United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.E., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

San Diego, CA, Employer 

__________________________________________ 

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Docket No. 14-77 

Issued: February 2, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 8, 2013 appellant filed a timely appeal from the September 26, 2013 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 August 22, 2007. 

FACTUAL HISTORY 

On August 12, 2013 appellant, then a 52-year-old customs and border protection (CBP) 

officer, filed a traumatic injury claim alleging that on August 22, 2007 at 5:15 p.m. he sustained 

 1

 5 U.S.C. §§ 8101-8193. 
2

work-related cardiac arrest at the Foreign Law Enforcement Training Center (FLETC) “outdoor 

running track by gym.”2 Regarding the cause of the claimed injury, appellant stated, “While I 

was detailed to the FLETC as student at the Spanish language academy, I was engaged in 

physical training at the facility’s running track when I went into full cardiac arrest.”3

 Appellant 

stopped work on August 22, 2007 and returned to work on October 30, 2007. 

On the same form, Ximena Davila, appellant’s supervisor at FLETC, checked a “no” box 

indicating that appellant was not injured in the performance of duty and stated, “Attending the 

Basic Spanish Training Program (BSTP) from July 17, 2007 to August 27, 2007. The BSTP had 

no physical fitness program as part of the curriculum.” Ms. Davila checked a “yes” box 

indicating that her knowledge of the facts of the injury agreed with the statements of appellant 

and/or witnesses and noted, “Yes, [appellant] was exercising outside the FLETC gym, on or by 

the track. [Appellant] suffered a heart attack. Since the incident occurred after hours, another 

student rendered aid until the health unit responded to [the] scene. [Appellant] was revived and 

transported to Southeast Georgia Regional Medical Center, to the best of my recollection.”4

In an August 14, 2013 letter, OWCP requested that appellant submit additional factual 

and medical evidence in support of his claim for an August 22, 2007 work injury. It asked 

appellant to answer questions regarding various aspects of his claim, including the timing of the 

filing of his claim,5

 the time and location of the claimed injury, and the nature of any 

requirement that he engage in recreational or fitness activities. 

In a response received on August 20, 2013, appellant stated that Ms. Davila was his first 

line supervisor when he took Spanish classes at FLETC, the location to which he was detailed on 

August 22, 2007. He asserted that his claim was timely filed because Ms. Davila had actual 

knowledge of his claimed August 22, 2007 injury within 30 days. Appellant stated that physical 

training was a part of his curriculum at FLETC and that he and other students engaged in it for 

two hours a day, two or three days per week. He indicated that, in order to graduate from 

FLETC, he had to meet a minimum time on a one-and-a-half-mile run and noted that, as a CBP 

official, he was expected to continue his physical training beyond the FLETC academy 

requirements in order to maintain a level of fitness necessary for law enforcement personnel.6

 

Appellant discussed his daily physical fitness routine of running three miles and performing 

calisthenics and indicated that, at some point after 5:00 p.m. on August 22, 2007, he sustained 

cardiac arrest during the running portion of this routine. 

Appellant submitted an August 23, 2007 e-mail, which Kevin Livingston sent to more 

than three dozen individuals, including Barbara Johns, a nurse at the FLETC health unit. The 

 2

 Appellant indicated that his cardiac arrest required him to undergo quadruple bypass open heart surgery. 

3

 The FLETC is located in Glynco, GA. Appellant’s usual duty station was in San Diego, CA. 

4

 Ms. Davila indicated that appellant’s regular hours at FLETC were Monday through Friday, 7:30 a.m. to 4:30 

p.m. 

5

 OWCP stated, “It does not appear that you filed your claim in a timely manner.” 

6

 Appellant also indicated that he was injured while engaged in an activity that was voluntary but “nonetheless 

expected” of CBP officers. 
3

e-mail described how on August 22, 2007 appellant (described as a BSTP student) was found 

collapsed on a FLETC running track and detailed the emergency medical treatment he received 

at the FLETC health unit and a local hospital on that date. Another August 23, 2007 e-mail from 

Ms. Johns to Richard Judy provided further details of appellant’s medical treatment on 

August 22, 2007.7

Appellant submitted numerous medical records beginning in August 2007. The records 

showed that appellant sustained cardiac arrest while running on August 22, 2007 and that he 

underwent coronary artery bypass surgery on August 27, 2007. 

In a September 26, 2013 decision, OWCP denied appellant’s claim that he sustained an 

injury in the performance of duty on August 22, 2007. It found that he had established that he 

was a federal civilian employee who filed a timely claim and that the injury, accident, or 

employment factor occurred. However, OWCP further found that appellant had not met a basic 

element of establishing a claim, i.e., that his claimed injury occurred in the performance of duty. 

