United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Melville, NY, Employer 

__________________________________________ 

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Docket No. 15-288 

Issued: May 21, 2015 

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 November 20, 2014 appellant filed a timely appeal from an October 23, 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, the Board has 

jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish an injury in the 

performance of duty on July 16, 2014. 

FACTUAL HISTORY 

On September 11, 2014 appellant, then a 55-year-old letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on July 16, 2014 he sustained a work injury at 4:45 p.m. 

Regarding the cause of injury, he stated, “As I was leaving post office to go to my car, I was 

 1

 5 U.S.C. §§ 8101-8193. Appellant submitted additional evidence after OWCP’s October 23, 2014 decision, but 

the Board cannot consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c). 
2

confronted by employee Walter Triquet and he hit me in my face (right eye).” Appellant stopped 

work on July 16, 2014. On the same form, his immediate supervisor checked a box indicating 

that the claimed injury did not occur in the performance of duty and stated, “[Appellant] was off 

the clock and walking to his car in the municipal lot when he was punched by another employee 

who was also off the clock.” Appellant’s usual work hours were listed as 7:00 a.m. to 3:50 p.m. 

The supervisor noted that the employing establishment was controverting his claim and stated, 

“Incident happened off the clock and off of the [employing establishment] premises.” 

Appellant submitted medical evidence in support of his claim, including a July 18, 2014 

report in which Dr. Michael Demaria, an attending Board-certified gastroenterologist, diagnosed 

right eye hematoma, chin laceration, concussion, and headache and indicated that he reported 

being punched on July 16, 2014. 

In a September 11, 2014 letter, the employing establishment contended that it was 

controverting appellant’s claim and stated: 

“At the time of the alleged injury/incident, [appellant] was off the clock, not in the 

performance of duty, walking to his car in the municipal parking lot, and was off 

[employing establishment] premises when he was punched in the eye by another 

employee. As per the [Form CA-1] submitted by [him], the alleged injury 

occurred at approximately 4:45 p.m. [Appellant] mentioned, as he was leaving 

the [employing establishment] to go to his car he was confronted by another 

employee, and the other employee hit him in his face (right eye). [Employing 

establishment] management has indicated and confirmed that the incident with 

[him] was not in the performance of duty, happened off the clock, and off 

[employing establishment] premises. [Appellant] was punched by another 

employee who was also off the clock.” 

In a September 19, 2014 development letter, OWCP requested that appellant submit 

additional factual and medical evidence in support of his claim. It requested that he complete an 

attached questionnaire which included questions about the site of the claimed assault and his 

relationship to the claimed assailant. OWCP also sent a September 19, 2014 development letter 

to the employing establishment asking for additional information. 

In a September 20, 2014 response to OWCP’s request, appellant indicated that on 

July 16, 2014 he clocked out of work at approximately 4:40 p.m. and “was leaving postal 

property walking towards my car” when he was approached by Mr. Triquet who punched him in 

his right eye after stating, “You have a problem with me.” He indicated that the assault occurred 

in the parking lot (approximately 15 feet from the employing establishment property) within five 

minutes of when he clocked out. The parking lot was not owned, controlled, or managed by the 

employing establishment. Appellant indicated that at work on July 9, 2014 Mr. Triquet 

threatened him on the workplace floor by stating to him, “What are you looking at?” and “He 

thinks he’s a tough guy.” He responded by asking Mr. Triquet whether he was “going to do 

anything about it,” but that Mr. Triquet did not do anything further. 
3

Appellant submitted an employing establishment time record indicating that he 

effectuated several clock rings on July 16, 2014, including clock rings at 4:44, 4:50, and 4:59 

p.m. The clock ring at 4:59 p.m. contains the notation “nonscheduled end tour.” 

A July 16, 2014 report from the Glen Cove Police Department was added to the record 

which concerned an incident reported as occurring at 4:44 p.m. on that date. The report noted 

that appellant had indicated that Mr. Triquet asked him “if he had a problem with him” and that 

Mr. Triquet then punched him in his right eye. Appellant reported that he fell as a result of the 

punch and split his chin open on the ground. He was observed with severe facial swelling and a 

chin gash. Mr. Triquet was arrested and charged with assault in the third degree. In an undated 

witness statement, a coworker indicated that on July 16, 2014 at about 4:40 p.m. in the parking 

lot she heard Mr. Triquet state to appellant that he had “a problem” with him and then observed 

Mr. Triquet punch appellant in the face. Appellant also submitted additional medical evidence in 

support of his claim. 

In an October 20, 2014 letter, an employing establishment official stated that appellant 

had already clocked out and was in the public parking facility at the time of the claimed injury. 

The parking lot was not owned by the employing establishment and was a municipal parking lot. 

