J.B. and U.S. Postal Service, Post Office, New Bern, NC (Board decision, February 4, 2016)

ECAB final decision. The Board affirmed OWCP’s September 17, 2015 denial of the right wrist injury claim. It found that the record did not establish the alleged July 18 work incident with enough detail to reach the medical evidence. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

J.B., a postal clerk, reported a right wrist injury from lifting and pulling letter trays. OWCP asked her to describe the specific circumstances of the July 18, 2015 incident, including where and when it happened. The Board found that she did not provide those details or other requested confirmation and had continued to work without apparent difficulty. It held that the work incident had not been established as alleged. Because the factual part of the claim failed, the Board did not assess whether the medical records connected a diagnosis to that incident.

Decision snapshot

• Authority: FECA requirement to establish the time, place, and manner of a claimed traumatic injury.
• Outcome: September 17, 2015 injury claim denial affirmed.
• Key point: J.B. did not provide the requested details of how and where the claimed incident occurred.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.B., Appellant
)
)
and ) Docket No. 15-1931
) Issued: February 4, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
New Bern, NC, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On September 28, 2015 appellant filed a timely appeal from a September 17, 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.

ISSUE

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

FACTUAL HISTORY

On July 31, 2015 appellant, then a 31-year-old clerk, filed a traumatic injury claim alleging a right wrist injury in the performance of duty. She alleged that she sustained the injury

1
5 U.S.C. § 8101 et seq. when she lifted and pulled letter trays on July 18, 2015. Appellant did not stop work. The employing establishment controverted the claim and asked that OWCP fully develop the claim.

In a July 27, 2015 report, a nurse practitioner advised that appellant sustained a right wrist strain on July 20, 2015 from overuse, but noted that appellant could return to work that day with lifting limited to two pounds.

In a July 27, 2015 duty status report, Form CA-17, a nurse practitioner limited lifting to two pounds and fine manipulation to four hours per day.

By letter dated August 13, 2015, OWCP informed appellant that evidence submitted was insufficient to establish her claim. Appellant was instructed to return a questionnaire establishing the factual element of her claim and also advised of the type of medical evidence needed. OWCP allowed her 30 days from the date of the letter to submit responsive evidence.

In a July 27, 2015 duty status report, Form CA-17, a nurse practitioner advised that appellant was able to return to work without restrictions.

A July 27, 2015 x-ray of the wrist performed by CCHC Imaging Center revealed no acute fracture or dislocation.

In an August 7, 2015 report, Dr. Mary Kirby, Board-certified in family medicine, advised that appellant was experiencing wrist pain. On examination she noted strong grip strength and tenderness of the medial proximal wrist. Dr. Kirby assessed wrist joint pain.

In an August 17, 2015 report, a nurse practitioner advised that appellant’s symptoms had improved and she was ready to return to work. On examination she noted normal movements of the upper extremity and no pain with flexion or extension. The nurse practitioner assessed pain in the wrist joint.

By decision dated September 17, 2015, OWCP denied appellant’s claim because the evidence of record was insufficient to establish that the claimed events occurred as described.

LEGAL PRECEDENT

An employee seeking compensation under FECA has the burden of establishing the essential elements of his or her claim by the weight of reliable, probative, and substantial evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or she filed his or her claim within the applicable time limitation.3 The employee must also establish that he sustained an injury in the performance of duty as alleged and that his disability for work, if any, was causally related to the employment injury.4

2
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).
3
R.C., 59 ECAB 427 (2008).
4
Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2
 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 actually experienced the employment incident at the time, place, and in the manner alleged. Second, the employee must submit medical evidence to establish that the employment incident caused a personal injury.5

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.6 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.7

ANALYSIS

The Board finds that appellant did not meet her burden of proof to establish an employment-related right wrist injury on July 18, 2015. The record did not support her allegation that a specific employment event occurred which caused an injury. By letter dated August 13, 2015, OWCP informed appellant of the type of evidence needed to support her claim. Appellant did not submit any description of the specific circumstances of the injury as requested by OWCP and consequently did not provide any requested confirmation as to how the claimed injury occurred. She did not indicate where she was when the claimed injury occurred, the precise time that it occurred, or if anyone witnessed it or had immediate knowledge of the claimed injury.

An employee’s statement that an injury occurred at a given time and in a given manner is of great probative value. However, lack of confirmation of injury and continuing to work without apparent difficulty following the alleged injury may, if otherwise unexplained, cast doubt on an employee’s statement in determining whether a prima facie case has been established.8 OWCP requested that appellant provide further information to confirm how the claimed injury occurred but appellant was not responsive to this request.

The Board, therefore, concludes that appellant failed to establish a traumatic injury in the performance of duty on July 18, 2015. Where a claimant does not establish an employment

5
T.H., 59 ECAB 388 (2008).
6
R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).
7
Betty J. Smith, 54 ECAB 174 (2002).
8
See supra notes 6 and 7.

3 incident alleged to have caused his or her injury, it is not necessary to consider the medical evidence.9

On appeal appellant contends that she and her supervisor submitted the required paperwork. However, as explained above, she has not submitted sufficient evidence to establish her claim.

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 an injury in the performance of duty on July 18, 2015.

ORDER

IT IS HEREBY ORDERED THAT the September 17, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 4, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9
S.P., 59 ECAB 184 (2007).

4