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. 16-0373 

Issued: July 12, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 23, 2015 appellant filed a timely appeal from a December 17, 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. 

ISSUE 

The issue is whether appellant met his burden of proof to establish a work-related injury 

on August 22, 2007. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated February 2, 2015,2 the 

Board set aside OWCP’s September 26, 2013 decision and remanded the case to OWCP for 

further development of the evidence regarding whether appellant sustained an injury in the 

performance of duty on August 22, 2007.3

 The Board noted that the record remained vague with 

respect to whether he filed a timely claim for a work-related injury on August 22, 2007 and that, 

on remand to OWCP, additional evidence should be obtained regarding this matter, including 

whether his immediate supervisor had actual knowledge of his claimed August 22, 2007 injury 

within 30 days. The Board noted that, if the claim were found to be timely, additional evidence 

would be needed in order to make a reasoned determination regarding whether appellant’s 

claimed August 22, 2007 injury occurred within the performance of duty. The Board directed 

OWCP to gather additional information regarding the circumstances of appellant’s participation 

in exercise/recreational duties on August 22, 2007, including the employing establishment’s 

knowledge of and approval of such activities. The Board directed OWCP, after carrying out 

such development, to issue a decision regarding appellant’s claim for a work-related injury on 

August 22, 2007.4

On remand, in accordance with the Board’s February 2, 2015 decision, OWCP provided 

appellant and the employing establishment the opportunity to submit additional information 

regarding his activities on August 22, 2007. In an August 7, 2015 statement, appellant’s 

immediate supervisor in 2007 reported that she had actual knowledge of appellant’s August 22, 

2007 heart attack on the date it occurred. She indicated that appellant was not mandated to 

participate in a physical fitness program while attending the Spanish class at FLETC, but that it 

was a requirement during the Basic Officer Training class that he had just completed. The 

supervisor noted that he was encouraged to maintain himself in a physically fit condition and that 

 2

 Docket No. 14-0077 (issued February 2, 2015). 

3

 On August 12, 2013 appellant, then a 52-year-old Customs and Border Protection officer, filed a traumatic 

injury claim (Form CA-1) alleging that on August 22, 2007 at 5:15 p.m. he sustained work-related cardiac arrest at 

the Foreign Law Enforcement Training Center (FLETC) when he was running on the outdoor track next to the gym. 

Regarding the cause of the claimed injury, appellant noted, “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.” Appellant stopped work on August 22, 2007 and returned to work on October 30, 2007. By 

decision dated September 26, 2013, OWCP denied his claim because he had not established an injury in the 

performance of duty on August 22, 2007. 

4

 If it were found that, the claim was timely and the August 22, 2007 running activities occurred in the 

performance of duty, OWCP was directed to evaluate the medical evidence to determine if a medical condition 

resulted from work factors. The record contains a number of medical reports from around the time appellant had his 

heart attack on August 22, 2007, including clinical notes and diagnostic testing results. In an August 22, 2007 

report, Dr. Richard N. Boswell, an attending Board-certified cardiologist, indicated that appellant was running in the 

heat on August 22, 2007 and apparently went down. He noted that appellant was found to be asystolic and was 

shocked by emergency response workers and brought to the emergency room. On August 24, 2007 Dr. Boswell 

indicated that it was reported that appellant was jogging when he went into cardiac arrest on August 22, 2007. He 

diagnosed, “Atherosclerotic coronary artery disease, two vessels, moderately severe. Status post cardiac arrest 

doing physical conditioning.” Dr. Boswell noted that cardiac catheterization was performed. In an August 24, 2007 

report, Dr. Mark A. Mostovych, an attending Board-certified cardiologist, related that it was reported that appellant 

suffered cardiac arrest while jogging. 
3

FLETC had a gym and various recreational activities that it promoted.5

 She further noted that 

the employing establishment derived a benefit from appellant being a physically fit officer, that 

all FLETC students were permitted to use the facilities available for physical fitness, and that his 

participation in a physical fitness activity on August 22, 2007 did not violate any rule or 

regulation. 

By decision dated August 28, 2015, OWCP denied appellant’s claim for work-related 

injury on August 22, 2007. It found that he had filed a timely traumatic injury claim because the 

evidence revealed the employing establishment had actual knowledge of the claimed August 22, 

2007 injury within 30 days of August 22, 2007. However, appellant’s claim for an August 22, 

2007 injury was 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.”6

 

Appellant submitted a September 21, 2015 statement in which he noted that the 

employing establishment’s Selectee Physical Fitness Training Guide indicated that Customs and 

Border Protection officers needed to maintain a high level of physical fitness post-academy and 

for the duration of their careers. He posited that the employing establishment derived a direct 

benefit from his fitness training and noted that other employees/students at FLETC were 

permitted to participate in physical fitness activities. Appellant asserted that he did not violate 

any rules or regulations and that the employing establishment provided equipment and facilities 

for physical fitness activities. 

