United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.B., Appellant 

and 

U.S. POSTAL SERVICE, CONWAY POST 

OFFICE, Conway, SC, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1839 

Issued: September 20, 2017 

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 16, 2016 appellant, through counsel, filed a timely appeal from a June 24, 

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 to consider the merits of this case. 

ISSUE 

The issue is whether appellant met her burden of proof to establish a traumatic injury in 

the performance of duty on March 17, 2014. 

 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

On appeal counsel contends that appellant was in the performance of duty at the time of 

her motor vehicle accident. 

FACTUAL HISTORY 

On July 24, 2015 appellant, then a 52-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that, during the morning of March 17, 2014, she sustained 

neck, arm, and back injuries as a result of a motor vehicle accident while she was on the way to 

work using her personal vehicle. Her regular work hours were listed 7:00 a.m. to 4:00 p.m., 

Monday through Friday. On the back of the claim form the employing establishment challenged 

the claim as it did not occur in the performance of duty. Appellant stopped work on the date of 

the incident and has not returned. 

By letter dated July 31, 2015, OWCP notified appellant of the deficiencies of her claim 

and afforded her 30 days to submit additional factual and medical evidence. It related that the 

evidence was insufficient to support that she was injured while in the performance of duty. 

OWCP also noted that appellant had not provided a physician’s opinion explaining how her 

injury resulted in a diagnosed condition. 

By letter dated July 31, 2015, the employing establishment controverted appellant’s 

claim. It noted that the March 17, 2014 motor vehicle accident occurred while she was on her 

way to work. Appellant had been assigned a delivery route and a motor vehicle on the date of 

the accident. She was not required to use her personal vehicle to deliver mail on the day in 

question. 

On August 4, 2015 OWCP received a statement from David G. Fram, postmaster, and 

George B. Graham, supervisor at the time of the incident, noting that appellant was not in the 

performance of duty at the time of the motor vehicle accident. They noted that she was rear 

ended in her private motor vehicle on her way to work. Appellant was scheduled that day to 

deliver mail for Route 20, which had an assigned motor vehicle for the delivery route. As there 

was an assigned vehicle, they noted that her vehicle was not hired for delivery of mail that day. 

On August 28, 2015 OWCP received additional factual and medical evidence. 

A March 17, 2014 South Carolina Traffic Collision Report related that appellant’s 

vehicle had been rear ended by another motor vehicle. The accident occurred at 8:30 a.m. on 

E. 155 Cultra Road, Conway, SC. 

In a September 4, 2015 memorandum of conference between OWCP and Charles 

Johnson, an employing establishment human relations (HR) specialist, the claims examiner 

sought clarification from the employing establishment regarding the issue of performance of duty 

as appellant’s work shift began at 7:00 a.m. and the accident occurred at 8:30 a.m. Mr. Johnson 

noted that she was scheduled to drive an employing establishment vehicle that day and not her 

personal vehicle. He further noted that shifts for rural carriers could differ daily, but that 

appellant had not clocked into work at the time of the accident and was on her way to work. 

By decision dated September 4, 2015, OWCP denied appellant’s claim, finding that she 

was not in the performance of duty at the time of the alleged injury. In support of its finding, it 
3

noted that the motor vehicle accident occurred while she was on her way to work in her personal 

motor vehicle, she had been scheduled to use an employment vehicle to deliver mail, and the 

incident occurred before her tour of duty began. 

On October 4, 2015 counsel requested a telephonic hearing before an OWCP hearing 

representative, which was held on May 23, 2016. 

In an October 19, 2015 letter, the employing establishment countered that appellant had 

not been in the performance of duty on the day of the motor vehicle accident and, thus, the injury 

was not employment related. It asserted that she was scheduled to use a postal vehicle that day 

to deliver mail and her vehicle was not in active status at the time she drove to work. 

