United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.A., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Covington, KY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0231 

Issued: July 10, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 9, 2016 appellant, through counsel, filed a timely appeal from an 

October 13, 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

 20 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether appellant met his burden of proof to establish an employmentrelated injury in the performance of duty on November 2, 2015. 

FACTUAL HISTORY 

On November 4, 2015 appellant, then a 41-year-old information technology specialist, 

filed a traumatic injury claim (Form CA-1) alleging that on November 2, 2015 at 4:20 p.m., he 

sustained shattered bones in his left wrist, a fracture of the right fibula below the knee, and 

possible damage of the lateral collateral ligament. He noted that he had gone into the office to 

retrieve case work and to meet with a grievant and, on his return home to finish his day with 

telework, his vehicle was struck by another vehicle while traveling through a green light. A 

supervisor checked a box indicating that appellant was not injured in the performance of duty, 

noting that he was traveling from one duty station to another. The supervisor requested further 

development on the issue of performance of duty for this reason. 

By letter dated November 17, 2015, OWCP requested that appellant submit additional 

factual and medical evidence in support of his claim. It noted that the employing establishment 

had indicated that he was not in the performance of duty at the time of the motor vehicle incident 

because he was traveling from one duty station to another. OWCP requested that appellant 

provide a detailed description of the incident, a report from law enforcement, any statements 

from witnesses, and provide further information as to whether he was performing regularly 

assigned duties at the time of the incident. 

In a traffic collision report dated November 2, 2015, a law enforcement officer noted that 

appellant’s vehicle had been struck by another vehicle that failed to stop at a red traffic signal at 

an intersection onto Interstate 75. 

In an e-mail dated December 3, 2015, a union officer noted that appellant was on a 

motorcycle when he was struck. The union officer further noted that appellant had visited the 

union office, worked on some cases, and then waited for an appointment with an employee. The 

employee with an appointment did not show up, and appellant left at around 4:00 p.m. to return 

home to continue work. The union officer noted that appellant was still in duty status when the 

incident occurred, using “bank time.” 

In an e-mail dated December 17, 2015, a manager at the employing establishment noted 

that appellant was performing union duties on November 2, 2015 and had asked for “reasonable 

travel time if possible for travel coverage” between the office and appellant’s home. 

By decision dated December 21, 2015, OWCP denied appellant’s claim. It found that he 

was not within the performance of duty at the time of the motor vehicle incident because he was 

commuting between work and home at the time of the incident, despite the fact that he was in 

duty status for that time period. 

On January 12, 2016 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. 
3

The hearing was held on August 30, 2016. At the hearing, counsel argued that the 

incident of November 2, 2015 did not fall within the “coming and going” rule. He asserted that 

appellant’s travel time was compensated and appellant regularly worked from home. Appellant 

noted that if he were called into the office on a day he was regularly scheduled to telecommute, 

he would be afforded travel time in order to have an in-person meeting. Counsel argued that 

travel was an essential element of appellant’s job. 

By decision dated October 13, 2016, the hearing representative affirmed OWCP’s 

December 21, 2015 decision. The hearing representative found that because appellant was not 

going to continue working in a representative capacity when he returned home, when he left the 

union office to return home, it was an act of personal convenience undertaken for his personal 

benefit rather than in fulfillment of his representative function. 

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 

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 held 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

The Board has 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.5 An exception to this rule applies where the employee uses the highway to do 

something incident to his employment, with the knowledge and approval of the employer.6

 3 See 5 U.S.C. § 8102(a). 

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

5 Phyllis A. Sjoberg, 57 ECAB 409 (2006). 

6 Dennis L. Forsgren (Linda N. Forsgren) 53 ECAB 174, 180 (2001); Mary Margaret Grant, 48 ECAB 696, 

703 (1997). 
4

In determining whether an injury occurs in a place where the employee may reasonably 

be or constitutes a deviation from the course of employment, the Board will focus on the nature 

of the activity in which the employee was engaged and whether it is reasonably incidental to the 

employee’s work assignment or represented such a departure from the work assignment that the 

employee becomes engaged in personal activities unrelated to his or her employment.7