Employees were not required to utilize the parking lot and no parking spaces were assigned by 

the employing establishment. The employing establishment official indicated that it is the 

employees’ responsibility to pay for the use of the municipal parking lot. 

In an October 23, 2014 decision, OWCP denied appellant’s claim for a July 16, 2014 

work injury because he failed to establish that the claimed injury occurred in the performance of 

duty. In one portion of the decision, it found that he had established a work incident on July 16, 

2014 but did not submit sufficient medical evidence to show that he sustained a medical 

condition due to that incident. In another portion of the decision, OWCP found that appellant 

had not established a work incident on July 16, 2014. It noted that the claimed injury occurred 

off the employing establishment premises while he was off the clock. 

LEGAL PRECEDENT 

FECA provides for payment of compensation for the disability or death of an employee 

resulting from personal injury sustained while in the performance of duty.2

 The phrase sustained 

while in the performance of duty is regarded as the equivalent of the coverage formula 

commonly found in workers’ compensation law, namely, arising out of, and in the course of 

employment.3 Arising in the course of employment relates to the elements of time, place, and 

work activity. To arise in the course of employment, an injury must occur at a time when the 

employee may reasonably be stated to be engaged in his or her employer’s business, at a place 

where he or she may reasonably be expected to be in connection with his or her employment and 

while reasonably fulfilling the duties of his or her employment or engaged in something 

incidental thereto. This alone is not sufficient to establish entitlement to compensation. The 

employee must also establish the concurrent requirement of an injury arising out of the 

 2

 5 U.S.C. § 8102. 

3 See Bernard D. Blum, 1 ECAB 1 (1947). 
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employment. Arising out of the employment requires that a factor of employment caused the 

injury.4 

As a general rule, off-premises injuries sustained by employees having fixed hours and 

place of work, while going to or coming home from work, or during a lunch period, are not 

compensable as they do not arise out of and in the course of employment, but are merely the 

ordinary, nonemployment hazards of the journey itself, which are shared by all travelers.5

 When 

an employee has a definite place and time for work and the time for work does not include the 

lunch period, the trip away from and back to the premises for the purposes of getting lunch is 

indistinguishable in principle from the trip at the beginning and end of the workday, and is 

governed by the same rules and exceptions.6 Exceptions to the general rule have been made in 

order to protect activities that are so closely related to the employment itself as to be incidental 

thereto,7

 or which are in the nature of necessary personal comfort or ministration.8

The Board has pointed out that factors which determine whether a parking lot used by 

employees may be considered a part of the employing establishment’s premises include whether 

the employing establishment contracted for the exclusive use by its employees of the parking 

area, whether the parking lot was checked for unauthorized vehicles, whether parking spaces on 

the lot were assigned by the employing establishment to its employees, whether parking was 

provided without cost to the employees, whether the public was permitted to use the lot, and 

whether other parking was available to the employees.9

 The proximity rule dictates that under 

special circumstances the industrial premises are constructively extended to hazardous 

conditions, which are proximately located to the premises and may therefore be considered as 

hazards of the employing establishment. The main consideration in applying the rule is whether 

the conditions giving rise to the injury are causally connected to the employment.10 

 4 Veleria Minus, 46 ECAB 799 (1995) (the phrase arising out of and in the course of employment encompasses 

not only that the injury occurred in the work setting, but also the causal concept that the employment caused the 

injury). 

5 Mary Keszler, 38 ECAB 735 (1987). 

6 Donna K. Schuler, 38 ECAB 273 (1986). 

7

 The Board has stated that these exceptions have developed where the hazards of the travel may fairly be 

considered a hazard of the employment and that they are dependent upon the particular facts and related situations: 

“(1) where the employment requires the employee to travel on the highways; (2) where the [employing establishment] 

contracts to and does furnish transportation to and from work; (3) where the employee is subject to emergency calls as 

in the case of firemen; and (4) where the employee uses the highway to do something incidental to his employment, 

with the knowledge and approval of the [employing establishment].” Betty R. Rutherford, 40 ECAB 496, 498-99 

(1989); Lillie J. Wiley, 6 ECAB 500, 502 (1954). 

8 See, e.g., Harris Cohen, 8 ECAB 457, 457-58 (1954) (accident occurred while the employee was obtaining coffee); 

Abraham Katz, 6 ECAB 218, 218-19 (1953) (accident occurring while the employee was on the way to the lavatory). 