Regarding appellant’s failure to establish this element, it stated: 

“Specifically, your case is denied because the evidence is not sufficient to 

establish that the injury and/or medical condition arose during the course of 

employment and within the scope of compensable work factors. Although you 

contend you are required to continue your physical training beyond the academy 

to maintain a certain level of physical fitness, your agency indicated there was no 

physical fitness program as part of your curriculum. Additionally, if you were a 

participant of a physical fitness program, you were asked to [provide] a copy of 

your physical fitness plan and log of your exercise activity performed. However, 

you failed to do so. Lastly, your injury occurred beyond your usual work hours of 

7:30 a.m. to 4:30 p.m. You were not authorized to work at the time of your 

injury, nor were you performing any duty of your federal employment at the time 

of injury. In your own words, you would engage in a personal exercise routine 

beginning with a three mile run.”8

LEGAL PRECEDENT 

 An employee seeking benefits under FECA has the burden of establishing the essential 

elements of his claim, including the fact that the individual is an employee of the United States 

within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally 

related to the employment injury.9

 7

 The Board notes that the employer and work title of Mr. Livingston and the e-mail recipients (other than 

Ms. Johns) remain unclear from the record. 

8

 OWCP also indicated that, even if appellant established that the claimed injury/event occurred in the 

performance of duty, he had not submitted medical evidence showing a causal relationship between the injury/event 

and the claimed medical condition. 

9 J.H., Docket No. 14-1219 (issued November 24, 2014). 
4

The issue of whether a claim was timely filed is a preliminary jurisdictional issue that 

precedes any determination on the merits of the claim.10 In cases of injury on or after 

September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation 

for disability or death must be filed within three years after the injury or death. Compensation 

for disability or death, including medical care in disability cases, may not be allowed if a claim is 

not filed within that time unless: 

“(1) the immediate superior had actual knowledge of the injury or death within 30 

days. The knowledge must be such as to put the immediate superior reasonably 

on notice of an on-the-job injury or death; or 

“(2) written notice of injury or death as specified in section 8119 was given within 

30 days.”11

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

resulting from personal injury sustained while in the performance of duty.12 The phrase sustained 

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

found in workers’ compensation laws, namely, arising out of and in the course of employment.13 

To arise in the course of employment, an injury must occur at a time when the employee may 

reasonably be said to be engaged in his master’s business, at a place when he may reasonably be 

expected to be in connection with his employment, and while he was reasonably fulfilling the 

duties of his employment or engaged in doing something incidental thereto.14

 The Board has recognized that FECA covers an employee 24 hours a day when the 

employee is on travel status and engaged in activities essential or incidental to such duties.15 

When the employee, however, deviates from the normal incidents of his trip and engages in 

activities, personal or otherwise, which are not reasonably incidental to the duties of the 

temporary assignment contemplated by the employer, the employee ceases to be under the 

protection of FECA and any injury occurring during these deviations is not compensable.16

With regard to recreational or social activities, the Board has held that such activities 

arise in the course of employment when: (1) they occur on the premises during a lunch or 

recreational period as a regular incident of the employment; or (2) the employing establishment, by 

expressly or impliedly requiring participation, or by making the activity part of the service of the 

employee, brings the activity within the orbit of employment; or (3) the employing establishment 

 10 Charles Walker, 55 ECAB 238 (2004); Charles W. Bishop, 6 ECAB 571 (1954). 

11 5 U.S.C. § 8122(a). 

12 Id. at § 8102(a). 

13 G.N., Docket No. 12-261 (issued July 23, 2012). 

14 Id. 

15 S.B., Docket No. 10-842 (issued December 9, 2010). 

16 Id. 
5

derives substantial direct benefit from the activity beyond the intangible value of improvement in 

employee health and morale that is common to all kinds of recreation and social life.”17

OWCP procedures provide that, although it is a claimant’s responsibility to establish the 

basic elements of a claim, OWCP has the obligation to aid in this process by giving detailed 

instructions for developing the required evidence. This includes aiding in developing the 

evidence with respect to the question of whether the claim was timely filed within the applicable 

time limitation period of FECA and whether the claimed injury occurred in the performance of 

duty.18 Additional evidence may be needed where the official superior disagrees with the 

claimant’s allegations, has no knowledge of the facts concerning the allegations, or is unable to 

furnish sufficient details.19 

OWCP procedures also provide that the employee is considered to be in the performance of 

duty while engaged in formal recreation and either the employee is paid for participating or the 

recreational activity is required and prescribed as a part of the employee’s training or assigned 

duties. It is OWCP claims examiner’s responsibility to obtain a statement from the official 

superior if such a circumstance is claimed.20 Where injuries are sustained while the employee is 

engaged in a recreational activity under other circumstances, it is necessary to ascertain what 

benefit, if any, the employing establishment derived from the employee’s participation in the 

activity, the extent to which the employing establishment sponsored or directed the activity, and 

whether the employee’s participation was mandatory or optional. OWCP procedures further 

provide that the claims examiner should require the official superior to submit a statement 

showing: (1) whether the employee was required to participate in the activity and, if so, the 

reason for such requirement (as well as whether persuasion was used to influence the employee’s 

participation if participation was not mandatory); (2) what specific benefit the employer derived 

from the employee’s participation in the activity (increasing employee morale is not considered a 

direct benefit); (3) whether other employees were required, persuaded, or permitted to participate 

in the activity and, if so, this should be explained; (4) whether the employee’s participation in the 

activity violated any rules or regulations of the employer and, if so, these should be explained, 

including discussion of the manner in which the rule or regulation was enforced; (5) whether the 

injury occurred on the employer’s premises and during the employee’s regular working hours 

and, if not, this should be explained; and (6) what leadership, equipment, or facilities the 

employer provided for the activity.21

 17 T.E., Docket No. 13-99 (issued May 10, 2013). 

18 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4a 

(June 2011). 

