United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.C., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Rouses Point, NY, Employer 

__________________________________________ 

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Docket No. 14-1800 

Issued: March 11, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 12, 2014 appellant, through his attorney, filed a timely application for review 

from a July 7, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).1

 

Pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction to review the merits of appellant’s claim. 

ISSUE 

The issue is whether appellant met his burden of proof to establish an injury in the 

performance of duty on February 14, 2012. 

 1

 The Board concludes that OWCP’s July 7, 2014 decision, purporting to deny reconsideration of the merits, 

actually conducted a merit review of appellant’s claim. See infra note 12. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 3, 2012 appellant, then a 49-year-old special agent/criminal investigator, 

filed a traumatic injury claim (Form CA-1) alleging that on February 14, 2012 he sustained 

injury to his right shoulder while exercising at home at 8:00 a.m. Appellant’s supervisor 

indicated on the claim form that the injury had occurred in the performance of duty and that 

appellant’s regular work hours were from 8:30 a.m. to 5:30 p.m. 

This case was previously before the Board.3 In a decision dated April 2, 2014, the Board 

affirmed an OWCP decision dated June 20, 2013 denying appellant’s claim for compensation on 

the basis that he had not established that his claimed injury of February 14, 2012 occurred within 

the performance of duty. The Board noted that appellant’s injury did not occur during regular 

work hours and on the premises of the employing establishment. The Board found that, while 

appellant alleged that he was enrolled in a voluntary physical fitness program (PFP) and was 

injured while performing authorized PFP exercise, he did not provide a statement from the 

employing establishment that he was enrolled in an employing establishment PFP or that he was 

injured while participating in a PFP. The Board concluded that appellant had not established that 

the employing establishment expressly or impliedly required him to engage in home exercise. 

Therefore appellant had not established that the employing establishment derived any substantial 

direct benefit from his home exercise except for the intangible value of improvement in 

employee health and morale that is common to all kinds of recreation and social life. The facts 

as set forth in the Board’s prior decision are hereby incorporated by reference. 

By letter received June 5, 2014, appellant, through his attorney, requested 

reconsideration. He indicated that he had enclosed activity logs from a voluntary physical fitness 

program and a memorandum from the employing establishment dated August 25, 2011, which 

substantiated his participation in the employing establishment’s voluntary physical fitness 

program. Counsel stated that the Board neglected to analyze the memorandum in its decision of 

April 2, 2014.4

In voluntary physical fitness program activity logs dated between September 20, 2011 

and January 4, 2012, appellant noted that he exercised at his home gym between September 7 

and December 29, 2011. 

In a memorandum addressed to supervisors dated August 25, 2011, a deputy executive 

associate director for the employing establishment stated that it authorized law enforcement 

personnel to use official duty time up to one hour per day, not to exceed three hours per week. It 

noted that scheduling of official on-duty hours was subject to the approval of an employee’s 

supervisor and that because the voluntary physical fitness program was authorized only during 

official on-duty time, an employee had a right to file a claim with OWCP if he sustained injury. 

The memorandum stated that the requirements of participation in the voluntary physical fitness 

 3

 Docket No. 13-2177 (issued April 2, 2014). 

4

 The Board notes that the memorandum dated August 25, 2011 was not present in the case record at the time of 

OWCP’s June 20, 2013 decision, upon which the prior appeal docketed as No. 13-2177 was based. Hence, the 

Board lacked jurisdiction to review the August 25, 2011 memorandum in the prior appeal. See 20 C.F.R. § 501.2(c). 
3

program were a consultation with a physician upon beginning participation and annually 

thereafter; annual submission of a waiver of liability to a supervisor; and the recording of an 

exercise log noting the date, time, type, and duration of the exercises performed. 

In a statement dated May 13, 2013, appellant noted that his employing establishment 

authorized official duty time to engage in a voluntary physical fitness program. He noted that he 

was performing one of the approved fitness programs listed in the August 25, 2011 

memorandum, and that his workout time was part of his Law Enforcement Availability Program 

pay. 

In an e-mail dated June 3, 2014, a supervisor at the employing establishment noted that 

there was an annual requirement for all criminal investigators participating in the voluntary 

physical fitness program to update their waivers of liability. She noted that employees should 

route their signed waivers through their supervisors. 

Appellant also submitted blank voluntary physical fitness program waivers of liability. 

