United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer 

__________________________________________ 

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Docket No. 13-1915 

Issued: September 16, 2014 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 19, 2013 appellant, through counsel, filed a timely appeal from a 

July 25, 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 emotional 

condition in the performance of his federal duties on June 22, 2010. 

FACTUAL HISTORY 

This case was previously before the Board. By decision dated September 13, 2012, the 

Board affirmed a May 13, 2011 OWCP decision, as modified, finding that appellant failed to 

establish that he sustained an emotional condition causally related to factors of his federal 

 1

 5 U.S.C. § 8101 et seq.
2

employment.2 The findings of fact and conclusions of law from the prior decision and order are 

hereby incorporated by reference. 

By letter dated April 22, 2013, appellant through counsel, requested reconsideration by 

OWCP. Counsel argued that appellant was engaged in a representative function during his 

attendance at the National Association of Postal Supervisors (NAPS)3 Branch 164 meeting and 

thus was in the performance of duty when he was assaulted by Rudy Marinacci, a coworker. He 

referenced a March 7, 2013 statement from Jeff Goldman, President of NAPS Branch 164, as 

evidence that appellant was engaged in a representative function. Counsel noted appellant’s 

specific activities during the meeting which included sharing information from postal service 

headquarters and the measures the postal service must take to reduce expenses and increase 

productivity. He further argued that appellant was engaged in a representative function because 

he was serving the mutual benefit of both employees of the postal service, as well as the postal 

service itself. Counsel stated that the objective of the association is to create a mutual benefit 

between the employing establishment and its employees and thus, establishes that appellant was 

in the performance of duty at the time of the June 22, 2010 assault. 

In support of the arguments made, appellant submitted Mr. Goldman’s March 7, 2013 

statement, which referred to sections from the NAPS Branch 164 Constitution and bylaws. 

Article II of the constitution stated that, “The objects of this [a]ssociation shall be to cooperate 

with the [p]ostal [s]ervice to improve the [p]ostal [s]ervice and the welfare of its employees; to 

raise the standard of efficiency in the [p]ostal [s]ervice; to assist in establishing uniform and 

equitable salary rates; uniform and economical business methods; [and] widen the field of 

opportunity for worthy employees who make the business of the [p]ostal [s]ervice their life 

work.” 

Mr. Goldman stated that appellant served on the Branch’s executive board with him as 

the vice-president of customer service in 2010. In May 2010, appellant and the executive vice 

president accompanied Mr. Goldman to an NAPS state convention. Information was brought 

forth from postal service headquarters and discussion topics included the financial stability of the 

postal service, reduction in expenses and increased productivity. The state convention stressed 

the importance of the employing establishment and NAPS working together to find ways to 

improve the efficiency of the postal service and address coming changes. 

Mr. Goldman explained that at the June 22, 2010 NAPS Branch meeting, appellant and 

the other executive board members were to report to membership what had transpired at the state 

convention. Appellant informed branch membership of information he received at the state 

convention concerning financial difficulties and what each supervisor could do to ease this 

burden. He stressed the importance of filling out reports correctly and shared what was expected 

of supervisors. Supervisors were asked to pass this information on to their peers and employees 

as a reduction-in-force was expected to transpire. Appellant and the other executive board 

members then responded to questions and concerns from the membership. 

 2

 Docket No. 11-1608 (issued September 13, 2012). 

3

 NAPS is a management association which is composed of managers, supervisors and postmasters working for 

all supervisory personnel in the U.S. Postal Service. Membership is voluntary. 
3

By letter dated June 20, 2013, the employing establishment controverted the claim. It 

stated that the June 22, 2010 altercation between appellant and Mr. Marinacci occurred at 

6:30 p.m. outside of a Veterans of Foreign Wars parking lot. The altercation did not occur at or 

during the NAPS Branch meeting, which was scheduled to start one-hour later at 7:30 p.m. The 

employing establishment further stated that appellant was not on official time when the 

altercation occurred. It noted that NAPS is an employee organization whose meetings are held 

off postal premises and membership is strictly voluntary. The employing establishment has no 

control over NAPS Branch meetings and does not sponsor them. It further noted that appellant 

was harassing Mr. Marinacci on June 16, 2010 and failed to follow proper protocol procedures 

before entering another facility to perform his NAPS duties. The employing establishment 

provided witness statements previously of record in support of the arguments made. 

