United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.B., Appellant 

and 

DEFENSE AGENCIES, DLA DISTRIBUTION 

REGION EAST, Fort Belvoir, VA, Employer 

__________________________________________ 

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Docket No. 14-1265 

Issued: July 27, 2015 

Appearances: Oral Argument June 23, 2015 

Robert Boutselis, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 9, 2014 appellant, through his representative, filed a timely appeal from a 

November 26, 2013 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 that he sustained an 

injury in the performance of duty on March 29, 2013. 

FACTUAL HISTORY 

On April 10, 2013 appellant, then a 32-year-old distribution process worker, filed a 

traumatic injury claim (Form CA-1) alleging that on March 29, 2013 he sustained a right strained 

Achilles while he was participating in the employing establishment’s wellness program at the 

 1

 5 U.S.C. § 8101 et seq.
2

fitness center located on the employing establishment’s premises. He reported that he was 

playing basketball with coworkers when he came down on his foot and sustained his injury at 

2:00 p.m. When his condition did not improve, appellant sought treatment on April 3, 2013 

where he was diagnosed with Achilles strain. He notified his supervisor on April 11, 2013. 

Appellant stated that his normal work hours were Monday through Friday from 6:00 a.m. to 2:30 

p.m. Her supervisor, Andrew Headley, controverted the claim stating that appellant was not in 

the performance of duty. 

By letter dated April 19, 2013, OWCP informed appellant that the evidence of record was 

insufficient to support his claim. It afforded him 30 days to submit additional evidence and 

respond to its inquiries. 

By letter of the same date, OWCP requested that the employing establishment respond to 

its inquiries as to appellant’s duties. It asked whether appellant was required to participate in a 

Physical Fitness Plan (PFP), whether the employing establishment derived any benefit from his 

participation in the activity, whether his participation violated any rules or regulations, whether 

the injury occurred on the employing establishment’s premises during regular work hours, 

whether the employing establishment provided leadership, equipment, or facilities, and requested 

a copy of the employing establishment’s PFP. 

In an April 12, 2013 witness statement, Jayson T. Johnson, a fellow coworker, reported 

that he drove appellant to the fitness center on base for an hour of wellness and fitness. He stated 

that he witnessed appellant injure himself while playing basketball on March 29, 2013. 

In an April 16, 2013 narrative statement, appellant reported that he had previously injured 

his left bicep on March 4, 2013 while lifting material at work but did not report the injury 

because he did not want to jeopardize his employment. He stated that he had no disciplinary 

actions in his career. 

In support of his right ankle injury, appellant submitted medical reports documenting 

treatment from Dr. Ernest R. Rubbo, a Board-certified orthopedic surgeon. 

By letter dated April 24, 2013, Jenny Potts, appellant’s supervisor, responded to OWCP 

questionnaire stating that appellant was not required to participate in the PFP program. She 

noted that participation was voluntary by filling out the Defense Logistics Agency (DLA) Form 

1939 for approval/authorization from his supervisor. Ms. Potts alleged that appellant did not 

submit this form and was not participating in the PFP program. She further stated that the 

employing establishment did not derive any benefit from appellant’s participation and the 

program was voluntary. When asked if appellant’s participation violated any rules or 

regulations, Ms. Potts stated that he was not authorized to leave the worksite at the time of the 

injury, explaining that the injury occurred at 2:00 p.m. during his regular work hours. She noted 

that the employing establishment did not provide leadership, equipment, or facilities to appellant 

for the activity. 

By letter dated May 21, 2013, the employing establishment controverted the claim 

arguing that appellant was not in the performance of duty at the time he sustained his injury. It 

provided a copy of the DLA Civilian Wellness and Fitness Program, which was implemented in 
3

December 2012. The employing establishment noted that the program permitted eligible 

employees to voluntarily participate in wellness/fitness program during the workday for a 

maximum of one-hour a day, three times a week. Activities were expected to be cardiovascular 

and aerobic in nature, addressing endurance, muscular strength, flexibility, and body 

conditioning. The employing establishment enclosed a series of “Frequently Asked Questions” 

which addressed some of the more common aspects of the program. 

The employing establishment noted that a required condition of participation was that 

employees must initiate a written request to their first level supervisor, including the projected 

times, location, and nature of the fitness activity(ies) they would be doing. Additionally, 

employees were required to maintain an appropriate accountability of time and attendance to 

report their participation in the program. This included ensuring that the supervisor was aware of 

specific times/dates that the employee was participating in wellness/fitness programs. Locally, 

appellant’s organization had established a sign-out policy to meet this requirement. It stated that 

review of the employing establishment’s administrative records indicated that appellant did not 

complete the wellness/fitness program participation request as required, nor did he sign out of 

the office on the date of injury. As such, appellant did not have express supervisory approval for 

his work absence. The employing establishment further noted that a review of official time and 

attendance records indicated that he was not on administrative leave connected to participation in 

the wellness/fitness program on the date of injury. It stated that Ms. Potts was a knowledgeable 

supervisor who had previously addressed the employing establishment concerns and provided an 

official response to OWCP’s April 19, 2013 development letter. For the reasons above, the 

employing establishment argued that appellant was not in the performance of duty when he was 

injured playing basketball. 

