United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.O., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
FAYETTEVILLE VA MEDICAL CENTER,
Fayetteville, AR, Employer
__________________________________________

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Appearances:
Daniel Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0280
Issued: October 1, 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 November 20, 2019 appellant, through counsel, filed a timely appeal from a
September 10, 2019 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic incident
in the performance of duty on June 8, 2018, as alleged.
FACTUAL HISTORY
On August 1, 2018 appellant, then a 67-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on June 8, 2018 at approximately 2:30 p.m. she sustained four compound
fractures of the vertebra thoracic/lumbar region when a patient pulled on her as she was rising from
kneeling position to change a dressing, causing severe back pain while in the performance of duty.
On the reverse side of the claim form, the employing establishment acknowledged that she was in
the performance of duty when her injury occurred, but controverted her claim, reasoning that she
did not follow facility policies and procedures as she did not report her injury until July 6, 2018.
Appellant did not stop work.
By development letter dated August 7, 2018, OWCP informed appellant that it had
received no evidence in support of her traumatic injury claim. It info rmed her of the type of
evidence necessary to establish her claim and provided a questionnaire for her completion. By
separate development letter of even date, OWCP also requested that the employing establishment
provide comments from a knowledgeable supervisor regarding the accuracy of her statement
relative to her claim. It afforded both parties 30 days to respond.
In a June 18, 2018 medical report, Dr. John Johnson, Board-certified in emergency
medicine, noted that appellant injured her back doing yard work three weeks prior. He attached a
June 18, 2018 diagnostic report from Dr. Julie Alford, a Board-certified radiologist, who
performed an x-ray scan of appellant’s thoracic spine, finding mild compression deformities of the
T7 through 12 vertebral body and mild-to-moderate degenerative changes. In a separate diagnostic
report of even date, Dr. Alford performed an x-ray scan of appellant’s lumbar spine, observing
mild compression deformities of the T9 through L3 vertebral bodies. Dr. Johnson also attached a
June 18, 2018 diagnostic report in which Dr. Alford performed computerized tomography (CT)
scans of the thoracic and lumbar areas of appellant’s spine, revealing moderate compression
deformities of L2 and 3 that were possibly acute and mild compression deformities at T12, L1,
and L4 that were probably chronic.
In a June 19, 2018 medical report, appellant sought treatment at the emergency room with
complaints of intractable lumbar back pain. Dr. Cynthia Brooks, Board-certified in internal
medicine, observed that appellant had been performing yard work for the previous three weeks
and started experiencing increased pain in her back. She recommended that appellant be admitted
for further testing and an interventional kyphoplasty procedure. Dr. Brooks also noted appellant’s
history of osteoporosis. On evaluation and review of diagnostic studies, she observed moderate
compression deformities of L2 and L3, noting that they were of uncertain age, but possibly acute.
Dr. Brooks further found mild compression deformities of T12, L1, and L4, noting that they were
of an uncertain age but likely chronic. She diagnosed multiple compression fractures of the lumbar
and thoracic vertebra.

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In a June 20, 2018 diagnostic report, Dr. Jordan Page, a Board-certified radiologist,
performed a magnetic resonance imaging (MRI) scan of appellant’s thoracic spine, prominent
thoracic hyperkyphosis with low-grade scoliosis. In a separate diagnostic report of even date, he
performed an MRI scan of her lumbar spine, revealing mild grade acute/subacute superior endplate
compression fractures at T12, L1, L2, and L3 as well as mild lumbar disc degeneration.
On June 20, 2018 Dr. Ryan Birlew, a Board-certified radiologist, performed a kyphoplasty
to treat appellant’s compression fractures at T12, L1, L2, and L3.
In a June 23, 2018 diagnostic report, Dr. Jinna Chen, a Board-certified radiologist,
performed a postoperative x-ray scan of appellant’s thoracic spine, finding chronic appearing
compression deformity of several vertebral segments with underlying low-to-moderate grade
spondylosis. In a separate diagnostic report of even date, she performed a postoperative x -ray scan
of appellant’s lumbar spine, observing an interval kyphoplasty of the vertebral segments of T12,
L1, L2, and L3. In another June 23, 2018 diagnostic report, Dr. Chen performed an x-ray scan of
appellant’s right hip, finding no apparent acute osseous injury.
In a June 26, 2018 diagnostic report, Dr. Jeff Ondr, a Board-certified radiologist,
performed CT scans which returned negative for CT evidence of multilevel vertebroplasty of the
lower thoracic and lumbar areas of the spine. In an August 14, 2018 response to OWCP’s
questionnaire, appellant recounted the events of the alleged June 8, 2018 employment incident.
She explained that at approximately 2:30 p.m. or 3:00 p.m. she had gotten on her knees to help a
patient and when she finished, informed him that she tended to get up slowly. The patient
proceeded to grab appellant’s right forearm and pull it upwards, causing her to experience severe
lower back pain shooting into her neck. Once appellant was standing the pain persisted. She told
her clerk what happened and she then notified her supervisor. Appellant’s supervisor assigned
someone to help her finish her shift. Appellant used ice and medication to treat her symptoms, but
it did not alleviate her pain and muscle spasms. She later went to the emergency room when her
pain continued. Appellant asserted that she never had back pain or muscle spasms affect her work
attendance in her 11 years of service in her position. She further indicated that she did not have
any similar disabilities and that she rarely missed work.
On August 20, 2018 OWCP received a response from J.C., a nurse manager on behalf of
the employing establishment, acknowledging that, to the best of her knowledge, appellant’s
statement was accurate. She asserted, however, that appellant did not report her injury at the time
it occurred; rather appellant notified her by phone following a back surgery. Appellant had already
been off work for several weeks when she called. J.C. immediately advised appellant to inform
the human resources department for further recommendations on how to proceed , since she had
not immediately reported her injury. She confirmed that appellant was performing her duties as a
nurse on the date of the alleged injury. J.C. also submitted a position description of appellant’s
duties as a nurse.
In an August 22, 2018 letter, the employing establishment indicated that it attached a
medical report from Dr. Shirin DeSilva, Board-certified in internal medicine, in which she opined
that appellant’s condition was not work related.

