United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.C., Appellant

and

U.S. POSTAL SERVICE, GENERAL MAIL 

FACILITY, Tallahassee, FL, Employer

__________________________________________

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Docket No. 18-0445

Issued: August 14, 2018

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 29, 2017 appellant, through counsel, filed a timely appeal from a 

November 28, 2017 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 has met his burden of proof to establish an injury in the 

performance of duty on December 7, 2016, as alleged.

FACTUAL HISTORY

On December 7, 2016 appellant, then a 60-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he was seriously injured by hard impact when his vehicle ran off 

the road and hit a tree at 9:00 p.m. that day. He stated that he was on official business and noted 

head, rib, and extremity injuries. The claim form indicated that appellant’s duty station was at 

2800 South Adams Street, Tallahassee, Florida, and his regular work hours were 8:00 a.m. to 

5:00 p.m. 

The employing establishment controverted the claim, maintaining that appellant was not 

in the performance of duty, noting that he was off the clock and had deviated from the direct line 

of travel to retrieve his vehicle from a repair shop while travelling home. It also noted that no 

medical documentation had been submitted. 

By development letter dated January 24, 2017, OWCP informed appellant of the 

deficiencies of his claim and advised him of the type of medical and factual evidence needed to 

establish the claim. It afforded him 30 days to submit the necessary evidence. In a note to the 

employing establishment, OWCP stated that, if appellant had been treated at an employing 

establishment medical facility, his treatment notes should be submitted to OWCP. 

In an undated response, appellant indicated that on the date of injury he went to work, and 

after delivering mail for about three miles, his personal vehicle that he used for mail delivery,

broke down. He called his supervisor and a tow truck which took him back to the employing 

establishment and then towed his SUV to AAA1 Transmission to be repaired. Appellant related 

that he used an employing establishment long life vehicle (LLV) to complete his route, and that 

when he returned the LLV, the night supervisor advised him at 9:00 p.m. that he had permission 

to pick up his personal vehicle. He stated that he needed his personal vehicle for work the next 

day, and that the postmaster, day and night supervisors, were aware that he had to deviate from his 

usual route home to pick up his vehicle, which had been repaired. Appellant reported that his wife 

picked him up and took him to AAA1 Transmission where he picked up his personal vehicle. He 

indicated that the motor vehicle accident at issue occurred in front of the employing establishment 

as he was driving home, and that he was hospitalized for one week following the accident.

3

 

Dr. Colby Scott Redfield, Board-certified in emergency medicine, completed a Tallahassee 

Memorial Healthcare, Inc. emergency department report dated December 7, 2016. He reported a 

history that appellant’s mail truck had hit a tree, and that he had been transported to the hospital 

by emergency services. Dr. Redfield noted appellant’s complaint of right rib and right abdominal 

pain. Physical examination demonstrated multiple facial lacerations, chest abrasions, and a deep 

laceration of the right lower leg which was repaired. Chest x-ray demonstrated right-sided rib 

 

3 The employing establishment is located at 2355 Centerville Road, Tallahassee, Florida. AAA1 Transmission is 

located at 1023 North Monroe Street, Tallahassee, Florida.
3

fractures. Head and cervical spine computerized tomography (CT) scans demonstrated no acute 

injuries. Torso CT scan demonstrated multiple bilateral rib fractures, hemoperitoneum, and 

possible liver fracture. Facial CT scan demonstrated nasal fracture. Dr. Redfield diagnosed 

contusion, fracture, laceration, head injury, neck injury, and noted that lacerations were repaired. 

Dr. Shelby L. Blank, a Board-certified surgeon, examined appellant after he was admitted

on December 6, 2017. She noted a history that he was transported to the hospital after running his 

truck into a tree. Dr. Blank advised that appellant was alert and oriented, in no acute distress, and 

mildly confused. Following physical examination, she diagnosed bilateral rib fractures, liver 

contusion, mild mental status changes, nasal and facial abrasions and fractures, and lower 

extremity lacerations, which had been repaired in the emergency department. 

On February 1, 2017 Dr. L. Chris DeRosier, a Board-certified plastic surgeon, noted that 

appellant developed a hematoma on his leg following a car accident. He advised that appellant 

could not work until March 1, 2017 and that surgery was pending. 

In a January 5, 2017 statement, R.W., manager of customer service, reported that, on 

December 7, 2016 appellant, a rural carrier, was involved in a single vehicle accident at 

approximately 9:00 p.m. He noted that appellant reported to work in his personal vehicle at 7:00 

a.m., and that at approximately 11:00 a.m. appellant called to state that his SUV had broken down, 

and that he needed an LLV. R.W. related that a tow truck driver brought appellant back to the 

employing establishment, that appellant finished his route in the LLV, and signed out at 8:10 p.m. 

Appellant then retrieved his personal vehicle at some time during the period between 8:10 p.m. 

and 9:00 p.m. when he was involved in a single vehicle accident. R.W. indicated that it was the 

employing establishment’s contention that appellant was not in the performance of duty for two 

reasons. First, because appellant had not used his personal vehicle to finish his route and, therefore, 

would not be covered for the drive home. Second, because he had deviated from a direct line of 

travel to retrieve his vehicle from the shop. 

