United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.V., Appellant
and
U.S. POSTAL SERVICE, ARIZONA
PERFORMANCE CLUSTER, Phoenix, AZ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 21-0027
Issued: April 29, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 8, 2020 appellant filed a timely appeal from July 27 and September 23, 2020
merit decisions 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 on June 6, 2020, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 23, 2020 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.

FACTUAL HISTORY
On June 22, 2020 appellant, then a 32-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that on June 6, 2020, as the only custodian on duty, she sustained a lower
back injury as a result of mopping many rooms while in the performance of duty. On the reverse
side of the claim form, P.B., an employing establishment supervisor, controverted the claim noting
that appellant requested sick leave on June 11, 2020, but did not mention a work injury and that
appellant would not have mopped continuously for four hours, as alleged. Appellant did not stop
work.
In a June 12, 2020 work activity status report, Diane C. Allen, a nurse practitioner,
diagnosed a strain of the muscle, fascia, and tendon of the lower back and muscle spasm of the
back. She noted a date of injury of June 6, 2020 and recommended work restrictions of lifting up
to 10 pounds constantly; pushing and pulling up to 20 pounds constantly; and occasional mopping.
Appellant underwent several physical therapy sessions, and, on June 24, 2020, Ms. Allen released
her to full-duty work.
In a June 26, 2020 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence required and provided a
questionnaire for her completion. In a separate development letter of even date, OWCP requested
additional information from the employing establishment. It afforded both parties 30 days to
respond.
Thereafter, OWCP received a return to work slip bearing an illegible signature indicating
that appellant was seen by a medical provider on June 11, 2020.
In a report dated June 12, 2020, Ms. Allen noted that appellant related a history of lower
back pain following an injury on June 6, 2020 which she attributed to mopping over the course of
four hours. She performed a physical examination and documented painful extension of the
lumbosacral spine. Ms. Allen diagnosed a lumbar strain and muscle spasm of the back and
prescribed medication and physical therapy.
In a follow-up visit on June 16, 2020, Ms. Allen noted that appellant reported her pain was
improving with stretching, but that she continued to have difficulty bending down. On June 30,
2020 she noted that appellant felt well enough to be released from care. In a duty status report
(Form CA-17) of even date, Dr. Alfred C. Emmel, an occupational medicine specialist, diagnosed
lumbar strain and muscle spasm and opined that the injury occurred due to mopping continuously
for four hours.
By decision dated July 27, 2020, OWCP denied appellant’s traumatic injury claim, finding
that she had not submitted sufficient evidence to establish that the events occurred as alleged.
Consequently, it found that appellant had not met the requirements to establish an injury as defined
by FECA.
OWCP continued to receive evidence. In an undated response to OWCP’s development
questionnaire, appellant indicated that on June 6, 2020 she performed an excessive amount of
mopping, and, while doing so, was swaying her hips from side to side which caused movement of
her lower back. She noted that she mopped for four to five hours that day, and during the last hour

2

of her shift, her lower back started to hurt. Appellant was scheduled to be off work for the next
two days, and hoped her pain would subside, but it worsened. She told her supervisor about her
lower back pain on June 12, 2020, because the pain was not improving. Appellant noted that she
sought treatment that day and was referred to physical therapy, prescribed a muscle relaxer and
given lower back exercises. She denied engaging in any activity outside of work that would have
caused her injury.
Physical therapy encounter notes dated June 12 through 26, 2020 document that appellant’s
back pain improved over time. In an encounter note dated June 30, 2020, Dr. Emmel found
appellant had reached maximum medical improvement.
On August 17, 2020 appellant requested reconsideration.
In a letter of controversion dated September 14, 2020, the employing establishment alleged
that appellant did not report the injury on the day that it occurred, but that she had requested
personal time off from work during the period of time between when she was injured and when
she reported the incident to her supervisor. It suggested that she could have injured herself outside
of work and also asserted that she would not have needed four hours to mop the building, because
it was not very large. The employing establishment further noted that appellant would not have
mopped continuously, because she took frequent breaks.
By decision dated September 23, 2020, OWCP denied modification of its prior 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 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,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 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. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
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).

3

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 substantial doubt on the
employee’s statements. The employee has not met his or her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.9
ANALYSIS
The Board finds that appellant has met her burden of proof to establish that the June 6,
2020 employment incident occurred while in the performance of duty, as alleged.
Appellant indicated in her June 22, 2020 claim form that she sustained a low back injury,
as the only custodian on duty, while mopping many rooms on June 6, 2020 while in the
performance of duty. In her subsequent response to OWCP’s development questionnaire, she
reiterated that she injured her back on June 6, 2020 as a result of repetitive swaying motions while
mopping for four to five hours. As noted above, 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
Moreover, appellant submitted medical evidence by way of a June 12, 2020 medical report
and Dr. Emmel’s June 30, 2020 Form CA-17 that confirmed the history of injury as a lower back
injury at work on June 6, 2020 while mopping. The remaining medical reports also provide a
consistent history of an employment injury on June 6, 2020 with clinical findings and a diagnosis
of lumbar strain and low back muscle spasms.
The Board therefore finds that, based on appellant’s statements and the medical evidence
of record, she has met her burden of proof to establish that the June 6, 2020 employment incident
occurred in the performance of duty, as alleged.11
As appellant has established that the June 6, 2020 employment incident occurred as
alleged, the question becomes whether this incident caused an injury.12 Thus, the Board will set
aside OWCP’s July 27 and September 23, 2020 decisions and remand the case for consideration
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

S.A., Docket No. 19-1221 (issued June 9, 2020).

11

J.C., Docket No. 18-1803 (issued April 19, 2019); M.C., id.; M.M., Docket No. 17-1522 (April 25, 2018).

12

C.H., Docket No. 19-1781 (issued November 13, 2020); A.C., Docket No. 18-1567 (issued April 9, 2019).

4

of the medical evidence.13 Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision addressing whether appellant has met her burden
of proof to establish a diagnosed medical condition causally related to the accepted June 6, 2020
employment incident and any attendant disability.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the June 6,
2020 employment incident occurred in the performance of duty, as alleged. The Board further
finds that this case is not in posture for decision with regard to whether she has established an
injury causally related to the accepted June 6, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 23 and July 27, 2020 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
action consistent with this decision of the Board.
Issued: April 29, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

