United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Nashville, TN, Employer

__________________________________________

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Docket No. 22-1090

Issued: January 19, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 20, 2022 appellant, through counsel, filed a timely appeal from a June 24, 2022

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.

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

ISSUE

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

performance of duty on July 22, 2020, as alleged.

FACTUAL HISTORY

On July 31, 2020 appellant, then a 49-year-old city carrier, filed a traumatic injury claim 

alleging that on July 22, 2020 she strained the sole of her right foot/heel when she pulled something 

while stepping into her truck while in the performance of duty. In an attached handwritten 

statement dated July 31, 2020, she noted that on July 22, 2020 she felt a pull on the back of her 

heel and foot while stepping back into her truck. Appellant stated that it initially felt 

uncomfortable, and then worsened by the day. She indicated that she could not remember the 

address where the incident occurred. On the reverse side of the claim form, appellant’s supervisor 

acknowledged that she was injured while in the performance of duty. 

In an August 12, 2020 report, Dr. Benjamin Grear, a Board-certified orthopedic surgeon, 

indicated that appellant presented with right foot and ankle pain which developed after she had a 

right foot misstep and twisting injury while stepping into her truck on July 22, 2020. He noted 

that appellant had a history of pes planovalgus deformity. Examination findings and medical 

history were detailed. Dr. Grear diagnosed exacerbation of right foot and ankle severe subtalar 

joint and talonavicular joint chronic subluxation due to severe flatfoot and morbid obesity.

Dr. Grear, in reports dated September 15, October 21, and November 25, 2020, reiterated 

diagnoses, history, and findings from his August 12, 2020 report.

In reports dated January 5, March 5, and April 5, 2021, Dr. Grear reported a history of 

severe pes planovalgus, which had been exacerbated when she twisted it at work. In his January 5, 

2021 report, explained that appellant twisted her ankle while getting out of a work truck. In reports 

dated March 5 and April 5, 2021, he described the incident as occurring when appellant twisted 

her ankle while cleaning out a work truck. Dr. Grear opined that he believed her condition to be

chronic. 

Dr. Grear, in a July 20, 2021 report, noted that appellant injured her ankle when she 

somehow twisted her ankle when she stepped out of her work truck. Physical examination findings 

were noted including very rigid per planovalgus and some residual forefoot supination from 

chronic forefoot. Dr. Grear diagnosed severe stage III posterior tibial tendon insufficiency 

aggravated by work injury.

In a development letter dated October 27, 2021, OWCP informed appellant of the type of 

factual and medical evidence necessary to establish her claim and provided a questionnaire for her 

completion. OWCP afforded appellant 30 days to provide the necessary evidence.

In a statement dated November 30, 2021, appellant noted that her injury occurred on 

July 20, 2020 on Route 5 at the Whitehaven Post Office. She related that she slipped while 

climbing back into her truck after a delivery which caused her to slip down the step and onto the 

pavement. Next, appellant stated that she initially assumed she had sprained her ankle, she did not 
3

work the following day, called in sick on Friday, did not work on Saturday, and worked on 

Monday. She took Tuesday off because her foot was worsening and that when she returned to 

work on Wednesday July 20, 2020 she reported the accident. At the time appellant reported her 

injury to management, she did not know the address the incident occurred as the route was still 

unfamiliar to her. 

By decision dated December 8, 2021, OWCP denied appellant’s traumatic injury claim, 

finding that the factual evidence of record was insufficient to establish that the claimed incident 

occurred as alleged. It noted that she provided inconsistent statements as to when the incident

occurred. OWCP concluded, therefore, that the requirements had not been met to establish an 

injury as defined by FECA.

On December 21, 2021 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review, which was held on April 11, 2022.

Appellant testified that on Wednesday, July 20, 2020 she was getting ready to climb back into her 

truck when her foot slipped and slid down the asphalt, which was about five inches. As she was 

still familiarizing herself with her new route, she was not sure what the address was because many 

of the houses did not have house numbers or numbers on the mailboxes. She testified that she had 

the following Thursday off and that the following week when she came in, she informed 

management that she had hurt herself. Appellant denied any prior right foot injury in her testimony 

and alleged that her manager was going to make sure that it would be considered an old injury. 

Counsel asserted that appellant consistently stated the incident occurred on July 20, 2020 to her 

doctors and everyone else, but thatthe employing establishment wrote July 22, 2020 as the incident 

date on the form because that is the date she informed them of the incident. 