9 Roma A. Mortensen-Kindschi, 57 ECAB 418 (2006); Diane Bensmiller, 48 ECAB 675 (1997). 

10 See William L. McKenney, 31 ECAB 861 (1980). 
5

The Board has held that workplace altercations occur in the performance of duty where 

the work brings the two together and creates the conditions that result in the altercation.11 

Professor Larson, in addressing assaults arising out of employment, states: 

“Assaults arise out of the employment either if the risk of assault is increased 

because of the nature or setting of the work or if the reason for the assault was a 

quarrel having its origin in the work.... Assaults for private reasons do not arise 

out of employment unless, by facilitating an assault which would not otherwise be 

made, the employment becomes a contributing factor.”12

With respect to situations where conflicts occur after employees are brought together by 

work, OWCP procedures provide: 

“Another factor to consider in determining the compensability of injuries 

allegedly due to coworker harassment is the “friction and strain doctrine” ... 

which is followed by the Board. Under this doctrine the fact that employees with 

their individual characteristics (emotions, temper, etc.) are brought together in the 

workplace creates situations leading to conflicts which may result in physical or 

emotional injuries. Because these conflicts have their origin in the employment 

they arise out of and in the course of employment even though they have no 

relevance to the employee’s tasks. In other words, a conflict between employees 

involving a nonwork topic may be found to have occurred in the performance of 

duty because the employment brought the employees together and created the 

conditions which resulted in the conflict. However, the “friction and strain 

doctrine” does not apply to privately motivated quarrels or disputes imported 

from outside the employment.”13 

The Board has included within the performance of duty a reasonable interval before and 

after work to allow for coming and going, as well as personal ministrations, such as lunch or 

bathroom breaks, engaged in for the benefit of the employing establishment.14 If the injury does 

not take place during those periods or on employing establishment premises, the Board will place 

special emphasis on whether the employee was engaged in an activity related to fulfilling the 

duties of his employment.15 The Board denied compensation to an employee who tripped on a 

loose floorboard after arriving at work 25 minutes early to get coffee and breakfast.16 In 

George E. Franks,

17 an employee failed to establish an injury in the performance of duty with 

respect to a fall in the parking lot of an Army base that occurred 45 minutes prior to the start of 

 11 F.S., Docket No. 10-1398 (issued May 12, 2011). 

12 A. Larson, The Law of Workers’ Compensation § 8.00 (2000). 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.12b (March 1994). 

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

15 See Venicee Howell, 48 ECAB 414 (1997); Narbik A. Karamian, 40 ECAB 617 (1989). 

16 T.F., Docket No. 09-154 (issued July 16, 2009). 

17 52 ECAB 474 (2001). 
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his shift. The Board found that the action he was performing at the time, getting coffee and 

breakfast, was solely personal in nature. In John F. Castro,

18 the Board granted recovery when 

an employee was injured in an automobile accident at a naval station five minutes after the end 

of his shift.19

ANALYSIS 

On September 11, 2014 appellant filed a traumatic injury claim alleging that on July 16, 

2014 he sustained a work injury at 4:50 p.m. Regarding the cause of injury, he stated, “As I was 

leaving post office to go to my car, I was confronted by employee [Mr. Triquet] and he hit me in 

my face (right eye).” In an additional statement, appellant indicated that the claimed injury 

occurred approximately five minutes after he clocked out for the day while he was walking to his 

car in a municipal parking lot about 15 feet from the employing establishment premises. He 

stated that Mr. Triquet punched him in his right eye after stating, “You have a problem with me.” 

The employing establishment controverted the claim and, in an October 23, 2014 decision, 

OWCP denied appellant’s claim, in part, because he did not show that the claimed injury 

occurred in the performance of duty.20 

The Board finds that appellant has failed to establish that an employment incident 

occurred on July 16, 2014. Although the record is vague regarding the precise times that 

appellant clocked out of work and the assault by Mr. Triquet occurred on July 16, 2014, it 

appears that the assault occurred within a few minutes of appellant clocking out of work on that 

date. Appellant indicated that the incident occurred at approximately 4:50 p.m. on July 16, 2014 

and the record contains a document suggesting that he clocked out around that time on 

July 16, 2014.21 The Board notes that it appears that the claimed work incident occurred within a 

reasonable interval after clocking out from work and would not be denied solely on a temporal 

basis.22 However, in examining whether the July 16, 2014 incident occurred within the 

performance of duty, it is important to also examine whether it occurred at a place where 

appellant may reasonably be expected to be in connection with his employment and while 

reasonably fulfilling the duties of his employment or engaged in something incidental thereto.23

 18 Docket No. 03-1653 (issued May 14, 2004).

19 Id. 

20 In its decision OWCP was vague regarding the reason for denying appellant’s claim. In one portion of the 

decision, it found that he had established a work incident on July 16, 2014 but did not submit sufficient medical 

evidence to show that he sustained a medical condition due to that incident. In another portion of the decision, 

OWCP found that appellant had not established a work incident on July 16, 2014 as it was off premises and off the 

clock. 