13

W.R., Docket No. 17-0287 (issued June 8, 2018).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 20-0630
Issued: April 21, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 27, 2020 appellant filed a timely appeal from an August 28, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from the last merit decision, dated February 14, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules
of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s
oral argument request, she asserted that oral argument should be granted because OWCP improperly determined that
her request for reconsideration was untimely filed. The Board, in exercising its discretion, denies appellant’s request
for oral argument because the Board does not have jurisdiction over the merits of this case and, thus, the arguments
on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal
would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request
is denied and this decision is based on the case record as submitted to the Board.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has been previously before the Board. The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference.3 The relevant facts
are as follows.
On October 9, 2015 appellant, then a 61-year-old retired customer services supervisor, filed
an occupational disease claim (Form CA-2) alleging that she sustained bilateral knee pain, right
more than left, due to factors of her federal employment, including repetitive walking, standing,
stooping and bending. She noted that she first became aware of her condition on June 23, 2009
and realized its relation to factors of her federal employment on February 24, 2015. Appellant did
not stop work.
In an attached statement, appellant noted that she worked with the employing establishment
for over 37 years and retired on October 1, 2015. Prior to her retirement, she explained that her
role as a supervisor required her to do constant walking to the window unit, parcel area, box
section, and sometimes walking into automated areas. Appellant performed these duties eight
hours per day, five days per week. She indicated that she has experienced knee pain due to her
duties and that she had never had any problems with her knees in the past and that she had no
hobbies that would have caused or aggravated her condition.
In a development letter dated November 2, 2015, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence necessary to
establish her claim and provided a questionnaire for her completion to provide further details
regarding the circumstances of her claimed injury. OWCP also requested a narrative medical
report from appellant’s treating physician, which contained a detailed description of findings and
diagnoses, explaining how her work activities caused, contributed to, or aggravated her medical
conditions. In a separate development letter of even date, it requested that the employing
establishment provide additional information, including comments from a knowledgeable
supervisor, regarding appellant’s occupational disease claim. OWCP afforded both parties 30 days
to respond. Appellant did not submit any additional evidence.
By decision dated December 3, 2015, OWCP denied appellant’s occupational disease
claim, finding that she had not submitted medical evidence containing a diagnosis in connection
with her injury. Consequently, it concluded that the requirements had not been met to establish an
injury as defined by FECA.
OWCP continued to receive evidence. In a September 15, 2015 letter, Dr. Steven Inbody,
a Board-certified neurologist, noted that on or about June 23, 2009 appellant became aware of an
aggravation of a preexisting injury of the right knee and a new injury to the left knee while
3

Docket No. 16-1284 (issued February 14, 2017).

2

performing her repetitive duties of walking, standing, stooping, and bending. He noted her history
of injury, including a 2006 right knee meniscus tear and collateral ligament tear. Appellant
underwent arthroscopic surgery and eventually a total right knee replacement to treat her injury.
Dr. Inbody opined that the repetitive traumas she experienced in her job as a postal employee,
which required her to walk throughout the day with prolonged standing and very little time to set
and effectively complete her job requirements, were the cause of her condition. He diagnosed
bilateral internal derangement of the knees.
In a November 19, 2015 response to OWCP’s development questionnaire, appellant
explained that, due to her role as a supervisor, she was required to perform constant walking,
bending, and stooping in order to check areas of responsibility for eight hours per days, five days
per week. She asserted that she had no hobbies that would have caused or agitated her conditions.
In an undated statement, the employing establishment controverted appellant’s claim,
asserting that she did not perform any physical exertion of lifting, pushing, pulling, bending, or
stooping as she had lower-level craft employees to perform those tasks. It alleged that she was
only required to lift bare essentials while performing her administrative duties and that she was
required to perform more administrative work than physical work in her role. The employing
establishment suggested that the physical work appellant performed was related to her care for her
elderly mother. It also submitted a position description of her duties as a customer service
supervisor.
On December 11, 2015 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
In an April 22, 2016 letter, T.T., an area manager, noted that appellant did not walk, stand,
bend, or stoop for eight hours a day as her job only required her to monitor the workroom floor.
She described appellant’s duties, including the use of a yard stick to measure the mail and asserted
that appellant had been observed calling carriers from her desk to give instructions instead of
walking to the carrier case. T.T. estimated that appellant performed a minimum of two hours of
intermittent standing and walking.
By decision dated May 16, 2016, an OWCP hearing representative affirmed OWCP’s
December 3, 2015 decision, finding that the medical evidence of record was insufficient to
establish causal relationship between appellant’s knee conditions and the accepted factors of her
federal employment.
On June 3, 2016 appellant appealed OWCP’s May 16, 2016 decision to the Board.
By decision dated February 14, 2017,4 the Board affirmed OWCP’s May 16, 2016
decision.
OWCP continued to receive evidence following the Board’s February 14, 2017 decision.
In a January 9, 2015 medical report, Dr. Stephen Simonich, Board-certified in
neuromusculoskeletal medicine, evaluated appellant for her right knee pain. He observed her
4

Id.

3

history of treatment, including a right knee arthroscopy and physical therapy and noted that she
still experienced pain that interfered with her activities of daily living. On examination and review
of appellant’s diagnostic imaging, Dr. Simonich diagnosed right knee degenerative joint disease
and recommended she undergo a total knee replacement to treat her condition. In an April 6, 2015
operative report, he indicated that she underwent a right knee total arthroplasty.
In a December 10, 2015 diagnostic report, Dr. Chad Porter, a Board-certified radiologist,
performed a magnetic resonance imaging (MRI) scan of appellant’s left knee finding a medial
meniscus horizontal tear involving the posterior root, posterior horn and body with extension to
the adjacent tibial articular surface and trace suprapatellar joint effusion.
In a February 14, 2019 narrative medical report, Dr. Inbody agreed that his previous
medical report lacked critical information as to causation and requested that OWCP reconsider
appellant’s claim.5 He noted diagnoses of posttraumatic osteoarthritis of both knees and opined
that her conditions were causally related to the factors of her federal employment. Dr. Inbody
explained that the continuous repetitive stress on appellant’s knees from her employment duties
caused her injuries and contrasted these effects with common osteoarthritis of the knee that
develops slowly with normal aging or an acute rotational injury to the knee. He reasoned that the
compensatory injury to her left knee was the result of the necessary limitation of weight bearing
with the right lower extremity. Dr. Inbody also reviewed appellant’s history of treatment,
including arthroscopic surgeries, therapy and injections to treat her conditions. He concluded by
stating that appellant continuing to work after her 2009 right knee arthroscopic repair accelerated
the tempo of aggravating effects on her injury. Dr. Inbody opined that the sequential physical
findings, symptoms, and necessary procedures to treat her knees were consistent with the effects
of prolonged aggravating daily repetitive stress from her self-reported performance of multiple
additional duties usually assigned to others in a busy yet understaffed employing establishment.
On May 30, 2019 appellant requested reconsideration of OWCP’s February 14, 2017
decision. In an attached statement, she recounted her federal employment duties as a customer
services supervisor since 2005 and described the development of her knee injuries and subsequent
treatments. Appellant explained that she was required to perform more standing, walking,
stooping, and bending due to a staffing problem at the employing establishment. She also listed
the dates of surgeries she underwent to treat her conditions.
By decision dated August 28, 2019, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
5

In a May 22, 2019 letter, OWCP notified appellant that Dr. Inbody could not request reconsideration for her
because he was a medical provider and not an authorized representative.
6
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).

