United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF AGRICULTURE, ANIMAL 

PLANT & HEALTH INSPECTION SERVICE 

WILDLIFE SERVICES, Fort Collins, CO, 

Employer 

__________________________________________ 

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Docket No. 14-0994 

Issued: June 24, 2015 

Appearances: Oral Argument April 29, 2015 

Appellant, pro se 

Ashkea Herron McAllister, for the Director

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 25, 2014 appellant filed a timely appeal from an October 17, 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 has met his burden of proof to establish a traumatic injury 

in the performance of duty on June 2, 2012. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On October 31, 2012 appellant, then a 62-year-old science technician and wildlife 

specialist, filed a traumatic injury claim alleging that on June 2, 2012 he sustained a proximal 

interphalangeal (PIP) fracture and mallet deformity of the right ring finger when he slammed his 

finger into a steel pole in a dog kennel. He explained that the incident occurred at his home, 

which was his official duty station, while he was training his dog. When the dog tried to escape, 

appellant reached for the dog. Instead, he slammed his right ring finger into a steel gate pole that 

held up the kennel fence. He went to the emergency room and had his finger placed in a splint. 

In a June 2, 2012 diagnostic report, Dr. Brian W. Zernich, a diagnostic radiologist, noted 

that appellant jammed his ring finger. He observed a fracture at the dorsal base of the distal 

phalanx. Dr. Zernich diagnosed intra-articular comminuted fracture base of the distal phalanx of 

the ring finger with possible avulalon fracture or separate fracture of the head of the middle 

phalanx. 

In a November 9, 2012 statement, Christopher D. Carrillo, appellant’s supervisor, 

controverted appellant’s claim. He pointed out that appellant did not inform him of the June 2, 

2012 injury until a June 14, 2012 e-mail in which appellant stated that he had injured his finger 

while feeding his dogs. Mr. Carrillo stated that appellant did not inform him at that time that the 

injury occurred in the performance of duty. 

Mr. Carrillo confirmed that appellant received a dog hire allowance of $21.00 per month, 

but stated that the compensation was not to purchase or maintain animals, but rather was to 

provide for the hire of the use of dogs (or horses) on a daily or monthly basis. He related that 

appellant’s July 2012 monthly work report did not mention dog training or any injuries sustained 

during the month. Mr. Carrillo also stated that appellant’s time-entry information for June 2, 

2012 reflected that appellant was working on rifles, not dog training. 

The employing establishment provided Wildlife Service (WS) Directive 4.101, which 

outlined the employing establishment’s policy on tours of duty. It noted that in order to “allow 

maximum flexibility to perform duties and to satisfy legal requirements” WS employees would 

use the “maxiflex tour of duty.” The guidelines later noted that maxiflex hours would be from 

6:00 a.m. to 6:00 p.m., Monday through Saturday. WS employees could perform work at any 

time during this time band in order to meet the requirement of 80 hours per pay period. It also 

submitted copies of appellant’s May to July 2012 monthly narrative work reports. 

In a letter dated November 16, 2012, OWCP advised appellant that the evidence 

submitted was insufficient to establish his claim. It requested that he respond to its questionnaire 

and provided additional information regarding the circumstances surrounding the June 2, 2012 

employment incident in order to determine whether the alleged injury occurred in the 

performance of duty. A similar letter was also sent to the employing establishment. 

In a November 20, 2012 statement, appellant pointed out that Mr. Carrillo had confirmed 

that appellant was on duty during the June 2, 2012 incident and appellant argued that dog 

training was part of his official duties. He noted that of his five dogs he treated only one as a pet. 

Appellant stated that his work dogs were always kept in the kennel and that he would not keep 
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the other four dogs if not for work. He reported that he had been paid each month for the past 

nine years to keep and use his dogs for work. 

Appellant explained that on June 2, 2012 he was training a young dog on essential voice 

commands. He noted that training the young dog could occur throughout the day depending on 

his time, mood, the animal’s disposition, and other variables. Appellant noted that the 

employing establishment did not have any guidelines, policies, rules, or suggestions about 

animal training. 

In a November 30, 2012 statement, appellant responded to OWCP’s development letter. 

He stated that he was on duty at the time of the June 2, 2012 incident as shown by his 

supervisor’s statement and the employing establishment’s time and attendance report. Appellant 

reported that training animals used for work was authorized by his employing establishment. 

Appellant argued that dogs used in the employing establishment’s work were not pets, but rather 

tools. He further stated that, although he received a dog hire allowance every month, he was 

never instructed on how these funds were to be used. Appellant noted that he was not required to 

report every minute or every single activity into his timekeeping system and that many routine 

activities, such as putting gas in a truck, were generally not reported. He included a timekeeping 

(MIS 2000) input screen which included “dog training” as a category. 

