United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.R., Appellant 

and 

DEPARTMENT OF THE NAVY, MARINE 

CORP AIR STATION MIRAMAR, 

San Diego, CA, Employer 

__________________________________________ 

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Docket No. 16-1005 

Issued: September 23, 2016 

Appearances: Case Submitted on the Record

Michael Jacobson, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 10, 2016 appellant, through his representative, filed a timely appeal of a 

September 16, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from September 16, 2015, the date of OWCP’s last decision was 

March 14, 2016. Since using March 22, 2016, the date the appeal was received by the Clerk of the Appellate 

Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date 

of the U.S. Postal Service postmark is March 10, 2016, rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1). 
2

Pursuant to the Federal Employees’ Compensation Act3

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

501.3, the Board has jurisdiction to consider the merits of the case.4

ISSUE 

The issue is whether appellant has met his burden of proof to establish a traumatic injury 

in the performance of duty. 

FACTUAL HISTORY 

On June 11, 2015 appellant, then a 55-year-old maintenance mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he stepped in a hole at 9:40 a.m. The hole 

was approximately 18 inches deep and 12 inches wide near the children’s pool area at the 

Officers’ Club swimming pool. Appellant alleged that he lost his balance when he stepped in a 

hole and fell twisting his body and resulting in a lumbar sprain. On the reverse of the form, 

appellant’s supervisor indicated that appellant’s regular work schedule was from 6:30 a.m. to 

3:30 p.m. He further indicated that appellant was injured in the performance of duty. 

In statements from witnesses dated June 16, 2015, appellant’s three coworkers noted that 

they and appellant were working on the Officer’s Club wading pool on June 11, 2015. 

Appellant’s coworkers indicated that at about 9:00 or 9:15 a.m. the group was finishing the 

morning break at the picnic table on the south side of the pool under the trees. One of 

appellant’s coworkers noted a hawk or an eagle in a tree carrying a rabbit while other birds 

fought over it. Appellant and his coworkers left the picnic table and began to move toward the 

south fence. Near the fence are three holes approximately 18 inches wide and 16 inches deep 

with irrigation risers in them. As appellant’s coworkers reached the south fence they heard 

appellant scream out in pain. The witnesses saw appellant with one leg in the center hole. He 

was struggling to get up from the ground. A coworker went to his aid, but appellant was 

obviously in pain. 

Appellant submitted a report dated June 11, 2015 from Dr. Stephen Leibham, a Boardcertified internist, describing appellant’s history of stepping in a hole which caused him to twist 

and fall injuring his lower back. He stepped in the hole while he was trying to watch an eagle 

which had picked up a rabbit. Appellant reported a prior back injury in 2010 which occurred 

while lifting metal lockers at work. Dr. Leibham diagnosed lumbar sprain/strain. He referred 

appellant for chiropractic therapy due to his back injury. 

In a letter dated August 11, 2015, OWCP requested additional factual and medical 

evidence in support of appellant’s claim. It informed him that the evidence was insufficient to 

support that he was injured while in the performance of duty. OWCP requested that appellant 

provide a detailed account of the circumstances of his injury. 

 3

 5 U.S.C. § 8101 et seq.

4

 The Board notes that appellant submitted additional evidence after OWCP rendered its September 16, 2015 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore the Board lacks jurisdiction to review this additional evidence on appeal. 20 C.F.R. 

§ 501.2(c)(1). 
3

Appellant completed OWCP’s questionnaire on August 24, 2015. He described his work 

on June 11, 2015 as rehabilitation of the children’s wading pool area at the Officers’ Club. 

Appellant indicated that he and his coworkers stopped for a scheduled break at 9:30 a.m. One of 

his coworkers “witnessed a natural phenomenon” and all stood for a better view. Appellant 

asserted that he took approximately four steps forward and stepped in a hole left by previous 

landscapers. The hole was approximately 18 inches in diameter and 15 inches in depth. 

Appellant’s right foot entered the hole and his upper torso twisted to the left. He fell and landed 

in a sitting position with his left leg bent against his chest. Appellant experienced a tearing and 

burning sensation in his left lower back. He asserted that the entire area, including the hole was 

considered the work site. Appellant’s tasks were grinding uneven cracks in concrete, ripping out 

tree roots, laying forms, pouring new concrete, and carrying bricks and equipment. 

Dr. Trisha Sharma, an internist, completed a note on August 26, 2015 and noted that 

appellant had a history of back pain, but on March 18, 2015 appellant had no significant 

limitation of physical activity on his physical examination. She reported that on June 23, 2015 

she examined appellant for severe lower back pain which appellant reported began after a fall at 

work. 

By decision dated September 16, 2015, OWCP denied appellant’s claim for a traumatic 

injury on June 11, 2015 as his injury did not occur in the performance of duty. It found that he 

was not engaged in his master’s business at the time of his injury. OWCP concluded that 

appellant had removed himself from the performance of duty when he left his break area to go 

birdwatching. 