4

instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.7 The one-year period for requesting reconsideration begins
on the date of the original OWCP decision, but the right to reconsideration within one year also
accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.8 Timeliness is determined by the document receipt date (i.e., the “received date” in
OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).9 The Board has found
that the imposition of the one-year limitation does not constitute an abuse of the discretionary
authority granted OWCP under section 8128(a) of FECA.10
OWCP may not deny a request for reconsideration solely because the request was untimely
filed. When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the application demonstrates clear evidence of error.11 OWCP’s
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP.12
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.13 The Board
notes that clear evidence of error is intended to represent a difficult standard.14 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.15 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.16 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.17 In this regard, the Board will limit its focus to a review of how the newly
submitted evidence bears on the prior evidence of record.18 The Board makes an independent
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

9

Id. at Chapter 2.1602.4(b) (February 2016).

10

See R.L., Docket No. 18-0496 (issued January 9, 2019).

11

See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

12

Id. at § 10.607(b); supra note 8 at Chapter 2.1602.5(a) (February 2016).

13

G.G., supra note 11.

14

M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra 10.

15

E.B., Docket No .18-1091 (issued December 28, 2018).

16

J.W., Docket No. 18-0703 (issued November 14, 2018).

17

P.L., Docket No. 18-0813 (issued November 20, 2018).

18

D.G., 59 ECAB 455 (2008); A.F., 59 ECAB 714 (2008).

5

determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.19
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
As noted above, OWCP’s regulations20 and procedures21 establish a one-year time limit for
requesting reconsideration, which begins on the date of the original OWCP merit decision. A right
to reconsideration within one year also accompanies any subsequent merit decision on the issues,22
including any merit decision by the Board.23 The most recent merit decision was the Board’s
February 14, 2017 decision, which affirmed OWCP’s May 16, 2016 decision. Appellant had one
year from the Board’s February 14, 2017 decision to timely request reconsideration. As OWCP
did not receive her reconsideration request until May 30, 2019, more than one year after the
February 14, 2017 merit decision, it was untimely filed. Consequently, appellant must
demonstrate clear evidence of error by OWCP in the denial of her claim.24
The Board further finds that appellant’s reconsideration request failed to demonstrate clear
evidence of error on the part of OWCP in its last merit decision, dated May 16, 2016. OWCP
denied her occupational disease claim because she did not establish a bilateral knee condition
causally related to the accepted factors of her federal employment. The evidence submitted failed
to raise a substantial question concerning the correctness of OWCP’s May 16, 2016 decision.25
Appellant submitted a February 14, 2019 narrative medical report in which Dr. Inbody
diagnosed bilateral post-traumatic osteoarthritis of the knees and opined that her conditions were
causally related to the factors of her federal employment. Dr. Inbody explained that the continuous
repetitive stress on her knees from her employment duties caused her injuries and contrasted these
effects with common osteoarthritis of the knee that develops slowly with normal aging or an acute
rotational injury to the knee. He reviewed appellant’s history of treatment, including arthroscopic
surgeries, therapy and injections and also reasoned that the compensatory injury to her left knee
19

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

20

Supra note 7; see Alberta Dukes, 56 ECAB 247 (2005).

21

Supra note 8; see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

22

J.W., supra note 16; Robert F. Stone, 57 ECAB 292 (2005).

23

M.H., Docket No. 20-1386 (issued February 17, 2021); supra note 8.

24

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). The Board notes that in its August 28, 2019
decision OWCP actually indicated that appellant did not demonstrate clear evidence of error of the Board’s
February 14, 2017 decision. However, OWCP has no jurisdiction to review a Board decision. The decisions and
orders of the Board are final as to the subject matter appealed and such decisions and orders are not subject to review,
except by the Board. See 20 C.F.R. § 501.6(d). The proper subject of review was OWCP’s May 16, 2016 merit
decision.
25

See P.T., Docket No. 18-0494 (issued July 9, 2018).

6

was the result of the necessary limitation of weight bearing with the right lower extremity.
Dr. Inbody concluded by stating that appellant’s continuing to work after her 2009 right knee
arthroscopic repair accelerated the tempo of aggravating effects on her injury.
Appellant also submitted medical reports dated January 9 and April 6, 2015, in which
Dr. Simonich diagnosed degenerative joint disease in her right knee and detailed a right knee total
arthroscopy procedure performed to treat her condition. OWCP also received a December 10,
2015 diagnostic report in which Dr. Porter diagnosed a medial meniscus horizontal tear involving
the posterior root, posterior horn and body with extension to the adjacent tibial articular surface
and trace suprapatellar joint effusion. The Board notes, however, that appellant failed to explain
how the medical evidence submitted raised a substantial question regarding the correctness of
OWCP’s May 16, 2016 decision.
As previously noted, clear evidence of error is intended to represent a difficult standard.26
Even the submission of a detailed, well-rationalized report which, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, does
not constitute clear evidence of error.27 It is not enough to show that evidence could be construed
so as to produce a contrary conclusion.28 Instead, the evidence must shift the weight in appellant’s
favor.29 While Drs. Inbody, Simonich, and Porter diagnosed multiple bilateral knee conditions
due to the accepted factors of appellant’s federal employment, the Board finds that their reports
are insufficient to demonstrate clear evidence of error.
The Board thus finds that the evidence submitted in support of the untimely request for
reconsideration is insufficient to shift the weight of the evidence in favor of appellant’s claim or
to raise a substantial question that OWCP erred in the issuance of its May 16, 2016 decision.
Accordingly, OWCP properly denied her reconsideration request, finding that it was untimely filed
and failed to demonstrate clear evidence of error.
On appeal appellant asserts that she did not receive notice of the Board’s February 14, 2017
decision until February 23, 2018. The Board has held, in the absence of evidence to the contrary,
a letter properly addressed and mailed in the ordinary course of business is presumed to have been
received. This is known as the mailbox rule. Appellant did not submit evidence of nondelivery
of the Board’s February 14, 2017 decision such that the presumption of receipt would be rebutted.
Accordingly, without evidence to the contrary, the February 14, 2017 decision is presumed to have
arrived at appellant’s mailing address.

26

Supra note 13.

27

E.K., Docket No. 18-0422 (issued August 22, 2018).

28

Id.

29

R.S., Docket No. 18-0505 (issued July 24, 2018).

