United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pottsville, PA, Employer
__________________________________________

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

Docket No. 20-0394
Issued: July 17, 2020

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 December 11, 2019 appellant filed a timely appeal from a November 15, 2019 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 an incident in the
performance of duty on September 27, 2019, as alleged.
FACTUAL HISTORY
On September 27, 2019 appellant, then a 64-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on that day he experienced a left shoulder injury
when he slipped and fell while carrying a large box of dog food while in the performance of duty.
1

5 U.S.C. § 8101 et seq.

He explained that he had to walk sideways on the grass for a couple of feet before he could access
the driveway and slipped.2 On the reverse side of the claim form, the employing establishment
acknowledged that its account of the facts agreed with that of appellant’s and indicated by checking
a box marked “Yes” that he was injured in the performance of duty. However, it controverted his
claim based on “fact of injury,” noting that there was no medical evidence. Appellant did not stop
work.
In an October 10, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the necessary evidence. No additional evidence was received.
By decision dated November 15, 2019, OWCP denied appellant’s traumatic injury claim
finding that the factual evidence of record was insufficient to establish that the employment
incident occurred as alleged. It concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8

2

Appellant’s statement as to the cause of the injury was partially illegible.

3

Supra note 1.

4

G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5
M.G., Docket No. 18-1616 (issued April 9, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

20 C.F.R. § 10.115; A.S., Docket No. 19-1955 (issued April 9, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

8

Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

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An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his subsequent course of action.9
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury, and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie claim has been established.10 An employee’s statements alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence.11
ANALYSIS
The Board finds that appellant has met his burden of proof to establish an incident in the
performance of duty on September 27, 2019, as alleged.
To establish a claim for compensation in a traumatic injury claim, an employee must submit
a statement that explains how the claimed injury occurred.12 Appellant indicated on his claim form
that he injured his left shoulder when he slipped and fell when carrying a large box of dog food.
He explained that he slipped when attempting to gain access to the driveway by walking sideways
on the grass for a few feet. The employing establishment indicated by checking a box marked
“Yes” that the incident occurred in the performance of duty and also acknowledged that it was in
agreement with appellant’s version of the facts. The Board finds that appellant has provided a
detailed description as to how the alleged September 27, 2019 incident occurred and that there is
no strong or pervasive evidence to refute his account of the occurrence of the September 27, 2019
incident. Thus, his statement stands and establishes that an employment incident occurred on
September 27, 2019, as alleged.
As appellant has established that the September 27, 2019 employment incident factually
occurred, the question becomes whether this incident caused an injury. The Board will, therefore,
remand the case for any necessary further development, to be followed by a de novo decision on
the issue of whether appellant has sustained an injury causally related to the accepted
September 27, 2019 employment incident.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish an incident in the
performance of duty on September 27, 2019, as alleged. The case is not in posture for decision,
however, with regard to whether he has established an injury causally related to the accepted
September 27, 2019 employment incident.
9

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667-71 (1987).

10

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

11

Id.; see also S.S., Docket No. 19-1815 (issued June 26, 2020).

12

R.B., Docket No. 19-1026 (issued January 14, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the November 15, 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: July 17, 2020
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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE ARMY, ARMY
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MATERIAL DEVELOPMENT & READINESS
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COMMAND, Redstone, AL,
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___________________________________________ )
M.G., Appellant

Appearances:
David C. Gable, for the appellant
Office of Solicitor, for the Director

Docket No. 07-2317
Issued: April 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 11, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 31, 2007 finding a $12,070.51 overpayment
of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUES
The issues on appeal are: (1) whether the Office properly determined that appellant
received a $12,070.51 overpayment of compensation from October 13, 2002 to February 17,
2007; (2) whether the Office properly determined that she was at fault in the creation of the
overpayment; and (3) whether the Office properly directed recovery of the overpayment by
withholding $300.00 from her continuing compensation payments.

FACTUAL HISTORY
On August 29, 1977 appellant, then a 53-year-old clerk stenographer, sustained injury
when she tripped and fell while in the performance of duty. The Office accepted a lumbosacral
sprain and displacement of the lumbar intervertebral disc without myelopathy. Appellant
stopped work on August 29, 1977 and did not return. She was placed on the periodic rolls on
October 24, 1978 and received compensation for total disability. Appellant’s compensation was
at the three-fourths augmented pay rate for compensation purposes, as she had a dependent
spouse.
On November 1, 1978 the Office notified appellant of the conditions under which she
would receive compensation every four weeks. The Office noted that in order to avoid an
overpayment of compensation, she was to contact the Office with any change in address or any
change in the status of her dependents.
In CA-1032 forms dated February 26, 1979 to August 3, 2002, appellant advised that she
was married and noted her husband as a dependent. The CA-1032 forms advised that a claimant
who has no eligible dependents is paid at the statutory two-thirds basic pay rate and a claimant
who has one or more eligible dependents is paid compensation at the three-fourths augmented
pay rate. The form also noted the circumstances under which a claimant could claim
compensation for a dependent.
In correspondence dated July 30, 2003 and August 3, 2004, the Office requested that
appellant complete the attached CA-1032 forms which covered the 15 months prior to the date
she signed the form. Part C of the form requested information on eligible dependents and noted
the different compensation rates based on eligible dependents. The Office advised appellant to
completely answer all questions and return the statement within 30 days of the date of the letter.
She did not respond.
In an EN1032 dated September 25, 2005, appellant advised that she was not married and
had no dependents. Her son, acting as her representative, noted on the EN1032 that he held
power of attorney on behalf of appellant. He noted on the EN1032 that appellant was 78 years
old and had back pain, anxiety, depression, and dementia and underwent hip replacement surgery
in January 2005. Appellant’s representative noted that appellant had not worked in 25 years and
her family had cared for her for the prior 10 years. He requested an explanation as to why the
EN1032 form had to be filled out yearly. In an EN1032 dated February 22, 2006, the
representative noted that appellant was not married but widowed.
By letter dated February 20, 2007, the Office advised appellant that her compensation
was reduced to the two-thirds statutory pay rate as she did not have an eligible dependent. By
letter dated February 20, 2007, the Office requested that she submit a completed CA-1032 for the
period August 1, 2002 to July 31, 2003 within 30 days. The Office began paying appellant
compensation at the basic rate beginning February 18, 2007.
In undated correspondence, appellant’s representative indicated that he was never
informed that appellant’s compensation was based on the number of eligible dependents listed on

