United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

O.L., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

FACILITIES ENGINEERING, Wahiawa, HI, 

Employer 

__________________________________________ 

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Docket No. 16-0840 

Issued: August 28, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 17, 2016 appellant, through counsel, filed a timely appeal from a February 18, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case. 

 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

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant sustained an injury in the performance of duty on 

June 30, 2014. 

On appeal counsel contends that OWCP’s decisions are contrary to fact and law. 

FACTUAL HISTORY 

On September 12, 2014 appellant, then a 37-year-old sheet metal mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that on June 30, 2014 Staff Sergeant (Sgt.) M.M. 

kicked him hard in the back while he was sitting at a desk, aggravating previous pain in his left 

shoulder, neck, lower back, and tail bone. 

In a statement signed on June 30, 2014, appellant stated that at 1:00 p.m., in building 

1207, he was taking a training course on a computer when M.M. came from behind and kicked 

his chair with such a tremendous force that the chair rolled forward and stopped at the desk. He 

stated that when he asked M.M. why he kicked the chair, M.M. replied that appellant should be 

working and not slacking on government time. 

In another statement signed on July 3, 2014, appellant stated that on June 30, 2014, after 

attending an awards ceremony, he went to see S.K., the supervisor for another shop, on the way 

back to his compound. He indicated that he walked into S.K.’s office around 9:45 a.m., and told 

him that he was there to finish the rest of his security awareness training courses on the 

computer, and that he replied “sure.” Appellant noted that, after he completed the course, S.K. 

had trouble printing the certificate, and stated that he had to be somewhere else, so appellant 

should try to print it himself. He stated that he tried for at least 10 minutes and was 

unsuccessful, and that he was sitting in front of the computer with his hand resting on his chin, 

and waiting for S.K. to return, when he saw the reflection of a man in uniform approaching him. 

The man in uniform kicked the back of the chair and stated “get back to work, who do you think 

you are, get back to work, you can[no]t be sleeping on government time.” Appellant faced his 

attacker and asked why he kicked the back of the chair. He noted that he did not even know the 

man, but he kept pointing his finger in appellant’s face and asked appellant to identify his boss so 

he could tell him that appellant was sleeping when he should have been working. Appellant 

indicated that he then asked the man who his boss was, and stated that he was not sleeping. He 

stated that, after he left, he was informed that the man in uniform was M.M. Appellant noted 

that he went to the emergency room the next day. 

In a letter dated July 30, 2014, the employing establishment confirmed that on June 30, 

2014 appellant notified it that he sustained an injury when a service member kicked his chair and 

that it had conducted an investigation into the matter and concluded that appellant was not in the 

performance of duty as he was away from his assigned work area at the time he sustained the 

injury. It also noted that appellant had not produced evidence to substantiate that he was 

temporarily totally disabled from performing his light-duty assignment. 

In a statement dated July 3, 2014, S.K. stated that on June 30, 2014 at approximately 8:00 

to 8:30 a.m., appellant entered his office at building 1207, located at the Civil Engineer 
3

Compound. He indicated that he assumed that appellant was there to check if he would be able 

to log into the computer to complete his required 1A training. S.K. indicated that he was 

surprised to see appellant as he did not request the visit. Appellant informed him that he was just 

making his way back to the NAVFAC compound as he had just left the “Years in Service” 

ceremony at the Memorial Theater and wanted to stop by and say hello. As he was there, S.K. 

asked appellant to log onto the computer and check his e-mail to see if he received any 

notification from NMCI stating that the repair for his log on was complete. At the same time 

S.K. left a message with C.K., appellant’s supervisor, to inform him that appellant was in his 

office testing, trying to complete the 1A training. He noted that they were able to locate the email from NMCI that confirmed that the repair to appellant’s log on was completed. Therefore, 

S.K. proceeded to open the required training and explained to appellant that he needed to 

complete and pass the course without shutting down the program. He noted that at 

approximately 10:10 a.m. appellant was able to complete the testing and was attempting to print 

his certificate. However, at that time connectivity needed to be completed between appellant’s 

log in and the printer, and he did not have the time to load the printer to the computer. S.K. 

therefore suggested that appellant return to the NAVFAC compound and indicated that he would 

contact appellant at a later time to complete his training by printing his certificate. Appellant 

indicated that he had to go the restroom, and S.K. reminded him that he would need to return and 

log off the computer before returning to the NAVFAC compound. He indicated that appellant 

proceeded to leave for his appointment at approximately 10:30 a.m. 

An incident report for the employing establishment indicated that on June 30, 2014 at 

approximately 1:00 p.m., appellant stated that he was conducting computer-based training at the 

training center/service school in building 1207 when an unknown male approached him from 

behind and kicked his chair with such force that it collided into the desk. Appellant indicated 

that there were four other people in the building who identified the other party as M.M. He then 

left the building and notified his supervisor, who informed him to call security. An unidentified 

witness told the investigator that at approximately 1:00 p.m. he observed appellant sitting at the 

computer desk with his head down. M.M. approached him from behind and kicked his chair and 

verbally told appellant to wake-up. The witness indicated that on a scale of 1 to 10 the amount 

of force with which M.M. kicked appellant’s chair was a 3. M.M. was read his rights, advised 

that he was suspected of simple assault, and he then indicated his desire to remain silent until he 

consulted a lawyer. 