By decision dated March 2, 2017, OWCP denied appellant’s claim. It found that he was 

not in the performance of duty at the time of the December 7, 2016 motor vehicle accident because 

he had deviated from his usual route home to conduct personal business. 

On March 14, 2017 appellant, through counsel, timely requested a hearing before an

OWCP hearing representative. Counsel submitted evidence previously of record, and a Step 1 

grievance denial by the employing establishment which indicated that appellant was not on the 

clock when he had the accident and had deviated on the trip home when he had the accident at 

9:00 p.m., noting that he left at 8:10 p.m.4 

An unsigned, partial copy of a State of Florida traffic crash report indicated that a single 

vehicle accident was reported at 8:58 p.m. on December 7, 2016, that it occurred on Centerville 

 

4 Appellant’s union had provided a detailed statement of disputed facts. It maintained that after appellant left AAA1 

Transmission he was following his normal line of travel when he lost control of his vehicle and hit a tree, suffering a 

head injury among other conditions. The union indicated that he was discharged from the hospital on 

December 12, 2016. Correspondence dated February 13, 2017 indicated that appellant’s union appealed the Step 1 

grievance denial. 
4

Road 35-feet south of the intersection with Centre Point Boulevard, that appellant was driving,

that he had run off the right side of the roadway, and that he had nonincapacitating injuries. 

Medical evidence submitted included an undated report from Dr. Blank indicating that 

appellant was off work for one month due to the December 7, 2016 motor vehicle accident. A 

form dated January 12, 2017, indicated that appellant was discharged from the wound care center 

pending results of an ultrasound on his left leg. A left thigh CT scan order with an illegible 

signature noted pertinent history of a motor vehicle accident in December 7, 2016, now with large 

left thigh mass, likely fluid collection vs. hematoma. On March 28, 2017 Dr. DeRosier noted that 

appellant had a large traumatic injury to his left thigh that required extensive surgery and 

subsequent fairly intensive care for wound healing, with recovery extending until June 2, 2017. 

On June 9, 2017 Scott O. Burkhart, Psy.D., clinical director of a concussion center, 

indicated that appellant was under his care and should not return to work until July 10, 2017. He

noted that appellant was seen again on June 29, 2017. In an undated report, Dr. Burkhart related

that appellant had been his patient since June 9, 2017 for a concussion sustained on 

December 7, 2016. He noted that appellant had been experiencing cognitive dysfunction in areas 

of attention, concentration, and memory and could also have difficulty in making judgment 

decisions, both personal and financial. Dr. Burkhart opined that appellant’s cognitive difficulties 

and challenges were the direct result of the December 7, 2016 injury. On July 24, 2017 he referred 

appellant for vision therapy. 

During the hearing, held on September 14, 2017, appellant described the events of 

December 7, 2017, indicating that his wife picked him up after work and took him to the vehicle 

repair shop. He testified that he did not remember how the motor vehicle accident happened and 

perhaps he had the wreck due to exhaustion because he was working 12 to 14-hour days. Counsel

maintained that, because the employing establishment told appellant that he would need his vehicle 

the next day, appellant was in the performance of duty when picking it up, that he was reimbursed 

mileage for the use of his personal vehicle, and that he now had a traumatic brain injury and had 

not returned to work. 

By decision dated November 28, 2017, an OWCP hearing representative affirmed the 

March 2, 2017 decision. She found that appellant was not in the performance of duty because, at 

the time of the December 7, 2016 motor vehicle accident, he was conducting personal business 

and had deviated from his direct route home. 

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 his or her employment. Liability does not 

attach merely upon the existence of an employee/employing establishment relation. Instead, 

Congress provided for the payment of compensation for “the disability or death of an employee 

resulting from personal injury sustained while in the performance of his duty.”

5

 The phrase “while 

in the performance of duty” has been interpreted by the Board to be the equivalent of the commonly 

 

5 5 U.S.C. § 8102(a); Angel R. Garcia, 52 ECAB 137 (2000).
5

found prerequisite in workers’ compensation law of “arising out of and in the course of 

employment.” 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 [stated] 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.”

6

 In deciding whether an injury is covered by FECA, the test is whether, under 

all the circumstances, a causal relationship exists between the employment itself, or the conditions 

under which it is required to be performed, and the resultant injury.7

The Board has also recognized as a general rule that off-premises injuries sustained by 

employees having fixed hours and place of work, while going to or coming from work, are not 

compensable as they do not arise out of and in the course of employment. Rather, such injuries 

are merely the ordinary, nonemployment hazards of the journey itself, which are shared by all 

travelers.8 Due primarily to the myriad of factual situations presented by individual cases over the 

years, certain exceptions to the general rule have developed where the hazards of travel may fairly 

be considered a hazard of employment. Exceptions to the general coming and going rule have 

been recognized, which are dependent upon the relative facts of each claim: (1) where the 

employment requires the employee to travel on the highways; (2) where the employing 

establishment contracts to and does furnish transportation to and from work; (3) where the 

employee is subject to emergency calls, as in the case of firefighter; (4) where the employee uses 

the highway to do something incidental to his or her employment with the knowledge and approval 

of the employing establishment; and (5) where the employee is required to travel during a curfew 

established by local, municipal, county, or state authorities because of civil disturbances or other 

reasons.9 OWCP procedures indicate: 