By letter dated July 18, 2013, appellant, through counsel, responded to the employing 

establishment’s June 20, 2013 letter. Counsel argued that, though the NAPS Branch meeting 

may have started at 7:30 p.m. on June 22, 2010, it was scheduled to begin at 7:00 p.m. As an 

officer, appellant was required to attend the meeting 30 minutes early at 6:30 p.m. Counsel 

further argued that it was irrelevant that appellant was not on official time as attendance at the 

branch meeting pertained to the mutual benefit of NAPS members and the postal service. 

Appellant provided a May 4, 2011 “letter of decision” from the employing establishment 

which gave Mr. Marinacci a letter of warning as a result of the June 22, 2010 incident. The 

employing establishment noted that as a manager, Mr. Marinacci was held to a higher standard 

and was required to act in a professional manner both on and off duty. 

By decision dated July 25, 2013, OWCP denied modification finding that the evidence of 

record failed to establish that appellant suffered an emotional condition in the performance of 

duty. It noted that the evidence did not establish the specific benefits derived by the employing 

establishment. 

LEGAL PRECEDENT 

Where the disability results from an emotional reaction to regular or specially assigned 

work duties or a requirement imposed by the employment, the disability comes within the 

coverage of FECA.4

 

In providing for a compensation program for federal employees, Congress did not 

contemplate an insurance program against any and every injury, illness or mishap that might 

befall an employee contemporaneous or coincidental with his or her employment. Liability does 

not attach merely upon the existence of an employee-employer relation. Instead, Congress 

provided for the payment of compensation for disability or death of an employee resulting from 

personal injury sustained while in the performance of duty.5 The phrase while in the 

performance of duty has been interpreted by the Board to be the equivalent of the commonly 

found prerequisite in workers’ compensation law of arising out of and in the course of 

 4 Lillian Cutler, 28 ECAB 125 (1976). 

5 See 5 U.S.C. § 8102(a). 
4

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

work activity”6

 

In the compensation field, 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 or her 

master’s business; (2) at a place where he or she may reasonably be expected to be in connection 

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

employment or engaged in doing something incidental thereto.7 An employee seeking benefits 

under FECA8 has the burden of proof to establish by reliable, probative and substantial evidence 

the essential elements of his case.9

ANALYSIS 

In the prior decision, the Board found that appellant failed to establish that his 

June 15 and 16, 2010 interactions with Mr. Marinacci rose to the level of a verbal altercation or 

harassment which would be covered as a compensable factor of employment.10 The Board also 

found that, while he established that he was assaulted in a parking lot by Mr. Marinacci on 

June 22, 2010 prior to an NAPS Branch meeting, he had not established that he was in the 

performance of duty at the time of his assault on June 22, 2010. It was from this finding that 

appellant requested further reconsideration before OWCP. By decision dated July 25, 2013, 

OWCP denied modification. 

The Board affirms OWCP’s finding that appellant failed to meet his burden of proof to 

establish an employment-related emotional condition in the performance of duty on 

June 22, 2010. 

Appellant’s injury did not occur at a place where one could reasonably expect him to be 

in connection with his employment. At the time of injury, he was off duty and on his way to an 

NAPS Branch meeting. Appellant had a fixed place of work: Whitestone Post Office. The 

injury took place off the premises of the employing establishment, in the Veterans of Foreign 

Wars parking lot. The employing establishment explained that it did not own, lease, maintain or 

control the parking lot where the incident occurred.11 The NAPS Branch meeting was not held 

by the employing establishment, nor did it require attendance by its employees. The Board finds 

 6 Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. Barenkamp 

(Joseph L. Barenkamp), 5 ECAB 228 (1952). 

7 See Vincent A. Rosenquist, 54 ECAB 166, 168 (2002); James E. Chadden, Sr., 40 ECAB 312 (1988). 

8

 5 U.S.C. §§ 8101-8193. 

9 John S. Steber, 5 ECAB 93 (1952). 

10 With respect to the Board’s findings regarding these claimed employment factors, it is noted that in the absence 

of further review by OWCP on an issue addressed by a Board decision, the subject matter reviewed is res judicata

and is not subject to further consideration by the Board. 5 U.S.C. § 8128; Clinton E. Anthony, Jr., 49 ECAB 

476 (1998). 