In an August 12, 2014 note, Dr. Mary Ricardo-Dukelow, an internist, noted that appellant 

suffered from an assault injury on June 30, 2014. She noted that appellant was seen at Tripler 

Army Medical Center on July 1, 2014 and continued to suffer from shoulder and low back pain. 

Dr. Ricardo-Dukelow provided work restrictions for appellant, and noted that he would have a 

magnetic resonance imaging (MRI) scan as well as an orthopedics and neurology evaluation 

because his condition was worsening. She noted that she would reevaluate appellant in three 

weeks. 

In a September 16, 2014 medical referral form, Dr. Patrick C. Lowry, a physician Boardcertified in occupational medicine and Public Health and General Preventive Medicine, noted 

that appellant had an occupational injury and was restricted to working half days light duty. 
4

By letter dated September 16, 2014, OWCP informed appellant that further information 

was needed in support of his claim and afforded him 30 days to submit the additional evidence. 

In a September 19, 2014 report, Dr. Bernard Portner, a Board-certified physiatrist, 

diagnosed appellant with lumbago, lumbar strain and sprain, cervicalgia, neck strain and sprain, 

and pain in joint shoulder region. He described appellant’s work injury history. Dr. Portner 

listed the date of injury as June 30, 2014 and released appellant to return to work light-duty part 

time. 

By decision dated October 22, 2014, OWCP denied appellant’s claim. It determined that 

although he established that the employment incident occurred and that a medical condition had 

been diagnosed in connection with the incident, his claim was denied because he had not 

established the element of performance of duty, as the condition arose outside the course of his 

employment. OWCP noted that appellant was not at his assigned duty station at the time of the 

alleged injury and that therefore he did not establish that he was injured in the performance of 

duty. 

In an October 22, 2014 note, Dr. Ricardo-Dukelow noted that appellant suffered from an 

assault injury from June 30, 2014, and continued to suffer from severe lower back pain and 

shoulder pain. She reiterated his restrictions. 

On November 17, 2014 appellant requested reconsideration. He stated that the allegation 

that he was not at his assigned duty station at the time of the alleged injury was incorrect. 

Appellant stated that his supervisor, C.K., had authorized him to be an “escort” which required 

specific training at building 1207. He noted that the reason he was to become an escort was that 

he was on light-duty status, and his supervisor did not assign daily task work to perform, but 

instead had him sit at a locker where spare parts were kept. Appellant stated that the escort 

training involved a test that must be taken in consecutive days over a three-day period. He stated 

that he took the test on June 26, 27, and 30, 2014. Appellant stated that on June 30, 2014 he 

went to building 1207 to finish up the test after an awards ceremony, and that he was there with 

his supervisor’s knowledge, request, and permission. He noted that there were problems with the 

computer that morning and that S.K. spoke with his supervisor who was aware that he was taking 

the test and that the computer had problems. Appellant noted that he was unable to get his test 

results until approximately 12:00 p.m., and that the computer problem prevented him from 

getting his certificate for completing the test. He stated that S.K. told him around 12:45 p.m. that 

he had to leave the building. He then gave appellant the option of returning to his shop or 

waiting for the certificate to print, he chose to wait. Appellant alleged that he was assaulted by 

M.M. at approximately 1:00 p.m. while waiting for S.K. to return. He noted that at no point did 

his supervisor tell him to return to the shop, and to his knowledge his only assignment for 

June 30, 2014 was to sit in the locker that held spare parts. 

By decision dated January 29, 2015, OWCP denied merit review. It found that the 

evidence did not establish that the incident occurred in the course of his federal employment. 

OWCP further determined that the evidence did not establish that the incident described caused 

injuries to appellant’s shoulder and back. 
5

By letter dated October 9, 2015, appellant, through counsel, submitted an October 1, 

2015 sworn affidavit wherein appellant stated under oath the same allegations set forth in his 

November 14, 2014 letter. He also resubmitted the September 19, 2014 report by Dr. Portner 

and the August 12, 2014 note by Dr. Ricardo-Dukelow. In a new October 1, 2014 note, 

Dr. Dukelow reiterated that appellant suffered from an assault injury on June 30, 2014. She 

noted that his restrictions continued as he continued to suffer from shoulder and back pain. 

In an October 23, 2015 letter, the employing establishment argued that appellant had not 

submitted information sufficient to merit further review. 