2

the CA-1032 form. Appellant’s representative submitted a certified copy of a general power of
attorney dated May 10, 1999, in which appellant appointed him attorney-in-fact and a signed
authorization from appellant to represent her before the Office.
In an EN1032 dated March 26, 2007, signed by appellant and her representative, it was
noted that appellant did not have any eligible dependents. Also submitted was a death certificate
for Carl Gable, appellant’s spouse, dated October 12, 2002.
On May 16, 2007 the Office noted that appellant had been erroneously paid at the threefourths percent augmented pay rate from October 13, 2002 to February 17, 2007 instead of the
statutory two-thirds pay rate. The Office found that there was an overpayment of compensation
for the period commencing on October 13, 2002, after the death of appellant’s husband, to
February 17, 2007. The Office calculated that appellant’s gross compensation payable at the
three-fourths rate was $103,662.22 and at the gross compensation pay rate of two-thirds was
$91,591.71, a $12,070.51 overpayment.
On May 16, 2007 the Office made a preliminary finding that appellant had been overpaid
benefits in the amount of $12,070.51. The Office noted that the overpayment occurred because
her husband died on October 12, 2002 and she was without dependents since October 13, 2002;
however, she received augmented compensation at the three-fourths rate instead of the statutory
two-thirds rate from October 13, 2002 to February 17, 2007.1 The Office found that appellant
was at fault as she failed to provide information she knew or reasonably should have known to
be material to the receipt of compensation benefits. The Office noted that appellant had the right
to submit evidence or arguments which would affect the preliminary findings.
On June 10, 2007 appellant’s representative submitted a Form OWCP-20 overpayment
recovery questionnaire. Appellant’s monthly expenses were $2,500.00 and monthly income of
$3,290.00. Her representative further noted a checking account balance of $1,500.00 and
savings account balance of $750.00. He asserted that appellant was not at fault in creating the
overpayment as the Office never informed him that his father was considered a dependent.
Appellant’s representative noted that his father had a separate civil service retirement pension
and never mentioned that he was a dependent on appellant’s disability payments. He further
noted that the cost of caring for appellant was increasing and, without her current disability
payments, she would experience a financial hardship. Appellant’s representative requested a
telephone conference.
In a conference call dated June 26, 2007, appellant’s representative asserted that he was
unaware that his father was considered a dependent for purposes of appellant’s compensation
benefits. He sent a copy of his father’s death certificate to the Office in December 2002 and had
completed CA-1032 forms for the period August 3, 2002 to September 25, 2005 and was unsure
why there was a three-year lapse in the Office records. Appellant’s representative agreed that the
1

The preliminary overpayment cover letter dated May 16, 2007, noted an overpayment period of October 13,
2002 to January 17, 2007; however, this appears to be a typographical error. The overpayment calculation contained
in the accompanying Office memorandum and supported by the attached supplemental roll payment worksheets
provide that the correct overpayment period is October 13, 2002 to February 17, 2007.

3

overpayment occurred and that the amount was correct. He indicated that appellant would
experience a financial hardship if she was required to repay the debt.
By decision dated July 31, 2007, the Office found that appellant received a $12,070.51
overpayment of compensation from October 13, 2002 to February 17, 20072 for which she was at
fault in creating. In an accompanying memorandum, the Office determined that appellant was at
fault as she failed to provide information she knew or reasonably should have known to be
material and continued to receive augmented compensation at the augmented three-fourths rate
after her husband died on October 12, 2002 and she had no qualifying dependent. The Office
noted that appellant’s representative submitted a completed overpayment questionnaire form.
The Office advised that the overpayment would be collected by withholding $300.00 from
continuing compensation payments every four weeks, beginning September 2, 2007.
LEGAL PRECEDENT -- ISSUE 1
The basic rate of compensation under the Federal Employees’ Compensation Act is
66 2/3 percent of the injured employee’s monthly pay. Where the employee has one or more
dependents as defined by the Act, he or she is entitled to have the basic compensation augmented
at the rate of 75 percent of monthly pay.3 A husband is considered the employee’s dependent if
he is a member of the same household; or if he is receiving regular contributions from the
employee for his support; or if the employee has been ordered by a court to contribute to his
support.4 If a claimant receives augmented compensation during a period where she has no
eligible dependents, the difference between the compensation she was entitled to receive at the
2/3 compensation rate and the augmented compensation received at the 3/4 rate constitutes an
overpayment of compensation.5
ANALYSIS -- ISSUE 1
With respect to fact of overpayment, appellant’s representative does not contest that an
overpayment of compensation was created. He noted that his father died on October 12, 2002.
The Office properly found that appellant did not have an eligible dependent after October 12,
2002, her husband’s date of death. Appellant did not have any dependents as of October 13,
2002 and was not entitled to compensation at the augmented three-fourths rate from October 13,
2002 to February 17, 2007. Therefore, an overpayment of compensation was created.
The Board finds that, as of October 13, 2002, appellant no longer had a dependent.
However, the Office erroneously continued to pay her at the augmented three-fourth rate from
2

The final overpayment cover letter dated July 31, 2007, noted an overpayment period of October 13, 2002 to
January 17, 2007; however, this appears to be a typographical error. The overpayment calculation contained in the
Office memorandum and supported by the attached supplemental roll payment worksheets provide that the correct
overpayment period is October 13, 2002 to February 17, 2007.
3

5 U.S.C. §§ 8105(a), 8110(b).

4

5 U.S.C. § 8110(a)(2).

5

Ralph P. Beachum, 55 ECAB 442 (2004).

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October 13, 2002 to February 17, 2007. As a result, appellant received an overpayment in the
amount of $12,070.51.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act provides as follows:
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.”6
No waiver of an overpayment is possible if the claimant is at fault in creating the
overpayment.7
Section 10.433(a) of the Office’s implementing regulations provides:
On the issue of fault, 20 C.F.R. § 10.433(a) provides in pertinent part: An
individual is with fault in the creation of an overpayment who: (1) made an
incorrect statement as to a material fact which the individual knew or should have
known to be incorrect; or (2) failed to furnish information which the individual
knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have
been expected to know was incorrect.8
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“(b) Whether or not [the] Office determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”9
ANALYSIS -- ISSUE 2
The Office applied the second standard in determining that appellant was at fault in
creating the overpayment. Appellant knew or should have known that this information was
material. When her husband died on October 12, 2002, she should have known that there was no
6

5 U.S.C. § 8129(b).

7

Gregg B. Manston, 45 ECAB 344 (1994).

