United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.P., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Chicago, IL, Employer 

__________________________________________ 

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Docket No. 17-0409 

Issued: May 17, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 December 14, 2016 appellant filed a timely appeal from a September 30, 2016 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish an injury in the 

performance of duty on May 16, 2011 as alleged. 

FACTUAL HISTORY 

On May 18, 2011 appellant, then a 66-year old supervisory rehabilitation technician, filed 

a traumatic injury claim (Form CA-1) alleging that on May 16, 2011 he was leaving the 

 1

 5 U.S.C. § 8101 et seq.
2

employing establishment at approximately 6:00 p.m. when he stumbled and fell onto his face. 

He alleged that he sustained a head injury including a laceration which required three stitches. 

On the reverse of the claim form, appellant’s supervisor indicated that appellant’s regular work 

hours were from 8:00 a.m. until 4:30 p.m. The form question regarding whether appellant was in 

the performance of duty was unanswered and left blank. 

On July 11, 2011 Dr. Peter B. Letarte, a Board-certified neurosurgeon, examined 

appellant due to several falls “indicating gait instability.” Appellant submitted a July 28, 2011 

note from Dr. Bharat Samy, a Board-certified internist, which indicated that appellant had fallen 

in May and sustained a head laceration. Dr. Samy noted that the likely etiology of appellant’s 

fall was his left hip replacement and an unsteady gait as he had no loss of consciousness. 

Dr. James A. Cummings, an internist, diagnosed laceration on October 17, 2011 and noted that 

appellant had lost his balance and fallen on May 16, 2011. 

On July 29, 2011 appellant noted that OWCP had previously accepted a left rotator cuff 

tear on March 23, 2011.2

 He fell again on May 16, 2011 and believed that his falls were caused 

by spinal stenosis resulting in cervical myelopathy. 

Appellant retired from the employing establishment on December 31, 2012. 

Appellant filed a recurrence claim (Form CA-2a) on May 17, 2016 alleging that on 

May 16, 2011 between 4:00 p.m. and 5:00 p.m. he had sustained a fall in the performance of 

duty resulting in a head laceration. He was leaving work and walking to the parking lot when he 

fell head first down an aluminum ramp leading to the parking lot. 

In a letter dated April 13, 2016, OWCP informed appellant that, when his 2011 claim had 

been received, it appeared to be a minor injury that resulted in minimal or no lost time from 

work. Based on this, payment of a limited amount of medical expenses had been 

administratively approved without formal consideration of the merits of his claim. OWCP 

advised him that the claim would be reopened because he filed a claim for a recurrence of 

disability. 

By decision dated May 16, 2016, OWCP denied appellant’s traumatic injury claim 

finding that he had not established a causal relationship between his diagnosed condition and an 

employment incident. 

Appellant requested reconsideration on July 18, 2016 and explained that he experienced 

two falls: one on March 23, and one on May 16, 2011. He noted that he injured his head on 

both occasions and the second fall resulted in stitches. Appellant indicated that he was seeking 

treatment for lack of balance, weakness in both legs, and the inability to move around without a 

cane or walker. He indicated that while awaiting surgery for his left shoulder condition he 

sustained a second fall. Appellant was unaware of whether the first fall caused the second fall or 

whether the second fall resulted in his ongoing loss of balance, weakness in both legs, and 

inability to walk without a cane or walker. 

 2

 The claim for the March 23, 2011 injury, adjudicated under OWCP File No. xxxxxx226, is not presently before 

the Board. 
3

On July 28, 2016 OWCP requested additional evidence from the employing 

establishment regarding appellant’s May 16, 2011 fall. In a separate letter dated July 28, 2016, it 

informed appellant that the evidence was insufficient to establish that he was injured in the 

performance of duty on May 16, 2011. OWCP requested that appellant respond to specific 

factual inquires. 

Appellant responded to OWCP’s request for information on August 8, 2016 and noted 

that on May 16, 2011 he was leaving the employing establishment and walking to the parking 

lot. He fell while walking down a metal ramp attached to the curb. Appellant landed on 

concrete hitting his head first. He noted that he was frequently required to work overtime 

depending on the circumstances of the day. Appellant concluded, “I do not recall why I stayed 

late on that day.” 