In a December 17, 2015 decision, OWCP denied appellant’s claim for a work-related 

injury on August 22, 2007. It modified its August 28, 2015 decision to reflect its determination 

that he was in the performance of duty at the time of the August 22, 2007 heart attack. OWCP, 

however, further found that appellant’s claim should be denied because he did not submit 

medical evidence showing he sustained an injury due to the accepted August 22, 2007 work 

factors, i.e., his running activities on that date. 

LEGAL PRECEDENT 

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

elements of his or her 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 and/or specific condition for which compensation is claimed are causally 

 5

 The supervisor indicated that FLETC had a gym, track, and various jogging trails for student and staff use. 

6

 OWCP did not provide any further explanation of why appellant’s claim for an August 22, 2007 injury was 

denied on the basis that it did not occur in the performance of duty. 
4

related to the employment injury.7

 These are the essential elements of each compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8

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

precedes any determination on the merits of the claim.9

 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 

30days. 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 

within30 days.”10

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

resulting from personal injury sustained while in the performance of duty.11 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.12 To arise in the course of employment, an injury must occur at a time when the 

employee may reasonably be stated 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.13

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.14 

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 

 7 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989). 

8 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury 

caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an 

occupational disease refers to an injury produced by employment factors which occur or are present over a period 

longer than a single workday or work shift. 20 C.F.R. §§ 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992). 

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

10 5 U.S.C. § 8122(a). 

11 Id. at § 8102(a). 

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

13 Id. 

14 S.B., Docket No. 10-842 (issued December 9, 2010). 
5

temporary assignment contemplated by the employing establishment, the employee ceases to be 

under the protection of FECA and any injury occurring during these deviations is not 

compensable.15

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; (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 

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.”16

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. The opinion of the 

physician must be based on a complete factual and medical background of the claimant, must be 

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.17

ANALYSIS 

On August 12, 2013 appellant, a Customs and Border Protection officer, filed a traumatic 

injury claim alleging that on August 22, 2007 he sustained work-related cardiac arrest at the 

FLETC when he was running on the outdoor track next to the gym. By decision dated 

February 2, 2015, the Board remanded the case to OWCP in order to gain further information 

about the timeliness of the filing of the claim and about the matter of whether his August 22, 

2007 activities occurred in the performance of duty. On remand, OWCP further developed these 

matters. In its December 17, 2015 decision, it found that appellant’s claim was timely filed and 

that he had established that he was in the performance of duty at the time of the August 22, 2007 

heart attack. However, OWCP denied his claim for a work-related injury on August 22, 2007 on 

the basis that he did not submit medical evidence showing that he sustained an injury due to the 

August 22, 2007 work factors, i.e., his running activities on that date. 

The Board finds that appellant’s claim was properly denied because he has failed to 

submit medical evidence showing that he sustained a specific medical condition on August 22, 

2007 due to the accepted incident.18 None of the medical documentation submitted discussed the 

actual cause of his heart attack. It only stated that appellant was running when his heart attack 

occurred on August 22, 2007. Dr. Boswell in his August 22, 2007 report, noted that appellant 

was running in the heat on August 22, 2007 and apparently went down. He noted that appellant 

was found to be asystolic and was shocked by emergency response workers and brought to the 

 15 Id.

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

17 See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990). 

18 See supra notes 7, 8, and 17. 
6

emergency room. In his August 24, 2007 report, Dr. Boswell noted that appellant was jogging 

when he went into cardiac arrest on August 22, 2007. He diagnosed, “Atherosclerotic coronary 

artery disease, two vessels, moderately severe. Status post cardiac arrest doing physical 

conditioning.” Dr. Mostovych, the attending cardiologist, reported that appellant suffered 

cardiac arrest while jogging. Although both physicians provides a clear diagnosis, neither 

Dr. Boswell nor Dr. Mostovych provided an opinion of reasonable medical certainty supported 

by medical rationale finding that appellant’s running activities on August 22, 2007 caused or 

contributed to the heart attack he suffered on that date. 

For these reasons, appellant has not established a work-related injury on August 22, 2007 

and OWCP properly denied his claim. He 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 a workrelated injury on August 22, 2007. 

ORDER 

IT IS HEREBY ORDERED THAT the December 17, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 12, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board