8

Kenneth E. Rush, 51 ECAB 116 (1999).

9

5 U.S.C. § 10.433(b).

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entitlement to compensation at the augmented rate of 75 percent when there were no eligible
dependents after October 12, 2002. Appellant received payments commencing on October 13,
2002 with no reduction in compensation and she continued to receive compensation payments
every 28 days showing no reduction.10
As noted, the record establishes that from 1979 to 2002 appellant regularly completed the
Form EN1032, which states that a claimant must immediately inform the Office of any change in
the status of claimed dependents, such as a spouse dying. The CA-1032 and EN1032 forms
provided information to appellant regarding dependents and augmented compensation. She was
advised as to the requirements for claiming a spouse as a dependent and that a claimant with no
dependents is paid at 66 2/3 percent of the applicable pay rate, not 75 percent. The record
reflects that, on August 3, 2002, appellant signed and returned a Form EN1032 which included
the following acknowledgement: “I understand that I must immediately report to OWCP any
improvement in my medical condition, any employment, any change in the status of claimed
dependents, any third[-]party settlement, and any change in income from federally-assisted
disability or benefits programs.” Additionally, the Board notes that a review of the record
indicates that appellant failed to file CA-1032 forms that were requested on July 30, 2003 and
August 3, 2004. In a CA-1032 form signed on September 25, 2005 by appellant and appellant’s
representative, it was noted that she did not have an eligible dependent. Appellant’s
representative noted his mother’s age and health problems. He advised the Office that he and his
family had cared for appellant for the previous 10 years and that he held power of attorney for
his mother. Appellant’s representative asked “Please help me understand why these forms must
be filled out every year. Go after the abusers and leave this poor old woman alone.” It is clear
from appellant’s representative’s statement also signed by appellant that he and appellant were
aware that the CA-1032 forms must be filled out yearly. Furthermore, neither the representative
nor appellant, who continued to sign certain forms sent to the Office offered any explanation as
to why the CA-1032 forms dated July 30, 2003 and August 3, 2004 were not returned to the
Office as requested. Each of these forms advised appellant of the need to update information on
dependents. The failure to properly file forms dated July 30, 2003 and August 3, 2004, is
evidence supporting that appellant was not forthcoming with providing information that was
material. Consequently, the evidence establishes that appellant failed to furnish information
which she knew or should have known to be material and the Office has met its burden of proof
in establishing that appellant was at fault in creating the overpayment, thereby precluding waiver
of recovery.
Appellant’s representative contends that he was never informed by the Office or his
family that his father was considered a dependent for purposes of appellant’s compensation
payments. However, the CA-1032 and EN1032 forms sent to appellant clearly advised her of the
circumstances in which a dependent could be claimed for purposes of augmented compensation.
Furthermore, as neither appellant nor the representative made the Office aware of the
representative’s power of attorney status until September 2005 and provided no representative
10

The record reveals that appellant’s son held power of attorney for her since 1999; however, neither appellant
nor her son advised the Office of his status until September 2005. The record contains no evidence that appellant
was incapable of completing and understanding forms regarding her receipt of compensation. See Frederick C.
Smith, 48 ECAB 132 (1996); George A. Hirsch, 47 ECAB 520 (1996).

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authorization until 2007, the Office would have no reason to advise the representative of any
rules regarding dependency until it received written notice of his appointment.11
LEGAL PRECEDENT -- ISSUE 3
Section 10.441(a) of Title 20 of the Code of Federal Regulations provides in pertinent
part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”12
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the overpayment by deducting
$300.00 every 28 days from appellant’s continuing compensation payments, the Office took into
consideration the financial information submitted by appellant, as well as the factors set forth in
section 10.321, and found that this method of recovery would minimize any resulting hardship
on appellant. The overpayment questionnaire indicates that appellant has monthly income of
$3,290.00 and total monthly expenses of $2,500.00. The Office considered the amount of
appellant’s assets and the extent her monthly income exceeded her monthly expenses.
Therefore, the Office properly required repayment of the overpayment by deducting $300.00
from appellant’s continuing compensation payments every 28 days.
CONCLUSION
The Board has determined that the Office properly determined that appellant received a
$12,070.51 overpayment of compensation from October 13, 2002 to February 17, 2007 and that
she was not “without fault” in the creation of the overpayment. The Office properly directed
recovery of the overpayment by withholding $300.00 from continuing compensation payments.

11

While a claimant may appoint one individual to represent her interests, the appointment must be in writing.
Only a properly appointed representative may make a request or give directions to the Office regarding the claims
process. See 20 C.F.R. § 10.700. See also Shirley Rhynes, 55 ECAB 703 (2004).
12

20 C.F.R. § 10.441(a). See Fred A. Cooper, Jr., 44 ECAB 498 (1993); Roger Seay, 39 ECAB 441 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the July 31, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, Ironton, OH, Employer
__________________________________________