Appellant submitted a note dated May 16, 2011 from Dr. Tonye Teme, an internist, 

indicating that appellant fell leaving the employing establishment premises and sustained a 

laceration to his left eyebrow. Following his initial fall on March 23, 2011 he started to walk 

with the aid of a walker. Appellant also submitted an August 19, 2016 note from Dr. Alicia 

Myers, a chiropractor. 

By decision dated September 30, 2016, OWCP modified its prior decision to find that 

appellant had not established that the incident on May 16, 2011 occurred in the performance of 

duty. It found that appellant’s fall occurred outside his regular-duty hours as there was no 

evidence presented to show that he was authorized to work past his regular shift and was, 

therefore, not in the performance of duty.3

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.4 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.5

 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

 3

 OWCP also found that, assuming appellant was in the performance of duty on May 16, 2011, the medical 

evidence did not establish a causal relationship between the claimed condition and the incident. 

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

24 (1985). 

5 See 5 U.S.C. § 8101 et seq.
4

in the course of employment.”6 “In the course of employment” deals with the work setting, the 

locale, and time of injury.7

 In addressing this issue, the Board has held: 

“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 

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.”8

This alone is insufficient 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.9

The Board has included within the performance of duty a reasonable interval before and 

after work to allow for coming and going, as well as personal ministrations, such as lunch or 

bathroom breaks, engaged in for the benefit of the employing establishment.10 If the injury does 

not take place during those periods or on employing establishment premises, the Board will place 

special emphasis on whether the employee was engaged in an activity related to fulfilling the 

duties of his employment.11 The Board has denied compensation to an employee who tripped on 

a loose floorboard after arriving at work 25 minutes early to get coffee and breakfast.12 In 

George E. Franks,

13 an employee failed to establish an injury in the performance of duty with 

respect to a fall in the parking lot of an Army base that occurred 45 minutes prior to the start of 

his shift. The Board found that the action he was performing at the time, getting coffee and 

breakfast, was solely personal in nature. In John F. Castro,

14 the Board granted recovery when 

an employee was injured in an automobile accident at a naval station five minutes after the end 

of his shift. In Michael A. Hazzard,

15 the Board found that no evidence was presented that 

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

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

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

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

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

11 See Venicee Howell, 48 ECAB 414 (1997); Narbik A. Karamian, 40 ECAB 617 (1989). 

12 T.F., Docket No. 09-154 (issued July 16, 2009). 

13 52 ECAB 474 (2001). 

14 Docket No. 03-1653 (issued May 14, 2004). 

15 Docket No. 05-1514 (issued November 4, 2005). 
5

appellant’s presence on the premises an hour and a half after his shift ended was required by his 

employment or in the furtherance of his employer’s business such that his injury occurred in the 

performance of duty. 

ANALYSIS 

The Board finds that appellant has not met his burden of proof to establish that his 

May 16, 2011 fall occurred in the performance of duty, as alleged. 

Appellant filed a traumatic injury claim on May 18, 2011 and indicated that he fell on 

May 16, 2011 at 6:00 p.m. while leaving the employing establishment premises. The employing 

establishment indicated that appellant’s regular-duty hours were from 8:00 a.m. until 4:30 p.m. 

Appellant was unable to recollect why he remained on the employing establishment premises for 

an hour and a half after his work shift ended and he failed to present any evidence, such as 

payroll records to establish his activity prior to the fall. As in Hazzard16 no evidence was 

presented that appellant’s presence on the premises after work was required as a condition of his 

employment or that he was involved in any activity reasonably incidental to his employment 

during that period of time. Therefore, he was not in the course of his federal employment at the 

time of injury. Appellant was present on the employing establishment’s premises, but has not 

established that he was engaged in any activity in furtherance of the employer’s business or any 

activity incidental thereto. Thus, the Board finds that appellant has failed to establish that he 

sustained an injury in the performance of duty. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish an injury in 

the performance of duty on May 16, 2011, as alleged. 

 16 Id. 
6

ORDER 

IT IS HEREBY ORDERED THAT that September 30, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 17, 2017 

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