**U.S. DEPARTMENT OF LABOR**

**Employees Compensation Appeals Board**

**In the Matter of JULIETTA M. REYNOLDS AND DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Richmond, VA**

**Docket No. 97-695, Submitted on the Record;**

**Issued August 13, 1999**

**DECISION and ORDER**

**Before DAVID S. GERSON, WILLIE T.C. THOMAS,**

**MICHAEL. E. GROOM**

The issue is whether the Office of Workers Compensation Programs
properly rescinded acceptance of appellant's claim for hematoma of the
right leg.

On January 16,1996 appellant, then a 54-year-old revenue officer, filed
a claim alleging that she sustained an injury on January 12, 1996. On
that date, appellant was working at home when it started to get cold and
the heat failed to come on when she adjusted the thermostat. Appellant
contacted her husband, who advised her to telephone the oil company. She
then telephoned the oil company and received instructions from a service
agent on how to trip the furnace. Appellant indicated that she went to
the basement where the furnace was located and, upon returning upstairs,
fell on the stairway sustaining injury to her right leg and left foot.

Appellant submitted a Form CA-16, completed January 16, 1996 and
authoring her treatment by Dr. Linda Kormon, an internist. Dr. Kormon
examined appellant that date and diagnosed contusions of the right leg
and left toes and a hematoma of the right leg. She indicated that
appellant was totally disabled pending referral for examination by Dr C.
Loy.

By letter dated February 1, 1996, the employing establishment
controverted appellant s claim, contending that she was not in the
performance of duty at the time of injury. The employing establishment
noted that appellant worked at home under a flexiplace contract and that
she had failed to immediately notify her manager that her flexiplace day
had become interrupted by an emergency which impacted her ability to
perform her official duties. The employing establishment noted that
appellant was not directed to effect repairs to her furnace and that
furnace repairs did not pertain to her official duties or serve the
mission of the employing establishment.

In a March 20, 1996 response, appellant contended that she was not in
violation of the flexiplace agreement and noted that if she had been
working in her office at the time of the incident there would be no
question as to coverage.

By decision dated April 1, 1996, the Office denied appellant s claim,
finding that the January 12, 1996 injury did not arise in the
performance of duty. The Office found that appellant had left her
workstation to repair her furnace, thus deviating from the course of her
employment for purely personal reasons which were not incidental to her
employment.

On April 29, 1996 appellant requested an oral hearing before an Office
hearing representative.

Upon review of the case record prior to scheduling a hearing, the Office
hearing representative issued a July 17, 1996 decision which found that
appellant sustained injury while in the performance of duty. The hearing
representative determined that appellant was working at home under a
flexiplace agreement and fell while ascending stairs to restore heat to
her work environment. She found that appellant s injury was covered
under the personal comfort doctrine in that she sustained injury while
attempting to raise the temperature in her workplace to a comfortable
level (*citing Conrad R. Debski, 44 ECAB 381 (1993)*). The hearing
representative directed the Office, on return of the record, to accept
appellant s claim for hematoma of the right leg and contusions.

On October 30, 1996 the Office Assistant Branch Chief reopened appellant
s claim for reconsideration under 5 U.S.C. § 8128(a) and vacated the
July 16, 1996 decision of the Office hearing representative. He found
that the hearing representative had erroneously accepted appellant s
claim under an incorrect legal theory, noting that the personal comfort
case relied upon by the hearing representative pertained to an injury,
which took place on the employing establishment s industrial premises.
The Office distinguished the circumstances of appellant s injury, which
took place on a day she was working at home under a flexiplace
agreement. The Assistant Branch Chief stated:

\"In the traditional type of workplace situation where work is only
performed on the employer's premises, the employer can exercise complete
control of the work environment and can maintain it in a safe manner so
as to reduce the likelihood of workplace injuries. One of the legal
consequences of providing employment under these circumstances is the
'personal comfort doctrine, which has evolved to provide coverage under
workers compensation statutes for injuries that occur on the employer's
premises while the employee is ministering to his or her personal
comfort instead of engaging in activities that further the employer s
business.

'However, some modern workplace situations, such as the flexiplace
agreement by which the claimant in this case performed at least some of
her work at home, are so radically different from the traditional
workplace situation described above that legal concepts like the
'personal comfort doctrine cannot be fairly applied to find coverage for
injuries that occur under these circumstances due to the fact that it is
the *employee, *not the employer, who is directly responsible for
maintaining the work environment in a safe manner. As such, an injury
sustained while the employee is maintaining the workplace environment at
home instead of performing his or her actual work duties should not be
considered the responsibility of the employer.

