United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, Douglas, AZ,

Employer

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Docket No. 22-0293

Issued: June 15, 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

JANICE B. ASKIN, Judge

JURISDICTION

On December 10, 2021 appellant, through counsel, filed a timely appeal from a

November 9, 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.

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 his burden of proof to establish a traumatic incident

in the performance of duty on March 16, 2020 as alleged.

FACTUAL HISTORY

On March 17, 2020 appellant, then a 44-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that on March 16, 2020 he injured his left knee while in the 

performance of duty. He explained that he loaded an all-terrain vehicle (ATV) onto a trailer and 

felt pain followed by burning in his left knee while dismounting the ATV. On the reverse side of 

the claim form, appellant’s supervisor, acknowledged that appellant was in the performance of 

duty when injured. Appellant did not stop work. 

On March 18, 2020 the employing establishment executed an authorization for 

examination and/or treatment (Form CA-16) authorizing appellant to seek medical care related to 

pain in the left knee. In the accompanying attending physician’s report, Part B of the Form CA-16,

Dr. Adrienne Yarnish, an emergency medicine specialist, noted that his complaints of left knee 

pain after stepping down from his ATV. She diagnosed left knee pain and opined that she was 

unsure whether the condition was caused or aggravated by the employment activity described, as 

there was no direct trauma to the knee. 

In a duty status report (Form CA-17) dated March 19, 2020, Dr. Yarnish noted a history of 

left knee pain after appellant dismounted his service ATV. She diagnosed left knee pain and 

released him to return to full-duty work. In emergency room patient discharge forms and aftercare 

instructions of even date, Dr. Yarnish indicated that appellant complained of left knee pain and 

swelling. She diagnosed left knee pain and recommended rest, ice, compression, and elevation. 

In a development letter dated March 20, 2020, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of evidence needed to establish his claim and

afforded him 30 days to submit the necessary evidence. 

OWCP thereafter received a report of x-rays of the left knee dated March 19, 2020, which 

were negative for acute fracture or dislocation.

In a medical report dated April 6, 2020, Dr. Suezie Kim, a Board-certified orthopedic 

surgeon, noted that appellant complained of left knee pain which he attributed to twisting his left 

knee while loading an ATV on March 6, 2020. She performed a physical examination of the left 

knee, which revealed tenderness of the medial joint line, a positive medial McMurray’s sign, and 

patellar crepitus. Dr. Kim reviewed x-rays performed in the office that day and noted mild medial 

joint space narrowing, but no acute fracture or dislocation. She diagnosed left knee pain and 

chondromalacia versus medial meniscus tear and recommended physical therapy, light duty for 

six weeks, and a knee brace. In a Form CA-17 of even date, Dr. Kim indicated that appellant was 

loading an ATV and twisted his left knee on March 16, 2020. She diagnosed left knee pain and 

recommended light-duty restrictions with no kneeling or squatting. 

OWCP also received a report dated April 14, 2020 by Justin Embry, a physical therapist, 

who noted that appellant related a history of left knee burning while stepping down from an ATV. 
3

By decision dated April 23, 2020, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish causal relationship between his diagnosed 

conditions and the accepted March 16, 2020 employment incident. 

OWCP thereafter received an emergency room medical report by Dr. Yarnish dated 

March 19, 2020, who noted that appellant was complaining of left knee pain and burning after

dismounting his ATV on March 16, 2020. Dr. Yarnish indicated that he denied feeling any pop, 

twist, or crack in the left knee and denied any direct trauma to the knee. She performed a physical 

examination, which revealed diffuse mild tenderness to palpation over the medial left knee with 

no associated swelling, edema, crepitus, or deformity. Dr. Yarnish diagnosed left knee pain. 

In a Part B, attending physician’s report, dated April 7, 2020, Dr. Kim noted a history that 

appellant was loading an ATV and twisted his left ankle. In a Form CA-17 of even date, she 

indicated that he was loading an ATV and twisted his left knee on March 16, 2020 and diagnosed 

left knee pain. 

Physical therapy reports dated April 17 through May 5, 2020, indicated that appellant 

underwent ongoing therapeutic treatments to the left knee. 