21 Appellant submitted an employing establishment time record indicating that he effectuated several clock rings 

on July 16, 2014, including clock rings at 4:44, 4:50, and 4:59 p.m. The clock ring at 4:59 p.m. contains the 

notation “nonscheduled end tour.” 

22 See supra notes 14 through 19. 

23 See supra note 4. 
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First, the Board notes that the claimed work incident occurred off the premises of the 

employing establishment. The assault occurred on a municipal parking lot that was not owned, 

controlled, or managed by the employing establishment. Moreover, the employing establishment 

did not provide parking spaces for its employees in this lot or pay for parking in the lot. There is 

no evidence that the municipal parking lot where the claimed injury occurred was part of the 

employing establishment premises or that the premises extended to the parking lot under the 

proximity rule.24 Second, it does not appear that appellant was reasonably fulfilling the duties of 

his employment or engaged in something incidental thereto at the time of the claimed injury on 

July 16, 2014. He was merely leaving work after clocking out for the day and walking to his car. 

Appellant suggested that the assault occurred due to an ongoing dispute with his 

coworker, Mr. Triquet. He indicated that, at work on July 9, 2014, i.e., a week prior to the 

claimed July 16, 2014 injury, Mr. Triquet threatened him on the workplace floor by stating to 

him, “What are you looking at?” and “He thinks he’s a tough guy.” Although the Board has held 

that workplace altercations occur in the performance of duty where the work brings the two 

together and creates the conditions that result in the altercation, the facts of the present case are 

not sufficiently similar to those cases where coverage is found under this principle.25 

In the cases where coverage is found, based on the employment bringing two employees 

together and creating the conditions that resulted in the altercation, the two employees engaged 

in the altercation are typically located on the premises and engaged in performing work duties 

around the time of the altercation. For example, in C.O.,26 coverage was found where the 

assailant approached the claimant while he or she was working on the premises and assaulted 

him or her after questioning the actions of the claimant’s pastor. In Shirley I. Griffin,

27 a work 

incident was found where the assailant approached the claimant while she was working on the 

premises and assaulted her ostensibly due to her failure to introduce the assailant to a male 

employee. In these cases, it was reasoned that coverage was warranted, even though the 

conflicts were not strictly over work matters, because the employment brought the two 

employees together, and created the conditions that resulted in the altercations. 

The facts of the present case differ significantly in that appellant was not on the premises 

of the employing establishment when he was assaulted. Nor was he engaged in any work duties 

or actions incidental thereof at the time of the assault. Appellant’s situation does not fall under 

the exceptions to the general rule that off-premises injuries sustained by employees having fixed 

hours and place of work, while going to or coming home from work or during a lunch period, are 

 24 See supra notes 9 and 10. 

25 See supra note 11. The Board notes that the nature of the conflict between appellant and his assailant remains 

vague and that there is no evidence that the conflict was imported into the workplace from their private lives. See 

supra note 13. 

26 Docket No. 09-217 (issued October 21, 2009). 

27 43 ECAB 573 (1992). 
8

not compensable as they do not arise out of and in the course of employment but are merely the 

ordinary, nonemployment hazards of the journey itself, which are shared by all travelers.28 

The facts of appellant’s case are more similar to the case of S.C.,29 a case where coverage 

was not found because the claimed injury did not occur at a place where the claimant was 

reasonably expected to be in connection with his employment and did not occur while reasonably 

fulfilling the duties of his employment or engaged in something incidental thereto. In that case, 

the claimant and the assailant had a tense conversation at work approximately one week prior to 

the assault. However, the assault occurred while the claimant was off the premises of the 

employing establishment and while he was not on official time. For these reasons, appellant has 

not established the occurrence of a work incident on July 16, 2014. 

Because appellant has not established the occurrence of a work incident on July 16, 2014, 

he has not established that he sustained an injury in the performance of duty on July 16, 2014.30 

He 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 10.607.31

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish that he 

sustained an injury in the performance of duty on July 16, 2014. 

 28 See supra notes 5 through 8. 

29 Docket No. 13-1915 (September 16, 2014). 

30 See supra notes 2 through 4. 

31 The Board notes that the record contains a Form CA-16 completed on appellant’s behalf. Where an employing 

establishment properly executes a CA-16 form, which authorizes medical treatment as a result of an employee’s 

claim for an employment-related injury, the CA-16 form creates a contractual obligation, which does not involve the 

employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. 

See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a CA-16 form is 

limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c). The 

record is silent as to whether OWCP paid for the cost of appellant’s examination or treatment for the period noted on 

the form. 
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ORDER 

IT IS HEREBY ORDERED THAT the October 23, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 21, 2015 

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