\"As Professor Larson notes in his discussion of this topic at §§
18.31-34 of his treatise, 'it is no light matter to thrust upon an
employer a new employment premises for whose hazards he is expected to
be liable\...' (A. Larson, *The Law of Wothmen's Compensation, *§ 18.31
at p. 4-(414)(1996)). Therefore, the majority rule in the states is that
only those injuries which occur while an employee is *actually
performing his or her work *at home will be found to occur in the course
of the employment. *See id.* at § 18.34 Accordingly, there is no
flexiplace equivalent to the 'personal comfort doctrine' that can be
used to extend coverage under the Federal Employees' Compensation Act to
the claimant s January 12, 1996 injury sustained as a result of
repairing her furnace at home.\" (Emphasis in the original.)

The Board finds that the Office met its burden of proof to rescind
acceptance of appellant s claim.

Once the Office has accepted a claim, it has the burden of justifying
termination or modification of compensation benefits. Under such
circumstances, the Office must establish either that its original
determination was erroneous or that the employment-related disability
has ceased. *(Shelby J. Rycroft, 44 ECAB 795 (1993).*

In *Eli Jacobs (32 ECAB 1147 (1981)), *the Board upheld the Office s
authority to reopen a claim at any time under the review power granted
by section 8128(a) of the Federal Employees Compensation Act. This
section vests the Office with the discretionary authority to review a
claim at any time on its own motion. The Board held that the Office s
review power under section 8128(a) was not limited to reconsideration of
final decisions which awarded, terminated, increased or decreased
compensation. The Board stated, in relevant part, as follows: \"Whether
the claim resulted in an award of compensation or involves a final
decision on a preliminary issue\-- such as whether the claim was timely
filed \-- is irrelevant; no claim is immune from review under section
8121.\" (*Id. at 1151*) The Board held that under section 812B(a), the
Office may at any time on its own motion open a claimant's case for
review and, where supported by the evidence, set aside or modify a prior
decision and issue a new decision *(Id.).*

The Board has noted, however, that the power to annul an award is not an
arbitrary one and that an award of compensation can only be set aside in
the manner provided by the compensation statute (See Elizabeth Pinero,
46 ECAB 123 (1994)). This holds true where, as here, the Office later
decides that is has erroneously accepted a claim for compensation. To
justify rescission of acceptance of a claim, the Office must establish
that its prior acceptance was erroneously based on new or different
evidence or through new legal argument and/or rationale. *(See Carolyn
F. Allen, 47 ECAB 240 (1995); Albert O. Gonzales, 46 ECAB 684 (1995);
Laura Hoexter \[Nicholas P. Hoexter\], 44 ECAB 987 (1993); Beth A
Quimby, 41 ECAB 683 (1990); Daniel E. Phillips, 40 ECAB 1111 (1989),
petition for recon. denied, 41 ECAB 201 (1990))*

There is no factual dispute as to appellant's injury on January 12,
1996, sustained while she was ascending the basement stairway at her
home after attempting to fix her furnace. The issue in dispute is a
legal question concerning whether appellant was in the performance of
duty at the time of injury.

The Office initially rejected appellant s claim for compensation on
April 1, 1996 on the grounds that since she had left her home
workstation to repair her furnace, she had deviated from the course of
her employment for personal reasons not incidental to her federal
employment. The April 1, 1996 decision of the Office was reversed on
July 17, 1996 when an Office hearing representative determined that
appellant's work at home under the flexiplace program included
activities incidental to the ministration of personal comfort. On
October 30, 1996 the Office reopened the claim for review and set aside
the April 1, 1996 \*\*\*(NOTE: this should probably read July 17,
1996)\*\*\* hearing representative s decision. The Office determined
that the Personal Comfort Doctrine was erroneously applied by the
hearing representative to the home workplace setting. The Office found
that the Personal Comfort Doctrine extends only to the employing
establishment premises and not the home environment when work is
performed under a flexiplace program.

The Board notes that, under the standard set forth in *Roseanna Brennan
(41 ECAB 92 (1989), petition for recon. Denied, 41 ECAB 371 (1990), *the
Office has presented new legal rationale in support of its decision to
reopen appellant s case and to justify rescinding acceptance of her
claim based on its finding that the injury of January 12, 1996 did not
arise in the performance of duty. In so doing, the Office adopted the
position that the \"Personal Comfort Doctrine,\" usually associated with
an employer s industrial or business premises will not extend to an
employee s home under a flexiplace program. It is well established that
in construing the Act, the Office has exclusive jurisdiction in the
cases before it to decide all questions arising under the Act subject to
review and final decision by the Board *(See Anneliese Ross, 42 ECAB 371
(1991). The Director of the Office is the designated representative of
the Secretary of Labor with respect to administration of the Act.
Pursuant to 5 U.S.C. § 8145 the Secretary of Labor has delegated
responsibility for administering the provisions of the Act, except for 5
U.S.C. § 8149 which pertains to the Employee's Compensation Appeals
Board, to the Director and his or her designees, see 20 C.F.R. § 10.2;
see also Kenneth L. Pless, 45 ECAB 175 (1993)).* As the only limitation
on the Office's authority is reasonableness, the Board in this case must
determine whether the Office abused its discretion in making the policy
determination that the Personal Comfort Doctrine does not apply to work
at home under a flexiplace program. *(Abuse of discretion is generally
shown through proof of manifest error, clearly unreasonable exercise of
judgement, or actions taken which are contrary to both logic and
probable deductions from established facts; see Daniel J. Perea, 42 ECAB
214 (1990))*.