7

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Philadelphia, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-1541
Issued: January 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 9, 2012 appellant filed a timely appeal of the June 13, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied his traumatic injury claim.
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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 30, 2012 appellant, then a 45-year-old federal air marshal, filed a traumatic
injury claim alleging that on April 18, 2012 he developed Eustachian tube dysfunction and otitis
media as a result of a change in the air pressure in the airplane cabinet while descending to his
destination. He stopped work from April 22 to 29, 2012.
On May 9, 2012 OWCP advised appellant of the evidence needed to establish his claim.
It requested that he submit a physician’s reasoned opinion addressing the relationship of his
claimed ear condition and the claimed incident.
The employing establishment submitted an April 27, 2012 light-duty job offer which
advised that appellant could perform all law enforcement and administration duties but could not
be in an environment with drastic changes in air pressurization. Appellant accepted the position
and returned to work.
In an April 27, 2012 statement, appellant related that on April 18, 2012 while flying on a
mission he experienced sharp pain in his right ear while the plane was descending. He tried to
relieve the pressure by swallowing and drinking water but the pain continued. Appellant
informed his supervisor the next day and sought medical treatment. He submitted a statement
from Ryan McAndrew, a coworker, who noted that on April 19, 2012 appellant advised of
trouble hearing in his right ear.
Appellant submitted medical records dated April 23 and 26, 2012. He was diagnosed
with Eustachian tube dysfunction. The healthcare provider, whose signature was illegible,
recommended oral medications. A May 2, 2012, employing establishment incident investigative
report advised that on April 18, 2012 upon descending to Minneapolis-St. Paul airport appellant
experienced a sharp pain in the right ear. He reported swallowing and drinking water as a
remedy for the pain but it did not work. The cause of the incident was described as
depressurization of the aircraft cabin upon landing. On May 10, 2012 appellant was treated by
Dr. Robert L. Witt, a Board-certified otolaryngologist, who examined appellant and found that
his ears were normal and he was cleared to fly. In a note dated May 10, 2012, Dr. Witt advised
that appellant had a normal ear examination and hearing test and was cleared to fly. He
submitted an audiogram dated May 10, 2012.
On June 13, 2012 OWCP denied appellant’s claim finding that the medical evidence was
insufficient to establish that his right ear condition was related to the accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the

2

employment injury. 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.2
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.3 The second component of fact of
injury is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS
OWCP accepted that appellant worked as a federal air marshal and on April 18, 2012 his
flight descended as alleged. Appellant asserted that the descent of the airplane caused a right ear
condition. The Board finds that he did not submit sufficient medical evidence to establish a right
ear condition causally related to the April 18, 2012 work incident. On May 9, 2012 OWCP
advised appellant of the medical evidence needed to establish his claim. Appellant did not
submit a rationalized medical report from a physician sufficiently explaining how the April 18,
2012 incident caused or aggravated a diagnosed medical condition.
Appellant submitted medical records dated April 23 and 26, 2012. He was diagnosed
with Eustachian tube dysfunction. However, the signature of the provider who completed the
report is illegible. The Board has held that a medical report may not be considered as probative
2

Gary J. Watling, 52 ECAB 357 (2001).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

3

evidence if there is no indication that the person completing the report qualifies as a physician as
defined in 5 U.S.C. § 8101(2). Reports lacking proper identification do not constitute probative
medical evidence.7 Thus, these documents from the medical center cannot be considered
probative medical evidence.
On May 10, 2012 appellant was treated by Dr. Witt, who noted that his ears were normal
and he was cleared to fly. On May 10, 2012 Dr. Witt advised that appellant had a normal ear
examination and hearing test and was cleared for flying. His reports are insufficient to establish
the claim as the physician did not provide a history of the April 18, 2012 incident or a firm
medical diagnosis.8 Rather Dr. Witt opined that appellant’s hearing was normal. Therefore, the
reports are insufficient to meet appellant’s burden of proof.
The record contains no other medical evidence. Because appellant has not submitted
reasoned medical evidence explaining how and why a right ear condition is employment related,
he has not met his burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.9 Appellant failed to submit such evidence and OWCP
therefore properly denied appellant’s claim for compensation.
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 did not meet his burden of proof to establish that his
claimed conditions were causally related to his employment.

7

C.B., Docket No. 09-2027 (issued May 12, 2010).

8

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
9

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTE, Tallahassee, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 11-1166
Issued: November 23, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 12, 2011 appellant filed a timely appeal from a February 3, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) that denied her claim. Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
January 5, 2010.
On appeal appellant asserts that the claim was mishandled by OWCP and that medical
evidence of record established entitlement.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 5, 2010 appellant, then a 49-year-old laundry supervisor, filed a traumatic
injury claim, alleging that she suffered pain in her right hand, right ankle, and between her
shoulder blades when she lost her footing and fell to the floor at 10:30 a.m. that day. The
employing establishment advised that the fall occurred during a break in a training session and
that she attended training for the rest of the day.
A CA-16 form, authorization for examination and treatment, dated January 5, 2010, noted
complaints of pain to right hand, right ankle, and radiating pain between the shoulder blades and
arms due to a fall on the floor at work. Appellant submitted claims for intermittent
compensation beginning on February 23, 2010 to attend physical therapy and doctor’s
appointments. By letter dated April 2, 2010, OWCP informed her of the evidence needed to
support her claim.
In a January 5, 2010 report, C. West, an employing establishment physician’s assistant
(PA), noted that appellant reported for treatment at 10:30 a.m. for complaints of right hand, arm
and neck pain, following a slip and fall at work. The PA provided physical examination findings
of full range of motion in the hands, wrists, arms, and shoulders with good muscle strength and
intact sensation, and diagnosed muscle strain of the right arm and neck and contusion of the right
hand. In a treatment note dated January 5, 2010, Cathy Bracher, a nurse practitioner, reported
the history of injury that occurred about seven hours previously and appellant’s complaints of
severe neck and shoulder pain. Physical examination demonstrated decreased range of motion of
the neck with full range of motion of the shoulders, elbows, and wrists, 5/5 grip strength and
palpable tenderness throughout both scaphoid regions. Ms. Bracher advised that cervical spine
x-ray demonstrated complete loss of lordotic curve and diagnosed general myofascial pain and
muscle spasms, status post fall. On a state workers’ compensation form, she provided physical
restrictions. In a January 6, 2010 treatment note, Ms. Bracher advised that appellant was seen for
a work-related injury when she fell at work and that her pain and stiffness had increased,
especially in the neck and shoulder girdle area. Cervical spine range of motion was full on
physical examination. Ms. Bracher again diagnosed myofascial pain and advised that appellant
could not work.
In a January 11, 2010 treatment note, Dr. Iftikhar Ahmed, Board-certified in family
medicine, noted that appellant was seen for a workers’ compensation recheck and reported her
complaints of upper and lower back pain. Back examination demonstrated slight discomfort
with movement. Dr. Ahmed diagnosed upper and lower back pain, status post fall, acute and
chronic. In an attached duty status report that identified January 5, 2010 as the date of injury, he
diagnosed back sprain due to a fall and advised that appellant could return to work, with
restrictions to her physical activity. In treatment notes dated January 15 to February 16, 2010,
Dr. Dan W.T. Peters, a Board-certified family physician, also noted that appellant was seen for a
workers’ compensation recheck. He reported her complaints of continued pain and discomfort
that was slowly improving and advised that she could continue light duty. On duty status reports
Dr. Peters diagnosed back, neck, and shoulder strains and advised that the conditions were due to
the January 5, 2010 injury. On March 5, 2010 he advised that appellant had mild discomfort in
the thoracic, trapezius and neck regions with full shoulder range of motion. Dr. Peters reiterated

2

his diagnoses and advised that she could resume full duty, including firing guns. In a form report
dated April 22, 2010, Cathy Tilbury, a nurse practitioner, referred appellant to orthopedics.
By decision dated April 30, 2010, OWCP denied the claim. Appellant timely requested a
review of the written record. In a September 28, 2010 decision, an OWCP hearing representative
affirmed the April 30, 2010 decision. He found that the January 5, 2005 slip and fall occurred
but that the medical evidence did not establish a causal relationship between the claimed
condition and the January 5, 2010 incident.
On November 2, 2010 appellant requested reconsideration. She submitted duplicates of
evidence previously of record, and an acceptance of a claim, adjudicated by OWCP under file
number xxxxxx606 that was accepted on September 8, 2005 for aggravation of lumbar
radiculopathy. Appellant also submitted Ms. Bracher’s treatment notes dated January 5
and 6, 2010, now cosigned by Dr. Peters. In a merit decision dated February 3, 2011, OWCP
denied modification of the prior decisions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.2
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.3 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.4
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 Rationalized medical evidence is medical
2

Gary J. Watling, 52 ECAB 278 (2001).