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In the August 15, 2018 medical report, Dr. DeSilva related that appellant informed her that
on June 8, 2018 between approximately 2:30 p.m. and 3:30 p.m. she had gotten on her knees to
remove an unna boot from a patient. Appellant finished and informed the patient that she tended
to get up slowly. The patient then grabbed appellant’s right arm and pulled it upward as he leaned
back on a gurney to assist her. Appellant reported that she then experienced severe pain in her
lower back, shooting up to the neck. She indicated that she notified a clerk, who informed her
manager, J.C., and J.C. assigned another nurse to help complete appellant’s shift. Dr. DeSilva
related that appellant treated her back pain with rest, ice, and medication before she called off work
on June 11, 2018 to visit her primary care physician. She later wen t to the emergency room on
June 18, 2018 as her pain persisted where diagnostic studies revealed compression fractures in her
lumbar and thoracic region. Dr. DeSilva recounted that appellant was then sent to the hospital
where she underwent a kyphoplasty on multiple levels of her back. Appellant asserted that she did
not have back pain, muscle spasms, or arthritis affecting her work attendance prior to her injury.
Dr. DeSilva reviewed medical evidence relating to appellant’s treatment following the alleged
June 1, 2018 employment incident and other relevant statements from her coworkers. She noted
that J.C. contended that she was not informed about appellant’s injury until after appellant
underwent surgery. Dr. DeSilva noted that on August 2, 2018 B.D., a clerk, informed her that on
June 8, 2018 appellant advised that she thought she pulled a muscle in her back. She did not report
the incident to anyone else. Also S.C., the wife of the patient involved in the alleged employment
incident, informed her on August 15, 2018 that appellant had been complaining of back pain a few
days prior due to appellant having pulled a muscle in her pelvic area. S.C. denied that her husband
pulled appellant up, instead offering that he held his arm out as a grab bar and that appellant pulled
on his arm to help herself stand up Dr. DeSilva opined that it was less likely than not that
appellant’s condition was caused by the alleged June 8, 2018 employment incident, noting that
appellant had severe preexisting osteoporosis and osteopenia due to appellant’s Lupus condition
and age that predisposed her to compression fractures as well as preexisting back pain that began
while she was gardening. She opined that, even if the patient had pulled appellant up, such a
maneuver would not have caused a lumbar compression fracture. Dr. DeSilva concluded that the
weight of the evidence suggested that appellant did not report her injury in a timely manner and
that appellant did not appear to have a back issue on June 8, 2018 that was in any way unusual.
In an August 24, 2018 letter, Dr. Rodney Donham, Board-certified in internal medicine,
noted appellant’s history of osteoporosis and lupus and explained that he previously treated her for
a mild back strain and right groin pain that began about a week earlier after working in the yard.
Appellant was able to perform her yard work until June 11, 2018 when she was seen by his
associate for complaints of back pain after a patient she was caring for grabbed her arm
aggressively to help her up from the floor. At that time, she experienced sudden neck and low
back pain and treated her symptoms conservatively until she presented in the emergency room and
was found to have sustained fractures of the thoracic and lumbar vertebrae. Dr. Donham opined
that these conditions were not consistent with appellant’s previous injuries and appeared to be
related to a new event.
In an attending physician’s report (Form CA-20) of even date Dr. Donham indicated that
appellant was injured on June 8, 2018 when she was removing an unna boot from a patient and he
aggressively pulled her up. He checked a box marked “Yes” to note her history of osteoporosis
and diagnosed thoracic and lumbar fractures. Dr. Donham checked a separate box marked “Yes”
to indicate his opinion that appellant’s condition was caused or aggravated by her employment
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activity, reasoning that the pulling/jerking motion of change in position likely contributed to her
vertebral fractures.
By decision dated September 20, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that the inju ry and/or events
occurred as she described. It noted that there were conflicting accounts of the incident from
appellant and S.C. and that, as a result, it appeared that appellant had given an incorrect history of
the work incident to Dr. Donham. OWCP concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA.
OWCP continued to receive evidence. In a November 19, 2018 narrative medical report,
Dr. John Ellis, Board-certified in occupational medicine, related the events of the alleged June 8,
2018 employment incident in which appellant was rising off the floor and a patient grabbed her
right arm to help her up from a squatting position, leaning backwards to do so. Appellant
experienced a sudden acute pain in the mid and lower thoracic and upper lumbar areas of her spine.
Dr. Ellis also reviewed her subsequent medical treatment and surgical procedures to treat her
condition, diagnosing compression fractures of the T12 vertebrae, as well as the first, second, and
third lumbar vertebrae. He opined that the alleged June 8, 2018 employment incident contributed
to, aggravated and/or caused appellant’s injury. In a medical note of even date, Dr. Ellis indicated
that she was temporarily totally disabled from work.
On January 7, 2019 appellant requested reconsideration of OWCP’s September 20, 2018
decision.
In a January 17, 2019 letter, appellant addressed the conflicting reports between herself
and S.C. She explained that she was already sore from performing yard work recently and that
S.C. was sitting behind and to the right of her and the patient tending to her infant grandson in a
stroller. As appellant completed changing his unna boot and began to rise, she indicated that she
looked to the lower bedrail and was unaware that he was going to attempt to help her up by taking
hold of her left forearm and leaning backward to get leverage. She immediately felt pain in her
lower back and requested that the patient let her go. Believing that, it to be a muscle spasm,
appellant attempted to stretch to alleviate her pain and applied ice. She informed her clerk of the
injury and that she did not believe that she would be able to see anyone else that day. Appellant
assumed the clerk spoke to J.C. as she was told to use another nurse to assist her. She then detailed
her subsequent home care before she called her physician on the following June 11, 2018.
Appellant clarified that she was not trying to place blame on the patient or S.C. and suggested that
she only stated what she stated because she thought they might be in trouble, questioning how
much of the incident S.C. actually saw as she was behind keeping the infant entertained.
In a February 5, 2019 statement, B.D. indicated that on June 8, 2018 she was clerking for
appellant and that appellant called the clinic saying that she could not see any more patients as she
believed that she may have pulled a muscle in her back.
In a February 7, 2019 statement, S.S., appellant’s coworker, explained that she carpooled
to work with appellant, on June 8, 2018 and at the end of their shift that day, appellant requested
that M.D., the alternative driver, drive them home as appellant had experienced severe pain in her
lower back after a patient attempted to assist her in standing up. In a separate statement of even

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date, M.D. concurred with S.S.’s account of the June 8, 2018 incident and further indicated that
appellant was off from work the following week before going to the emergency room on June 18,
2018 due to pain appellant was experiencing in her back. In a separate February 7, 2019 statement,
A.S., a nurse, explained that on June 8, 2018 she was asked by appellant to measure a patient for
compression stockings as she had injured her back and was unable to do so.
In a February 12, 2019 statement, appellant further explained that she felt fine during the
week of June 3 to 8, 2018. She admitted that she previously experienced pain in her left scapula
region and right hip area, but asserted that she saw Dr. Donham, and that these symptoms had
since resolved at that time. Appellant then detailed the alleged June 8, 2018 employment incident
again, making conversation with the patient and S.C. about appellant’s age and how she moved
slower. The patient then took appellant’s right arm and pulled her up, causing her to experience
pain in her lower back. Appellant the explained her subsequent medical care and the days leading
up to her filing her claim.
By decision dated May 22, 2019, OWCP denied modification of its September 20, 2018
decision.
On June 12, 2019 appellant, through counsel, requested reconsideration of OWCP’s
May 22, 2019 decision.
By decision dated September 10, 2019, OWCP denied modification of its May 22, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 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 2.

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).