On November 3, 2015 Mr. Fram responded to two questions posed by OWCP. He noted 

that rural carrier associate employees were given a weekly schedule by the close of business on 

Wednesday prior to the upcoming week. At this point employees were aware of whether they 

would be using an employing establishment vehicle or their own vehicle to deliver mail. In 

cases of an emergency, the employing establishment would contact employees the morning of 

the emergency to advise that they were being called in on an unscheduled day, the route they 

had, and whether their motor vehicle or employing establishment vehicle was to be used. Next, 

Mr. Fram noted that employees were aware in advance as to whether their personal vehicle 

would be rented/hired that day for employing establishment business. 

At the May 24, 2016 hearing, appellant testified that she used her personal motor vehicle 

to deliver mail most of the time. The only time she used a postal vehicle was when she was 

covering for another employee. Appellant testified that she did not know whether she would be 

using a postal vehicle or her own vehicle on March 17, 2014 until she arrived at work and was 

assigned her route for the day. 

By decision dated June 24, 2016, the hearing representative affirmed the denial of 

appellant’s claim. He found that the evidence of record was insufficient to establish that she was 

in the performance of duty at the time of the March 17, 2014 motor vehicle accident. The 

hearing representative also found that the record was devoid of any evidence supporting 

appellant’s contention that it was only after being informed of the motor vehicle accident that the 

employing establishment assigned her to a route with a postal vehicle. 

LEGAL PRECEDENT 

FECA provides for the payment of compensation for the disability or death of an 

employee resulting from a personal injury sustained while in the performance of duty.3

 The 

phrase sustained while in the performance of duty has been interpreted by the Board to be the 

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

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

 3

 5 U.S.C. § 8102(a). See also P.S., Docket No. 08-2216 (issued September 25, 2009). 
4

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

setting, but also the requirement that an employment factor caused the injury.4

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 master’s business; (2) at a 

place where he may reasonably be 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.5

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

employees having fixed hours and places 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. Such injuries are 

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

travelers. There are recognized exceptions which are dependent upon the particular facts relative 

to 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 firefighters; and 

(4) where the employee uses the highway to do something incidental to her employment with the 

knowledge and approval of the employing establishment.6

There are many workers who are required to perform some or all of their duties away 

from the employing establishment’s premises. OWCP procedures include letter carriers in the 

first of four general classes of off-premises workers.7 In determining whether this class of 

employees has sustained an injury in the performance of duty, the factual evidence must be 

examined to ascertain whether, at the time of injury, the employee is within the period of the 

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

fulfilling employment duties or engaged in activities reasonably incidental thereto.8

Once an employee establishes that he or she sustained an injury in the performance of 

duty, he or she has the burden of proof to establish that any subsequent medical condition or 

disability for work, for which he or she claims compensation, is causally related to the accepted 

injury.9

ANALYSIS 

OWCP denied appellant’s claim as it found that she was not in the performance of duty at 

the time of the March 17, 2014 motor vehicle accident. The record establishes that appellant was 

 4 A.K., Docket No. 09-2032 (issued August 3, 2010); C.O., Docket No. 09-217 (issued October 21, 2009). 

5 T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006). 

6 See J.N., Docket No. 14-1764 (issued December 2, 2015). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(a) (August 1992). 

8 Thomas E. Keplinger, 46 ECAB 699 (1995). 

9 Michael E. Smith, 50 ECAB 313 (1999). 
5

a rural carrier associate working Monday through Friday with the usual hours of 7:00 a.m. to 

4:00 p.m. She was on her way to work on March 17, 2014, driving her personal vehicle, when 

she was rear ended by another vehicle at 8:30 a.m. The Board finds that appellant has not 

established that she was in the performance of duty at the time of her alleged traumatic injury. 

