United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Petersburg, VA, Employer 

__________________________________________ 

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Docket No. 15-1689 

Issued: April 6, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 5, 2015 appellant filed a timely appeal from an April 16, 2015 nonmerit 

decision and a June 11, 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. 

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish a back injury in 

the performance of duty on November 26, 2014; and (2) whether OWCP properly denied 

appellant’s request for an oral hearing before an OWCP hearing representative as untimely filed. 

On appeal, appellant contends that he sustained an employment-related back injury. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On December 4, 2014 appellant, then a 50-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained a back injury when his vehicle was hit from behind 

at 5:00 p.m. on November 26, 2014. His regular work hours were 7:30 a.m. to 4:00 p.m. with 

rotating days off work. The employing establishment checked a box indicating that appellant 

was injured in the performance of duty. It noted that the injury had been caused by a third party. 

The employing establishment also challenged appellant’s claim, stating that causal relationship 

and the factual aspect of the claim had not been established. 

In emergency room progress notes dated November 21 and 30, 2014, Eden M. Canite, a 

registered nurse, and Dr. James R. Freeman, a Board-certified internist with a primary specialty 

in nephrology, respectively, indicated that appellant was treated for acute chronic back pain. 

Discharge instructions were provided which addressed appellant’s restrictions and medications. 

In an undated disability certificate, Dr. Ghanshyam C. Barot, a family practitioner, noted 

that appellant was treated on December 2, 2014 and that he could not return to work until cleared 

by an orthopedist. 

By letter dated January 2, 2014, OWCP notified appellant of the deficiencies of his claim 

and afforded him 30 days to submit additional factual and medical evidence. It documented that 

the submitted evidence was insufficient to support that he was injured while performing any 

work duty. OWCP also noted that appellant did not provide a physician’s opinion explaining 

how his injury resulted in a diagnosed condition. It also requested that the employing 

establishment respond to his allegations and submit evidence regarding his work duties and any 

medical evidence, if he had been treated at its medical facility. 

In a January 27, 2015 statement, appellant related that, on the date of injury, he was in a 

government vehicle, but he was not on his usual assigned route. Rather, he was instructed by the 

officer-in-charge to perform collections from the boxes located at Virginia State University 

(VSU). 

In a December 11, 2014 medical report, Dr. Prakasam Kalluri, a Board-certified 

orthopedic surgeon, provided a history of injury that appellant was involved in a motor vehicle 

accident on November 26, 2014, reviewed his medical records, and noted findings on physical 

examination. He assessed appellant as having a lumbar sprain. Dr. Kalluri noted that, although 

appellant had preexisting low back pain and had undergone a recent back procedure, he did not 

have any pain with facet loading or extension indicating that the procedure caused a significant 

increase in pain. He provided an impression that appellant’s pain was aggravated by his motor 

vehicle crash. Dr. Kalluri advised appellant to stay out of work for three weeks and to undergo 

physical therapy. 

In reports dated January 6, 13, and 16, 2015, appellant’s physical therapists addressed the 

treatment of appellant’s lumbopelvic and lower extremity conditions. 

On April 16, 2015 an assistant special agent-in-charge in the employing establishment’s 

Office of Inspector General submitted an investigative report regarding appellant’s 
3

November 26, 2014 motor vehicle accident with surveillance photographs of his activities from 

December 16, 2014 to February 17, 2015 and exhibits which included medical records related to 

the treatment of his preexisting and current back conditions. The report indicated that he had 

stopped work on or about November 28, 2014. 

In an April 16, 2015 decision, OWCP denied appellant’s claim. It found that the factual 

and medical evidence was insufficient to establish that he sustained an injury on November 26, 

2014 while in the performance of duty. OWCP stated that appellant was not on his assigned 

route on the date-of-injury and he did not submit any investigative reports documenting the 

claimed incident. In addition, appellant did not submit any medical evidence that established a 

diagnosed medical condition in connection with the work injury or event. 