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Appearances:
Rick W. Hanna, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1508
Issued: February 1, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 14, 2011 appellant, through her representative, filed a timely appeal of a
December 28, 2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision
denying her occupational disease claim and a February 24, 2011 nonmerit decision denying her
request for an oral hearing as untimely. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
developed a condition as a result of mold exposure while performing her job duties; and
(2) whether OWCP’s Branch of Hearings and Review properly denied her request for an oral
hearing as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 30, 2010 appellant, then a 29-year-old service representative, filed an
occupational disease claim alleging that on September 1, 2003 she developed numbness in her
legs, dry cough, sore throat, stuffy nose, reoccurring infections immunosupression, high
inflammation, chronic fatigue, aches and pains, chest pain, joint and muscle pain, diarrhea,
nausea, headaches, reoccurring cold and influenza-type symptoms due to exposure to
stachybotry or black mold in the performance of duty. She stated that she was not aware of the
relationship between her condition and her employment until July 30, 2010. Appellant submitted
a narrative statement listing her symptoms and stating that until she became aware of the mold at
the employing establishment her symptoms were without known cause. She stated that the mold
was visible in her workstation, but was being contained with clear tape.
Appellant’s district manager, Bette L. Backus submitted a statement noting that the
employing establishment building had an inefficient cooling system with two mobile air
conditioning units. She stated that the windows were leaky and that in June 2009 wallpaper
loosened at the seams. The employing establishment conducted testing and found mold on the
exterior facing walls, but not in sufficient quantities to present health hazards.
In
September 2009, the health inspector found mold present inside the exterior walls on the south
and west sides of the building. The health inspector recommended abatement. The employing
establishment determined to contain the mold as air testing did not establish mold spores in the
heating, ventilation and air conditioning (HVAC) system.
An indoor air quality survey report dated September 25, 2009 noted mold at the corners
of windows and on the south and west perimeter walls. A memorandum dated July 7, 2010,
noted that the indoor air quality screening taken on September 15, 2009 required action.
Required activities were noted for the landlord including sealing areas where the mold was
visible, evaluating the cause of the mold, determining the extent of damage to walls, developing
a mold removal plan, conducting a review of the HVAC system and adjusting the dampers to
ensure adequate outdoor air.
In a letter dated October 8, 2010, OWCP requested evidence substantiating a medically
documented and diagnosed work-related injury. Appellant was diagnosed with pharyngitis on
September 2, October 13 and December 31, 2004. She submitted medical records regarding
migraines and nausea from August 2004. In October 2005 and April 2006, appellant sought
treatment for a sore throat. She underwent a laparoscopic cholecystectomy on April 18, 2006.
Appellant also submitted hospital records regarding chest pain and right leg numbness on
September 24, 2006. On April 19, 2007 she underwent a laparoscopic gastric restriction
procedure. Appellant reported to the emergency room on October 15, 2007 and received a
diagnosis of meningitis. She experienced abdominal pain on September 29 and October 5, 2008.
Appellant was diagnosed with a postspinal headache on April 9, 2009. She underwent a nerve
conduction evaluation on May 28, 2009 due to pain and numbness in her legs intermittently.
Appellant reported bilateral leg tingling on June 11, 2009. She reported headaches swollen
glands and trouble swallowing on September 26, 2009. On November 20, 2009 appellant sought
treatment for cough, pharyngitis, fever and generalized body aches. She submitted medical
records relating to her gastric banding, generalized abdominal pain and nausea.

2

Appellant submitted information from the internet regarding toxic black mold symptoms.
In a note dated November 16, 2010, Dr. Tony Virgin, a family practitioner, noted
appellant’s conditions of chronic sinusitis, pharyngitis, immune system suppression, dry cough,
hacking, nose and throat irritation, body aches, chronic fatigue, frequent headaches, nasal and
sinus congestion and chest pain. He noted her exposure to back mold at the employing
establishment. Dr. Virgin stated, “It is my opinion, of the facts presented that the patient’s
conditions could be related to black mold.”
By decision dated December 28, 2010, OWCP denied appellant’s claim on the grounds
that she failed to submit the necessary medical opinion evidence to establish a causal relationship
between her diagnosed conditions and her employment exposure.
Appellant requested an oral hearing through a form dated January 27, 2011, faxed on
January 28, 2011, postmarked on January 31, 2011 and received by OWCP’s Branch of Hearings
and Review on February 3, 2011.
In a decision dated February 24, 2011, the Branch of Hearings and Review denied
appellant’s request for an oral hearing on the grounds that it was not timely and stated that the
issue could equally well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 To establish that, an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.3
ANALYSIS -- ISSUE 1
Appellant has submitted a medical report from Dr. Virgin diagnosing chronic sinusitis,
pharyngitis, immune system suppression, dry cough, hacking, nose and throat irritation, body
aches, chronic fatigue, frequent headaches, nasal and sinus congestion and chest pain. She has
2

20 C.F.R. § 10.5(q).

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

3

also submitted factual evidence that she was exposed to black mold at the employing
establishment. Finally, appellant has submitted a statement from Dr. Virgin that her diagnosed
conditions could be related to black mold.
The Board finds that appellant has not submitted sufficient medical evidence to establish
that her diagnosed conditions are causally related to the employment exposure. The only
medical evidence supporting appellant’s claim for a causal relationship between her condition
and her employment exposure is Dr. Virgin’s report. This report is not sufficiently detailed and
well reasoned to establish her claim. Dr. Virgin did not provide any medical reasoning to
support his conclusion and did not state why he believed that appellant’s conditions could be
related to her employment exposure. He also stated his opinion in speculative terms, merely
noting that her condition could be related to black mold, rather than offering a reasoned
statement that her condition was related and explaining his position. The Board finds that the
medical evidence is not sufficiently rationalized medical opinion evidence, based upon a
complete factual and medical background, to show a causal relationship between the claimed
condition and identified exposure.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of FECA,4 concerning a claimant’s entitlement to a hearing before an
OWCP representative, states: “Before review under section 8128(a) of this title, a claimant ...
not satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after
the date of issuance of the decision, to a hearing on her claim before a representative of the
Secretary.”5
The Board has held that section 8124(b)(1) is “unequivocal” in setting forth the time
limitation for requesting hearings. A claimant is entitled to a hearing as a matter of right only if
the request is filed within the requisite 30 days.6 Even where the hearing request is not timely
filed, OWCP may within its discretion, grant a hearing and must exercise this discretion.7
ANALYSIS -- ISSUE 2
Following the issuance of OWCP’s December 28, 2010 decision, appellant had 30 days
from the date of issuance of that decision to request an oral hearing before an OWCP hearing
representative. The 30-day computation begins with December 29, 2010. Thirty days from
December 29, 2010 is January 27, 2011. Because appellant’s request was faxed to OWCP’s
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8124(b)(1).

6

Tammy J. Kenow, 44 ECAB 619 (1993).

7

Id.

4

Branch of Hearings and Review on January 28, 2011, her request was untimely.8 OWCP,
therefore, properly denied her hearing request as a matter of right.
OWCP then proceeded to exercise its discretion, in accordance with Board precedent, to
determine whether to grant a hearing in this case. It determined that a hearing was not necessary
as the issue in the case was medical and could be resolved through the submission of medical
evidence in the reconsideration process. Therefore, the Board finds that OWCP properly denied
appellant’s request for a hearing as untimely and properly exercised its discretion in determining
to deny her request for a hearing as she had other review options available.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish a causal relationship between her diagnosed conditions and her accepted black mold
exposure. The Board further finds that OWCP’s Branch of Hearings and Review properly
denied appellant’s request for an oral hearing as untimely.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2011 and December 28, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 1, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
8

The Board notes that as the request for oral hearing was postmarked even later, i.e., January 31, 2011 and
received by OWCP’s Branch of Hearings and Review subsequent to that date, i.e., February 3, 2011, the request was
also untimely based on both, the date of the postmark and the date of receipt.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nampa, ID, Employer
__________________________________________

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

Docket No. 16-0944
Issued: November 2, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 4, 2016 appellant filed a timely appeal from a December 7, 2015 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish left carpal tunnel
syndrome in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence accompanying her appeal request. However, the Board may not consider
evidence for the first time on appeal that was not before OWCP at the time it issued the final decision. 20 C.F.R.
§ 501.2(c).