LEGAL PRECEDENT 

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

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

an employee contemporaneous or coincidental with her employment. Liability does not attach 

merely upon the existence of any employee/employer relation.5 FECA provides for the payment of 

compensation for disability or death of an employee resulting from personal injury sustained while 

in the performance of duty.6

 The term “in the performance of duty” has been interpreted to be the 

equivalent of the commonly found prerequisite in workers’ compensation law, “arising out of and 

in the course of employment.”7

 “In the course of employment” deals with the work setting, the 

locale, and time of injury.8

 In addressing this issue, the Board has stated: 

 “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 master’s business; (2) at a place where he may reasonably be 

 5 Minnie N. Heubner (Robert A. Heubner), 2 ECAB 20, 24 (1948); Christine Lawrence, 36 ECAB 422, 423-

24 (1985). 

6 See supra note 3.

7 James E. Chadden, Sr., 40 ECAB 312, 314 (1988). 

8 Denis F. Rafferty, 16 ECAB 413, 414 (1965). 
4

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.”9

 This alone is not sufficient to establish entitlement to benefits for compensability. The 

concomitant requirement of an injury “arising out of the employment” must be shown, and this 

encompasses not only the work setting but also a causal concept, the requirement being that the 

employment caused the injury in order for an injury to be considered as arising out of the 

employment, the facts of the case must show some substantial employer benefit is derived or an 

employment requirement gave rise to the injury.10

ANALYSIS 

The Board finds that appellant’s June 11, 2015 injury occurred in the performance of 

duty. 

At the time of his injury, the record reflects that appellant was on or ending a scheduled 

break, a time when he may reasonably be said to be engaged in his master’s business. He was at a 

place where he may reasonably be expected to be in connection with the employment, on the 

employing establishment premises at his assigned job site in the outdoors. Appellant was also 

reasonably fulfilling the duties of his employment or engaged in doing something incidental 

thereto. The record reflects that appellant was momentarily diverted from his specific employment 

duties due to a coworker’s observations of “a natural phenomenon.” Appellant and his coworkers 

saw a bird of prey with a rabbit and walked a few steps on the premises from the site of their break 

to observe the bird. Appellant indicated that he took four steps from the picnic table where he was 

taking his break to the hole where he fell. 

OWCP’s procedures provide that injuries arising on the premises may be approved if the 

employee was engaged in activity reasonably incidental to employment, such as personal acts for 

the employee’s comfort, convenience and relaxation.11 In T.I., the Board found that a claimant 

who was injured on the employing establishment premises during her regular lunch hour was in the 

performance of duty.12 The Board noted that the fact that the claimant used a portion of her lunch 

hour to walk to her personal vehicle, which was also located on government property to retrieve 

her ATM card did not take her outside the performance of duty. 

 

 9 Carmen B. Gutierrez, 7 ECAB 58, 59 (1954). 

10 See Eugene G. Chin, 39 ECAB 598, 602 (1988). 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(a) (August 1992). 

12 59 ECAB 537 (2008). 
5

In J.O.,13 the employee was injured on the premises while cleaning snow from her car, also 

on the employing establishment premises, during her lunch hour. The Board also found that this 

was an act reasonably incidental to personal comfort. 

The Board finds that this situation is factually similar to these cases. Appellant was on the 

premises during his regular duty hours, on a scheduled break and was momentarily diverted by the 

sights of his surroundings while remaining on government property. His actions were only of 

momentary duration, were of the type that would be expected given employees’ outside worksite 

and were so insubstantial that his actions cannot be considered an abandonment of appellant’s 

employment.14

The Board reached contrary results in Peter Belkind,

15 when an employee in the time and 

place he should be, stepped outside his work activities by freeing a trapped bird and sustaining an 

injury. In Belkind, the employee went beyond a momentary visual distraction to engaging in 

interactions with wildlife which resulted in his injury and took him out of the performance of duty. 

The Board found that appellant ceased to be under the protection of FECA when he attempted to 

free the bird and that his injury during his deviation was not compensable.

The Board finds that appellant’s momentary distraction from his duties while on his break 

occurred in the performance of duty. As appellant has met his burden of proof to establish that he 

was in the performance of duty on June 11, 2015 at the time of the accepted incident, the case is 

remanded to OWCP for development of the medical evidence to determine the extent of any 

injury caused by the employment incident. OWCP shall issue a de novo decision. 

CONCLUSION 

Appellant was in the performance of duty at the time of his June 11, 2015 incident. 

 13 Docket No. 09-1432 (issued February 2, 2010). See also Annette Stonework, 35 ECAB 306 (1983) (where the 

Board held that appellant’s use of a portion of her lunch hour to purchase stamps for her personal use from a postal 

facility on the premises of the employing establishment did not take her injury outside the performance of duty); see 

also C.S., Docket No. 06-1121 (issued August 22, 2006) (where appellant was injured on the employing 

establishment premises on her way to a credit union while on her break, the Board found that this personal 

convenience was reasonably incidental to her employment and, therefore, compensable). 

14 Barry Himmelstein, 42 ECAB 423 (1991). 

15 56 ECAB 580 (2005). 
6

ORDER 

IT IS HEREBY ORDERED THAT the September 16, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed and remanded for further development in 

accordance with this decision of the Board. 

Issued: September 23, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board