United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.K., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Richmond, VA, Employer 

__________________________________________ 

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Docket No. 15-198 

Issued: March 10, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 5, 2014 appellant filed a timely appeal from an October 28, 2014 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 501.3,2 the Board has 

jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish an employmentrelated injury in the performance of duty on September 13, 2013. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot consider this 

evidence as its review of the case is limited to the evidence that was before OWCP at the time of its final decision. 

20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012). 
2

On appeal appellant asserts that the injury is compensable because the claimed motor 

vehicle accident occurred during lunch when he left his duty station, his home office, to drive to 

a park to take a walk and clear his head. 

FACTUAL HISTORY 

On September 30, 2013 appellant, then a 60-year-old internal revenue agent, filed a 

traumatic injury claim alleging that at 11:30 a.m. on September 13, 2013 he injured his lower 

back, left shoulder, left wrist, and thumb when his car was hit from behind while he was waiting 

for a light to change. The employing establishment responded that he was not in the 

performance of duty because he was injured at lunch time and that no medical evidence had been 

received. Appellant’s duty hours were listed as 7:30 a.m. to 4:15 p.m., Monday through Friday. 

By letter dated October 2, 2013, OWCP informed appellant of the type of evidence 

needed to support his claim. This was to include answers to an attached questionnaire which 

asked him to describe the claimed motor vehicle accident, provide witness statements and 

documentation regarding the accident, and asked him to explain how he could be considered to 

be in the performance of duty since the accident occurred at lunchtime. Appellant was also to 

provide a physician’s opinion as to how the injury resulted in a diagnosed condition. He was 

given 30 days to respond. 

Medical evidence was obtained by OWCP. A September 19, 2013 computerized 

tomography (CT) scan of the head was within normal limits. In a September 24, 2013 treatment 

note, Dr. Patricia N. Barnwell, Board-certified in family medicine, noted that appellant reported 

that his vehicle had been rear-ended on September 13, 2013. She indicated that appellant had a 

past history of stroke in 2008 and stated that he did not immediately seek medical attention but 

was now complaining of a headache and difficulty focusing. Physical examination demonstrated 

painful neck and back range of motion. Dr. Barnwell diagnosed headache, back and neck pain, 

and prescribed medication. 

On November 7, 2013 OWCP found that fact of injury had not been met and denied the 

claim. It noted that appellant had not provided any factual evidence regarding the accident as 

requested and that the medical evidence submitted did not support that the injury occurred as 

described. 

Appellant timely requested a review of the written record. He attached a November 19, 

2013 report from Dr. Patricia N. McClendon,3

 who stated that appellant was under her care and 

was seen on September 19, 2013 for what he described as a worsening headache as a result of a 

September 13, 2013 motor vehicle accident. Dr. McClendon noted the negative CT scan results 

and appellant’s additional complaints of neck, back, and left thumb pain. She described painful 

neck and back range of motion, spasm, and stiffness. Dr. McClendon stated that appellant had 

been referred to physical therapy and on November 1, 2013 his condition had improved. 

Appellant also attached information regarding physical therapy appointments and an unidentified 

treatment note. 

 3

 Dr. McClendon and Dr. Barnwell are apparently the same person. 
3

By decision dated March 18, 2014, an OWCP hearing representative found that the 

record did not establish that an injury occurred at the time, place, or in the manner alleged and 

affirmed the November 7, 2013 decision. He noted that appellant had failed to provide 

documentation regarding the accident and did not seek medical care until September 19, 2013. 

On July 9, 2014 appellant requested reconsideration. In a March 24, 2014 statement, he 

maintained that he was in pain from the moment of the accident and could hardly fill out all 

required police accident forms. Appellant stated that he declined medical care at that time and 

instead took his car to a body shop. He stated that his duty hours were 7:30 a.m. to 4:15 p.m. 

with a 45-minute lunch period, typically from 11:30 a.m. to 12:15 p.m. Appellant stated that 

after the accident he had increasing back, neck, arm, and wrist pains as well as slurring of speech 

and had two months of physical therapy and pain medication. He submitted evidence previously 

of record and a list of physical therapy appointments and leave taken. Correspondence dated 

February 10, 2014 from Government Employees Health Association, Inc. (GEHA) reflected a 

September 13, 2013 loss and provided information regarding subrogation. 

In a merit decision dated October 28, 2014, OWCP noted that it had not received any 

evidence to support that the claimed injury occurred while appellant was performing duties of 

employment at the time and place described and denied modification of the prior decisions. 