In support of its controversion, the employing establishment provided a blank unsigned 

copy of a Request for Approval of Administrative Leave for Civilian Fitness Activities, a copy of 

the DLA Civilian Wellness and Fitness Program Employer Guidelines Agreement Form, 

Wellness and Fitness Frequently Asked Questions, a Memorandum for Employees regarding the 

DLA Civilian Wellness and Fitness Program, and a Memorandum for Headquarters and DLA 

Primary Level Field Activities for the DLA Fitness Program (Directive Type Memorandum 

(DTM)-13-002). 

The Memorandum for Headquarters and DLA Primary Level Field Activities for the 

DLA fitness program describes the purpose of the program stating: This DTM establishes a 

civilian wellness/fitness program which enhances the well-being of DLA employees and 

contributes to a healthy and productive workforce. Full and part-time civilian employees may 

voluntarily participate in civilian wellness/fitness program during the workday for a maximum of 

one-hour a day, three times a week. The goal is to encourage and motivate employees to develop 

a healthy lifestyle and enhance the quality of work. 

The DTM goes on to describe procedures for participation in the fitness aspect of the 

civilian wellness/fitness program, noting that prior to beginning the program, individuals must 

initiate, via attachment, a written request to the first level supervisor, including the employee’s 

projected times, location, and nature of the fitness activity. The procedures also provide that 

within three workdays of receipt of the employee’s submitted request, the supervisors shall 

provide the employee a response, unless the supervisor is on leave or temporary duty. With the 
4

approval of their supervisor, employees may establish civilian fitness periods at a set time within 

the workday. Employee requests to participate are maintained by their first level supervisor, if 

approved. Copies of all agreements will be kept by supervisors, and organizations are to provide 

a copy upon request to satisfy any reporting requirements. The DTM explains that DLA must 

maintain appropriate accountability of time and attendance and will use information to report 

participation and evaluate the agency civilian fitness/wellness program. Organizations must 

ensure employees and timekeepers enter “LN” in EAGLE for the dates and times employees 

participate in the program. 

The Request for Approval of Administrative Leave for Civilian Fitness Activities notes 

that employees are responsible for keeping their supervisors advised of when and where they are 

participating in wellness/fitness programs. The document further notes that employees may be 

granted a maximum of one-hour a day three times a week of administrative leave during duty 

time for wellness/fitness programs. 

By decision dated May 21, 2013, OWCP denied appellant’s claim finding that the 

evidence of record failed to demonstrate that he sustained an injury on March 29, 2013 in the 

performance of duty as alleged. It indicated that he was not performing regular duties or 

activities incidental to his job and failed to provide documentation to participate in the 

employing establishment’s optional wellness/fitness program. 

On June 7, 2013 appellant requested an oral hearing before the Branch of Hearings and 

Review. 

Appellant responded to OWCP’s April 19, 2013 questionnaire and stated that he was 

injured at 2:00 p.m. when he was participating in the employing establishment’s wellness/fitness 

program on the base fitness center. He stated that the employing establishment’s wellness/fitness 

program was encouraged to adopt a healthy lifestyle and did not require him to have a physical 

examination. Appellant reported that following his injury, he could not put weight down on his 

foot due to pain, but reported back to work as required at 2:15 p.m. 

In support of his claim, appellant submitted an April 30, 2013 statement from Edward 

Purdie, a fellow employee at DLA Distribution Susquehanna, PA. Mr. Purdie stated that his tour 

of duty was Monday thru Friday from 6:00 a.m. to 2:30 p.m. and was assigned to the area known 

as DK under the direct supervision of a coworker. He noted that he was one of many employees, 

along with appellant, who participated in the employing establishment’s wellness/fitness 

program. Mr. Purdie described the process for participation in the program, stating that 

employees were required to fill out the Request for Approval of Administrative Leave for 

Civilian Fitness Activities. He stated that to the best of his knowledge, employees from DK 

were not required to sign-in or out in an established book and were not required to utilize the 

Common Access Card (CAC) for tracking purposes. As of April 22, 2013, DK was assigned 

new supervision under Doug Smith, who instructed employees to fill out OPM-71 Leave Request 

Forms for tracking purposes due to appellant’s injury. 