In a December 21, 2012 statement, Mr. Carrillo asserted that appellant was not 

performing his job duties when caring for and feeding his dogs. He alleged that appellant’s 

timekeeping entry for June 2, 2012 reflected that appellant worked on rifles. Mr. Carrillo stated 

that appellant had noted no time entries for dog training in 2012. 

In a decision dated April 4, 2013, while OWCP acknowledged that appellant injured his 

finger caring for a dog, it denied that the June 2, 2012 injury had occurred in the performance of 

duty. It determined that, although appellant used a dog for work, feeding and caring for that 

particular dog on that date was not part of his employment duties and thus was not in the 

performance of his federal employment duties. 

On April 9, 2013 appellant requested a hearing, which was held on July 15, 2013. He 

stated that he was a wildlife specialist and that he worked out of his home, which was 200 miles 

from an employing establishment office. Appellant explained that his work was to control wild 

animals such as bears. He used dogs to pursue animals that had become a problem and needed to 

be contained. Appellant noted that the employing establishment was aware that he used dogs as 

part of his work and paid him a dog hire monthly fee. He stated that he trained these dogs 

himself because it was difficult to purchase one that was trained to do the work. Appellant 

explained that he did not have a set schedule for when to train dogs. The particular dog he was 

training on June 2, 2012 was very young and that he trained the young dog every day, once or 

twice a day for short periods of time. Appellant noted that at the time of the incident he was 

working on two commands, to come and to stay. He stated that he did not report every 

interaction with this dog because it involved only a brief time. 

Appellant contended that because appellant used his dogs for work and because the 

employing establishment paid him to maintain these dogs, training and caring for them was part 
4

of his federal work duties. He likened providing care to work dogs to maintaining other work 

equipment. 

Along with an August 5, 2013 statement, Mr. Carrillo included copies of appellant’s 

reimbursement claims for his use of dogs. Between July 2011 and June 2012 appellant received 

a dog hire fee for one trained dog at the rate of $21.00 per month. He explained that, according 

to WS Directive 2.445, the use of trained dogs was allowed. Under the supervisor’s 

interpretation, however, because appellant was training the dog, the dog was not yet authorized 

for use and, therefore, was not under hire. Mr. Carrillo contended that appellant was training the 

young dog on his own personal time. He also clarified that appellant did not inform him of the 

right ring finger injury until June 14, 2012 and he did not learn that the injury was employment 

related until he received OWCP claim dated October 31, 2012. 

The employing establishment also submitted WS Directive 2.445 titled, “Use of Dogs in 

WS Activities.” The policy stated that, in order “to assist in resolving some wildlife damage 

management problems, State Directors may authorize the use of trained dogs in their respective 

State(s).” The Directive defined a “trained dog” as “one proficient in the skills necessary to 

perform a specific wildlife damage management task and that responds to its handler’s 

commands.” The Directive noted that “personnel training dogs or using dogs trained for hunting, 

wildlife harassment, trailing, cargo inspection, or as retrievers or decoy dogs must be in 

compliance with state and local laws. Additionally, they must be: (1) controllable at all times; 

(2) maintained in a healthy environment and be properly licensed and vaccinated; and (3) not 

pose a threat to people or domestic animals.” 

On August 15, 2013 appellant responded to Mr. Carrillo’s August 5, 2013 statement and 

submitted corrections to the hearing transcript. He repeated that it was very difficult to find a 

trained dog and he contended that the monthly “dog hire” allowance was not for any specific 

dog, but for any dog he wished to claim. Appellant explained that he and many specialists had 

back-up work animals. He also noted that the W.S. Directive provided standards for the use of 

dogs. It did not specify that only “trained dogs” were covered. 

By decision dated October 17, 2013, an OWCP hearing representative affirmed the 

April 4, 2013 decision. He determined that the evidence demonstrated that appellant was 

permitted and reimbursed to have only one dog and, therefore, he was not in the performance of 

duty when he was training a second, younger dog. The hearing representative noted that 

appellant had a dog that was trained and had been receiving monthly reimbursement, but the 

second dog was not authorized. 

LEGAL PRECEDENT 

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

employee resulting from a personal injury sustained while in the performance of duty. The 

phrase sustained while in the performance of duty has been interpreted by the Board to be the 

equivalent of the commonly found requisite in workers’ compensation law of arising out of and 

in the course of employment. In the course of employment deals with the work setting, locale, 
5

and time of injury whereas, arising out of the employment encompasses not only the work setting 

but also the requirement that an employment factor caused the injury.2 

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 master’s business; (2) at a place 

where he may reasonably be expected to be in connection with the employment; and (3) while he 

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

thereto.3

OWCP recognizes four categories of off-premises employees in its procedure manual: 