A magnetic resonance imaging (MRI) scan of the left knee dated June 12, 2020, noted a 

history left knee pain since an injury on March 16, 2020 and revealed a degenerative tear of the 

posterior horn/body of the medial meniscus, minor medial, lateral, and patellofemoral 

compartment osteoarthritis, and an intra-articular ganglion cyst associated with the posterior 

cruciate ligament (PCL).

In a follow-up report dated July 6, 2020, Dr. Kim noted that appellant related a history of 

twisting his left knee while loading an ATV on March 6, 2020. On physical examination, she 

again noted a positive medial McMurray’s sign and sub patellar crepitus. Dr. Kim reviewed the

June 12, 2020 MRI scan, and diagnosed early left knee osteoarthritis, a degenerative medial 

meniscus tear involving the posterior horn and body, and intra-articular ganglion associated with 

the PCL. She indicated that she discussed surgical and nonsurgical options with appellant, and 

that he elected to proceed with left knee arthroscopy and partial meniscectomy. 

On August 17, 2020 appellant requested reconsideration of OWCP’s April 23, 2020 

decision. 

By decision dated November 9, 2021, OWCP modified its April 23, 2020 decision,finding 

that appellant had not established the factual component of his claim. 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 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 

3

Id.
4

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 rela ted to the 

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

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must 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 at the time, place, and in the manner 

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

can be established only by medical evidence.7 

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.8 In determining whether a case has been 

established, such circumstances as late notification of injury, lack of confirmation of injury, and 

failure to obtain medical treatment may, if otherwise unexplained, cast serious doubt on the 

employee’s statements. The employee has not met his or her burden of proof when there are such 

inconsistencies in the evidence as to cast serious doubt on the validity of the claim. 9 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. 10

ANALYSIS

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

incident occurred in the performance of duty on March 16, 2020 as alleged. 

In his Form CA-1, appellant indicated that he experienced left knee pain and burning while 

dismounting his ATV on March 16, 2020. His supervisor, acknowledged on the reverse side of 

the claim form that appellant was injured in the performance of duty on March 16, 2020. 

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). 

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 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

8

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

9 Betty J. Smith, 54 ECAB 174 (2002).

10 See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).
5

In an emergency room report dated March 19, 2020, Dr. Yarnish noted that appellant

reported experiencing burning and pain behind his left kneecap while dismounting an ATV at 

work. In her April 7, 2020 report, Dr. Kim noted that he related a history of left knee pain due to 

twisting the knee while loading an ATV on March 16, 2020. In an attending physician’s report of 

even date, she noted a history that appellant was loading an ATV and twisted his left ankle. A

physical therapy evaluation report dated April 14, 2020 noted a history that he stepped down from

an ATV and felt burning in the left knee cap.

Appellant has maintained that his injury occurred when he dismounted his ATV trailer on 

March 16, 2020 which was acknowledged by his supervisor and consistently reported by his 

attending physicians and physical therapist. Therefore, the Board finds that appellant has met his 

burden of proof to establish that a traumatic incident occurred in the performance of du ty on 

March 16, 2020 as alleged.

Consequently, the question becomes whether the incident caused an injury. 11 As OWCP 

found that appellant had not established fact of injury, it did not evaluate the medical evidence. 

The case must, therefore, be remanded for consideration of the medical evidence of record.12 After 

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

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

March 16, 2020 employment incident.13

CONCLUSION

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

incident occurred in the performance of duty on March 16, 2020 as alleged. 

11 M.A., Docket No. 19-0616 (issued April 10, 2020); C.M., Docket No. 19-0009 (issued May 24, 2019) 

12 Supra note 9; L.D., Docket No. 16-0199 (issued March 8, 2016).

13 The Board notes that a completed Form CA-16 authorization may constitute a contract for payment of medical 

expenses to a medical facility or physician, when properly executed. The form creates a contractual obligation, which 

does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the action 

taken on the claim. See 20 C.F.R. § 10.300(c); V.S., Docket No. 20-1034 (issued November 25, 2020); J.G., Docket 

No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).
6

ORDER

IT IS HEREBY ORDERED THAT the November 9, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed. The case is remanded for further proceedings 

consistent with this decision of the Board. 

Issued: June 15, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board