The Office s procedure manual includes a discussion of off-premises
injuries sustained by workers who perform service at home. *(Federal
(FECA) Procedure Manual, Part 2 - Claims, Performance of Duty, Chapter
2.804.5(f) (August 1992)*. The procedure manual states:

\"Ordinarily the protection of the Act does not extend to the employee s
home, but there is an exception when the injury is sustained *while the
employee is performing official duties.* In situations of this sort, the
critical problem is to ascertain whether at the time of the employee
was, in fact, doing something for the employer. The official superior
should be requested to submit a relevant statement showing:

\(a\) What directives were given to or what arrangements had been made
with the employee for performing work at home or outside usual working
hours;

\(b\) The particular work the employee was performing when injured; and

\(c\) Whether the official superior is of the opinion the employee was
performing official duties at the time of the injury, with appropriate
explanation for such opinion.\" *(Id.)*

The procedure manual section was supplemented on June 5, 1998 when the
Office issued FECA Bulletin No. 98.9 pertaining to the performance of
duty at alternative work sites. While not applicable in this case, the
Bulletin acknowledges that various federal agencies have experimented
with programs which allow employees to perform work from locations other
than the federal agency s premises. Such locations include \"satellite\"
offices as well as the individual employee s home. The Bulletin
provides:

\"1. Employees who are directly engaged in performing the duties of
their jobs are covered by the FECA, regardless of whether the work is
performed on the agency s premises or at an alternative work site. There
is no statement (such as a 'safety checklist) that can be signed by the
employee to negate this coverage. As always, any affirmative defense of
'willful misconduct' must be substantiated by evidence that the employee
disobeyed an order that was routinely enforced.

\"2. However, when an employee is on property under his or her own
control, activities which are not immediately directed towards the
actual performance of regular duties do not arise out of employment. *An
employee who works at a desk at home removes himself or herself from the
performance of regular duties as soon as he or she walks away from that
desk to use the bathroom, get a cup of coffee, or seek fresh air. The
'Personal Comfort Doctrine does not apply and coverage cannot he
extended for injuries which result from such activities.*\"

The Bulletin notes that the environment in an employee s home is not
under the employer's control and that the premises rule that applies
when the employee is on property owned or maintained by the employer is
not relevant to such conditions.

The Board finds that the Office s exercise of discretion in this case,
to exclude the Personal Comfort Doctrine from situations in which an
employee is performing work at home, does not conflict with the intent
of the statute. In the October 30, 1996 memorandum, the Office Assistant
Branch Chief explained that a home work environment is different from
the traditional employment premises over which an employer may exercise
complete control of the work environment and maintain safety to reduce
the likelihood of workplace injury. As an outgrowth of the employer s
control over the premises, the Personal Comfort Doctrine evolved to
provide coverage to employees while injured on the premises when
ministering to their personal comfort. The Assistant Branch Chief noted
that while at home, the employee is responsible for maintaining his or
her home in a safe manner, over which the employer has no control of
hazards. For this reason the Office determined that only those injuries
which occur while an employee is \"actually performing his or her work
at home\" are considered to arise in the course of employment. The Board
notes that this policy determination conforms with the provisions of the
Office s procedure manual of 1992 that the protection of the Act will
not extend to an employee s home, unless injury is sustained while the
employee is \"performing official duties.\" This exercise of discretion
was subsequently elaborated upon in the 1998 FECA Bulletin.

The Board finds that the Director did not abuse his discretion in this
case in reopening appellant s claim under section 8128(a) and rescinding
acceptance of appellant s claim for an injury sustained January 12, 1996
when appellant fell on her stairway at home while attempting to fix her
furnace.

The October 30, 1996 decision of the Office of Workers' Compensation
Programs is affirmed.

Dated, Washington, D.C.

August 13, 1999

David S. Gerson

Member

Willie T.C Thomas

Alternate Member

Michael E. Groom

Alternate Member