“Where the Employment Requires the Employee to Travel. This situation will not 

occur in the case of an employee having a fixed place of employment unless on an 

errand or special mission. It usually involves an employee who performs all or 

most of the work away from the industrial premises, such as a chauffeur, truck 

driver, or messenger. In cases of this type, the official superior should be requested 

to submit a supplemental statement fully describing the employee’s assigned duties 

and showing how and in what manner the work required the employee to travel, 

whether on the highway or by public transportation. In injury cases a similar 

statement should be obtained from the injured employee.”

10

It is a well-established principle that where the employee, as part of his or her job, is 

required to bring along his or her own car, truck, or motorcycle for use during the working day, 

 

6 George E. Franks, 52 ECAB 474 (2001).

7 Mark Love, 52 ECAB 490 (2001).

8 See R.G., Docket No. 16-1419 (issued December 6, 2016).

9

Id.

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.6(b) (August 1992).
6

the trip to and from work is by that fact alone embraced within the course of employment.11 

Because rural carriers may use their own transportation to deliver their routes, which is a benefit 

to the employing establishment, they may be deemed to be in the performance of their duties when 

they are driving their vehicles to and from their route, when they are required by the employing 

establishment to provide their own transportation.12

The Board has also recognized the special errand exception to the going to and coming 

from work rule. When the employee is to perform a special errand, the employing establishment

is deemed to have agreed, expressly or impliedly, that the employment service should begin when 

the employee leaves home to perform the errand. Ordinarily, cases falling within this exception 

involve travel which differs in time or route or because of an intermediate stop, from the trip which 

is normally taken between home and work. In such a case, the hazard encountered in the trip may 

differ somewhat from that involved in normally going to and returning from work. However, the 

essence of the exception is not found in the fact that a greater or different hazard is encountered,

but in the agreement to undertake a special task. For this reason, coverage is afforded from the 

time the employee leaves home, even though in time and route the journey may be, in part, identical 

to that normally followed in going to work.13

ANALYSIS

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

The facts indicate that on December 7, 2016 appellant was delivering mail in his personal 

vehicle when it broke down. He had it towed to AAA1 Transmission, and finished his route in an 

employing establishment LLV. After appellant signed out at 8:10 p.m., his wife picked him up 

and took him to AAA1 Transmission to pick up his repaired vehicle. Appellant alleges that he had 

to pick up his vehicle following work on December 7, 2016 because he needed it to perform his 

work the next day. The accident occurred as he was driving away from the repair shop, allegedly 

heading to his home.

The Board finds that the case record as transmitted to the Board is insufficient and would 

not permit an informed adjudication of the case by the Board. There is insufficient evidence 

regarding the employing establishment’s policy regarding use of a personal vehicle by a rural 

carrier, particularly as it is relevant to whether appellant was required to use his personal vehicle 

each day and whether he would have needed his vehicle to perform his employment duties on 

December 8, 2016. Once OWCP has begun investigation of a claim, it must pursue the evidence 

as far as reasonably possible, particular when such evidence is in the possession of the employing 

establishment and is, therefore, more readily accessible to OWCP.14

 

11 Lex K. Larson, Larson’s Workers’ Compensation, § 15.05 (2013).

12 L.T., Docket No. 09-1798 (issued August 5, 2010).

13 D.T., Docket No. 11-0751 (issued March 12, 2012).

14 J.C., Docket No. 15-1517 (issued February 25, 2016); T.M., Docket No. 14-1631 (issued December 2, 2014).
7

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence to see that justice is done.15 The 

Board finds that the claims examiner did not sufficiently develop the factual evidence as required 

by its procedures by obtaining a statement from appellant’s official superior describing the manner 

in which the work required the employee to travel with his own vehicle as a rural carrier.

16

 OWCP 

should have attempted to ascertain additional information from the employing establishment

including whether appellant was required to have his personal vehicle to deliver mail and, if so 

whether he was told on December 7, 2016 that he had to have it for mail delivery the next day. 

Accordingly, the November 28, 2017 decision will be set aside and the case remanded for 

further development including, but not limited to evidence from the employing establishment

evidence regarding its policies on personal vehicle use by rural carriers or any agreements between 

appellant and the employing establishment regarding the use of his own vehicle. 

Following this and such further development deemed necessary, OWCP shall issue a de 

novo decision on the merits of appellant’s claim.

CONCLUSION

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

 

15 See Phillip L. Barnes, 55 ECAB 426 (2004).

16 Supra note 10. 
8

ORDER

IT IS HEREBY ORDERED THAT the November 28, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for proceedings 

consistent with this opinion of the Board.

Issued: August 14, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board