LEGAL PRECEDENT 

Congress, in providing for a compensation program for federal employees, did not 

contemplate an insurance program against any and every injury, illness or mishap that might 

befall an employee contemporaneous or coincidental with his or her employment. Liability does 

not attach merely upon the existence of an employee/employer relation. Instead, Congress 

provided for the payment of compensation for “the disability or death of an employee resulting 

from personal injury sustained while in the performance of his duty.”4 The phrase “while in the 

performance of duty” has been interpreted by the Board to be the equivalent of the commonly 

found prerequisite in workers’ compensation law of “arising out of and in the course of 

employment.” In addressing this issue, the Board has stated: “In the compensation field, to 

occur in the course of employment, in general, an injury must occur: (1) at a time when the 

employee may reasonably be said to be engaged in his or her master’s business; (2) at a place 

where he or she may reasonably be expected to be in connection with the employment; and 

(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in 

doing something incidental thereto.”5

 In deciding whether an injury is covered by FECA, the 

test is whether, under all the circumstances, a causal relationship exists between the employment 

itself, or the conditions under which it is required to be performed, and the resultant injury.6 

The Board has recognized, as a general rule, that off-premises injuries sustained by 

employees having fixed hours and places of work while going to or coming from work or lunch, 

 4

 5 U.S.C. § 8102(a); Angel R. Garcia, 52 ECAB 137 (2000). 

5 George E. Franks, 52 ECAB 474 (2001). 

6 Mark Love, 52 ECAB 490 (2001). 
4

are not compensable as they do not arise out of and in the course of employment. Such injuries 

are merely the ordinary, nonemployment hazards of the journey itself which are shared by all 

travelers.7 There are recognized exceptions which are dependent upon the particular facts 

relative to each claim: (1) where the employment requires the employee to travel on the 

highways; (2) where the employer contracts to and does furnish transportation to and from work; 

(3) where the employee is subject to emergency calls, as in the case of firefighters; and (4) where 

the employee uses the highway to do something incidental to his employment with the 

knowledge and approval of the employer.8

ANALYSIS 

The Board finds that appellant has not established an employment-related injury in the 

performance of duty on September 13, 2013. The evidence does not establish that the claimed 

injury occurred at a time when he was reasonably said to be engaged in his master’s business, at 

a place where he was reasonably expected to be in connection with the employment, or while he 

was reasonably fulfilling the duties of his employment or engaged in doing something incidental 

thereto.9

Appellant claimed that he was in a motor vehicle accident at 11:30 a.m. on September 13, 

2013, stating that he was on a lunch break, leaving his duty station in his home office, to drive to 

a park and take a walk to clear his head. He did not respond to OWCP’s request on October 2, 

2013 to explain how he could have been in the performance of duty at that time. 

As noted above, as a general rule, when off premises during a lunch break, injuries are 

not compensable.10 While there are exceptions to this rule,11 these exceptions are not applicable 

in this case. There is no evidence to support that appellant was injured while on an emergency 

call, that he was travelling on the road as part of his employment, or that he was subjected to a 

special inconvenience, hazard, or urgency of travel that would bring the claimed injury within 

coverage of FECA.12 Appellant’s stated reason for leaving his claimed telework office at home 

was to take a lunch break and go for a walk to clear his head, an excursion that was purely 

personal in nature. His claimed injury occurred away from his place of employment while he 

was engaged in nonemployment activities and represented a nonemployment hazard which was 

shared by the general public.13

 7 Cheryl Bowman, 51 ECAB 519 (2000). 

8 J.E., 59 ECAB 119 (2007). 

9 Supra note 5. 

10 Supra note 7. 

11 Supra note 8. 

12 See E.B., Docket No. 06-2178 (issued February 27, 2007). 

13 Id. 
5

Finally, if an employee has fixed hours of work, as appellant did, his departure from the 

telework space would remove him from compensability, under the rules stated above.14

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 did not establish that he sustained an employment-related 

injury in the performance of duty on September 13, 2013. 

ORDER 

IT IS HEREBY ORDERED THAT the October 28, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 10, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 14 See S.F., Docket No. 09-2172 (issued August 23, 2010). For cases involving claimed telework injuries, see

Mona M. Tates, 55 ECAB 128 (2003); John B. Shutack, 54 ECAB 336 (2003); Julietta M. Reynolds, 50 ECAB 

529 (1999).