In a May 1, 2013 narrative statement, Shanan Johnson, a fellow employee, reported that 

his immediate work area was known as DK which was supervised by Brian Taylor, a coworker, 

through April 22, 2013. He stated that in order for employees to participate in the 
5

wellness/fitness program, they were required to fill out the Request for Approval of 

Administrative Leave and submit a schedule of the days, time, and place for participation. 

Mr. Johnson did not recall any discussion about signing in and out within his work area or at the 

fitness center, nor did he recall directive to use the CAC as a tracking method. He noted that he 

would cover himself by noting his times on his Individual Standard Performance (ISP) sheet, 

which was the employing establishment nonelectronic tracking method at that time, and that 

information would be submitted electronically by work leaders or supervisors. Mr. Johnson 

further stated that, since the arrival of their new supervisor Doug Smith, there had been a change 

in the tracking procedure for the wellness/fitness program as employees were required to fill out 

an OPM-71 Leave Request Form. 

At the September 11, 2013 hearing, Robert Boutselis, appellant’s union representative, 

asserted that the employing establishment did not conduct an investigation to determine whether 

appellant submitted the appropriate documentation. He explained that appellant was injured 

during work hours on the employing establishment premises, stating that ISP sheets documented 

that he would be at the fitness center on March 29, 2013 from 1:15 p.m. to 2:15 p.m. 

Mr. Boutselis further argued that no work leader challenged appellant who had documented on 

his ISP sheets that he was participating in the wellness/fitness program. He noted that appellant 

thought he was on administrative leave for the time spent for the wellness/fitness program but 

that his time was actually covered under regular time. 

By decision dated November 26, 2013, the Branch of Hearings and Review affirmed the 

May 21, 2013 decision finding that appellant failed to establish that he was injured in the 

performance of duty on March 29, 2013. It noted that the evidence of record indicated that he 

did not complete the requisite form to participate in the wellness/fitness program. Mr. Headley 

averred that appellant was not in the performance of duty and the employing establishment 

maintained that appellant did not complete the form. While appellant argued that the employing 

establishment was in error, he provided no evidence in support of his claim.2

 

LEGAL PRECEDENT 

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

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

befall an employee contemporaneous or coincidental with his or her employment. Liability does 

not attach merely upon the existence of an employee-employer relation. Instead, Congress 

provided for the payment of compensation for disability or death of an employee resulting from 

personal injury sustained while in the performance of duty.3

 

The Board has interpreted the phrase while in the performance of duty to be the 

equivalent of the commonly found requisite in workers’ compensation law of arising out of and 

 2

 The Board notes that appellant submitted additional evidence after OWCP rendered its November 26, 2013 

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

decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E. 

Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 

3 See 5 U.S.C. § 8102(a). 
6

in the course of employment. In the course of employment deals with the work setting, the 

locale and time of injury whereas, arising out of the employment, encompasses not only the work 

setting but also a causal concept, the requirement being that an employment factor caused the 

injury. In addressing this issue, the Board has stated that 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 or her master’s business; (2) at a place where he or 

she may reasonably be expected to be in connection with the employment; and (3) while he or 

she was reasonably fulfilling the duties of his or her employment or engaged in doing something 

incidental thereto.4

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; or (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.5

OWCP’s procedures address employing establishment PFP’s 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), Forms CA-1 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 PFP.6

ANALYSIS 

Appellant alleged that he sustained a work-related right Achilles injury on March 29, 

2013 when he was playing basketball and participating in the employing establishment’s 

wellness/fitness program. OWCP’s hearing representative denied his claim finding his injury 

was not sustained in the performance of duty. The Board finds that this case is not in posture as 

to whether appellant was in the performance of duty at the time of his March 29, 2013 injury.7

Appellant reported that his injury occurred at 2:00 p.m. during his regular work hours 

while on base at the employing establishment’s fitness center. His injury did not occur during a 

lunch or recreational period as a regular incident of his employment.8 Appellant further testified 

 4 Kathryn S. Graham Wilburn, 49 ECAB 458 (1998). 

5 See Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); A. Larson, The Law of Workers’ Compensation

§ 22.00 (2012). 

6 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.18 (March 1994). 

7 D.M., Docket No. 13-1821 (issued March 26, 2014). 

8 R.P., Docket No. 10-1174 (issued January 19, 2011).
7

that he submitted the required request form to participate in the wellness/fitness program to his 

supervisor and had appropriately noted his times on his ISP sheets. He stated that he did not 

receive administrative leave as expected for his time spent in the wellness/fitness program and 

rather received regular time. 