By decision dated February 18, 2016, OWCP denied modification of the October 22, 

2014 decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish 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 filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability and/or specific condition for which compensation is claimed are causally related to the 

employment injury.3 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

OWCP regulations at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the 

body caused by a specific event or incident or series of events or incidents within a single 

workday or shift.5 To determine whether a federal employee has sustained a traumatic injury in 

the performance of duty, it must first be determined whether a fact of injury has been 

established.6 First the employee must submit sufficient evidence to establish that he actually 

experienced the employment incident at the time, place, and in the manner alleged.7 Second, the 

employee must submit sufficient evidence, generally only in the form of medical evidence, to 

establish that the employment incident caused a personal injury.8

 3 C.S., Docket No. 08-1585 (issued March 3, 2009). 

4 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 

5

 20 C.F.R. § 10.5(ee). 

6 B.F., Docket No. 09-60 (issued March 17, 2009). 

7 D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005). 

8 C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, 57 

ECAB 364 (2006). 
6

It is the claimant’s burden of proof to submit sufficient evidence necessary for OWCP to 

make a determination as to whether an employment incident occurred as alleged. The evidence 

must be sufficient to establish whether the claimant was in the course of federal employment at 

the time of the incident, so that a proper determination may be made as to whether an injury 

occurred while in the performance of duty.9

 

Regarding the phrase “in the course of employment,” the Board has accepted the general 

rule of workers’ compensation law that, as to employees having fixed hours and places of work, 

injuries occurring on the premises of the employing establishment, while the employees are 

going to and from work, before or after work hours, or at lunch time, are compensable.10 An 

injury is said to arise in the course of employment when it takes place within the period of the 

employment, at a place where the employee reasonably may be, and while the employee is 

fulfilling employment duties or is engaged in doing something incidental thereto. Arising out of 

employment relates to the causal connection between the employment and the injury claimed.11

ANALYSIS 

The Board finds that the case is not in posture for decision. 

OWCP procedures12 provide that, if the employee was on premises, but not performing 

regular work at the time of the alleged injury, the record must show exactly what the employee 

was doing when injured and the location of the area where the injury occurred in relation to the 

regular workplace. In disability cases both the official superior and the claimant should submit a 

statement showing precisely what the employee was doing when injured. If the initial reports 

and statements do not contain precise information in this regard, the official superior should be 

asked to submit a supplemental clarifying statement.13 When the official superior has no 

knowledge of the facts and circumstances of the injury, statements should be obtained from 

coworkers or other witnesses who may have such knowledge. A conference should be held 

when conflicting statements are presented.14

The time of the accepted incident was approximately 1:00 p.m. on June 30, 2014. 

Appellant indicated that he was on premises, but in a different part of the compound from his 

duty station, when he walked into S.K.’s office following attendance at an awards ceremony. 

S.K. indicated that appellant came to his office earlier at approximately 8:00 to 8:30 a.m. Both 

S.K. and appellant agreed that he notified appellant’s supervisor that he was in his office and that 

he was going to take the 1A training. Appellant completed the training assignment, but at some 

point there was a problem with him printing his certificate. S.K. indicated that at approximately 

 9 T.S., Docket No. 09-2184 (issued June 9, 2010). 

10 A.C., Docket No. 15-0767 (issued July 15, 2015). 

11 B.C., Docket No. 09-653 (issued December 24, 2009). 

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

13 Id. 

14 Id. 
7

10:10 a.m. he told appellant that he did not have the time to resolve the problem as he had an 

appointment, and suggested that appellant return to his compound and that he would contact him 

later about printing the certificate. He noted that appellant stated that he needed to go to the 

restroom, and S.K. reminded him that upon his return he should log off the computer and return 

to his work center. 

Appellant’s description of events corresponds with that of S.K., except that he relates that 

he was unable to obtain his test results until 12:00 p.m. and that he could not print the test results 

at that time. He has also noted that he did not return to his shop when he was unable to print the 

test results, but rather waited for S.K. to return to help him with the printer, because he did not 

have any assigned duties scheduled that day except to sit in the locker that held spare parts, due 

to his light work status. 

As previously noted, if the alleged injury occurs on premises, and appellant was not 

performing his regular work at the time, OWCP is to obtain a statement from appellant’s official 

superior, C.K. as to what appellant was doing at the time of injury. If there are conflicting 

statements of record, a conference should be held to clarify the information of record. While the 

evidence of record contains statements from S.K., he was not appellant’s official superior. 

OWCP should have asked appellant’s supervisor, C.K., for a statement to clarify whether 

appellant was authorized to be in building 1207 at 1:00 p.m., or whether prior authorization was 

withdrawn and appellant had abandoned his employment. If the record thereafter contains 

conflicting statements, OWCP should conference the case to resolve the conflict. The record 

does not establish that OWCP followed its procedures in denying appellant’s claim as not in the 

performance of duty. 

This case will therefore be remanded for further development of the factual evidence 

from appellant’s official superior. After such proceedings as necessary, OWCP shall issue a 

de novo decision. 

CONCLUSION 

The Board finds that the case is not in posture for decision as to whether appellant 

sustained an injury in the performance of duty on June 30, 2014. 
8

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated February 18, 2016 is set aside and the case is remanded for 

further proceeding consistent with this opinion. 

Issued: August 28, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board