United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.S., Appellant 

and 

DEPARTMENT OF THE INTERIOR, WAPATO 

IRRIGATION PROJECT, Wapato, WA, 

Employer 

__________________________________________ 

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Docket No. 15-1672 

Issued: December 7, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 6, 2015 appellant filed a timely appeal from an April 3, 2015 merit decision of 

the Office of Workers’ Compensation Programs (OWCP) and a June 18, 2015 nonmerit decision. 

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 merit and nonmerit issues of the case.2

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish an injury on 

February 5, 2015 in the performance of duty; and (2) whether OWCP properly denied his request 

to reopen his case for further merit review under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted new evidence with his appeal. The Board, however, has no jurisdiction to review new 

evidence on appeal; see 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

On February 9, 2015 appellant, then a 59-year-old substation operator associate, filed a 

traumatic injury claim (Form CA-1) alleging that on February 5, 2015 he injured his lower back 

in a motor vehicle accident. He related that, while stopped at a yield sign in Union Gap, 

Washington, a vehicle struck his right rear bumper. The employing establishment indicated on 

the claim form that appellant was injured in the performance of duty and that a third party caused 

the injury. 

By letter dated February 20, 2015, OWCP requested that appellant submit additional 

factual and medical evidence. It specifically asked that he address whether his injury occurred 

on the premises of the employing establishment.3

Appellant submitted hospital reports describing his treatment on February 5, 2015 for 

lumbosacral strain. He further submitted form reports, including an undated and unsigned 

authorization for examination and/or treatment (Form CA-16). On the Form CA-16 a nurse 

practitioner diagnosed lumbosacral strain, checked “yes” that the injury resulted from the 

described employment activity of a motor vehicle accident, and found that he could work limited 

duty. 

On March 27, 2015 OWCP telephoned appellant’s supervisor to request additional 

information. It telephoned the supervisor again on March 30, 2015 and left a message for him to 

return the call. 

By decision dated April 3, 2015, OWCP denied appellant’s claim as he had not 

established that he was in the performance of duty at the time of the February 5, 2015 motor 

vehicle accident. It found that there was no evidence showing that he was on the premises of the 

employing establishment at the time of the accident or performing the duties of his employment. 

OWCP indicated that it had telephoned appellant’s supervisor, but had received no response. 

On April 15, 2015 appellant requested reconsideration and submitted additional medical 

evidence. In a decision dated June 18, 2015, OWCP denied his request for reconsideration after 

finding that the evidence submitted was immaterial and thus insufficient to warrant reopening his 

case for further merit review under 5 U.S.C. § 8128(a). 

On appeal appellant asserts that the employing establishment authorized his trip to pick 

up supplies from a vendor and that he was using a government vehicle at the time of the 

accident. 

LEGAL PRECEDENT -- ISSUE 1 

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

employee resulting from personal injury sustained while in the performance of duty.4

 The phrase 

 3

 The last page of the letter asked the employing establishment to submit treatment notes if appellant was treated 

at an employing establishment medical facility for the claimed injury. 

4

 5 U.S.C. § 8102(a). 
3

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.5 In the course of employment relates to the elements of time, place, and work 

activity.6

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

employee may be reasonably said to be engaged in the 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 the employment or engaged in doing something incidental 

thereto.7

 

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

places of work, while going to or coming from work, are not compensable as they do not arise 

out of and in the course of employment.8

 Such injuries are merely the ordinary, nonemployment 

hazards of the journey itself which are dependent upon the particular facts relative to each claim. 

These exceptions pertain to the following instances: (1) where the employment requires the 

employee to travel on 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 a fireman; and (4) where the employee uses the highway to do something incidental to 

his employment with the knowledge and approval of the employing establishment.9

OWCP’s procedures provide, “The employing [establishment] is required to complete the 

reports and statements needed and then submit the evidence to OWCP. In several types of 

claims (e.g., stress claims, claims with POD [performance of duty] issues such as premises, 

temporary duty travel, or recreational injuries), a statement from the employing [establishment] 

is imperative to properly develop and adjudicate the claim.”10

ANALYSIS -- ISSUE 1 

Appellant alleged that he injured his lower back in a February 5, 2015 motor vehicle 

accident. The employing establishment did not controvert the claim. OWCP requested that 

appellant submit supporting factual evidence, including a detailed description of the 

circumstances surrounding his February 5, 2015 motor vehicle accident and whether he was on 

the premises of the employing establishment. It did not request factual information in writing 

 5

 This construction makes the statute effective in those situations generally recognized as properly within the 

scope of workers’ compensation laws. Bernard D. Blum, 1 ECAB 1 (1947). 

6 See D.L., 58 ECAB 667 (2007). 

7 See R.A., 59 ECAB 581 (2008). 

8 Paul R. Gabriel, 50 ECAB 156 (1998). 

9 Id. 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7(a)(2) 

(June 2011). 
4

from the employing establishment.11 Instead, OWCP left telephone messages for appellant’s 

supervisor on March 27 and 30, 2015. 

The Board finds that the case is not in posture for decision as to whether appellant was in 

the performance of duty at the time of the alleged February 5, 2015 work incident. Proceedings 

under FECA are not adversarial in nature and OWCP is not a disinterested arbiter. While 

appellant has the burden to establish entitlement to compensation, OWCP shares the 

responsibility in the development of the evidence, particularly when such evidence is of the 

character normally obtained from the employing establishment or other governmental source.12 

The Board finds that OWCP did not sufficiently develop the evidence regarding whether 

appellant was in the performance of duty at the time of the alleged February 5, 2015 motor 

vehicle accident. As noted, its procedures provide that a statement from the employing 

establishment is essential in developing a performance of duty claim.13 On remand OWCP 

should obtain a statement from the employing establishment addressing whether appellant was in 

the performance of duty at the time of the February 5, 2015 motor vehicle accident. 

CONCLUSION 

The Board finds that the case is not in posture for decision.14 

 11 The Board notes that whether appellant was on the employing establishment’s premises is irrelevant to the 

proper inquiry as to whether he was in the performance of duty at the time of the motor vehicle accident. It also 

only asked for medical treatment notes. See supra note 3. 

12 See L.L., Docket No. 12-194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008). 

13 See supra note 10. 

14 In view of the Board’s finding regarding the merit issue of whether appellant sustained an injury on February 5, 

2015 in the performance of duty, the issue of whether OWCP properly denied his request to reopen his case for 

further merit review under section 8128 is moot. 
5

ORDER 

IT IS HEREBY ORDERED THAT the June 18 and April 3, 2015 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this decision of the Board. 

Issued: December 7, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board