FACTUAL HISTORY
On October 19, 2015 appellant, then a 52-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained left carpal tunnel syndrome in the
performance of duty on or before February 5, 2015. She described pain and numbness in her left
hand when she closed it in the morning, drove, or performed repetitive motion. Appellant did
not stop work at the time she filed her claim.
The employing establishment controverted the claim, contending that appellant submitted
insufficient medical and factual evidence to meet her burden of proof.
By October 22, 2015 letter, OWCP advised appellant of the evidence needed to establish
her claim, including her response to an attached questionnaire regarding the onset and duration
of her symptoms, any history of injuries or conditions affecting the left upper extremity, a
detailed description of the work duties she believed caused or contributed to her condition, and a
description of her nonoccupational activities. It afforded appellant 30 days to submit such
evidence.
In response, appellant provided an October 9, 2015 report from Dr. Elaine M. Davidson,
an attending Board-certified family practitioner, relating appellant’s account of a 12- to 18month history of pain and paresthesias in the left hand, including when holding mail at work.
Dr. Davidson diagnosed left carpal tunnel syndrome.
October 30, 2015 electromyography (EMG) and nerve conduction velocity (NCV)
studies of the left upper extremity showed a significantly elevated distal motor latency and distal
sensory latency.
Dr. Jeffrey S. Boyer, an attending orthopedic surgeon, noted on November 16, 2015 that
appellant attributed pain and paresthesias in the left hand to repetitive heavy lifting at the
employing establishment. On examination he found a positive Tinel’s sign at the left wrist. He
diagnosed moderate left carpal tunnel syndrome.3
By decision dated December 7, 2015, OWCP denied appellant’s claim, finding that she
failed to establish fact of injury. It found that the evidence submitted was insufficient to
establish that she performed the duties as described in her claim form. OWCP noted that
appellant failed to submit a factual statement as requested on October 22, 2015.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of to establish the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the

3

Appellant also submitted a medical records release.

2

employment injury.4 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.5
The determination of whether an employee actually sustained an injury in the
performance of duty begins with an analysis of whether fact of injury has been established.6 To
establish fact of injury in an occupational disease claim, an employee must submit: (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 employee.7
An employee’s statement 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.8
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met his or her burden in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such 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 doubt on an employee’s statement
in determining whether a prima facie case has been established.9
ANALYSIS
Appellant claimed that she sustained left carpal tunnel syndrome due to performing
repetitive motions at work. OWCP explained to appellant, in an October 22, 2015, letter of the
necessity of providing additional information about the work factors claimed to have caused or
contributed to the claimed condition. It asked her to describe the type and duration of her work
duties, her nonoccupational activities, her history of left upper extremity symptoms, and any
prior injuries or conditions affecting the left arm. Appellant submitted medical reports from
Dr. Davidson and Dr. Boyer; however, he did not respond to the factual questionnaire within the
30 days afforded and OWCP denied the claim finding that appellant had not established any
claimed work events occurred.
As appellant did not respond, the Board finds that appellant’s statements contained in her
CA-2 are alone insufficient to establish fact of injury. Appellant variously attributed her
condition to repetitive motion, holding mail, and heavy lifting. Additionally, she did not provide
4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

See S.P., 59 ECAB 184, 188 (2007).

7

See R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

8

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

9

L.D., Docket No. 16-0199 (issued March 8, 2016); Betty J. Smith, 54 ECAB 174 (2002).

3

the factual statement requested by OWCP, or evidence corroborating her work duties. Therefore,
OWCP’s December 7, 2015 decision finding that appellant failed to establish the incident
component of fact of injury was appropriate.
On appeal appellant explains that a medical situation in her family prevented her from
completing and returning OWCP’s October 22, 2015 questionnaire within 30 days. As noted
above, it is appellant’s burden of proof to provide sufficient evidence to establish that she
experience the identified work factors as alleged.
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 left carpal
tunnel syndrome in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 7, 2015 is affirmed.
Issued: November 2, 2016
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

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Appearances:
Joshua E. Birocco, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2175
Issued: March 5, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 27, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated May 23, 2007. Under 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 a back injury in the performance of duty.
FACTUAL HISTORY
This is the second appeal before the Board. On July 20, 2004 appellant, a 44-year-old
mail clerk, alleged that she strained her back while throwing a catalog into a bin on
June 15, 2004. The employing establishment controverted the claim and submitted evidence that
she hurt her back on June 28, 2004 not June 15, 2004 and that she submitted incomplete paperwork
on July 13, 2004 indicating that she injured her back on different dates. The medical evidence of
record indicated that appellant sustained an L5-S1 disc protrusion due to an injury which occurred