(1) messengers, letter carriers, and chauffeurs; (2) traveling auditors and inspectors; (3) workers 

having a fixed place of employment who are sent on errands or special mission by their 

employer; and (4) workers who perform services at home for their employer. For workers who 

perform services at home, the issue becomes whether the employee was performing official 

duties or whether at the time of injury, the employee was in fact doing something for the 

employer.4

Once an employee establishes that he or she sustained an injury in the performance of 

duty, he or she has the burden of proof to establish that any subsequent medical condition or 

disability for work, for which he or she claims compensation, is causally related to the accepted 

injury.5

ANALYSIS 

Appellant filed a claim alleging that he sustained a fracture and mallet deformity of the 

right ring finger on June 2, 2012 when he slammed his finger into a steel gate pole while training 

a work dog at home. OWCP determined that his injury did not arise in the performance of duty. 

The Board finds that the injury did occur in the performance of duty. 

The Board initially notes that the June 2, 2012 injury occurred on a Saturday afternoon at 

appellant’s home and at a time and in a place where appellant could reasonably be engaged in his 

employer’s business. 

Mr. Carillo, appellant’s supervisor, suggests that the late notice by appellant regarding his 

injury casts doubt on whether the injury actually occurred in the performance of duty. His point 

is a serious one. The injury occurred on June 2, 2012 and on that date appellant was diagnosed 

with a fracture and mallet deformity of his right ring finger. Appellant did not notify Mr. Carillo 

of any work injury on June 2, 2012 nor did appellant later mention it on June 7, 2012 when they 

had a conversation on the telephone. Appellant advised Mr. Carillo of the incident on June 14, 

2012, that he had injured his right ring finger, but appellant did not then mention that it was work 

 2 A.K., Docket No. 09-2032 (issued August 3, 2010); C.O., Docket No. 09-217 (issued October 21, 2009). 

3 Kathryn S. Graham Wilburn, 49 ECAB 458 (1998); Mary Keszler, 38 ECAB 735, 739 (1987). 

4

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(a) (August 1992). 

5 Michael E. Smith, 50 ECAB 313 (1999). 
6

related. On June 16, 2012 Mr. Carillo had another communication from appellant. Appellant 

discussed the seriousness of his injury, but did not mention that the injury was, or might be, 

related to work. Mr. Carillo did not become aware of the allegation that the injury was work 

related until an OWCP claim was filed on October 12, 2012, more than four months after the 

incident. Appellant noted in his statement accompanying the CA-1 Form that he did not initially 

report the incident as a work-related injury to his supervisor because he believed it would be 

considered that training the dog was being done on his own time. He later claimed, during the 

hearing on July 5, 2013, that he did not report the injury because he did not realize the injury was 

going to be that bad. Appellant confirmed that he realized its severity when he met with a 

specialist on June 13, 2012. He also reported that he missed no time from work as a result of this 

injury. 

An alleged work incident does not have to be confirmed by eyewitnesses in order to 

establish that an employee sustained an injury in the performance of duty, but the employee’s 

statement must be consistent with the surrounding facts and circumstances and his subsequent 

course of action.6 A consistent history of the injury, as reported on medical reports to appellant’s 

supervisor and on the notice of injury, can also be evidence of the occurrence of the incident.7 

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 sufficient doubt on an employee’s statements in 

determining whether a prima facie case has been established.8 Although an employee’s 

statement 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,9 an employee has 

not met this burden when inconsistencies in the evidence cast serious doubt upon the validity of 

the claim.10

The Board finds that appellant’s failure to report a serious injury to his supervisor within 

the notice provisions of the law is contrary to FECA.11 Section 8119 of FECA states: 

“An employee injured in the performance of his duty, or someone on his behalf, 

shall give notice thereof.... A notice of injury or death shall-- 

(a) be given within 30 days after the injury or death; 

(b) be given to the immediate superior of the employee....; 

(c) be in writing; 

 6 Rex A. Lenk, 35 ECAB 253, 255 (1983). 

7 Id. at 255-56. 

8 Dorothy M. Kelsey, 32 ECAB 998 (1981). 

9 Id. 

10 Joseph A. Fournier, 35 ECAB 1175 (1984). 

11 Supra note 1. 
7

(d) state the name and address of the employee; 

(e) state the year, month, day, and hour when the particular locality where 

the injury or death occurred; 

(f) state the cause and nature of the injury ... and; 

(g) be signed by and contain the address of the individual giving the 

notice.”12

Nonetheless, the same statute requires, in section 8122, that an original claim for compensation 

must be filed within three years after injury or death. While appellant clearly failed to promptly 

provide the statutory notice of his injury, he did not meet the statutory requirements by filing a 

timely claim within three years. 