19 Id. at Chapter 2.800.4b (June 2011). 

20 Id. at Chapter 2.804.8a (August 1992). 

21 Id. at Chapter 2.804.8b (August 1992). 
6

ANALYSIS 

On August 12, 2013 appellant filed a traumatic injury claim alleging that on August 22, 

2007 at 5:15 p.m. he sustained a work-related cardiac arrest at the FLETC “outdoor running 

track by gym.” Regarding the cause of the claimed injury, appellant stated, “While I was 

detailed to the FLETC as student at the Spanish language academy, I was engaged in physical 

training at the facility’s running track when I went into full cardiac arrest.” In a September 26, 

2013 decision, OWCP denied appellant’s claim on the grounds that he did not establish that he 

sustained an injury in the performance of duty on August 22, 2007. 

 The Board finds that the case should be remanded to OWCP for further development as the 

evidence currently in the case record is not sufficiently detailed to allow for a reasoned decision 

regarding appellant’s claim for an August 22, 2007 work injury. 

In its September 26, 2013 decision, OWCP found that appellant filed his claim within the 

applicable time limitation period of FECA. However, the Board has held that the issue of whether 

a claim was timely filed is a preliminary jurisdictional issue that precedes any determination on 

the merits of the claim.22 The Board notes that the record remains vague with respect to whether 

appellant filed a timely claim for a work-related injury on August 22, 2007. Appellant asserted 

that his claim was timely filed because Ms. Davila, his immediate supervisor, had actual 

knowledge of his claimed August 22, 2007 injury within 30 days. Ms. Davila noted on 

appellant’s claim form that he suffered a heart attack while running on the track at FLETC to the 

“best of my recollection,” but she did not provide a clear indication that she gained this 

awareness within 30 days of August 22, 2007, the claimed date of the injury. While an original 

claim for compensation for disability or death must be filed within three years after the injury or 

death, a compensation claim would still be considered timely if the immediate superior had 

actual knowledge of the injury within 30 days.23

If the claim is found to be timely, the record also lacks sufficient detail regarding whether 

appellant’s claimed August 22, 2007 injury occurred within the performance of duty. Appellant 

asserted that engaging in a physical fitness regimen, such as the regimen he performed on 

August 22, 2007, was part of his curriculum at FLETC and stated that, even if these activities 

were considered to be voluntary, they were “nonetheless expected” of CBP officers. Ms. Davila 

merely noted that appellant’s Spanish language program “had no physical fitness program as part 

of the curriculum” without providing any explanation of whether engaging in a physical fitness 

regimen was otherwise required by the FLETC program or whether students such as appellant 

were encouraged to participate in a physical fitness regimen. Gaining additional information on 

this matter is especially important because it appears that appellant was on travel status at the time 

of his claimed August 22, 2007 injury. 

OWCP procedures indicate that, when the evidence of record is unclear with respect to 

the performance of duty in recreational/fitness activity cases, OWCP should request additional 

information from the employing establishment. This would include information about whether a 

 22 See supra note 10. 

23 See supra note 11. 
7

given recreational or fitness-related activity was required as a part of the employee’s training or 

assigned duties or, where injuries where sustained while the employee is engaged in a 

recreational activity under other circumstances, whether the employing establishment gained a 

substantial benefit from the employee’s participation in the activity, whether the employing 

establishment sponsored or directed the activity, and whether the employee’s participation was 

mandatory or optional.24

 Under FECA, although it is the burden of an employee to establish his or her claim, 

OWCP also has a responsibility in the development of the factual evidence, particularly when 

such evidence is of the character normally obtained from the employing establishment or other 

government source.25

 For these reasons, the case shall be remanded to OWCP for further development, to include 

an attempt to obtain the above-detailed information in accordance with its procedure and the 

relevant precedent. After carrying out this development, OWCP shall issue an appropriate decision 

regarding appellant’s claim for an August 22, 2007 work injury. 

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether appellant 

met his burden of proof to establish that he sustained an injury in the performance of duty on 

August 22, 2007. 

 24 See supra notes 20 and 21. 

25 Willie A. Dean, 40 ECAB 1208 (1989). 
8

ORDER 

IT IS HEREBY ORDERED THAT the September 26, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to OWCP for further 

proceedings consistent with this decision of the Board. 

Issued: February 2, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board