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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 The employee has not met his or her
burden when there are such inconsistencies in the evidence as to cast serious doubt on th e validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on the employee’s
statements in determining whether a prima facie case has been established. 9 An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.10
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a traumatic incident
in the performance of duty on June 8, 2018, as alleged.
It is undisputed that on June 8, 2018 a patient attempted to assist appellant to stand up by
pulling on her and that she immediately experienced pain in her back. As noted, 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. 11 Herein, appellant
has consistently reported that on June 8, 2018 she experienced severe lower back pain shooting
into her neck when her patient attempted to help her to her feet by grabbing her forearm and pulling
her up. She submitted detailed accounts of the employment incident in her statements dated
August 14, 2018 and January 17 and February 12, 2019 wherein she explained that on June 8, 2018
she was attempting to stand up slowly after placing an unna boot when her patient attempted to
help her up by grabbing her forearm and leaning backwards to gain leverage. Appellant
immediately screamed out in pain and informed B.D., that she had injured her back and that she
would require assistance to complete her shift.
Appellant also submitted multiple statements from her coworkers, all noting that she had
informed them that she injured her back at work on June 8, 2019. Specifically, S.S.’ February 7,
2019 statement, confirmed that appellant informed her carpool group that she injured her back
when a patient attempted to assist her up off the floor by pulling her up.

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

C.M., Docket No. 20-1519 (issued March 22, 2021); 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).

11

Id.

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Furthermore, on the reverse side of the claim form, the employing establishment
acknowledged that appellant was in the performance of duty when her injury occurred. Nurse
manager J.C., in her August 20, 2018 response to OWCP’s development letter acknowledged that,
to the best of her knowledge, appellant’s statement was accurate and she confirmed that appellant
was performing her duties as a nurse on the date of the alleged injury.
Thus, the Board finds that appellant’s statements stand and establish that an employment
incident occurred on June 8, 2018, as alleged.
As appellant has established that the June 8, 2018 employment incident factually occurred
as alleged, the question becomes whether the incident caused an injury. 12 As OWCP found that
she had not established fact of injury, it did not evaluate the medical evidence. The Board,
therefore, will set aside OWCP’s September 10, 2019 decision and remand the case for
consideration of the medical evidence of record. 13 After 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 an injury causally related to the accepted June 8, 2018 employment
incident.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a traumatic incident
in the performance of duty on June 8, 2018, as alleged. The case is not in posture for decision with
regard to the issue of causal relationship.

12

Id.

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

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ORDER
IT IS HEREBY ORDERED THAT the September 10, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 1, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE NAVY,
COMMANDER NAVY INSTALLATIONS
COMMAND, San Diego, CA, Employer
__________________________________________

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

Docket No. 17-0617
Issued: September 26, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 24, 2017 appellant filed a timely appeal from a December 5, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish binaural hearing
loss in the performance of duty, as alleged.
FACTUAL HISTORY
On March 3, 2016 appellant, then a 47-year-old police officer, filed an occupational disease
claim (Form CA-2) alleging that he sustained binaural hearing loss due to workplace exposures to
1

5 U.S.C. § 8101 et seq.

hazardous noise. He noted that he first became aware of his condition and related it to his federal
employment on January 1, 2012. On the reverse side of the claim form, appellant’s supervisor
indicated that he was last exposed to the conditions that he alleged to have caused his hearing loss
on November 27, 2015, the same date that he first reported his condition to his supervisor.
Accompanying appellant’s claim form was a February 17, 2016 statement noting a history
of noise exposure to weapons fire for approximately three hours a day while serving in the U.S.
Marine Corps from 1987 to 1991.2 Beginning in 1994, appellant worked as a police officer at the
employing establishment, with exposure to noise while patrolling industrial areas due to “trades
working, vehicles, equipment, etc.” He noted that he was not provided hearing protection as it
would have interfered with the performance of his patrol duties. Appellant also mentioned a
history of a possible “inner ear virus.”
Along with the claim form, OWCP also received several employing establishment
audiograms, including a September 22, 1994 audiogram obtained by the employing establishment
preemployment as part of a hearing conservation program.3 An audiologist noted in the March 12,
2008 report that the audiogram demonstrated an asymmetrical hearing loss, worse on the left, that
required a fitness and risk evaluation. On April 17, 2008 an employing establishment audiologist
noted a chronic conductive hearing loss, considerably more severe on the left. He noted that
appellant has a nonoccupational medical issue -- “fit for duty re: hearing” and that audiograms
were to be repeated annually. The audiogram further noted that appellant’s personal physician
diagnosed a nonoccupational ruptured left eardrum in approximately 2003. A March 24, 2010
audiogram demonstrated decibel losses at the frequency levels of 500, 1,000, 2,000, and 3,000
hertz (Hz) in the right ear of 10, 15, 15, and 25 decibels (dBs) respectively. Testing at the same
frequency levels for the left ear revealed decibel losses of 35, 20, 25, and 50 dBs respectively. In
the audiometric report, an employing establishment audiologist noted appellant’s history of an
unspecified ear disorder possibly requiring surgery.
In a March 7, 2016 development letter, OWCP notified appellant that the evidence
submitted was insufficient to establish that he actually experienced the employment factors alleged
to have caused his hearing loss. It further noted that the evidence submitted was insufficient to
support that he was injured while in the performance of duty. OWCP advised appellant of the type
of additional evidence needed to establish his claim, including factual evidence documenting any
workplace exposure to hazardous noise, and provided a questionnaire for his completion in order
to substantiate the factual elements of his claim. The questionnaire specifically asked appellant to
describe all previous ear or hearing problems and provide medical reports and audiograms if he
had been examined or treated by a physician for an ear or hearing problem. It also specifically
noted that the March 24, 2010 audiometric report indicated that appellant “[h]as known ENT
disorder, may have surgery,” and requested that he provide details explaining that annotation. The

2

Appellant indicated that safety devices were provided and used to protect against noise exposure.

3

In addition to the September 22, 1994 audiogram, the record contains audiograms dated 1996 through 2001, 2005,
2008, and 2010. A February 28, 2014 2014 health record noted that appellant failed to keep his February 13, 2014
appointment with an audiologist. None of the audiograms are signed or reviewed by a physician.