In an appeal request form dated May 18, 2015 and postmarked May 19, 2015, appellant 

requested a telephone hearing with an OWCP hearing representative. 

By letter dated May 13, 2015, Carlos A. Thomas, an employing establishment officer-incharge, stated that appellant was involved in an accident on November 26, 2014. The paperwork 

presented to management indicated that appellant was off of his assigned route at the time. 

Mr. Thomas stated that appellant was on a collection operation as directed by management and 

he was traveling toward Ettrick to collect mail from three blue collection boxes. He further 

stated that, while sitting stationary at the intersection of North Sycamore Street and East Bank 

Street, appellant was struck from behind. Mr. Thomas related that appellant was still working on 

the clock at the time of the accident. 

Appellant submitted a police report of the November 26, 2014 incident. He also 

submitted progress notes and an addendum note dated November 24, 2014 and April 6, 2015 

from Dr. Meenakshi Bindal, Board-certified in physical medicine and rehabilitation, and pain 

medicine, Javier Soares-Velez,2

 and Dr. Allison J. Hickman, a Board-certified physiatrist, which 

addressed his chronic low back pain, service-connected disabilities, and medical treatment. 

By decision dated June 11, 2015, OWCP’s Branch of Hearings and Review denied 

appellant’s hearing request as untimely filed. OWCP considered his request and determined that 

his case could equally well be addressed by requesting reconsideration and submitting new 

evidence. 

LEGAL PRECEDENT -- ISSUE 1 

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.3

 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, and 

 2

 The Board notes that the professional qualifications of Javier Soares-Velez are not contained in the case record. 

3

 5 U.S.C. § 8102(a). See also P.S., Docket No. 08-2216 (issued September 25, 2009). 
4

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.4

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.5

OWCP procedures include letter carriers in the first of four general classes of offpremises workers.6

 In determining whether this class of employees has sustained an injury in the 

performance of duty, the factual evidence must be examined to ascertain whether, at the time of 

injury, the employee is within the period of the employment, at a place where the employee 

reasonably may be and while the employee is fulfilling employment duties or engaged in 

activities reasonably incidental thereto.7

In determining whether an injury occurs in a place where the employee may reasonably 

be or constitutes a deviation from the course of employment, the Board will focus on the nature 

of the activity in which the employee was engaged and whether it is reasonably incidental to the 

employee’s work assignment or represented such a departure from the work assignment that the 

employee becomes engaged in personal activities unrelated to his or her employment. 

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.8

ANALYSIS -- ISSUE 1 

Appellant filed a traumatic injury claim alleging that he sustained a back injury on 

November 26, 2014 when his government vehicle was hit from behind as he travelled to VSU to 

collect from boxes at the school. OWCP determined that his injury did not arise in the 

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

duty. 

The Board notes that the November 26, 2014 injury occurred at a time and in a place 

where appellant could reasonably be engaged in his employer’s business. Appellant was 

reasonably fulfilling the duties of his employment or activities incidental thereto. Mr. Thomas, 

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

5 T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006). 

6

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

7 Thomas E. Keplinger, 46 ECAB 699 (1995). 

8 Michael E. Smith, 50 ECAB 313 (1999). 
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an employing establishment officer-in-charge, stated that while appellant was not on his assigned 

route when his vehicle was struck from behind, he was on the clock as he was ordered to travel 

to the location where his injury occurred. He related that management had directed appellant to 

collect mail from three collection boxes. There was no deviation or departure from his work 

assignment that occurred when he was involved in the motor vehicle accident. 

The Board therefore finds that appellant’s November 26, 2014 injury occurred in the 

performance of duty when his vehicle was hit from behind. 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 established November 26, 2014 

employment incident. 

CONCLUSION 

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

of duty and the case is remanded for evaluation of the medical evidence.9

ORDER 

IT IS HEREBY ORDERED THAT the June 11 and April 16, 2015 decisions of the 

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

action consistent with this decision of the Board. 

Issued: April 6, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9

 In light of the Board’s disposition on the first issue, it is not necessary to address the second issue.