3

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

4

Gary J. Watling, supra note 2.

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

3

evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete, factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.6 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.7
ANALYSIS
The Board finds this case is not in posture for decision. The evidence supports that the
January 5, 2010 employment incident occurred as alleged. The Board also finds that the medical
evidence submitted by appellant generally supports that this incident caused a medical condition.
The medical evidence most contemporaneous with the January 5, 2010 slip and fall at
work includes an employing establishment treatment note signed by C. West, a PA, and also
reports dated January 5 and 6, 2010 from Ms. Bracher, a nurse practitioner. Nurses and
physicians’ assistants are not “physicians” as defined under FECA, and their opinions are of no
probative value.8 However, Ms. Bracher’s reports dated January 5 and 6, 2010 were cosigned by
Dr. Peters, and notes by a physician’s assistant or nurse practitioner will be considered probative
evidence if cosigned by a physician.9
The January 5, 2010 treatment note reported the history of injury, appellant’s complaints
of severe neck and shoulder pain, provided physical examination findings, and diagnoses of
general myofascial pain and muscle spasms, status post fall. The January 6, 2010 note advised
that appellant was seen following a fall at work because her pain and stiffness had increased,
especially in the neck and shoulder girdle area. Appellant was again diagnosed with myofascial
pain. The record contains additional reports from Dr. Ahmed and Dr. Peters dated January 11 to
February 16, 2010 in which the physicians noted that appellant was seen for a workers’
compensation recheck and referenced the January 5, 2010 incident. The physicians provided
physical examination findings and diagnosed back, neck and shoulder strains.
Although these reports are not sufficiently rationalized to discharge appellant’s burden of
proof establishing that an injury occurred on January 5, 2010 they stand uncontroverted in the

6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

Dennis M. Mascarenas, 49 ECAB 215 (1997).

8

S.E., Docket No. 08-2214 (issued May 6, 2009).

9

See Larry A. Williams, Docket No. 01-1161 (issued September 12, 2002).

4

record and may not be completely disregarded by OWCP.10 It merely means that their probative
value is diminished.11
It is well established that proceedings under FECA are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.12 The case shall therefore be remanded to
OWCP. On remand, OWCP shall refer appellant, an updated statement of accepted facts, and
the medical evidence of record to an appropriate Board-certified specialist for an examination,
diagnosis and a rationalized opinion as to whether appellant sustained an injury on January 5,
2010 and, if so, if she had any concurrent disability for work on or after that date. After this and
such further development deemed necessary, OWCP shall issue an appropriate decision.13
CONCLUSION
The Board finds this case is not in posture for decision regarding whether appellant
sustained injury on January 5, 2010.

10

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

11

Shirley A. Temple, 48 ECAB 404 (1997).

12

See Jimmy A. Hammons, 51 ECAB 219 (1999).

13

The Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider
this evidence, however, as its review of the case is limited to the evidence of record that was before OWCP at the
time it issued its final decision. 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2011 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: November 23, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marietta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 10-952
Issued: May 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 23, 2010 appellant filed a timely appeal from a January 12, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 27, 2008.
FACTUAL HISTORY
Appellant, a 28-year-old letter carrier, filed a traumatic injury claim on October 27, 2008,
alleging that she injured the left side of her head, broke her left elbow and scraped her left knee
when she fell at 2:00 p.m. after making a delivery. In a statement accompanying the claim, she
1

5 U.S.C. § 8101 et seq.

stated that she fell when her right foot turned over on the edge of the driveway and grass which
caused her to fall. The employing establishment controverted the claim, asserting that appellant
was intoxicated at the time of the incident due to her consumption of narcotic medication and
therefore did not sustain the injury in the performance of duty. It stated that she tested positive
for opiates on October 27, 2008.
The employing establishment submitted an October 29, 2008 statement from Barry Gray,
appellant’s manager, who decided to observe appellant while she was performing her deliveries
after speaking with Russell Abernathy, her supervisor, on Monday, October 27, 2008, prior to
her work shift. Mr. Abernathy informed Mr. Gray that he had told her about four times that she
was scheduled to work an eight-hour day. He told Mr. Gray that he had taken about two hours
off her route but appellant complained that she did not think she could complete it within eight
hours. Based on these facts, Mr. Gray concluded that this was a performance issue. He drove
out to find appellant on her route and spotted her delivering mail at a mailbox, he then waited at
an intersection about 100 feet from her. Mr. Gray stated that she lingered at the box for an
inordinate amount of time, approximately two and one half minutes, while fumbling with a
bundle of mail. He noted that appellant needed three passes to the box before inserting and
retrieving mail. Mr. Gray observed her delivering mail to four more boxes, which took
approximately 10 minutes as this behavior was repeated. He noted that this activity normally
took less than 30 seconds per box to accomplish. Following appellant’s accident Mr. Gray
approached her and asked her what happened.2 She told Mr. Gray that she had tripped and fallen
at the sidewalk/driveway area and that her left elbow hurt. Mr. Gray drove to Kennestone
Hospital to check on appellant’s condition, where an attending nurse told him that she appeared
to be intoxicated and recommended a drug and alcohol screening. The nurse advised him that
appellant had not been given any medication; the hospital then administered a drug test to her.
While sitting with appellant at the hospital Mr. Gray observed her speech slurring, falling in and
out of consciousness, mumbling and responding with nonrelated, bizarre information. He
concluded that she was extremely impaired. Mr. Gray alleged that a patient sitting about ten feet
from appellant asked her whether she had been operating a vehicle, as she also believed that
appellant was extremely impaired. Subsequently, the attending nurse informed Mr. Gray that
appellant had tested positive for opiates.
A hospital report dated October 27, 2008 provided a summary of how appellant’s injury
occurred, findings on examination, diagnoses of left elbow fracture and soft tissue injuries to her
head and left knee and a summary of her condition and behavior in the hours after she arrived at
the hospital. When appellant arrived at 2:41 p.m., she was described as alert, oriented, speech
was clear and that she responded appropriately to commands. The nurse’s notes at 2:53 p.m.,
following her transfer from the ambulance shortly after her arrival at the hospital, stated that
while being interviewed she continued to fall asleep for short intervals, would wake up crying
and had slurred speech. A toxicology screen performed at 4:00 p.m., showed that appellant was
presumptive positive for opiates. Appellant’s mood and affect were recorded as normal on
examination at 4:44 p.m. She did not receive any medication at the hospital other than antibiotic
2

Mr. Gray did not witness the incident in which appellant fell and struck her head, left knee and left elbow on the
pavement. After observing appellant deliver mail he drove on ahead and, while waiting for her to approach, heard
sirens in the area. When appellant did not appear at the next section of her route Mr. Gray drove back to the
intersection and saw emergency vehicles near her vehicle.