By decision dated July 7, 2014, OWCP declined appellant’s request for reconsideration 

and stated that it did not review the merits of his case. It noted, “The issue in this case is whether 

or not you were a participant in the [voluntary physical fitness program] on February 14, 2012 as 

claimed.” OWCP found that the activity logs, memorandum dated August 25, 2011, and e-mail 

dated June 3, 2014 did not suggest or imply that he was a participant in the voluntary physical 

fitness program on February 14, 2012. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA5 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 injury6 was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally 

related to the employment injury.7

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.8

 The phrase 

sustained 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 

 5

 5 U.S.C. §§ 8101-8193. 

6

 OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident, 

or series of events of incidents, within a single workday or shift. Such condition must be caused by external force, 

including stress or strain, which is identifiable as to time and place of occurrence and member or function of the 

body affected. 20 C.F.R. § 10.5(ee). 

7 T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40 

ECAB 1143, 1145 (1989). 

8

 5 U.S.C. § 8102(a). 
4

course of employment.9 The phrase in the course of employment is recognized as relating to the 

work situation, and more particularly, relating to elements of time, place, and circumstance. To 

arise in the course of employment, an injury must occur at a time when the employee may 

reasonably be said to be engaged in the employer’s business, at a place where he may reasonably 

be expected to be in connection with the employment, and while he was reasonably fulfilling the 

duties of his employment or engaged in doing something incidental thereto.10

OWCP’s procedures address employing establishment physical fitness programs (PFPs) 

and provide that employees enrolled in a PFP are in the performance of duty for FECA purposes 

while doing authorized PFP exercise, including off-duty exercises. Under Part 2.804.18(c), 

CA-1 forms that attribute an injury to PFP activity must be accompanied by a statement from the 

employee’s supervisor indicating that the employee was enrolled in the PFP, and that the injury 

was sustained while the employee was performing authorized exercises under the program.11

ANALYSIS 

Although OWCP’s July 7, 2014 decision purported not to review the merits of appellant’s 

claim, the Board finds that this was a decision on the merits. It did more than provide a 

background summary of its June 20, 2013 denial; it augmented its previous findings. OWCP 

noted that the issue in this case was whether or not appellant was a participant in a voluntary 

physical fitness program on February 14, 2012, and analyzed evidence submitted both before and 

after the Board’s April 2, 2014 decision, finding that it had not established that appellant was a 

participant in this program on February 14, 2012. As the July 7, 2014 decision addressed the 

merits of appellant’s claim, the Board has jurisdiction to review the merits.12

The Board’s merit review begins with its prior decision on this case under docket number 

13-2177. The Board noted that appellant had not submitted a statement from the employing 

establishment to establish that he, in particular, was enrolled in a voluntary physical fitness 

program and that the injury was sustained while he was performing authorized exercises under 

the voluntary physical fitness program. The Board found that without the required 

documentation from the employing establishment, the evidence did not support appellant’s claim 

for a work-related injury. 

Appellant in fact submitted new evidence on reconsideration to OWCP, but none of this 

new evidence contains the required documentation that appellant, in particular, was enrolled in a 

voluntary physical fitness program as of February 14, 2012. The memorandum addressed to 

supervisors and dated August 25, 2011 does not address appellant’s enrollment in particular. 

 9 Charles Crawford, 40 ECAB 474, 476-77 (1989). 

10 Mary Keszler, 38 ECAB 735, 739 (1987). 

11 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.18 

(March 1994). 

12 See D.R., Docket No. 12-617 (issued May 9, 2012) (OWCP addressed the merits of the claimant’s reasons for 

refusing a job offer); D.C., 58 ECAB (2007) (OWCP addressed the merits by finding for the first time that 

specialists were available locally and that the claimant’s argument was therefore invalid). 
5

Instead, it comments only on the documentation generally required in order to enroll as a 

participant. Similarly, the e-mail to all employees dated January 17, 2014 does not address 

appellant’s actual enrollment in the physical fitness program, but enrollment policy generally. 

The remainder of the new evidence submitted, consisting of blank waivers of liability, home logs 

of exercise, and appellant’s statement also do not address the issue of appellant’s particular 

enrollment in a physical fitness program at the time of the alleged injury. As such, they do not 

establish that appellant was within the performance of duty at the time of his February 14, 2012 

injury in a home gym. 

For these reasons, appellant has not established that he sustained an injury in the 

performance of duty on February 14, 2012. 

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 that he 

sustained an injury in the performance of duty on February 14, 2012. 

ORDER 

IT IS HEREBY ORDERED THAT the July 7, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: March 11, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board