United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.T., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, FOOD & DRUG 

ADMINISTRATION, Memphis, TN, Employer 

__________________________________________ 

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Docket No. 16-1710 

Issued: September 27, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 22, 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 April 23, 2015, as alleged. 

 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 argues that the decision is contrary to fact and law. 

FACTUAL HISTORY 

On May 8, 2015 appellant, then a 36-year-old consumer safety officer, filed a traumatic 

injury claim (Form CA-1) alleging that at 6:15 p.m. on April 23, 2015, she sustained face, neck, 

back, shoulder, and right knee injuries when her government vehicle was struck by a sport utility 

vehicle (SUV) that ran a red light. She noted that she was on travel status and that she was 

returning home to Memphis, TN at the time of the accident. The employing establishment 

controverted the claim as the accident occurred after appellant’s approved travel hours of 8:00 

a.m. to 4:30 p.m. Appellant did not stop work. 

By letter dated May 15, 2015, OWCP informed appellant that the evidence of record was 

insufficient to establish her claim. It advised her as to the medical and factual evidence required 

and afforded her 30 days to provide this information. 

In response to OWCP’s May 15, 2015 letter, additional evidence was received. 

A travel authorization issued on March 17, 2015 indicated that appellant was authorized 

for travel on April 19, 2015 to Baton Rouge, LA, and to return to Memphis, TN on 

April 24, 2015. Appellant would receive reimbursement for her meal and lodging expenses. 

An April 23, 2015 Jacksonville Mississippi Police Report noted that the motor vehicle 

accident involving appellant occurred that day at “16:20 (4:20)” and involved two motor 

vehicles. 

On April 23, 2015 appellant completed a motor vehicle accident report (Standard Form 

91) for government motor vehicle involved in the accident. She noted the accident occurred on 

April 23, 2015 at 6:15 p.m. when her vehicle was hit by an automobile running a red light. 

On May 8, 2015 appellant was issued a letter of caution by E.M., a supervisory 

investigator, for altering her work schedule without approval, failing to keep management 

informed about her whereabouts during travel, and being absent without leave (AWOL). He 

informed appellant that the accident on April 23, 2015, occurring at 6:20 p.m., was outside her 

approved work hours while on travel and was therefore outside the performance of duty. 

On a prescription form dated May 8, 2015, Dr. Nidal Rahal, a Board-certified family 

practitioner, diagnosed neck muscle strain and referred appellant for physical therapy. 

In an employing establishment memorandum dated May 11, 2015, E.M. related that he 

had made numerous attempts to have the Jackson Police Department report corrected as 

appellant had provided verbal and written statements confirming that the collision occurred at 

6:20 p.m. on April 23, 2015. 

On June 2, 2015 E.M. informed OWCP that while appellant had been approved for office 

travel from Baton Rouge, LA on April 19, 2015, returning to Memphis on April 24, 2015, she 

finished her training in Baton Rouge early on April 22, 2015 and began travel back to Memphis 

at 2:00 p.m. on April 23, 2015. E.M. explained that appellant was on the direct route when the 
3

accident occurred and she had exited the highway to obtain gas and food when the collision 

occurred. 

In a June 9, 2015 attending physician’s report (Form CA-20), Carl Henderson, a physical 

therapist, noted that appellant had decreased cervical range of motion which he attributed to the 

April 23, 2015 motor vehicle accident. 

On June 15, 2015 OWCP received an April 24, 2015 emergency room discharge 

summary, a negative computerized tomography lumbar scan, and a negative April 24, 2015 

cervical x-ray interpretation. It also received physical therapy notes for the period April 28 to 

June 6, 2015. 

By decision dated June 19, 2015, OWCP denied appellant’s claim. It found the evidence 

of record insufficient to establish that she was in the performance of duty at the time of the 

April 23, 2015 motor vehicle accident. OWCP found appellant had deviated from her approved, 

scheduled work hours while traveling and, thus, was not in the performance of duty. 

On July 17, 2015 appellant requested a telephonic hearing before an OWCP hearing 

representative, which was held on March 18, 2016. 

Following her request for a telephonic hearing, OWCP received daily progress notes for 

May 1, 4, 6, and 7, 2015 which were electronically signed by Mr. Henderson, but listed 

Dr. Randy Villaneuva, a Board-certified internist, as the physician of record. Examination 

findings were provided and diagnoses included neck and muscle sprains. 