on June 28, 2004. She alleged that the discrepancy in dates listed on the two forms she submitted
resulted from not knowing the proper form to use or how to fill them out.
By decision dated September 3, 2004, the Office denied appellant’s claim, finding that she
failed to establish fact of injury. Appellant requested an oral hearing. She testified that, when she
sustained her back injury, the person in authority who was on duty at the time was a temporary
supervisor who was unfamiliar with the procedure for reporting injuries and claiming
compensation. A union representative mistakenly gave appellant a Form CA-2. She did not
realize she needed to submit a Form CA-1 for a traumatic injury until two weeks later, when her
regular supervisor called her and told her she needed to complete a Form CA-1. By decision dated
September 26, 2005, an Office hearing representative affirmed the September 3, 2004 Office
decision. In a decision dated March 1, 2006,1 the Board affirmed the Office decisions. The facts
of this case, as set forth in the Board’s March 1, 2006 decision, are incorporated herein by
reference.
By letter dated September 25, 2006, appellant’s attorney requested reconsideration.
Appellant submitted a June 9, 2006 report from Dr. Robert L. Verosloff, Board-certified in
internal medicine, who stated:
“[Appellant] states that she felt a pop while at work and has been in pain since,
[which] to me suggests that the work caused the injury. Now, though, to be able
to say that the kind of work she did definitely caused this is difficult. I am not a
bone and joint specialist and did not examine her after the injury. This type of
problem is seen after overuse and underconditioning, but to be able to say exactly
what caused what and what other things played a part in the final outcome is
almost impossible.”
By decision dated December 20, 2006, the Office denied reconsideration on the grounds
that the request neither raised substantive legal questions nor included new and relevant evidence
sufficient to require the Office to review its prior decision.
By letter dated February 28, 2007, counsel requested reconsideration. In a January 23,
2007 statement, Debra L. Brodie, appellant’s union steward at the time she filed her claim in
June 2004, asserted that appellant injured her back on June 15, 2004 and that she was asked to
help appellant complete the necessary paperwork. She reiterated appellant’s contentions that:
her regular supervisor was not present at the time she was filling out the claim forms; a clerk
from another employing establishment was brought in to supervise appellant’s unit; and the
acting supervisor was unfamiliar with the process and required assistance from another
supervisor. When Ms. Brodie was helping appellant, they discovered that a form was incorrect
because it pertained to a claim for an occupational disease. She stated that appellant did not
complete this form, but assumed that appellant must have turned it in by accident when she
turned in her other papers. Ms. Brodie asserted:
“[Supervisor] Lackie, who was not even present during this time, filled out the
supervisor’s portion of the paperwork and wrote a statement disputing
1

Docket No. 06-267 (issued March 1, 2006).

2

[appellant’s] word. She said that [appellant] had past claims denied. The dates
were different because different questions were asked. One form asked for the
date on which the injury occurred, which was June 15, 2004 and the other asked
the date she first realized the disease or illness was caused or aggravated by [her]
employment, which was on June 28, 2004. I believe this was either the date she
went to the doctor or when the pain from her back had subsided enough for her to
realize her shoulder and arm were affected and that she needed to see a doctor.
As to [supervisor] Lackie’s statement that past claims were denied, I am not sure
this is strictly true. According to [appellant], she has only filed one previous
claim and it was denied because she decided not to pursue it and so did not turn in
the required paperwork.
“In closing, I believe [appellant] filled out these forms truthfully. She answered
the questions as they were asked. I do recall discussing the dates on the forms
and [appellant] never claimed any other date than June 15, [2004] for the date of
injury. The wording on these forms, as well as the fact that one form was
incorrect led to the so-called discrepancies for which [the Office] denied the
claim. [Appellant] filled out one form that asked for the date the injury occurred
and another form which asked when she became aware of the disease or illness and
when she first realized it was work related. She answered those questions as they
were asked, there really was no date discrepancy. The [Office] denied the claim
based on a form that they should never have received and the statement of a
supervisor who was not even present at the time of the injury.”
Appellant also submitted a March 2, 2006 report from Dr. W.F. McDonald, a specialist in
orthopedic surgery. He stated:
“I do not think I can supply medical evidence that [appellant’s] overhead
activities were a direct cause of her rotator cuff problems. She did, however, in
her history present a history of a lifting injury, which accentuated her pain and
brought her to my attention. Subsequent treatment led to a repair of the rotator
cuff and I am comfortable with making that relationship.”
By decision dated May 23, 2007, the Office denied modification of the September 26,
2005 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, 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.3 These are the essential
2

5 U.S.C. § 8101 et seq.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged.5 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.6
The Office cannot accept fact of injury if there are such inconsistencies in the evidence as
to seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged or whether the alleged injury was in the performance of duty.7 Nor can the Office
find fact of injury if the evidence fails to establish that the employee sustained an “injury” within
the meaning of the Act. An injury does not have to be confirmed by eyewitnesses in order to
establish the fact that an employee sustained an injury in the performance of duty, as alleged, but
the employee’s statements must be consistent with surrounding facts and circumstances and her
subsequent course of action.8 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged injury
and failure to obtain medical treatment may case doubt on an employee’s statements in
determining whether he or she has established his or her claim.9
The Office rejected appellant’s claim of injury on June 15, 2004, finding that she did not
establish the lifting incident due to inconsistencies as to the date of the alleged injury. This was
affirmed by the Board in the prior appeal.
ANALYSIS
The evidence appellant submitted with her request for reconsideration is not sufficient to
establish the fact of injury. In a January 23, 2007 statement, Ms. Brodie merely reiterated
appellant’s contentions that she received the wrong forms from an acting supervisor, became
confused and listed June 28, 2004 instead of June 15, 2004 as the date of injury. This statement
does not establish that Ms. Brodie was a witness to the June 15, 2004 incident. The fact remains
that appellant submitted two statements which contradict her assertion that she injured her back on
June 15, 2004: the undated Form CA-2 in which she indicated that she began experiencing back
pain at work as of June 28, 2004 and Dr. Arnold’s July 13, 2004 form report, which noted that she
4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

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

6

Id. For a definition of the term “injury” see 20 C.F.R. §10.5(e)(e).

7

Elaine Pendleton, supra note 3.

8

See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
9

See Constance G. Patterson, 42 ECAB 206 (1989).

4

sustained an L5-S1 disc protrusion due to a June 28, 2004 work injury. As the Board stated in its
March 1, 2006 decision:
“[I]t is hard to comprehend how appellant’s lack of awareness of how to file a claim
or how to fill out a form ... could account for the discrepancies in the dates of injury
she provided to several different people. [She] can be reasonably imputed to have
knowledge of when she sustained an injury that caused her to be medically released
from work.10 This contradictory evidence created an uncertainty as to the time,
place and in the manner in which appellant sustained his alleged lower back
injury.”
In addition, appellant alleged that she injured her back so badly on June 15, 2004 that she
needed to be released from work for a least a week in order to recover. However the record
indicates that she continued to work for nearly a month afterward. The March 2006 report from
Dr. McDonald merely indicates that appellant’s lifting overhead activities may have caused her
rotator cuff problems; it has no probative value bearing on to the issue of whether she established
that she actually experienced the employment incident at the time, place and in the manner alleged.
Accordingly, given the inconsistencies which still exist in the evidence, casting serious
doubt as to whether the specific event or incident occurred at the time, place and in the manner
alleged that appellant sustained her injury, the Board finds that she did not meet her burden of
proof to establish fact of injury.11 The Board affirms the Office’s May 23, 2007 decision.
CONCLUSION
The Board finds that the Office properly found that appellant failed to meet her burden of
proof to establish that she sustained a back injury in the performance of duty.