2

ointment at 5:15 p.m. The report also contained the results of diagnostic tests, dated
November 17, 2008, which indicated that appellant had oxycodone, morphine and
hydromorphone in her system on October 27, 2008.
In an e-mailed report dated November 14, 2008, Dr. Bruce N. Butler, Board-certified in
occupational medicine and the employing establishment’s associate area medical director, stated
that he had reviewed the October 27, 2008 hospital toxicology report. Based on the tests and on
tests run by Quest Lab on November 5, 2008, appellant had tested positive for both oxycodone
and morphine. Dr. Butler stated that based on absolute medical certainty appellant took at least
two different types of narcotics within hours of being tested on October 27, 2008. The test
results from the confirmatory gas chromatography/mass spectrometry (GC-MS) testing provided
the definitive results identifying the substances that caused the initial test to be positive and
revealed the presence of an extremely high concentration of morphine and a significantly
elevated level of oxycodone. Dr. Butler stated:
“[The test] results clearly confirm that [appellant] ingested, injected or otherwise
took a morphine-based compound within hours prior to her testing. Exactly, how
many hours would be difficult to extrapolate but it can be said with confidence
that she took the morphine[-]based substance within the previous [two to four]
hours prior to testing. This approximation is based on the very high concentration
of morphine detected. The presence of a small concentration of hydromorphone
is related to the high presence of morphine. Hydromorphone is a metabolite of
morphine and may be detectable when morphine is present.
“Additionally, the concentration of oxycodone (found in OxyContin) which has a
different molecular configuration and metabolic pathway was present in a
significantly elevated concentration. This confirms that [appellant] also ingested
this substance in addition to the morphine[-]based substance. As stated above, it
would be difficult to estimate the time she ingested this substance but with a
reasonable degree of certainty this was also taken within the previous [two to
four] hours prior to testing.
“It is important to understand the degree of impairment associated with this
concentration of narcotics in the blood. [Ten thousand] ng/mL is extremely high.
So much so, that a person with this much narcotic present in her system would be
at significant risk of injury just attempting to walk. Definitely, a person with this
concentration should not attempt to operate any motor vehicle, any potentially
dangerous machinery or even a bicycle. It can be said with a significant degree of
medical certainty that [appellant] definitely experienced drowsiness, probably
confusion, impaired neuromuscular responsiveness and lack of alertness. In
addition to this extremely high concentration ulniorphine, she also had a
significantly high level of oxycodone in her system. Combined, the two narcotics
amplify the pharmacologic effects of each individual drug.
“Individually, each drug at the concentration identified by GC[-]MS would have
impaired [appellant] sufficiently to have rendered her at very high risk of injury in

3

any situation. In this case, [she] was experiencing the combined effects of both
high concentrations of the oxycodone and morphine at the same time.”
The employing establishment submitted an October 31, 2008 investigative report from
the Office of the Inspector General (OIG). Special Agents Coral Williams and Rodricaus
Bowman questioned appellant on October 29, 2008 regarding the October 27, 2008 work
incident. Appellant provided her account of how the injury occurred and denied taking Percocet
on the day of her injury, either before or after the work incident. She stated that she took
Percocet for a pancreatis condition when she was in pain, but not on a daily or regular basis.
Appellant asserted that she would never take Percocet before she went to work, especially when
she knew she would be driving her mail vehicle. She asserted that she was not in pain on
October 27, 2008 until she fell and hit the pavement.
In a statement received by the Office on December 1, 2008, the employing establishment
stated that although appellant alleged that she slipped while walking, the sidewalk, street surface
and steps at the accident site were free from any objects which would have caused her to slip,
trip or fall. It asserted that her accident could have been a result of the use of opiate drugs.
By letter dated December 4, 2008, the Office asked appellant to submit additional factual
and medical evidence in support of her claim. It requested that a statement included a full
account of activities during the hours immediately preceding the injury; an assertion as to
whether she used or consumed any intoxicants (including prescription medications) during that
time and, if so, the precise nature and amount consumed and an assertion of whether or not she
believed intoxication was the proximate cause of her injury. The Office also requested a detailed
description as to how appellant’s injury occurred and asked her to comment on and explain
Mr. Gray’s observations of her behavior in the hospital waiting area following her fall. In
addition, it asked her to have her physician review the October 27, 2008 toxicology report and
Dr. Butler’s November 14, 2008 report and indicates whether or not her fall was caused by the
level of drugs in her system. The Office stated that appellant had 30 days to submit the
requested evidence. Appellant did not submit any additional evidence.
By decision dated January 9, 2009, the Office denied the claim, finding that appellant had
not sustained an injury in the performance of duty at the time of the incident due to intoxication.
It noted that the record contained laboratory test results showing the presence of morphine and
oxycodone in her system, the October 29, 2008 OIG investigative report in which she
acknowledged having Percocet in her possession but denied having taken it on October 27, 2008;
Mr. Gray’s October 29, 2008 statement which indicated that he witnessed her unsteady
performance delivering mail on October 27, 2008, prior to her accident and her behavior at the
hospital following the incident, where she exhibited slurred speech, disconnected thoughts and
difficulty staying awake and Dr. Butler’s November 14, 2008 report asserting that she ingested
heavy, destabilizing amounts of oxycodone and morphine shortly before the October 27, 2008
work incident. The Office noted that she had failed to respond to its December 4, 2008
developmental letter which asked her whether she used or consumed any intoxicants on
October 27, 2008 and to provide a physician’s report and response to Dr. Butler’s report.
On February 3, 2009 appellant requested a written review of the record. By letter dated
February 3, 2009, she again denied that the October 27, 2008 accident was caused by her being