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questionnaire also asked appellant to describe any hobbies which involve exposure to loud noise.
Appellant was afforded 30 days to submit the necessary evidence.
Appellant subsequently submitted a March 15, 2016 cover letter and an attached March 7,
2016 audiogram and prepared by an audiologist associated with a private sector hearing aid clinic.
The audiogram demonstrated decibel losses at the frequency levels of 500, 1,000, 2,000, and 3,000
Hz in the right ear of 20, 30, 40, and 45 dBs respectively. Testing at the same frequency levels for
the left ear revealed decibel losses of 55, 60, 70, and 70 dBs respectively. Neither the audiogram,
nor the cover letter were signed by a physician.
By decision dated June 14, 2016, OWCP denied appellant’s claim, finding that the factual
evidence of record was insufficient to establish that he was exposed to hazardous noise at the
employing establishment as alleged. It noted that he failed to respond to the questions regarding
exposure to loud noise in his federal and nonfederal employment, and failed to provide a
description of previous hearing problems.
On July 14, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. In an accompanying statement dated March 10, 2016,
he responded to OWCP’s development questionnaire. Appellant noted exposure to loud noise
while serving in the U.S. Marine Corps from 1987 to 1991, where as a rifleman, he was exposed
to “various weaponry and machinery.” He also noted his previous employment performing
security at a mall from 1992 to 1993, which involved “normal mall noise exposure.” As a police
officer at the employing establishment beginning in 1994, appellant indicated that he was exposed
to weapons fire during unspecified biannual activities, and to industrial noise at the employing
establishment. He indicated that he continued to be exposed to hazardous noise at work and
asserted that his hearing had progressively worsened over the years. After failing annual hearing
tests, appellant consulted with his family doctor who referred him to an otolaryngologist in
approximately 2011, who “stated that some people have seen hearing loss stopped with surgery,
but recommended against it due to the range of hearing loss” and his young age. He asserted that
he had no hobbies involving loud noise exposure, noting that he used hearing protection when
completing repetitive chores at home involving “mowers, saws, blowers, weed trimmers and
hammers.”
By decision dated December 5, 2016, an OWCP hearing representative affirmed OWCP’s
June 14, 2016 decision. He explained that, while appellant has answered the questions posed by
OWCP in its March 7, 2016 development letter, the factual evidence was still insufficiently
descriptive of noise heard at work to establish hazardous noise exposure in the performance of
duty as alleged. The hearing representative further found that appellant did not submit a medical
opinion from a physician diagnosing hearing loss or explaining its cause.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable

3

time limitation period of FECA,4 and 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 establish that, an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).10
ANALYSIS
The Board finds that appellant has not established binaural hearing loss in the performance
of duty, as alleged.
Appellant claimed that he sustained a bilateral hearing loss causally related to occupational
exposure to hazardous noise. In his February 17, 2016 statement, he noted a history of noise
exposure to weapons fire for approximately three hours a day while serving in the U.S. Marine
Corps from 1987 to 1991. Beginning in 1994, appellant worked as a police officer at the
employing establishment, with exposure to noise while patrolling industrial areas due to “trades
working, vehicles, equipment, etc.” He noted that he was not provided hearing protection as it
4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

H.M., Docket No. 19-0188 (issued April 26, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.

4

would have interfered with the performance of his patrol duties. Appellant also mentioned a
history of a possible “inner ear virus.”
OWCP, in its March 7, 2016 development letter, informed appellant that the evidence
submitted was insufficient to establish the factual elements of his claim. It requested additional
factual evidence and provided a questionnaire for his completion that sought additional detail
regarding the alleged occupational exposure and any nonoccupational ear or hearing conditions
and exposure.
In his March 10, 2016 statement, received with his request for a review of the written
record, appellant noted exposure to loud noise while serving in the U.S. Marine Corps from 1987
to 1991, where as a rifleman, he was exposed to “various weaponry and machinery.” He also
noted his previous employment performing security at a mall from 1992 to 1993, which involved
“normal mall noise exposure.” As a police officer at the employing establishment beginning in
1994, appellant indicated that he was exposed to weapons fire during unspecified biannual
activities, and to industrial noise at the employing establishment. He indicated that he continued
to be exposed to hazardous noise at work and asserted that his hearing had progressively worsened
over the years. After failing a series of annual hearing tests, appellant consulted with his family
doctor who referred him to an otolaryngologist in approximately 2011, who “stated that some
people have seen hearing loss stopped with surgery but recommended against it due to the range
of hearing loss” and his young age. He asserted that he had no hobbies involving loud noise
exposure, noting that he used hearing protection when completing repetitive chores at home
involving “mowers, saws, blowers, weed trimmers and hammers.”
The Board finds that the factual evidence of record lacks sufficient detail to establish
appellant’s claim.11 Appellant has not described with adequate detail what type of specific noise
that was generated in the industrial area where he worked. It remains unknown whether the
industrial areas are indoors or outdoors, and what his proximity was to any sources of loud noise.
Furthermore, while appellant noted exposure to firearm noise biannually, he has not described the
circumstances during which such exposure occurred, such as the duties he was performing or the
duration of his exposure.
As the factual evidence of record is insufficiently detailed to establish appellant’s claim,
the Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established binaural hearing loss in the performance
of duty, as alleged.

11

Supra note 7.

5

ORDER
IT IS HEREBY ORDERED THAT the December 5, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.12
Issued: September 26, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

12
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Rochester, NY, Employer
__________________________________________

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Docket No. 08-1889
Issued: June 17, 2009

Appearances:
Spencer L. Ash, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 25, 2008 appellant filed a timely appeal of the June 11, 2008 merit decision of
the Office of Workers’ Compensation Programs, which found that she received an overpayment
of benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the claim.
ISSUES
The issues are: (1) whether appellant received an overpayment of $18,003.64 for the
period March 30, 2000 through June 29, 2005; and (2) whether she was at fault in creating the
overpayment and, therefore, not entitled to waiver of recovery of the overpayment.
FACTUAL HISTORY
Appellant, a 59-year-old former mark-up clerk, injured her right knee on March 10, 1986
when she slipped and fell at work. Her claim has been accepted for right knee contusion and

torn medial meniscus.1 For more than two decades, the Office has paid appellant wage-loss
compensation for total disability.2
Over the years, appellant claimed her now-deceased husband as a dependent, as well as
their three children, born December 27, 1974, July 29, 1976 and December 30, 1977. Because
she had at least one eligible dependent, the Office paid her wage-loss compensation at the
augmented rate of 75 percent. In 1996, following the death of her daughter, appellant gained
legal custody and/or guardianship of her granddaughters, born September 9, 1985 and
June 6, 1988. In addition to appellant’s husband and three children, appellant claimed the
granddaughters as dependents for purposes of obtaining augmented wage-loss compensation.
On March 29, 2000 appellant’s husband died due to cancer. For several years following
her husband’s death, appellant continued to identify herself as married.3 The misleading
information appellant provided the Office regarding her marital status effectively allowed her to
continue receiving wage-loss compensation at the augmented rate of 75 percent.
On September 3, 2003 appellant’s then 15-year-old granddaughter, gave birth to a
daughter. Appellant was appointed as legal guardian on February 24, 2004. She later adopted
her great-granddaughter, officially changing the child’s name. The adoption was effective
June 30, 2005. Appellant first listed the great-granddaughter as a dependent on her November 4,
2005 financial disclosure statement (Form EN1032).
On April 3, 2008 the Office issued a preliminary determination that appellant received an
overpayment of $18,003.68 for the period March 30, 2000 through June 29, 2005. It noted that,
although appellant’s husband had died March 29, 2000, she continued to claim him as an eligible
dependent. Upon the death of her husband, appellant was no longer entitled to receive wage-loss
compensation at the augmented rate of 75 percent. The $18,003.68 overpayment represented the
difference between gross benefits calculated at the 75 percent and 66⅔ percent rates for the
1

Appellant underwent a partial medial meniscectomy on February 4, 1987. The surgery also revealed a torn
anterior cruciate ligament. Appellant underwent a repeat arthroscopy in March 1988. On March 10, 2008 she
underwent a right total knee replacement, which the Office authorized.
2

The Office initially placed appellant on the periodic compensation rolls on May 29, 1987.

