J.K. and U.S. Postal Service, Michigan City Post Office (Board decision, March 3, 2025)

ECAB remand decision. The Board reversed OWCP’s rejection of the alleged work incident and remanded for a medical causation decision. Entitlement remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A postal lobby monitor reported leg, hip, back, and knee symptoms after sitting on a wooden stool during a work shift. His supervisor initially confirmed the account, though the Postal Service later noted he could have used a desk and chair. The Board found the account consistent with the record and established that the incident occurred in the performance of duty. Because OWCP had not assessed the medical evidence, the Board reversed its denial and returned the case for a new decision on injury causation.

Decision snapshot

• Authority: FECA; 5 U.S.C. § 8101.
• Outcome: Work incident established; claim remanded for medical causation review.
• Key point: OWCP had to assess medical causation after the Board accepted the reported work incident.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.K., Appellant
)
)
Docket No. 25-0292
and ) Issued: March 3, 2025
)
U.S. POSTAL SERVICE, MICHIGAN CITY )
POST OFFICE, Michigan City, IN, Employer )
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge

JURISDICTION

On February 5, 2025, appellant, through counsel, filed a timely appeal from an August 12, 2024 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish a traumatic injury in the performance of duty on July 10, 2023, as alleged.

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.
FACTUAL HISTORY

On July 21, 2023 appellant, then a 62-year-old lobby monitor, filed a traumatic injury claim (Form CA-1) alleging that on July 10, 2023 he injured his right leg, hip, back, and knee sustaining muscle and nerve pain from sitting on a wooden stool while in the performance of duty.3 On the reverse side of the claim form, an employing establishment supervisor, W.G., acknowledged that appellant was injured in the performance of duty, and indicated that his knowledge of the facts about the injury agreed with the statements of appellant and/or witnesses. Appellant stopped work on July 10, 2023.

In a letter dated July 28, 2023, the employing establishment asserted that appellant was not required to sit on a wooden stool, but was provided with a desk and chair, which he chose not to use.

In an August 2, 2023 development letter, OWCP informed appellant of the deficiencies of his claim. It advised him of the type of factual and medical evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 60 days to submit the necessary evidence.

OWCP continued to receive evidence. On July 20 and August 18, 2023 Jean M.
DeCavitch, a nurse practitioner, opined that appellant was totally disabled from work commencing July 11, 2023. She also completed a note on August 23, 2023, relating that appellant had undergone a magnetic resonance imaging (MRI) scan of his lower back.

The employing establishment provided a July 24, 2023 statement from D.T., a coworker, asserting that appellant walked without his cane while carrying a case of soda .

In a follow-up development letter dated August 31, 2023, OWCP advised appellant that it had conducted an interim review, and the factual and medical evidence remained insufficient to establish his claim. It noted that he had 60 days from the August 2, 2023 letter to submit the necessary evidence. OWCP further advised that if additional evidence was not received during this time, it would issue a decision based on the evidence contained in the record.

OWCP continued to receive evidence. A healthcare provider with an illegible signature completed a duty status report (Form CA-17) and a work capacity evaluation (Form OWCP-5c) on July 28, 2023. In reports dated August 6, 2023, Dr. Brandon Zabukovic, a Board-certified family practitioner, examined appellant due to right hip pain with radiation to the lumbar region and lateral leg. He noted that, following the previously-accepted December 6, 2021 work injury, appellant had returned to modified duty as a lobby assistant, which required sitting on a stool for the majority of his workday. Dr. Zabukovic related that, beginning on July 4, 2023, he experienced “heavy pain” in his right hip, and that on July 11, 2023 he described the pain as

3
OWCP assigned the present claim OWCP File No. xxxxxx703. Appellant has a previously accepted December 6, 2021 traumatic injury claim for right hip trochanteric bursitis, right shoulder rotator cuff tear, right knee meniscus tear under OWCP File No. xxxxxx403. He stopped work on March 7, 2022 and returned to full-time modified-duty work on April 27, 2023. OWCP administratively combined OWCP File Nos. xxxxxx403 and xxxxxx703, with the latter serving as the master file on March 14, 2024.

2
“nerve pain.” He explained that appellant sat on a stationary stool for five to eight hours a day and that arising repetitively from the stool caused increased and continuous pain in the right hip. Dr. Zabukovic diagnosed right lumbar strain, right sciatica, and right hip pain.

In an August 24, 2023 report, Dr. Zabukovic related that appellant was receiving treatment for lower back, hip, shoulder, and knee conditions and was totally disabled. On August 25, 2023, Ms. DeCavitch opined that appellant was totally disabled.

By decision dated October 2, 2023, OWCP denied appellant’s claim, finding that the factual evidence of record was insufficient to establish that the events occurred as alleged. Therefore, it concluded that the requirements had not been met to establish an injury as defined by FECA.