In its May 21, 2013 letter, the employing establishment argued that appellant’s position 

did not require participation in PFP as the program was voluntary and he was not in the 

performance of duty at the time of his injury. It stated that he was not enrolled in DLA’s PFP 

nor was he injured while participating in a PFP. The employing establishment noted that the 

program permitted eligible employees to voluntarily participate in wellness/fitness program 

during the workday for a maximum of one-hour a day, three times a week of administrative 

leave. A condition of participation in the program required employees to initiate a written 

request to their first level supervisor, including the projected times, location, and nature of the 

fitness activity(ies) they would be doing. Additionally, employees were required to maintain an 

appropriate accountability of time and attendance to report their participation in the program 

which included ensuring that the supervisor was aware of specific times/dates that the employee 

was participating in fitness/wellness activities. The employing establishment stated that locally, 

appellant’s organization had established a sign-out policy to meet this requirement. It noted that 

he did not have express supervisory approval for his work absence as review of administrative 

records indicated that he did not complete the fitness/wellness program participation request as 

required, nor did he sign out of the office on the date of injury. Furthermore, the employing 

establishment noted that a review of official time and attendance records indicated that appellant 

was not on administrative leave connected to participation in the fitness/wellness program on the 

date of injury. 

The Board notes that the response by the employing establishment is insufficient to 

determine whether appellant was participating in DLA’s wellness/fitness program.9

 While the 

employing establishment stated that review of official time and attendance records indicated that 

appellant was not on administrative leave connected to participation in the wellness/fitness 

program on the date of injury, it failed to submit these records in support of its claim. 20 C.F.R. 

§ 10.118(a) provides that the employing establishment is responsible for submitting to OWCP all 

relevant and probative factual and medical evidence in its possession or which it may acquire 

through investigation or other means.10 

The May 21, 2013 employing establishment letter also stated that appellant did not have 

express supervisory approval for his work absence as review of administrative records indicated 

that he did not complete the wellness/fitness program participation request as required, nor did 

he sign out of the office on the date of injury. However, appellant provided statements from 

Mr. Purdie and Mr. Johnson, fellow coworkers, who stated that participation in the program 

required a Request for Approval of Administrative Leave Form and implementation of the 

sign-in/sign-out policy did not begin until April 22, 2013, after appellant’s injury. Mr. Johnson 

further stated that he would cover his participation in the wellness/fitness program by logging his 

 9 See J.L., Docket No. 12-947 (issued March 11, 2013). See generally C.C., Docket No. 13-2177 (issued April 2, 

2014); E.A., Docket No. 11-1845 (issued March 14, 2012); Kenneth B. Wright, 44 ECAB 176, 181 (1992). 

10 20 C.F.R. § 10.118(a). 
8

times on his ISP sheet which would then be electronically submitted by work leaders or 

supervisors. Appellant also stated that his ISP sheet documented that he would be at the fitness 

center on March 29, 2013 from 1:15 p.m. to 2:15 p.m. 

Under FECA, although it is the burden of an employee to establish his or her claim, 

OWCP also has a responsibility in the development of the factual evidence, particularly when 

such evidence is of the character normally obtained from the employing establishment or other 

government source.11 Therefore, the case shall be remanded for further development of the 

factual evidence regarding whether appellant was authorized to participate in the wellness/fitness 

program at the time of his injury on March 29, 2013.12 

On remand, OWCP should request the employing establishment provide copies of the 

ISP sheets for appellant’s supervising area from the date of onset of the wellness/fitness program 

through March 29, 2013, the date of appellant’s injury. It should further request the employing 

establishment provide copies of appellant’s official time and attendance records from the date of 

onset of the program through March 29, 2013 which identifies the number of hours worked and 

type of leave used. OWCP should request the employing establishment provide any other 

documentation used in its investigation to determine that appellant was not authorized to 

participate in the wellness/fitness program, including the “sign-out sheets” it references and the 

time and attendance records submitted under EAGLE for the period in question. The Board also 

notes that the employing establishment’s April 24, 2013 response to OWCP’s development letter 

indicated that appellant was not authorized to leave the worksite to participate in the program at 

the time of injury, yet it failed to respond to OWCP’s inquiry as to the manner in which the rule 

or regulation was enforced. OWCP should request further clarification from the employing 

establishment regarding appellant’s alleged violation of the employing establishment rules or 

regulations and the manner in which they were enforced. After such further development as it 

deems necessary, it should issue an appropriate decision on this matter.13

CONCLUSION 

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

 11 Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James Clark, 39 ECAB 1311, 1318-19 (1988). 

12 Colleen A. Murphy, Docket No. 01-1319 (issued November 6, 2002). 

13 S.D., Docket No. 13-90 (issued August 22, 2013). 
9

ORDER 

IT IS HEREBY ORDERED THAT the November 26, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board. 

Issued: July 27, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board