The basic test of coverage in each case of reported injury sustained while an employee is 

traveling to or from home and work in a personal vehicle is whether the employing establishment 

knew about and consented to the employee’s use of a personal vehicle to perform his or her 

duties. The facts pertaining to the use of a privately-owned vehicle must be developed and each 

case must meet the other requirements that generally apply to establish that the employee was in 

the performance of duty, i.e., traveling the most direct route.10 

The record contains no evidence that appellant’s personal vehicle had been scheduled to 

be used by the employing establishment on March 17, 2014 for the delivery of mail. Appellant 

acknowledged at the hearing that there were times an employing establishment vehicle was used 

instead of her personal vehicle to deliver mail. Mr. Fram, postmaster, informed OWCP that she 

had been scheduled to deliver mail for route 20, which had an assigned employing establishment 

motor vehicle for the delivery route, on March 17, 2104. He further noted that appellant’s 

vehicle was not hired by the employing establishment for delivery of mail that day. In response 

to a request for clarification from OWCP, Mr. Fram reported that weekly schedules were posted 

for rural carrier associate employees by close of business on the Wednesday prior to the 

upcoming week. Information was also provided including whether or not the employee would 

be assigned an employing establishment vehicle or whether they would be required to use their 

own vehicle to deliver mail. Mr. Fram further noted that, when there was an emergency, 

employees would be contacted that, morning and informed that they were being called in on an 

unscheduled day, the assigned route they would have, and whether employing establishment 

vehicle was assigned. He also indicated that advance notice was given as to whether the 

employee’s personal vehicle would be rented/hired. Mr. Johnson, HR specialist, agreed with 

Mr. Fram that appellant had not been scheduled to use her personal vehicle on March 17, 2014.11 

In David P. Sawchuck,

12 claimant was a rural carrier who, while delivering mail in his 

personal vehicle, was injured when he lifted a damaged window from his personal vehicle. The 

Board found that claimant was injured while he was engaged in his master’s business of 

delivering mail and the injury occurred at a place where he was expected to be in connection 

with his employment. Although the vehicle involved in the incident was the claimant’s personal 

vehicle, the employing establishment did not controvert that the use of this vehicle was 

mandatory for appellant’s employment as a rural route carrier. Unlike in Sawchuck, appellant’s 

allegations that she was in the performance of duty at the time of the accident as she needed to 

 10 See S.L., Docket No. 14-1591 (issued December 24, 2014). The Board found that appellant was a rural carrier 

who was traveling from work to home in her personal vehicle with the knowledge and consent of her employing 

establishment; however, her injury did not occur in the performance of duty due to a deviation. Even if appellant’s 

travel is covered under FECA, the timing of the injury must be within a reasonable interval before or after her work 

shift and she must be engaged in preparatory or incidental acts that benefit her employing establishment.

11 See supra note 6. 

12 57 ECAB 316 (2006). 
6

drive her personal vehicle to work were contradicted by statements from the employing 

establishment. 

The Board finds that appellant was a rural carrier who was traveling from home to work 

in her personal vehicle. There is no evidence that appellant was required to drive her own 

vehicle for delivery of mail on the day in question with the knowledge and consent of the 

employing establishment. Counsel argued that she used her personal vehicle 95 percent of the 

time and that, prior to arriving at work, she had no way of knowing whether she would be 

required to use her personal vehicle or an employing establishment vehicle. As noted above, 

appellant provided no evidence corroborating this allegation, which the employing establishment 

controverted through established policy. Counsel disagreed that appellant had knowledge that 

her personal vehicle would not be used that day for work. No evidence was provided by counsel 

to support that contention, however. 

The Board finds that the evidence of record does not establish an applicable exception to 

the going to and coming from rule. Appellant therefore was not in the performance of duty at the 

time of the March 17, 2014 motor vehicle accident and OWCP properly denied her claim.13

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 was not in the performance of duty when she sustained her 

alleged injuries on March 17, 2014. 

 13 See Jon Louis Van Alstine, 56 ECAB 136 (2004) (find that the employee did not fall within the exception to the 

general rule, the Board denied coverage where the claimant sustained an off-premises injury while riding his 

motorcycle to work). See also Linda S. Jackson, 49 ECAB 486 (1998). 
7

ORDER 

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

Compensation Programs dated June 24, 2016 is affirmed. 

Issued: September 20, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board