3

In a Form EN1032 dated February 6, 2001, appellant identified her husband, as a dependent. She also
responded “Yes” to the form’s questions “Are you married?” and “If yes, does your husband or wife live with you?”
The 15-month period covered by the form included a 4-month period preceding John’s March 30, 2000 death.
However, appellant did not indicate on the February 6, 2001 form that her husband had died during the preceding
15-month period. The form specifically requests that “[i]f you are receiving compensation for a dependent and are
no longer entitled to receive that compensation,” state the “[d]ate the person stopped being a dependent” and the
“[r]eason the person stopped being a dependent.” Appellant responded “n/a.” In subsequent financial disclosures
(Form EN1032), she identified herself as married, but she did not represent that her husband either lived with her or
that she made regular direct payments for his support. The Office appears to have first learned of the death during a
January 10, 2006 telephone conversation with appellant regarding her interest in obtaining a lump-sum payment on a
schedule award. Appellant reportedly advised the Office that she had been receiving Social Security death benefits
from her deceased husband. But the following day, January 11, 2006, appellant signed and submitted another Form
EN1032 indicating that she was currently married. The Office received a copy of the death certificate on
August 28, 2006. In an October 2, 2006 Form EN1032, appellant again represented that she was married, but for the
first time she included the notation “husband deceased.”

2

above-noted period ending June 29, 2005.4 The Office also made a preliminary finding that
appellant was at fault in creating the overpayment.
In subsequent correspondence, appellant challenged the overpayment on the basis that
she “had maintained legal custody of two granddaughters since 1996....” She also noted that she
had legally adopted a daughter in 2005.5
On June 11, 2008 the Office issued a final overpayment decision. For some unexplained
reason the overpayment was reduced by $.04 to $18,003.64. But in all other respects, the final
decision was consistent with its April 3, 2008 preliminary determination.6
LEGAL PRECEDENT -- ISSUE 1
Compensation for disability and schedule impairments is paid at the rate of 66⅔ percent
if the employee has no dependents or 75 percent if the employee has at least one dependent.7
Eligible dependents include: a wife or husband, an unmarried child under 18 years of age, an
unmarried child over 18 who is incapable of self-support, a student, until he or she reaches 23
years of age or completes four years of school beyond the high school level; or a wholly
dependent parent.8
ANALYSIS -- ISSUE 1
Appellant appears to have conceded the fact that her husband, was no longer an eligible
dependent following his March 29, 2000 death. However, there is no indication from the record
that appellant subsequently remarried. Therefore, in order for her to continue to receive wageloss compensation at the 75 percent rate she must have had at least one other eligible dependent
on or after March 30, 2000. In challenging the overpayment, appellant noted that since 1996 she

4

The 75 percent rate was reinstated effective June 30, 2005, the date of the great-granddaughters adoption.

5

Appellant did not submit a recovery questionnaire or otherwise challenge the specific amount of the
overpayment.
6

Although appellant was entitled to continuing wage-loss compensation, the Office did not indicate its intention
to recover the overpayment by reducing future compensation payments.
7

5 U.S.C. §§ 8105(a), 8106(a), 8107(a), 8110(b) (2006); 20 C.F.R. §§ 10.401(b), 10.403(b) and 10.404(b) (2008);
see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Early Management of Disability Claims, Chapter
2.811.10 (February 2002).
8

5 U.S.C. § 8110(a); 20 C.F.R. § 10.405(a). A spouse is considered a “dependent” if her or she is a member of
the same household as the employee. However, cohabitation is not required in all instances. Dependent status will
be conferred where the husband or wife is receiving regular contributions from the employee for support or the
employee has been ordered by a court to contribute to the spouse’s support. 5 U.S.C. § 8110(a)(1) and (a)(2).

3

had legal custody of her granddaughters. She also noted that she had adopted a daughter in
2005.9
Under certain circumstances, compensation will be augmented for an injured employee’s
unmarried “child.” However, “child” and “grandchild” are not synonymous, and the latter is not
specifically recognized as an eligible dependent for purposes of augmented disability
compensation.10 Although appellant obtained legal custody of her two minor granddaughters in
1996, there is no indication from the record that she legally adopted either one.11 Had she done
so, she would have likely been able to claim at least one of them as a dependent child for the
entire period March 30, 2000 through June 29, 2005.12
A “grandchild” is not one of the specifically enumerated dependents for purposes of
receiving augmented compensation. Furthermore, guardianship or legal custody by itself does
not establish dependency. Accordingly, appellant’s granddaughters are not eligible dependents
under the Act. Similarly, appellant’s court-appointed guardianship of great-granddaughter
beginning February 24, 2004, does not confer dependent status prior to the June 30, 2005
effective date of her adoption.
Appellant’s marital status changed as of the death of her husband on March 29, 2000.
Subsequently, she did not have any eligible dependents prior to the June 30, 2005 adoption of the
great-granddaughter. Therefore, appellant was not entitled to receive augmented wage-loss
compensation for the period March 30, 2000 through June 29, 2005. Neither she nor her counsel
specifically challenged the Office’s calculation of the overpayment. Accordingly, the Board
affirms the Office finding with respect to the fact of overpayment and the amount of the
overpayment.
LEGAL PRECEDENT -- ISSUE 2
The Office may consider waving an overpayment if the individual to whom it was made
was not at fault in accepting or creating the overpayment.13 Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
9

Although not specifically raised on appeal, the Board notes that in her October 22, 2002 Form EN1032,
appellant continued to identify her adult children, as dependents for compensation purposes. However, their
respective ages disqualify them as dependents and there is no indication from the record that either child was
incapable of self-support at the time.
10

Jacqueline S. Harris, 56 ECAB 252, 255 (2005). The definition of a “child” includes stepchildren, adopted
children, and posthumous children, but does not include married children. 5 U.S.C. § 8101(9). The Federal
Employees’ Compensation Act separately defines “grandchild” for purposes of identifying eligible beneficiaries to
certain death benefits under 5 U.S.C. §§ 8109 and 8133. Id. at § 8101(10).
11

One granddaughter attained the age of 18 on September 9, 2003, and by January 2004, she was no longer a
member of appellant’s household. According to appellant, custody had been transferred to her paternal
grandmother. The other granddaughter did not attain the age of majority until June 6, 2006.
12