4

intoxicated at the time it occurred and reiterated her account of how the October 27, 2008
accident occurred. Appellant remembered that a man stopped to help her when she was on the
ground and that she asked him to retrieve her purse from her truck. She then took two Percocets
from her purse which were prescribed for pancreatis. Appellant stated that when she arrived at
the hospital an intravenous fluid (I.V.) was inserted and she was given more pain medication.
Two days later, on Wednesday, October 29, 2009, Mr. Gray and two OIG agents arrived at her
home, at which time she was purportedly on heavy medication and did not understand who they
were. Appellant denied telling the agents that she had not taken any drugs before or after the
accident; she asserted that she had previously stated to management in another investigative
interview that she had taken two Percocets immediately after the accident. She stated that no one
ever indicated that she seemed impaired before or immediately after the accident. Appellant
asserted that she needed to take the Percocets because she was in so much pain following the
accident and only became intoxicated when they took effect a short time later.
In a statement dated February 3, 2009, appellant’s union representation, Karen Pruitt,
supported appellant’s denial that she was intoxicated at the time of her October 27, 2008
accident. She acknowledged that appellant subsequently became heavily impaired while at the
hospital; she stated, however, that this was only because appellant had taken two prescription
Percocets to dull the pain she was experiencing following her fall onto the pavement. Ms. Pruitt
asserted that Mr. Gray never mentioned in his statements that appellant appeared impaired before
or immediately after her accident. She stated that she asked him about appellant’s demeanor at
that time; Mr. Gray purportedly replied that appellant seemed okay, other than being in obvious
pain and was able to describe to him in detail what had happened. Ms. Pruitt also asserted that
she asked him if appellant appeared impaired during his observation before the accident and he
replied that he really could not tell. She also stated that Mr. Abernathy told her that appellant
was fine the morning of the accident.
In an April 29, 2009 statement, Mr. Gray refuted several of the assertions appellant made
in her February 3, 2009 letter. He stated that she inaccurately described the area and the manner
in which she fell on October 29, 2008 and that this description contradicted what she wrote on
her Form CA-1, that there were no “uneven areas” on the lawn where she fell. Mr. Gray
provided photos of the areas where appellant was injured in support of his statement.
Mr. Gray also noted that appellant’s assertion that she took prescription Percocets to
reduce the pain following the accident contradicted what she told the OIG investigators on
October 29, 2008, that her statement that “an I.V. was inserted and I was given more pain
medication at the hospital” was contradicted by the attending nurse’s statement to Mr. Gray at
the hospital and by the October 27, 2008 hospital records and that her assertion that she was on
heavy medication at the time of her October 29, 2008 OIG interview and did not know who the
agents were was contradicted by the OIG agents’ report.
In a May 5, 2009 statement, OIG Agent Williams rebutted many of the allegations
contained in appellant’s February 3, 2009 letter. Appellant stated therein that a man who
stopped to help her after she regained consciousness following her October 27, 2008 fall
retrieved her purse, from which she took two Percocet tablets prescribed for her pancreatis.
However, Agent Williams noted that appellant had denied taking medication immediately after
her injury during her October 29, 2008 interview. She further stated that she reviewed a

5

transcript of a 911 emergency recording which indicated that a man named Omar Fernandez had
placed the emergency call for appellant on October 27, 2008.3 Agent Williams and Agent Zadia
McKinnon went to Mr. Fernandez’ residence and took a statement from him. Mr. Fernandez
informed the agents that he was driving home on October 27, 2008 when he saw appellant sitting
up in the driveway. He exited his vehicle to assist her and called 911. Mr. Fernandez stated that
he remembered appellant asking for her purse so that she could call the employing establishment
but did not witness her taking any medication in his presence. He indicated that he remained at
the scene until emergency services arrived.4
Agent Williams further stated that, while the November 17, 2008 toxicology report
showed that there was morphine in her system, appellant did not mention taking morphine in her
February 3, 2009 letter. She also denied appellant’s assertion that she was heavily intoxicated
due to prescription Percocets when she and Agent Bowman arrived with Mr. Gray to interview
her at her home on October 29, 2008. Agent Williams stated that appellant was able to walk up
and down the stairs of her town house and complete a Form CA-1 without assistance. Appellant
was able to read and comprehend the form and remembered the date, time and addresses where
her injury occurred.
In a June 17, 2009 decision, an Office hearing representative affirmed the January 9,
2009 Office decision.
In a letter received by the Office on August 29, 2009, appellant requested
reconsideration. She indicated in her letter that her treating physician, Dr. Scott Swayze, a
specialist in orthopedic surgery, would explain why there was morphine in her system on
October 27, 2009. Appellant submitted an August 29, 2009 statement in which she stated that
Dr. Swayze and her pharmacist explained to her that her morphine level on October 27, 2008
indicated that she had ingested it within 24 hours, she stated that she took a morphine pill on
Sunday, October 26, 2008 at about 2:00 p.m., which did not seem “to be an issue.”
Appellant also submitted a copy of an arbitrator’s July 20, 2009 decision supporting a
grievance she had filed against management; the employing establishment had issued a notice of
removal against her for improper conduct and for making false statements to OIG agents. The
decision found that management failed to allow the union to interview the OIG agents after a
proper request by the union, which violated her due process rights.
By decision dated January 12, 2010, the Office denied appellant’s request for
modification.
LEGAL PRECEDENT
Under the Act the Office shall pay compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty, unless the
3

See copy of 911 transcript, dated October 27, 2008. Exhibit 2

4

Mr. Fernandez submitted a sworn statement dated May 4, 2009, which accompanied Agent Williams’ letter.
(See Exhibit 3, sworn statement, Omar Fernandez, May 4, 2009).

6

injury or death is proximately caused by the intoxication of the injured employee.5 Intoxication
is an affirmative defense and, if invoked, the Office must do so during the initial adjudication of
the claim.6 Moreover, the Office must establish by reliable, probative and substantial evidence
that intoxication was the proximate cause of injury or death.7
The procedure manual provides that where intoxication may be the proximate cause of
the injury, the record must contain all available evidence showing: (a) the extent to which the
employee was intoxicated at the time of injury; and (b) the particular manner in which the
intoxication caused the injury.8 It is not enough merely to show that the employee was
intoxicated.9 It is also the Office’s burden to show that the intoxication caused the injury.10 An
intoxicant may be alcohol or any other drug.11
In addition to obtaining statements from the supervisor/official superior, the employee
and any coworkers or other witnesses, the procedure manual indicates that a statement should be
obtained from the physician and the hospital where the employee was examined following the
injury which describes as fully as possible the extent to which the employee was intoxicated and
the manner in which the intoxicant was affecting the employee’s activities.12 Moreover, the
results of any tests made by the physician or hospital to determine the extent of intoxication
should be obtained.13
ANALYSIS
On appeal, appellant’s representative alleges that the Office has not met its burden of
proof to establish intoxication at the time of the injury because appellant should have been taken
off the route prior to the incident if in fact she was intoxicated prior to the incident. He further
contends that the Office did not meet its burden of proof because it did not obtain statements
from all emergency personnel involved in her care following the incident. It is not contested that
appellant experienced the alleged work incident in which she fell to the ground on October 27,
2007 while she was delivering mail on her regular delivery route. The employing establishment,
however, raised the affirmative defense of intoxication, contending that she was intoxicated by
narcotics on the date her work incident occurred and that her intoxication was the proximate
5

5 U.S.C. § 8102(a)(3) (2006).

6

T.F., Docket No. 08-1256 issued November 12, 2008).

7

Id., Elaine Hegstrom, 51 ECAB 539, 542 (2000).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.14c(1)
(September 1995).
9

Id.

10

Id.

11

Id.

12

Id. at Chapter 2.804.14c(3).

13

Id.