10

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of
Compensation, Chapter 2.900(b)(3) (September 1990).
11

See Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that discrepancies and inconsistencies in
appellant’s statements describing the injury created serious doubts that the injury was sustained in the performance of
duty).

5

ORDER
IT IS HEREBY ORDERED THAT the May 23, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE, East Elmhurst, NY,
Employer
__________________________________________

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

Docket No. 20-1571
Issued: April 19, 2021

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 31, 2020 appellant, through counsel, filed a timely appeal from an August 7,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

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.3
ISSUE
The issue is whether appellant has met his burden of proof to establish lumbar conditions
causally related to the accepted April 16, 2019 employment incident.
FACTUAL HISTORY
On April 28, 2019 appellant, then a 48-year-old federal air marshal, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a back injury and pinched nerve when undergoing a
health and fitness assessment while in the performance of duty on April 16, 2019.4 He stopped
work on May 3, 2019.
In an undated witness statement, J.S., a coworker, described that on April 16, 2019 he was
conducting the employing establishment’s mandated physical fitness test with appellant. While
holding appellant’s feet during the sit-up portion of the test, he observed him wince in pain and
reach for his lower back. Appellant advised J.S. that he thought he had pulled something in his
back and that he was in discomfort. J.S. further indicated that, while observing appellant
performing the lateral pull-down portion of the test, he was holding his lower back and
complaining of discomfort and severe pain.
In an April 23, 2019 report, Yaw Appau, a physician assistant, diagnosed sciatica and
prescribed medication. In a note dated April 23, 2019, Dr. James Joseph, an orthopedic surgeon,
diagnosed low back pain and radiculopathy and held appellant off of work through April 27, 2019.
Appellant underwent a magnetic resonance imaging (MRI) scan of the lumbar spine on April 29,
2019, which demonstrated an L5-S1 subarticular disc extrusion/sequestered disc causing severe
lateral recess stenosis and compression of the left S1 traversing nerve root. In a letter dated May 2,
2019, Dr. Joseph advised appellant that he had reviewed the MRI scan, which demonstrated a
herniated disc that was pressing on a nerve. He recommended that he consult with Dr. Stephen
Andrus, an interventional spine specialist, to discuss an epidural steroid injection.
Dr. Manuel Ceja, an internal medicine specialist, in a May 3, 2019 duty status report (Form
CA-17), diagnosed a lumbar spine sprain/strain and bulges which occurred when appellant
performed a lateral pull down during a fitness test. He recommended that appellant remain out of
work until further notice. In an attending physician’s report (Form CA-20) of even date, Dr. Ceja
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the August 7, 2020 decision, OWCP received additional evidence. However, 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.
4
Appellant amended the date of injury from April 23, 2019 to April 16, 2019 following a May 2, 2019 request from
the employing establishment.

2

checked a box marked “Yes” to indicate his opinion that appellant’s condition was caused or
aggravated by his federal employment.
In a report dated June 4, 2019, Dr. Bruce Ross, an orthopedic surgeon, evaluated appellant
for complaints of severe back and left leg pain following an incident where he injured his back
while working out for the employing establishment. On physical examination he noted pain at L4,
L5 and S1 into the left sacroiliac joint, buttock and leg, an absent Achilles’ reflex on the left, and
marked weakness in dorsiflexion of the foot and ankle. Dr. Ross diagnosed a herniated disc and
partial foot drop. In a Form CA-20 of even date, he noted a diagnosis of lumbar spine herniated
nucleus pulposus (HNP) due to participating in training and recommended appellant remain out of
work until further notice.
In a June 27, 2019 development letter, OWCP informed appellant that additional evidence
was required to establish his claim. It advised him of the type of factual and medical evidence
needed and provided a questionnaire for his completion. The questionnaire requested that
appellant describe in detail the employment duties, which he believed contributed to his condition
and requested that he provide a physician’s opinion, supported by medical rationale, as to how
those duties caused or aggravated his medical condition. OWCP afforded him 30 days to submit
additional evidence and to respond to its inquiries. In a letter of even date, it informed the
employing establishment that, if appellant was treated at its medical facility for the alleged injury,
it must provide treatment notes.
Appellant underwent electrodiagnostic studies including nerve conduction velocity and
electromyogram (NCV/EMG) testing on May 13, 2019 by Dr. Madhu Boppana, a neurologist,
which demonstrated left L5-S1 radiculopathy.
In a July 10, 2019 response to OWCP’s development letter, appellant indicated his injury
occurred while he was performing the lateral pull down. He described feeling a pop in his back
followed by an immediate onset of pain in the lower back with severe left-sided pain and numbness
from his back to his foot. After this occurred, appellant noted that he sat out for the rest of training.
In a response of even date to OWCP’s development letter, C.C., an employing
establishment supervisor, confirmed that appellant was performing a mandatory fitness assessment
at the time of the alleged injury, and the assessment does include lateral pull downs, among other
exercises.
Dr. Ross reexamined appellant on July 10, 2019, noting ongoing low back pain radiating
into the left buttock and leg, weakness in dorsiflexion of the left foot at the extensor hallucis
longus, and a positive bowstring sign at 50 degrees during straight leg raise testing on the left. In
an attending physician’s report of even date, he again noted a diagnosis of lumbar spine HNP due
to participating in training. Dr. Ross recommended appellant continue to remain out of work until
further notice.
By decision dated August 6, 2019, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that the lumbar conditions were causally
related to the April 16, 2019 employment incident.

