United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________ 

J.K., Appellant 

and 

DEPARTMENT OF THE ARMY, 

U.S. ARMY CORPS OF ENGINEERS, 

New York, NY, Employer 

_________________________________________ 

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Docket No. 16-0109 

Issued: February 22, 2016 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 23, 2015 appellant filed a timely appeal from an August 7, 2015 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.2

ISSUE 

The issue is whether appellant met her burden of proof to establish a traumatic injury in 

the performance of duty on March 27, 2015. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted new evidence on appeal. However, the Board cannot consider this evidence as its review 

of the case is limited to the evidence of record which was before OWCP at the time of its final decision. 20 C.F.R. 

§ 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003). 
2

FACTUAL HISTORY 

On April 22, 2015 appellant, then a 58-year-old secretary, filed a traumatic injury claim 

(Form CA-1) alleging that at 12:15 p.m. on March 27, 2015 she sustained a “compressed fracture 

in back” in Bolton’s department store when she fell during her lunch break. The employing 

establishment checked a box “yes” that she was in the performance of duty. 

In an April 2, 2015 statement, Jodi McDonald, the chief of the regulatory branch, 

explained that on March 27, 2015 at approximately 1300 hours, appellant informed the 

employing establishment that she was at her desk in a lot of pain because she had hurt her back. 

She noted that appellant, during her lunch hour, was at a clothing store across the street, and 

slipped and fell in the dressing room while trying on clothes. Ms. McDonald advised that 

appellant inquired as to whether an accident report needed to be filled out, but was told that she 

was engaged in a personal activity during her personal time when she fell and was injured. 

Ms. McDonald reiterated that appellant fell in a clothing store off the employing establishment 

premises during an unpaid lunch break. 

In a May 5, 2015 statement, Debra Smith, a manager at the employing establishment, 

controverted the claim and advised that she made an error when she filled out the traumatic 

injury claim form. She noted that she checked a box “yes” that appellant was in the performance 

of duty. However, Ms. Smith explained that she should have checked “no.” She advised that 

appellant was on her lunch break, off the employing establishment premises, in a commercial 

clothing store at the time of her injury. Ms. Smith further noted that appellant slipped in the 

dressing room and was not in the performance of her duties. She requested that the claim be 

denied. 

By letter dated July 2, 2015, OWCP noted that appellant’s claim initially appeared to be a 

minor injury that resulted in minimal or no lost time from work and appellant’s claim was 

administratively handled to allow a limited amount of medical payments. However, the merits of 

the claim were not formally considered. Appellant’s claim was now being reopened as the 

employer wanted the claim to be adjudicated. OWCP informed her of the type of evidence 

needed to support her claim and requested that she submit such evidence within 30 days. It 

asked her to complete a questionnaire explaining where she was and what she was doing at the 

time her claimed injury occurred. Appellant did not respond.

By decision dated August 7, 2015, OWCP denied appellant’s claim and found that the 

evidence did not demonstrate that a specific event, incident, or exposure occurred at the time, 

place, and in the manner alleged. It noted that, without a response to the factual questions in its 

July 2, 2015 letter, it was unable to determine if the claimed injury occurred in the performance 

of duty. 

LEGAL PRECEDENT 

Under FECA, and its implementing regulations, an employee bears the burden of proving 

all essential elements of a claim, including that he or she experienced a specific event, incident or 

exposure at the time, place, and in the manner alleged, and that the alleged injury occurred in the 

performance of duty.3

 Board precedent requires that an injury sustained in the performance of 

 3 See Gregory J. Reser, 57 ECAB 277 (2005). 
3

duty must have arisen: (1) at a time when the employee may reasonably be stated to be engaged 

in her masters business; (2) at a place where she may reasonably be expected to be in connection 

with the employment; and (3) while she was reasonably fulfilling the duties of his employment 

or engaged in doing something incidental thereto.4

 

The Board has included within the performance of duty a reasonable time 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.5

 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.6

ANALYSIS 

The Board finds that appellant failed to establish that she sustained an injury in the 

performance of duty on March 27, 2015. 

Appellant alleged that on March 27, 2015 she sustained a back injury when she fell 

during her lunch break at a department store. She did not indicate how the injury occurred or 

where the department store was located in relationship to the employing establishment. The 

employing establishment controverted the claim and provided an April 2, 2015 statement from 

Ms. McDonald who explained that on March 27, 2015 appellant informed the employing 

establishment that she hurt her back when she slipped and fell in the dressing room of a clothing 

store while trying on clothes during her lunch hour. Additionally, in a May 5, 2015 statement, 

Ms. Smith again explained that the claimed injury occurred on appellant’s lunch break and she 

was not on the employing establishment premises. By letter dated July 2, 2015, OWCP asked 

appellant to complete a questionnaire explaining where she was and what she was doing at the 

time of her claimed injury. No response was received. 

As noted, an injury sustained in the performance of duty must have arisen: (1) at a time 

when the employee may reasonably be stated to be engaged in her masters business; (2) at a 

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

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

something incidental thereto. As appellant did not provide further details requested by OWCP 

she has failed to meet her burden of proof to establish an employment injury.7

 She failed to 

provide an adequate description of the March 27, 2015 incident. 

 4 Mary Keszler, 38 ECAB 735 (1987). 

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

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

7 See T.V., Docket No. 15-1336 (issued October 8, 2015). 
4

As appellant has not established that the claimed incident occurred as alleged in the 

performance of duty, it is unnecessary to address whether causal relationship is established by 

medical evidence.8 

On appeal, appellant argues that her claim should not be denied because there was no 

cafeteria or store to purchase food on the premises and she was injured on her lunch break. She 

also argued that she had no history of injury prior to the incident. As explained, the weight of 

the evidence submitted to OWCP does not establish that the claimed incident occurred in the 

performance of duty. 

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 meet her burden of proof to establish a traumatic 

injury in the performance of duty on March 27, 2015. 

ORDER 

IT IS HEREBY ORDERED THAT the August 7, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 22, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 S.P., 59 ECAB 184 (2007) (where a claimant did not establish an employment incident alleged to have caused 

his or her injury, it was not necessary to consider any medical evidence).