The inconsistent reasons appellant offered for failing to report the incident in a timely 

fashion do not refute the great probative value given to an appellant’s statement as to the 

circumstances surrounding the event. The facts have been consistently reported since the initial 

claim, the facts reported to the physicians by appellant were consistent, and the employing 

establishment did not dispute that the incident occurred as reported. Rather, the controversy 

surrounds whether the incident occurred in the performance of duty. Accordingly the Board 

affirms that the incident occurred as reported. 

The Board will next determine whether the incident occurred in the performance of duty. 

The Board finds that “dog training” may be part of appellant’s official duty as a wildlife 

specialist. The timekeeping system screenshot demonstrates that “dog training” is an activity 

that appellant can record as work he performed. OWCP disputes appellant’s claim as he was not 

fulfilling the duties of his employment when he was training this specific young dog. 

First, OWCP contends that appellant was not authorized as part of his employment to 

train this specific dog. In the October 17, 2013 decision, OWCP stated that appellant was 

allowed only one dog for hire in his position as a wildlife specialist. Because appellant had a 

dog that was already trained to perform wildlife damage management tasks, the hearing 

representative determined that another dog was not authorized. OWCP noted that Mr. Carrillo 

stated that appellant was not authorized to train a second dog. The hearing representative also 

stated that the expenditure reports reflected an ongoing expense for one trained dog at the rate of 

$21.00 a month. The Board notes, however, that the reimbursement forms only indicate that 

appellant was paid a monthly allowance of $21.00 for “dog hire.” Nowhere does it provide that 

the monthly allowance was for only one trained dog. Furthermore, the forms do not identify for 

which dog appellant could use the allowance or for what activities it covered. The Board finds 

that there is no evidence that appellant was prohibited from training more than one dog or from 

training a specific dog as part of his official duties for the employing establishment. 

On the contrary, the Board finds that the evidence demonstrates that appellant was 

allowed to train and use more than one dog in the fulfillment of his duties. The employing 

 12 Supra note 1 at 8119. 
8

establishment provided WS Directive 2.445, which stipulated that “to assist in resolving some 

wildlife damage management problems, State Directors may authorize the use of trained dogs in 

their respective State(s).” The Directive further states that “personnel training dogs or using 

dogs trained for hunting, wildlife harassment, trailing cargo inspection, or as retrievers or decoy 

dogs must be in compliance with state and local laws. Additionally, the following criteria must 

be followed: dog(s) must be controllable at all times; dog(s) that pose a threat to people or 

domestic animals are not to be used; and all dogs must be maintained in a healthy environment 

and be properly licensed and vaccinated. 

The Board notes that WS Directive 2.445 does not prohibit the use of multiple dogs. The 

employing establishment has not provided objective proof to indicate which of appellant’s dogs 

he was authorized to use in his employment. In addition, the evidence does not identify which of 

appellant’s dogs the employing establishment had approved for training or how appellant could 

use certain specific dogs in his employment. There is no evidence, other than Mr. Carrillo’s 

statements, that the specific dog appellant was training was not an “authorized” dog. 

Second, OWCP alleged that appellant was not acting in the performance of duty when he 

trained this specific dog because the dog was too young to be of substantial benefit to the 

employing establishment. It pointed out that appellant was training a 5-month-old dog to obey 

general commands such as “come” and “stay” and not specific commands to perform wildlife 

tasks. 

The Board notes that, although the employing establishment’s time log system lists “dog 

training” as an employment activity, it does not define the category. On the contrary, WS 

Directive 2.445 required that all dogs must be “controllable at all times” and “not pose a threat to 

people or domestic animals.” This requirement implies that a trained dog authorized for use by 

the employing establishment must follow basic commands. Appellant explained that he 

constantly trained his work dogs to ensure that they continued to be able to perform their duties. 

Thus, the Board finds that when appellant was training this young dog to “come” and “stay” he 

was reasonably fulfilling the duties of his employment. 

Appellant has testified that he was often expected to use his own personal tools such as 

traps, guns, and his own vehicle when performing his employment duties and did not have to 

obtain prior authorization to use these tools. Given the level of discretion that appellant had in 

order to perform his employment duties, the Board finds that he had broad latitude to determine 

how many dogs he needed to train as part of his duties for the employing establishment and the 

necessary training techniques to employ in order to ensure that these dogs performed the duties 

helpful to his position. 

The Board finds that appellant’s June 2, 2012 injury occurred in the performance of duty 

when he was training his dog.13 Accordingly, the case will be remanded to OWCP to consider 

the medical evidence in order to determine whether appellant sustained a diagnosed medical 

condition causally related to the June 2, 2012 employment incident. 

 13 Supra note 6. 
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CONCLUSION 

The Board finds appellant has established that he suffered an injury in the performance of 

duty and the case is remanded for evaluation of the medical evidence. 

ORDER 

IT IS HEREBY ORDERED THAT the October 17, 2013 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: June 24, 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