5 U.S.C. § 8101(9); Jacqueline S. Harris, supra note 10.

13

5 U.S.C. § 8129(b); 20 C.F.R. § 10.433(a).

4

receives from the Office are proper.14 A recipient will be found to be at fault with respect to
creating an overpayment if the individual “[a]ccepted a payment which he or she knew or should
have known to be incorrect.”15
ANALYSIS -- ISSUE 2
As early as May 29, 1987, appellant was made aware of the fact that she was being
compensated at the 75 percent rate because of one or more dependents. When she was first
placed on the periodic compensation rolls more than two decades ago, appellant was instructed
to inform “[the] office immediately of any change ... in the status of any dependents claimed ...
to establish entitlement to additional compensation.” The May 29, 1987 notification also
included the following statement: “I understand that willful failure on my part to comply with
these conditions can result in termination or forfeiture of benefits and liability for resulting
overpayments. I am also aware that any falsification or willful omission may result in criminal
prosecution.” On June 28, 1987 appellant signed the above-noted statement and returned it to
the Office.
The Board finds that appellant repeatedly accepted payments she knew or should have
known to be incorrect. Not only did the initial award notification advise appellant of her
responsibility to correctly identify her eligible dependents, but she was also reminded of this
obligation on an almost annual basis. The record includes more than 15 financial disclosure
statements that appellant submitted over the years. Part C of Form EN1032, entitled
“Dependents,” describes the applicable compensation rates for an individual with dependents (75
percent) and without dependents (66⅔ percent). The form also describes who and under what
circumstances a person can be claimed as a dependent. While a husband and an unmarried child
are included in the list of eligible dependents, a grandchild is not. After providing general
information about compensation rates and eligible dependents, Form EN1032 specifically
inquires about one’s marital status, whether one is claiming compensation on account of other
dependents, such as children, and whether there have been any changes in dependent status that
might effect entitlement. Part H of the form includes a certification that reads in part: “I
understand that I must immediately report to OWCP ... any change in the status of claimed
dependents....” Appellant presumably read Form EN1032 on at least a dozen occasions and
signed the above-noted certification.
Given the specificity of Form EN1032, appellant knew or should have known that she
was not entitled to claim her deceased husband as a dependent. As to the eligibility of the
granddaughters, while appellant claimed her granddaughters as dependents as early as
January 1997, there is no indication that the Office either confirmed or otherwise acknowledged
them as dependents for purposes of appellant’s entitlement to augmented compensation.
Moreover, based on the specific information included in Form EN1032, appellant knew or
should have known that her granddaughters were not eligible dependents, including her greatgranddaughter prior to her formal adoption. The Board, therefore, agrees with the Office’s
finding that appellant was at fault in creating the overpayment of benefits. For more than five
14
15

Id.
20 C.F.R. § 10.433(a)(3).

5

years, she accepted payments she knew or should have known to be incorrect. Because appellant
was at fault, she is not eligible for a waiver of recovery of the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment of $18,003.64 for the period
March 30, 2000 through June 29, 2005. The Board further finds that appellant was at fault in
creating the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 11, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Tulsa, OK, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1528
Issued: March 23, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a July 15, 2020
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.

ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury in the performance of duty on March 10, 2017, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 10, 2017 appellant, then a 60-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that, at approximately 12:00 p.m. on that date, her
knees and wrists were scratched, bloodied and swollen when she tripped on uneven pavement
when she was walking to work while in the performance of duty. A coworker, S.G., provided a
statement on the Form CA-1 noting that while walking to work on March 10, 2017 she saw
appellant lying on the ground under the covered sidewalk on B side parking. Appellant informed
S.G. that she tripped on the sidewalk. On the reverse side of the claim form, the employing
establishment controverted the claim contending that appellant was not in the performance of duty
when she was injured, as the incident occurred before the start of her work shift, she was off
premises and was not engaging in official duties. It noted that her work schedule was 12:00 p.m.
to 8:30 p.m., Tuesday through Saturday. Appellant did not stop work.
In a March 20, 2017 development letter, OWCP advised appellant of the deficiencies of
her claim. It informed her of the type of factual and medical evidence needed to establish her
claim and provided her with a factual questionnaire for her completion. In a separate development
letter of even date, OWCP requested that the employing establishment provide information
regarding the location and time of appellant’s injury. It afforded both parties 30 days to submit
the requested information.4
OWCP received medical evidence, including treatment notes dated March 13, 2017 from
Dr. Homer Hardy, an osteopath, diagnosing contusions of both knees.
On March 23, 2017 the employing establishment controverted appellant’s claim, asserting
that appellant’s injury occurred at 11:56 a.m. on March 10, 2017, but that her work shift did not
3

Docket No. 18-0617 (issued February 13, 2019).

4
Appellant submitted numerous reports to the record dating from March 10, 2017. On April 7 and 25, and June 26,
2017 Dr. Robert Coye, a Board-certified internist, diagnosed right medial knee pain. On May 9 and 30, June 1 and 6,
and July 18, 2017 Dr. James D. Cash, a Board-certified orthopedic surgeon, diagnosed bilateral knee contusions. On
June 2, 2017 Dr. Kelly Lindauer, a Board-certified diagnostic radiologist, reviewed appellant’s magnetic resonance
imaging (MRI) scan and found tear of the medial meniscus, chondromalacia, and effusion. Dr. Thomas Kern, a Boardcertified internist, examined appellant on July 31, 2017 and diagnosed derangement of medial meniscus of both knees.
Dr. Seth Migdalski, a psychiatrist, examined appellant on October 30, 2017 for emotional conditions. Appellant also
submitted numerous reports from Timothy Marlow, Chad Perkins, Dianne Briscoe, and Eve Fitzpatrick, physician
assistants, as well as notes from Whitney Ellsworth, a physical therapist. See M.M., Docket No. 17-1641 (issued
February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018).

2

begin until 12:00 p.m. It noted that she had not clocked in for duty and was not in any work
location when the injury occurred. The employing establishment reported that it did not own,
lease, or maintain the area where appellant’s injury occurred. It further noted that it did not direct
her to park her car in any of the various public parking lots that surrounded her duty station. J.M.,
an AirServ supervisor, witnessed appellant’s fall and described the location as occurring on the
sidewalk coming up from B side parking.
By decision dated April 25, 2017, OWCP denied appellant’s traumatic injury claim finding
that the evidence submitted was insufficient to establish that she was injured in the performance
of duty. It found that she was not reasonably fulfilling the duties of her employment or doing
something incidental thereto at the time of her injury, that she had not begun her tour of duty, and
was walking on a public sidewalk toward the employing establishment. OWCP noted that under
FECA, an employee who is injured off premises while commuting to work is not in the course of
employment.
On May 4, 2017 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an e-mail to counsel dated July 16, 2017, appellant reported that she fell on the sidewalk
between the employee parking lot and the employing establishment office. She noted that she paid
for parking with the Green Option Commuter Card (For Federal Government Transit Subsidy Use
Only). Appellant’s card allotted $240.00 and she paid parking costs of $135.00 every six months.
She indicated that she would fax counsel a copy of the employer-paid parking receipt from
July 14, 2017.
In a letter dated July 31, 2017, counsel indicated that he was providing OWCP with medical
records, physical therapy notes, and a “copy of the receipt and the subsidized public transportation
pass paid for by the employing agency.”
Appellant testified during an oral hearing on October 6, 2017 before an OWCP hearing
representative. She alleged that she was required to wear a uniform for her position, but that the
employing establishment regulated the activities she could perform in uniform. Appellant testified
that the employing establishment rented a portion of the airport parking lot for its employees and
assigned them a place to park. The employing establishment required employees to go straight
from the parking lot to the employing establishment without diversion. Appellant asserted that her
parking was fully paid for by the employing establishment, and that she had to park in an assigned
area otherwise her car would be booted. She noted that the employing establishment provided her
with a commuter payment card and a placard for her car. Appellant testified that there was only
one sidewalk from the parking lot to her duty station and that no other route was available. She
noted that the parking area in question was encircled by a six-foot fence and that she had a badge
for that parking area. Appellant again alleged that she could not enter the employing establishment
from another parking location. She noted that other airport employees parked in the fenced lot
including pilots and stewardesses. Counsel contended that it was not plausible that the employing
establishment was not in control of the area as they paid for parking and that there was only one
entrance that appellant could utilize to get to her duty station.