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OWCP continued to receive medical evidence. In a May 8, 2019 report, Dr. Ceja noted
appellant’s history that on April 16, 2019, while undergoing a fitness assessment at work, he felt
a sharp pain in his lower back while pulling downward during the lateral pull-down test. He
conducted a physical examination and recorded complaints of pain in the lower back, which
radiated down the left lower extremity with numbness and muscle spasm. Dr. Ceja diagnosed
intervertebral disc displacement of the lumbar region and a strain of muscle, fascia, and tendon of
the lower back. He opined, within a reasonable degree of medical certainty, that the diagnoses
rendered were causally related to the specified work incident.
In a May 13, 2019 report, Dr. Boppana noted a history that appellant was injured while
performing a lateral pull down with weight during a work physical. He indicated that appellant
related an immediate onset of back pain. Dr. Boppana outlined his physical examination and
EMG/NCV results, as noted above, and diagnosed lumbosacral radiculopathy secondary to
lumbosacral disc herniation. He stated that, within a reasonable degree of medical certainty, this
diagnosis was causally related to the employment incident.
In August 19 and September 1, 2019 reports, Dr. Ross’ examination findings were
unchanged, and he referred appellant for ongoing physical therapy. In a Form CA-20 dated
August 19, 2019, Dr. Ross again noted a diagnosis of lumbar spine HNP due to participating in
training and recommended appellant continue to remain out of work until further notice.
On October 21, 2019 appellant requested reconsideration of the August 6, 2019 decision.
In a September 23, 2019 narrative report, Dr. Ross reiterated appellant’s history of injuring
his lower back while performing a lateral pull-down. Appellant related that the exercise involved
developing the latissimus dorsi and lateral back muscles and, on the third pull, he felt a pop in the
lower back. Thereafter, he developed weakness on the left side radiating into the left buttock, left
leg and toes and violent muscle spasms that caused twitching and cramping of the left lower
extremity. Dr. Ross noted that, prior to the incident, appellant had no history of any problems with
his spine. After outlining his evaluations and treatment history to date, including his review of the
lumbar MRI scan, he diagnosed intervertebral disc displacement, lumbar region. Dr. Ross opined
that the applied stress to the lumbar spine caused by the physical fitness test caused the disc
herniation. He further concluded that appellant remained totally disabled and that future treatment
may include epidural steroid injections, laminectomy, or spinal fusion.
In October 15 and November 19, 2019 follow up visits, Dr. Ross noted ongoing low back
pain radiating into the left buttock and leg and referred appellant for ongoing physical therapy.
By decision dated January 16, 2020, OWCP denied modification of its August 6, 2019
decision.
OWCP continued to receive medical evidence. In a January 8, 2020 follow-up note,
Dr. Ross noted ongoing low back pain radiating into the left buttock and left leg. He performed a
physical examination and diagnosed a herniated disc. Dr. Ross advised appellant that if he
developed foot drop, then decompression surgery would be necessary.
On May 17, 2020 appellant again requested reconsideration and submitted an undated
narrative report of Dr. Ross with his request. Dr. Ross explained that the herniated disc resulted
4

from a pull/torque injury and that rotational force had overwhelmed the load-bearing capacity of
the spine. This force caused a tear of the vertebral disc, which then altered the mechanics of the
spine, causing trauma to the disc. Dr. Ross opined that the nerve then became swollen and
inflamed due to compression from the displaced disc, and that this was a material change caused
by the rotational forces of the work injury. He further explained that the quantity of loads placed
upon the spine caused the tear of the annulus fibrosis, because their duration and intensity were
beyond the body’s normal capacities.
In an April 3, 2020 follow up report, Dr. Ross noted ongoing, unchanged examination
findings and complaints.
By decision dated August 7, 2020, OWCP denied modification of the January 16, 2020
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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,6 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.7 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.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (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
casually related to the identified employment factors.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 The opinion of the physician must be based upon a complete
5

Supra note 1.

6
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).
7

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).
8

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).
9

T.W., Docket No. 20-0767 (issued January 13, 2021); L.D., Docket No. 19-1301 (issued January 29, 2020); S.C.,
Docket No. 18-1242 (issued March 13, 2019).
10
I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).

5

factual and medical background, 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 incident.11
ANALYSIS
The Board finds that this case is not in posture for decision.
In his September 23, 2019 narrative report and his undated report accompanying
appellant’s May 17, 2020 request for reconsideration, Dr. Ross provided a proper factual and
medical history of the injury, noting that, while performing a lateral pull-down, appellant felt a
pop in his lower back and experienced an immediate onset of severe pain followed by cramping
in the lower back, down the left leg, and into the left foot. He opined within a reasonable degree
of medical certainty that the L5-S1 herniated disc resulted from a pull/torque injury, which placed
stress on the spine. Dr. Ross explained that the injury was two-fold, namely, that the rotational
force overwhelmed the load-bearing capacity of the spine causing a tear of the vertebral disc, which
then altered the mechanics of the spine and caused trauma to the disc. He further explained that
the tear of the annulus fibrosis appellant sustained was triggered by the trauma of lifting the weight
during the lateral pull-down due to the quantity of loads placed on the spine for a duration and
intensity beyond the body’s normal capacities. Dr. Ross also opined that the nerve then became
swollen and inflamed due to compression from the displaced disc, and that this was a material
change caused by the rotational forces of the accepted April 16, 2019 employment incident.
The Board finds that the reports from Dr. Ross are sufficient to require further development
of the medical evidence in this claim. He exhibited a comprehensive understanding of the medical
record and case history. Dr. Ross’ reports provide a rationalized explanation as to how appellant’s
accepted April 16, 2019 employment incident resulted in his diagnosed lumbar conditions
including strain of muscle, fascia and tendon of the lower back, a herniated disc at L5-S1 and leftsided L5-S1 radiculopathy. The Board has long held that it is unnecessary that the evidence of
record in a case be so conclusive as to suggest a causal connection beyond all possible doubt.
Rather, the evidence required is only that which is necessary to convince the adjudicator that the
conclusion drawn is rational, sound, and logical.12 Dr. Ross’ medical opinions as set forth in his
reports are found to require further development of appellant’s claim.13
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares

11

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

12
T.F., Docket No. 19-1900 (issued October 27, 2020); W.M., Docket No. 17-0144 (issued November 7, 2017);
E.M., Docket No. 11-1106 (issued December 28, 2011).
13

See T.F., id.; J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3,
2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019);
William J. Cantrell, 34 ECAB 1223 (1983).

6

responsibility for the development of the evidence.14 OWCP has an obligation to see that justice
is done.15
On remand OWCP shall refer appellant to a specialist in the appropriate field of medicine,
along with the case record and a statement of accepted facts, for an examination and a rationalized
medical opinion as to whether the accepted April 16, 2019 employment incident either caused or
aggravated his diagnosed conditions.16 If the second opinion disagrees with the explanations
provided by Dr. Ross, he or she must provide a fully-rationalized explanation as to why the
accepted employment incident was insufficient to have caused or aggravated appellant’s diagnosed
conditions of strain of muscle, fascia and tendon of the lower back, L5-S1 herniated disc and leftsided L5-S1 radiculopathy. After this and other such further development of the case record as
deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 7, 2020 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: April 19, 2021
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
14

See id.; see also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy Hammons, 51 ECAB 219, 223 (1999).

15

See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).
16
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).

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