, the question becomes whether the incident caused an injury. 12 As OWCP found that he 

had not established fact of injury, it did not evaluate the medical evidence. The case must, 

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

9 Robert A. Gregory, 40 ECAB 478, 483 (1989).

10 D.B., 58 ECAB 464, 466-67(2007).

11 Id.

12 See M.A., Docket No. 19-0616 (issued April10, 2020); C.M., Docket No. 19-0009 (issued May 24, 2019).
5

therefore, be remanded for consideration of the medical evidence of record. 13 After any further 

development as deemed necessary, OWCP shall issue a de novo decision addressing whether 

appellant has met her burden of proof to establish an injury causally related to the accepted 

March 31, 2020 employment incident.

CONCLUSION

The Board finds that appellant has met his burden of proof to establish an incident in the 

performance of duty on March 31, 2020, as alleged. The Board further finds that the case is not 

in posture for decision with regard to whether appellant sustained an injury causally related to the 

accepted employment incident. 

ORDER

IT IS HEREBY ORDERED THAT the September 1, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: March 8, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

13 See S.M., Docket No. 16-0875 (issued December 12, 2017).