3

On December 5, 2017 the employing establishment terminated appellant’s employment. It
noted that her appointment was subject to completion of a two-year trial period. The termination
was noted to promote the efficiency of the service and was primarily based on her extensive use
of leave.
By decision dated December 18, 2017, OWCP’s hearing representative found that
appellant was injured on the sidewalk between the off-premises parking lot and the worksite. She
noted that there was no evidence that the employing establishment controlled or maintained the
area where the fall occurred. OWCP’s hearing representative determined that the facts did not
establish an exception to the premises rule and that appellant’s injury did not arise out of and in
the course of her federal employment.
Appellant, through counsel, appealed to the Board. In its February 13, 2019 decision, 5 the
Board set aside the December 18, 2017 decision and found that the case was not in posture for
decision as OWCP had not properly developed the factual evidence to establish whether the
secured parking facility and the covered sidewalk were in control of the employing establishment
such that appellant was on the premises when injured. The Board remanded the case for further
development and a de novo decision.
In an April 2, 2019 development letter, OWCP requested that the employing establishment
provide a diagram demonstrating the boundaries of its premises and the location of appellant’s
injury site in relation to those premises.
On April 16, 2019 the employing establishment submitted several photographs with
notations identifying parking lot B, the sidewalk maintained by the Tulsa Airport Authority,
identified as the general area where appellant fell, and the employees’ entrance.
In an April 24, 2019 e-mail, OWCP requested that the employing establishment respond to
the remainder of the questions posed by the Board. In response, the employing establishment
reported that appellant was not required to park in parking lot B. It further noted that there were
various locations where she could have chosen to park, as parking lot A and B were open to all
employees that worked at the airport and maintained by American Parking. The employing
establishment further noted that there was an additional American Parking lot, and a lot maintained
by Fine Parking. It reported that parking lot B was opened to all employees of the airport, not just
its employees; however, it was not open to the general traveling public. The employing
establishment noted that it provided a parking subsidy to appellant, not a specific parking space,
and that she could have chosen not to accept it. It reported that she was not assigned to parking
lot B, that it did not assign or provide parking, but that it provided an optional subsidy to help to
pay for parking. The employing establishment denied responsibility for monitoring or inspecting
the parking lots for security purposes and added that it did not pay a third party for those services.
It reported that the covered sidewalk where appellant fell was the normal route that she would have
traveled after parking in lot B.
By decision dated May 16, 2019, OWCP denied appellant’s traumatic injury claim finding
that her injury did not occur in the performance of duty as she was not on the employing
5

Supra note 2.

4

establishment premises at the time her injury occurred. On May 21, 2019 appellant, through
counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and
Review, which was held on August 27, 2019.
Appellant testified before an OWCP hearing representative and asserted that the general
public did not park in lot B. She further asserted that the general public did not use the sidewalk
where she fell, that it was the only way to get from parking lot B to the building, and that she paid
more to park in lot B as it was closer to her duty station than lot A. Appellant reported that there
was no mass public transit to the airport, only taxis or other automobile-based modes of transport.
By decision dated October 3, 2019, OWCP’s hearing representative vacated the May 16,
2019 decision. She remanded the case and directed OWCP to ascertain whether the employing
establishment was accessible to employees via public transportation and whether any employees,
in fact, traveled to work using public transportation.
On October 17, 2019 appellant provided a link to the Tulsa Transit System and noted that
it did not list the airport as a destination.
In a letter dated November 15, 2019, the employing establishment reported that the Tulsa
Transit System provided public transportation to and from the airport. It was located curbside
outside of baggage claim. The employing establishment noted that only one employee had utilized
this form of transportation. It also noted that taxi, other private vehicle transport, and airport
shuttle services were provided by the parking companies.
By decision dated December 31, 2019, OWCP denied appellant’s claim finding that she
was not injured in the performance of duty. On January 6, 2020 appellant, through counsel,
requested an oral hearing from a representative of OWCP’s Branch of Hearings and Review, which
was held on May 14, 2020.
Appellant testified before an OWCP hearing representative and asserted that at the time of
her injury on March 10, 2017 there was no public transportation available to the employing
establishment due to construction on the airport premises. Ap pellant alleged that she had no choice
but to park in a lot at the airport. She noted that Tulsa had instituted a new bus service in 2019,
the Aero bus. Appellant testified that she was not currently working due to her knee conditions
and had undergone surgery on one knee.
By decision dated July 15, 2020, OWCP’s hearing representative found that there were
public parking lots available to appellant, that she chose to park in lot B, even though it was more
expensive, and that the employing establishment did not contract for parking lot B, maintain it,
police it, or otherwise demonstrate any control over parking lot B or the walkway where appellant
fell. He noted that were other means of ingress to the work facility, particularly those routes from
lot A, such that the walkway were appellant fell was not the only access to work. OWCP’s hearing
representative found that appellant was not on the premises when her March 10, 2017 injury
occurred and was, therefore, not in the performance of duty.

5

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, 6 that an injury was sustained in the performance of duty as alleged and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury. 7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 8
The phrase “sustained while in the performance of duty”9 Has been interpreted by the
Board to be the equivalent of the commonly found prerequisite in workers’ compensation law of
“arising out of and in the course of employment.”10 To arise in the course of employment,11 in
general, an injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in the master’s business; (2) at a place where he or she may reasonably be expected to be
in connection with the employment; and (3) while he or she was reasonably fulfilling the duties of
her employment or engaged in doing something incidental thereto.12
It is well established as a general rule of workers’ compensation law that, as to employees
having fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours or at
lunch time, are compensable13 but if the injury occurs off the premises, it is not compensable,
subject to certain exceptions. The Board has previously found that the term “premises” as it is
generally used in workers’ compensation law, is not synonymous with “property” because it does
not depend solely on ownership. The term “premises” may include all the property owned by the
employing establishment. In other instances, even if the employing establishment does not have

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); Kathryn Haggerty, 45 ECAB
383, 388 (1994); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

See S.B., supra note 6; Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

9

5 U.S.C. § 8102(a); S.S., Docket No. 20-1349 (issued February 16, 2021); J.K., Docket No. 17-0756 (issued
July 11, 2018).
10

This construction makes the statute actively effective in those situations generally recognized as properly
within the scope of workers’ compensation law. J.K., id.; Bernard D. Blum, 1 ECAB 1 (1947).
11

See L.P., Docket No. 17-1031 (issued January 5, 2018).