With respect to whether injuries arising in the course of union activities are related to the 

employment, the general rule is that union activities are personal, that attendance at a union 

meeting, for example, is exclusively for the personal benefit of the employee and devoid of any 

mutual employer-employee benefit.8

 Under the procedure manual, OWCP has recognized that 

certain representational functions performed by employee representatives benefit both the 

employee and the employing establishment.9

 With regard to representational functions and when 

a person is considered to be on official time, OWCP’s procedure manual provides: 

“When an employee claims to have been injured while performing 

representational functions, an inquiry should be made to the official superior to 

determine whether the employee had been granted official time or in emergency 

cases, would have been granted official time if there had been time to request it. 

If so, the claimant should be considered to have been in the performance of 

duty.”10

ANALYSIS 

Appellant is an employee with fixed hours and a telework arrangement with the 

employing establishment. At the time of the motor vehicle incident, he was in transit returning 

to his home after completing certain representational functions on the premises of the employing 

establishment. As the incident occurred off-premises, it did not occur at a place appellant could 

be reasonably expected to be in connection with his employment. However, counsel argued 

before OWCP’s hearing representative that as travel was an essential element of appellant’s job, 

this journey occurred within the performance of duty. 

The Board finds that appellant was no longer engaging in a representational function at 

the time of the incident. Appellant completed his representational function when he left the 

premises of the employing establishment at 4:00 p.m. As such, the procedure manual’s guidance 

regarding performance of duty during periods when an employee is engaging in a representative 

function is inapposite to this case. Furthermore, appellant has claimed that he was on “official 

time” during his journey from the office to home, and submitted a statement from a union 

official and an e-mail requesting such time from a supervisor. However, he did not submit a 

leave analysis that demonstrates he was actually afforded any “official time” for the period of the 

 7 Supra note 5. 

8 Kelly Y. Simpson, 57 ECAB 197 (2005). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16 (July 1997); see 

K.L., Docket No. 06-2154 (issued February 8, 2007). 

10 Id.
5

journey. As such, there is no evidence of record actually proving the assertion appellant was on 

“official time” at the time of the motor vehicle incident. 

In M.T., Docket No. 16-0927 (issued February 13, 2017), appellant filed a claim for neck, 

shoulder, and right leg injuries as a result of falling on a stairway while relocating his telework 

items from his home to a commissary at the employing establishment. A supervisor stated that 

he had not approved this task, and that appellant did not have permission to travel back and forth 

between his home and his duty station during the workday without prior approval. The Board 

found that because appellant was not performing official duties, he was not within the 

performance of duty at the time of injury. In this case, as in M.T., appellant was not performing 

official or representational duties at the time of the incident. Furthermore, he has not provided 

evidence that he was afforded “official time” for the duration of the journey. Therefore, 

appellant’s journey home must be considered a personal activity unrelated to his employment. 

He was not in a place he could reasonably be expected to be in furtherance of the employing 

establishment’s interests. Appellant has not established that he was performing a task incidental 

to the employing establishment’s interests, or that he was performing a task pursuant to his 

representational status. The Board further notes that a telecommuting work arrangement does 

not, by itself, render travel between the site of telecommute and the premises of the employing 

establishment within the performance of duty.11

The Board therefore finds that appellant did not establish an employment-related injury in 

the performance of duty on November 2, 2015. 

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 failed to establish an employment-related injury in the 

performance of duty on November 2, 2015. 

 11 See Mona M. Tates, 55 ECAB 128 (2003); John B. Shutack, 54 ECAB 336 (2003); Julietta M. Reynolds, 50 

ECAB 529 (1999). 
6

ORDER 

IT IS HEREBY ORDERED THAT the October 13, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 10, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board