On June 10, 2024, appellant, through counsel, requested reconsideration . In a May 7, 2024 report, Dr. Zabukovic related that, on July 10, 2023, appellant reinjured his right hip, right back and right knee sitting and arising from a stool throughout the day. He asserted that the injury of July 10, 2023 was an exacerbation of the previously -accepted claim for right trochanteric bursitis, right shoulder rotator cuff tear, and right knee meniscal tear. Dr. Zabukovic noted that appellant had accepted a modified-duty position as a lobby assistant, which required him to sit on a stool throughout the workday. On July 4, 2023, he began to experience tenderness in his right hip and, on July 11, 2023, this pain felt like “nerve pain.” Dr. Zabukovic opined that appellant developed lumbar radiculopathy as a result of compensatory movements that altered the mechanics of his spine. He explained that he “favors the right side” due to pain and instability in the right hip and knee causing asymmetrical loading of the spine, leading to nerve compression/irritation in the lumbar region. Dr. Zabukovic also observed that altered gait patterns and posture changes resulting from the accepted hip and knee injuries were also contributing to lumbar radiculopathy by placing excessive stress on the lumbar spine and its nerve roots. He opined that appellant’s diagnoses of right hip bursitis, lumbar radiculopathy, and right knee meniscal tear were a direct result of the injuries he sustained at work on December 6, 2021 and July 10, 2013.

By decision dated August 12, 2024, OWCP denied modification.

LEGAL PRECEDENT

An employee seeking benefits under FECA 4 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 filed with the applicable time limitation, that an injury was sustained while in the performance of duty, as alleged, and that any disability or specific condition for which compensation is claimed is causally related to the

4
Id.

3 employment injury.5 These are the essential elements of 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, OWCP must first determine whether fact of injury has been established. 7 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 time and place, and in the manner alleged. 8 Second, the employee must submit evidence to establish that the employment incident caused an injury. 9

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.10 The employee has not met his or her burden when there are such inconsistencies in the evidence as to cast serious doubt on the validity of the claim. 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 serious doubt on the employee ’s statements in determining whether a prima facie case has been established. 11 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. 12

ANALYSIS

The Board finds that appellant has met his burden of proof to establish a traumatic injury in the performance of duty on July 10, 2023, as alleged.

In his Form CA-1, appellant alleged that he injured his right leg, hip, back, and knee sustaining muscle and nerve pain sitting on a wooden stool. On the reverse side of the claim form, an employing establishment supervisor, W.G., acknowledged that he was injured in the performance of duty and that his knowledge of the facts about the injury agreed with the

5
E.S., Docket No. 18-1580 (issued January 23, 2020); M.E., Docket No. 18-1135 (issued January 4, 2019); C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006). 6 E.S., id.; S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). 7 D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., id.
8
D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, supra note 5.
9
B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989). 10 S.W., Docket No. 17-0261 (issued May 24, 2017).
11
C.M., Docket No. 20-1519 (issued March 22, 2021); Betty J. Smith, 54 ECAB 174 (2002).
12
L.M., Docket No. 21-0109 (issued May 19, 2021); F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, supra note 6.

4 statements of appellant and/or witnesses. The employing establishment later controverted the claim acknowledging that while appellant was not required to sit on a wooden stool, he chose not to use a desk and chair that was provided for his use.

Further, the medical evidence contemporaneous with the alleged July 10, 2023 employment incident establishes that appellant sought medical treatment on July 20 and August 6, 2023, after the alleged employment incident. Dr. Brandon, in his August 6, 2023 report, noted that appellant had returned to modified duty as a lobby assistant, which required sitting on a stool throughout the workday.

The injury appellant claimed is consistent with the facts and circumstances he set forth, statements from his supervisor, and his course of action. As noted, an employee’s statement as to how the injury occurred is of great probative value and will stand unless refuted by strong or persuasive evidence. 13 There are no inconsistencies in the evidence that cast serious doubt upon the validity of the claim, and thus the Board finds that appellant has established a traumatic incident in the performance of duty on July 10, 2023, as alleged.

As appellant has established that an incident occurred in the performance of duty on July 10, 2023 as alleged, the question becomes whether the incident caused an injury. 14 As OWCP found that he had not established fact of injury, it did not evaluate the medical evidence. The case must, therefore, be remanded for consideration of the medical evidence of record. 15 After this and other such further development as deemed necessary, OWCP shall issue a de novo decision addressing whether appellant has met his burden of proof to establish an injury causally related to the accepted July 10, 2023 employment incident.

CONCLUSION

The Board finds that appellant has met his burden of proof to establish a traumatic injury in the performance of duty on July 10, 2023 as alleged.

13
J.A., Docket No. 24-0919 (issued October 25, 2024); M.S., Docket No. 24-0258 (issued May 20, 2024); C.C., Docket No. 10-2054 (issued July 8, 2011). 14 M.S., Docket No. 23-0731 (issued January 5, 2024); L.G., Docket No. 21-0343 (issued May 9, 2023); M.A., Docket No. 19-0616 (issued April 10, 2020); C.M., Docket No. 19-0009 (issued May 24, 2019). 15 D.F., Docket No. 21-0825 (issued February 17, 2022); L.D., Docket No. 16-0199 (issued March 8, 2016);
Betty J. Smith, supra note 11.

5
ORDER

IT IS HEREBY ORDERED THAT the August 12, 2024 decision of the Office of Workers’ Compensation Programs is reversed and the case is remanded for further proceedings consistent with this decision of the Board.

Issued: March 3, 2025
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6