12

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

13

L.P., supra note 11; Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general
rule of workers’ compensation law in circumstances where the employee was on an authorized break. See Eileen R.
Gibbons, 52 ECAB 209 (2001).

6

ownership and control of the place of injury, the place may nevertheless still be considered part of
the premises. 14
The Board has also held that the factors, which determine whether a parking area used by
employees may be considered part of the employing establishment’s premises include whether the
employing establishment contracted for the exclusive use by its employees of the parking area,
whether parking spaces in the area were assigned by the employing establishment to its employees,
whether the parking areas were checked to see that no authorized cars were parked in the area,
whether parking was provided without cost to the employees, whether the public wa s permitted to
use the area, and whether other parking was available to the employees. Mere use of a parking
facility alone is insufficient to bring the parking area within the premises of the employing
establishment. The premises doctrine is applied to those cases where it is affirmatively
demonstrated that the employing establishment owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission, or provided parking for its
employees. 15
As noted above, there are exceptions to the premises rule, and one is the proximity
exception, which allows constructive extension of the premises to those hazardous conditions,
which are proximate to the premises and may, therefore, be considered as hazards of the
employment.16 Underlying the proximity exception is the principle that course of employment
should extend to an injury that occurred at a point where the employee was within the range of
dangers associated with the employment. 17 The most common ground of extension is that the offpremises point at which the injury occurred lies on the only route, or at least on the normal route,
which employees must traverse to reach the premises, and that, therefore, the special hazards of
that route become the hazards of the employment. 18 This exception contains two components.
The first is the presence of a special hazard at the particular off-premises point. The second is the
close association of the access route with the premises, so far as going and coming are concerned.19

14

S.S., supra note 9; C.L., Docket No. 19-1985 (issued May 12, 2020); Wilmar Lewis Prescott, 22 ECAB 318,
321 (1971).
15

Federal (FECA) Procedure Manual, Part 2 - Claims, Performance of Duty, Chapter 2.804.(4)(f) (August 1992);
C.L., id.; R.K., Docket No. 18-1269 (issued February 15, 2019); Diane Bensmiller, 48 ECAB 675 (1997); Rosa M.
Thomas-Hunter, 2 ECAB 500 (1991); see also Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 ECAB
487 (1982); R.M., Docket No. 07-1066 (issued February 6, 2009).
16

D.K., Docket No. 11-1029 (issued February 1, 2012).

17

See J.K., supra note 9; Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).

18

Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3). See also J.K, supra note 9; R.O., Docket
No. 08-2088 (issued May 18, 2009).
19

Id. at § 13.01(3)(b); L.P., supra note 11; Wilmar Lewis Prescott, supra note 14. Another exception to the rule is
the proximity rule, which the Board has defined by as where, under special circumstances, the industrial premises are
constructively extended to hazardous conditions, which are proximately located to the premises and may, therefore,
be considered as hazards of the employing establishment. The main consideration in applying the rule is whether the
conditions giving rise to the injury are causally connected to the employment. See William L. McKenney, 31 ECAB
861 (1980).

7

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on March 10, 2017, as alleged.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s December 18, 2017 merit decision because
the Board considered that evidence in its February 13, 2019 decision. Findings made in prior
Board decisions are res judicata absent any further review by OWCP under section 8128 of
FECA.20
The Board has held that the premises of the employer are generally extended when an
employee must travel a public thoroughfare to traverse between two premises of the employer. 21
In order to determine whether the covered sidewalk between the employing establishment and
parking lot B, where appellant’s March 10, 2017 fall occurred, should be considered part of the
employing establishment’s premises, the Board must first consider the factors necessary to
determine whether parking lot B was under sufficient control of the employing establishment to
constitute its premises.22 As noted above, in determining whether a parking lot or garage should
be considered part of the employing establishment’s premises, the Board must consider such
factors as whether the employing establishment contracted for its exclusive use by its employees,
whether the employing establishment assigned parking spaces, whether the parking area was
checked to see that no unauthorized cars were parked in the parking area, whether the public was
permitted to use the parking area, whether parking was provided without cost to the employees,
and whether other parking was available to the employees. 23
The Board finds that appellant has not established that parking lot B, was exclusively or
principally used by employees of the employing establishment. Appellant and the employing
establishment have agreed that parking lot B was open to airport employees as well as those of the
employing establishment. The parties agree that the employing establishment did not assign the
space or the lot in which appellant parked. Both parties also agree that appellant could have parked
in lot A or B or in other public parking locations at the airport. Appellant chose to park in lot B as
it was closest to the employing establishment entrance and paid a premium above the parking
subsidy allotment provided to her to park in that lot.24 While she noted that parking lot B was the

20

See B.R., Docket No. 17-0294 (issued May 11, 2018); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998); see
also 20 C.F.R. § 501.6(d).
21

R.B., Docket No. 11-1320 (issued September 5, 2012).

22

R.E., Docket No. 18-0515 (issued February 18, 2020).

23

C.L., supra note 14.

24

C.B., Docket No. 12-1849 (issued January 13, 2014).

8

nearest option for all employees, she has not provided any relevant evidence to establish that she
was required to park in that parking lot or assigned specific parking space. 25
As parking lot B was not a part of the employing establishment premises, and as app ellant
was not required to park there, the off-premises point at which the injury occurred, the covered
sidewalk, does not lie on the only route or on the normal route, which employees must traverse to
reach the premises, such that the special hazards of that route become the hazards of the
employment. 26 The record reveals that there were multiple places that appellant could park on the
airport premises and, therefore, multiple ways that she could have accessed her workplace. She
did not establish within the meaning of FECA, that there were hazardous conditions proximately
located to the premises, which would establish a constructive extension.27 Rather appellant’s act
of tripping on uneven pavement was a hazard common to all travelers on the sidewalk and was not
causally related to her employment. 28 Thus, her injury constitutes an ordinary nonemployment
hazard of the journey itself, shared by all travelers. 29
As the record fails to support the application of an exception to the off -premises rule, the
Board finds that appellant did not meet her burden of proof to establish that she sustained an injury
in the performance of duty on March 10, 2017.30
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on March 10, 2017, as alleged.

25

J.B., Docket No. 17-0378 (issued December 22, 2017).

26

See F.S., Docket No. 09-1573(issued April 6, 2010) (finding that although the crosswalk where the claimant was
injured may have been the normal route to reach the employing establishment from the short-term lot, the claimant
was not required to park in the short-term lot and, by extension, was not required to use the crosswalk).
27

D.B., Docket No. 13-0510 (issued June 10, 2013).

28

F.S., supra note 26.

29

Id.

30

See Jon Louis Van Alstine, 56 ECAB 136 (2004). See also Linda S. Jackson, 49 ECAB 486 (1998).

9

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10