By decision dated June 24, 2022, OWCP’s hearing representative affirmed the 

December 8, 2021 decision.

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 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA,

4

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.

5

 These are the essential elements of each and every 

3

Id.

4 L.T., Docket No. 20-0345(issued June21, 2022): J.P.,Docket No. 19-0129 (issued April26, 2019); S.B., Docket 

No. 17-1779 (issued February 7, 2018); Joe D. Cameron, 41 ECAB 153 (1989).

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

40 ECAB 312 (1988).
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compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an 

occupational disease.

6

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.

7

 Fact 

of injury consists of two components that must be considered in conjunction with one another. 

First, the employee must submit sufficient evidence to establish that he or she experienced the 

employment incident at the time and place, and in the manner alleged.

8

 Second, the employee 

must submit sufficient evidence to establish that the employment incident caused a personal 

injury.

9

An injury does not have to be confirmed by eyewitnesses in order to establish the fact 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.

10

 The employee has not met his or her burden of proof to establish the occurrence of an 

injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of 

the claim.

11

 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.

12

 An employee’s 

statements 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.

13

ANALYSIS

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

injury in the performance of duty on July 22, 2020, as alleged.

In her Form CA-1 dated July 31, 2020, she indicated that on July 22, 2020 she pulled 

something stepping into her truck injuring her right foot/heel. Appellant repeated this allegation 

in her handwritten statement dated July 31, 2020. However, in a statement dated November 30, 

6 L.T., id.; R.R., Docket No. 19-0048 (issued April25, 2019); L.M.,Docket No. 13-1402 (issued February 7, 2014);

DeloresC. Ellyett, 41 ECAB 992 (1990).

7 L.T., id.; E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8 L.T., id.; L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9 L.T., id.; B.M., Docket No. 17-0796 (issued July 5, 2018); JohnJ. Carlone, 41 ECAB 354 (1989).

10 L.Y., Docket No. 21-0221 (issued June 30, 2021); M.W., Docket No. 20-1489 (issued March 29, 2021); M.F., 

Docket No. 18-1162 (issued April9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11 See L.Y., id.; M.W., id.; V.J., Docket No. 19-1600 (issued March 13, 2020); E.C., Docket No. 19-0943 (issued 

September 23, 2019).

12 L.T., supra note 5; BettyJ. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

13 See L.T., id.; M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).
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2021,she indicated that the injury occurred prior to Wednesday, July 20, 2020, and in her April 11, 

2022 hearing testimony she indicated that her injury occurred on July 20, 2020, when her foot 

slipped as she was climbing back into her truck and slid down the step and onto the 

pavement/asphalt. Appellant also related that she consistently noted the injury date as July 20, 

2020 to her physicians. However, Dr. Grear, in his reports, noted the date of injury as 

July 22, 2020.

The record also contains conflicting explanations as to how the injury occurred. Appellant

claimed she injured her right foot or heel when she pulled something while stepping into her truck. 

However, she also indicated in her November 30, 2021 statement thatshe thought she had twisted 

her ankle. Dr. Grear, in reports dated August 12, September 15, October 21, and November 25, 

2020 described the injury as occurring when appellant had a right foot misstep and sustained a 

twisting injury when stepping into her truck. In his January 5, 2021 report, he noted she twisted 

her ankle while getting out of a work truck while in his March 5 and April 2, 2021 reports he 

indicated that she twisted her ankle while cleaning out her work truck.

Appellant’s varying descriptions of what occurred and how do not establish a singular 

account of the alleged incident.

14

 As she has not provided a consistent description of the alleged 

employment incident the Board finds that she has not met her burden of proof. 15

As appellant has not met her burden of proof to establish that the July 22, 2020 incident 

occurred in the performance of duty as alleged, it is unnecessary to address the medical evidence 

of record regarding causal relationship.16

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 a traumatic 

injury in the performance of duty on July 22, 2020, as alleged.

14 See L.T., supra note 5; E.C.,id.; D.B., 58 ECAB 464 (2007).

15 L.T., id.; L.Y., supra note 11; M.W., supra note 11;H.D., Docket No. 15-1698 (issued May 4, 2016).

16 L.T., id.; L.Y., id. 11; M.W., id.; J.C., Docket No. 19-0542 (issued August 14, 2019); see M.P., Docket No., 15-

0952 (issued July 23, 2015); Alvin V. Gadd, 57 ECAB 172 (2015).
6

ORDER

IT IS HEREBY ORDERED THAT the June 24, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 19, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board