7

cause of her accident. The Office determined that appellant’s injury did not arise in the
performance of duty on October 27, 2007. The Board, however, finds that the Office did not
meet its burden of proof to deny her claim by raising the affirmative defense of intoxication.
As noted, the Office’s use of an affirmative defense must be invoked in the original
adjudication of the claim and the Office has the burden to prove such a defense. The evidence to
establish this defense must be reliable, probative and substantial. When intoxication is invoked
as an affirmative defense, the Board has explained that the statutory test under the Act is
“proximate cause” therefore the Office must show that the employee was in fact intoxicated
when the injury occurred and that such intoxication was the proximate cause of such injury. A
mere showing that intoxication existed concurrently with the injury is insufficient.14 The Act
does not intend that compensation shall be denied where intoxication is one cause of injury or
death, on the theory that if an employee is intoxicated she is not in the performance of duty.
Intoxication as a cause does not ipso facto take the case out of the performance of duty. In Ruth
Bubier (Sylvester C. Bubier), the Board considered whether intoxication was the proximate cause
of the employee’s injury and death. It noted that, under the Act, intoxication comes into picture
as destroying the right to compensation in situations, otherwise within the performance of duty,
only if intoxication is the proximate cause of the injury. In defining what is meant by proximate
cause the Board stated:
“[I]ntoxication does not bring the case within the statutory language under which
benefits may be denied, unless injury was occasioned solely by or was
proximately caused by intoxication (depending upon the particular act).
Something more is necessary than a mere showing that intoxication existed
concurrently with injury … If the injury was occasioned solely by … intoxication
then the statute requires denial of benefits, but this test can only be applied where
the injury is one arising out of and in the course of employment from other
aspects, as the fundamental prerequisite must be satisfied first before applying
such secondary test. If the first test is not met, then there is no need to apply the
second test.”15 (Emphasis in original.)
At the time of her injury, appellant was performing her duties as a letter carrier on her
postal route during her shift and at a place she was reasonably expected to be. She described her
injury as her right foot turning over the edge of a driveway and grass. Appellant’s account of

14

In the Matter of Alice Marjorie Harris, claiming as widow of Roy Lee Harris, 6 ECAB 55 (1953); see also
Ruth Bubier, surviving widow of Sylvester B. Bubier, 2 ECAB 60 (1948). The Federal (FECA) Procedure Manual
at Chapter 2.804.14(c) explains: “(1) Where intoxication may be the proximate cause of the injury, the record must
contain all available evidence showing: (a) the extent to which the employee was intoxicated at the time of the
injury and (b) the particular manner in which the intoxication caused the injury. It is not enough merely to show that
the employee was intoxicated. It is also the Office’s burden to show that the intoxication caused the injury. An
intoxicant may be alcohol or any other drug.”
15

Ruth Bubier (Sylvester Bubier), supra note 14 at 65 (1948).

8

injury is consistent with that provided to her manager that day and to postal inspectors on
October 29, 2008.16 Her injury is one arising out of and in the course of employment.
While Dr. Butler’s November 14, 2008 review of the hospital records and toxicology
reports indicated that appellant had an extremely high concentration of morphine and a
significantly elevated level of oxycodone in her system within hours of being tested on
October 27, 2008, there was no clear evidence showing that she was intoxicated at the time of
the October 27, 2008 work accident. Even if the toxicology reports were indicative of
intoxication, there is still no reliable medical evidence to establish intoxication as the proximate
cause of appellant’s accident. As noted, it is not enough merely to show that the employee was
intoxicated.17 Dr. Butler asserted that appellant experienced drowsiness, probably confusion,
impaired neuromuscular responsiveness and a lack of alertness at the time of her October 27,
2008 fall. He opined that a person with this concentration of morphine should not attempt to
operate any motor vehicle, any potentially dangerous machinery or even a bicycle. Dr. Butler,
however, was not present at the hospital immediately following the injury or provide any opinion
as to whether appellant’s intoxication had proximately caused her accident. The evidence from
the hospital is not fully consistent as to appellant’s manner upon admission. When appellant
arrived at 2:41 p.m., she was described as alert, oriented, speaking clearly and responding
appropriately to commands. A subsequent note advised that, while interviewed at 2:53 p.m., she
fell asleep for short intervals, would wake up crying and had slurred speech. Appellant’s mood
and affect were reported normal again at 4:44 p.m.
Prior to the injury, appellant had been observed on her route by a manager, Mr. Gray,
who drove to her route and provided a statement describing that she lingered at a postbox for
about two and half minutes and fumbled with a bundle of mail. She needed three passes to a box
before inserting and retrieving mail. Mr. Gray observed her for four more boxes which took
approximately 10 minutes. Appellant’s behavior was not of a nature to warrant intervention by
her supervisor. Mr. Gray left the area to proceed to the next street. As he waited for appellant to
start work on this portion of her route, he heard sirens and returned to where she was being
attended by emergency personnel. When Mr. Gray inquired as to what had happened, appellant
stated that she fell at the sidewalk-driveway area.
The evidence establishes only the possibility that appellant was intoxicated by ingestion
of medication at the time of injury.18 The record is insufficient to establish that her injury
sustained by tripping at a driveway was solely due to such intoxication. Appellant noted that her
right foot twisted on the edge of a driveway and grass after making a delivery. The absence of
any uneven areas or other objects does not rule out that she lost her balance while performing her
16

Appellant noted that at 2:00 p.m., after attempting to deliver a piece of mail, her foot became wedged between
a dip in the sidewalk and driveway.
17

Supra note 8.

18

As noted, the procedure manual provides that a statement should be obtained from the physician and the
hospital where the employee was examined which describes the extent of intoxication and the manner the
intoxication affected the employee’s activities. Federal (FECA) Procedure Manual, see supra note 8 at Chapter
2.804.14c(3). The report of Dr. Butler was obtained one month after the incident. Commentary from a nurse or a
supervisor of the employee is not sufficient to meet this requirement.

9

duties as a letter carrier. The Board therefore finds that the Office did not meet its burden to
establish the affirmative defense of intoxication. The evidence establishes that at the time of her
injury appellant was delivering mail on her assigned route.19 Appellant’s October 27, 2008
accident arose out of and in the course of her employment as it occurred within the period of
employment, at a place where she was reasonably expected to be for her work and while she was
fulfilling her job duties and incurring risks incidental to her work. For these reasons, she
sustained an injury in the performance of duty on October 27, 2008. The case will be remanded
to the Office for evaluation of the medical evidence and a determination of any periods of
disability.
CONCLUSION
The Board finds that appellant sustained an injury in the performance of duty on
October 27, 2008. The case is remanded to the Office for determination of the nature of the
injury and any resultant disability.

19

In order to be covered, an injury must occur at a time when the employee may reasonably be said to be engaged
in her master’s business, at a place when she may reasonably be expected to be in connection with her employment
and while she was reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto. Roma A. Mortenson-Kindschi, 57 ECAB 418, 423-24 (2006).

10

ORDER
IT IS HEREBY ORDERED THAT the January 12, 2010 decision of the Office of
Workers’ Compensation Programs is reversed. The case is remanded for further action
consistent with this decision.
Issued: May 18, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

11