11 C.B., Docket No. 12-1849 (issued January 13, 2014). 
5

that the evidence is insufficient to establish that the Veterans of Foreign Wars parking lot should 

be considered part of the premises of the employing establishment as it was not within its 

control.12

Moreover, appellant’s injury did not occur at a time when one could reasonably say he 

was engaged in the employing establishment business. As a customer service supervisor, he had 

fixed hours of work. On June 22, 2010 appellant was off the clock when he was assaulted by 

Mr. Marinacci. He was not in duty status and the employing establishment had not granted him 

official time to attend the NAPS Branch meeting; attendance at the meeting was voluntary and 

not a requirement of his employment.13 The record establishes that appellant was not in duty 

status nor granted official time by the employing establishment to attend the meeting.14 

Time and place are the two overt physical indicia of the term “in the course of 

employment.”15 Both these elements of work connection are missing from appellant’s case. As 

explained in the Lason treatise on workers’ compensation law, this places a heavy burden on the 

third element of course of employment: 

When seeking for a link by which to connect an activity with the employment, 

one has gone a long way as soon as one has placed the activity physically in 

contact with the employment environment and even further when one has 

associated the time of the activity somehow with the employment. This done, the 

exact nature and purpose of the activity itself does not have to bear the whole load 

of establishing work connection and consequently the employment-connection of 

that nature and purpose does not have to be as conspicuous as it otherwise might. 

Conversely, if the [activity] takes place on some distant vacant lot, several hours 

after the day’s work has ceased, some independently convincing association with 

the employment must be built up to overcome the initial presumption of 

disassociation with the employment established by the time and place factors.16

Based on the evidence, appellant’s injury did not occur while he was reasonably fulfilling 

the duties of his employment or engaged in doing something incidental thereto.17 He was off 

duty. Appellant was attending the NAPS Branch meeting for personal reasons when 

Mr. Marinacci assaulted him in the parking lot. He has not been instructed by the employing 

establishment to attend this meeting or to speak with membership.18 Mr. Goldman’s statements 

 12 Michael Hazzard, Docket 05-1514 (issued November 4, 2005). 

13 Paula G. Johnson, 53 ECAB 722 (2002); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Performance of Duty, Chapter 2.804.16(c) (March 1994). 

14 Bernard Redmond, 45 ECAB 298 (1993). 

15 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 22.04. 

16 Id. at § 22.03(1). 

17 S.B., Docket No. 06-978 (issued March 5, 2007). 

18 C.f., Kelly Y. Simpson, Docket No. 04-1809 (issued October 26, 2005). 
6

do not establish that appellant was fulfilling the duties of his employment by attending the 

meeting. To be compensable the nature and purpose of the activity when appellant was injured 

must conspicuously and convincingly establish a work connection.19

Appellant was off duty, off postal premises and not required to attend the NAPS Branch 

meeting. The record does not support that his attendance at the meeting, half an hour before the 

start of the meeting, furthered his master’s business or provided a substantial benefit to the 

employing establishment.20 

On appeal, counsel argues that appellant was engaged in a representational function when 

attending the June 22, 2010 NAPS Branch meeting which was for the mutual benefit of the 

employer and employee. The Board notes that NAPS is a management association and not a 

union as noted by counsel, and by the Board’s in its prior decision.21 Appellant has failed to 

present the necessary evidence to establish that he was in the course of employment when the 

incident occurred. Thus, as he has failed to submit sufficient probative evidence to establish a 

compensable factor of employment, the Board finds that he failed to establish an emotional 

condition 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 his burden of proof to establish an emotional 

condition causally related to factors of his federal employment as a customer service supervisor. 

 19 Supra note 17. 

20 M.L., Docket No.07-1620 (issued December 17, 2007). 

21 Supra note 2. Compare Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 

2.804.16 (July 1997). 
7

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decision dated July 25, 2013 is affirmed. 

Issued: September 16, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board