At the March 18, 2016 hearing, appellant testified that her travel authorization covered 

the period April 19 to 24, 2015 for travel between Memphis, TN and Baton Rouge, LA. She 

cited to Office of Personnel Regulations and the collective bargaining agreement in support of 

her argument that she had been in the performance of duty at the time of the accident. Appellant 

testified that prior to leaving for Memphis, TN she was performing employing establishment 

business when purchasing required steel-toed boots, which had been approved by her trainer and 

administrative management specialists, B.R. and E.E. According to appellant it took 

approximately four hours of shopping to locate the boots as the stores did not open until 10:00 

a.m. and her tour of duty started at 8:00 a.m. She testified that while shopping for the boots she 

had been in constant contact with B.R. Neither appellant’s supervisor nor the acting supervisor 

were notified that she left Baton Rouge, LA at 2:00 p.m. to return to Memphis, TN Appellant 

stated that at no time was she told that her travel and work hours were between 8:00 a.m. and 

4:30 p.m. 

In an April 14, 2016 response to appellant’s testimony, E.M. noted that appellant’s travel 

authorization only covered a training course. Overnight travel to purchase steel-toed shoes had 

not been authorized by the employing establishment. According to E.M. the assignment 

appellant attended in Baton Rouge, LA historically took two and one-half days to complete. 

Appellant completed this assignment early on April 22, 2015 and went shopping for steel-toed 

cowboy boots that afternoon. She resumed her search for these boots the following day. E.M. 

further observed that, purchasing and shopping for steel-toed boots was not part of appellant’s 

travel authorization. Next, E.M. related that he had verbally informed appellant that she was to 

return to Memphis, TN if the assignment did not take the whole week covered by the travel 
4

authorization and that she could not conduct employing establishment business unrelated to the 

travel authorization. He also stated that none of the individuals appellant mentioned as 

approving the shopping and purchasing of steel-toed shoes were in her supervisory chain of 

command and had no authority to alter, assign, or approve changes to her work schedule or travel 

assignment. E.M. concluded that steel-toed boots were easily acquired near appellant’s duty 

station and there was nothing in the travel authorization regarding the purchase of boots. 

In April 15, 2016 e-mail correspondence, K.G. noted that she was appellant’s acting 

supervisor on April 23, 2015. Regarding the events of April 23, 2015, she advised that she had 

not approved the purchase of steel-toed boots in Baton Rouge, LA. Supervisor K.G. further 

related that appellant did not alert her to the adverse traveling/weather conditions that day. 

On April 21, 2016 OWCP received appellant’s undated statement describing the events 

of April 22 and 23, 2015. Appellant related that she completed her work on April 22, 2015 and 

planned on traveling back to Memphis, TN from Baton Rouge, LA the following day, 

April 23, 2015. She stated that she unsuccessfully attempted to purchase steel-toed boots on 

April 22, 2015 with B.R. after her training ended, but resumed the search on April 23, 2015 with 

B.R.’s assistance. After locating and purchasing the steel-toed boots, appellant headed back to 

Memphis, TN from Baton Rouge, LA around 2:00 p.m. Due to the bad weather during the return 

trip she was forced to stop twice. While returning to the interstate at approximately 6:15 p.m., 

after stopping to get gas and food, appellant’s automobile was struck on the driver’s side by an 

automobile which had run a red light. The police arrived at the scene of the accident and took 

information from appellant and the woman who had run the red light. Appellant then contacted 

Supervisor K.G. to inform her of the accident. 

In a May 7, 2015 memorandum to E.M., appellant detailed the events of April 22 and 23, 

2015 and her interactions with D.V. and B.R. She told him that she considered April 23, 2015 a 

travel day and that it would not take her eight hours to travel from Baton Rouge, LA to 

Memphis, TN. Appellant provided times and details regarding her actions that day. While 

returning home she encountered heavy rain and severe thunderstorms and pulled over twice, 

which delayed her return. Details were provided regarding the motor vehicle accident. 

E.M., in a May 8, 2015 memorandum, informed appellant that her accident on April 23, 

2015 occurred outside her scheduled work hours, without approval, and was therefore not in the 

performance of duty. 

On May 18, 2016 appellant responded to E.M.’s memorandum and stated that she was 

not advised about specific travel times. She noted that she had approval for purchase of steeltoed shoes and disagreed with his statement that she was not approved to shop for this item in 

Baton Rouge, LA. Appellant stated that while on travel status it was customary practice to 

perform other employing establishment duties which were not mentioned in travel 

authorizations. 

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

appellant’s claim. She found the evidence of record insufficient to establish that appellant was in 

the performance of duty on April 23, 2015. The hearing representative found the evidence 

established that the motor vehicle accident occurred outside her approved travel schedule and 
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there was no evidence that appellant contacted the appropriate management official to approve 

her delayed travel or shopping detour on April 23, 2015. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence4

 including that the injury occurred in the performance of duty and that any specific 

condition or disability for work for which compensation is claimed is causally related to that 

employment injury.5 

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. The 

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

equivalent of arising out of and in the course of employment, the coverage formula commonly 

found in other workers’ compensation law. In the course of employment deals with the work 

setting, locale, and time of injury. Arising out of the employment encompasses not only the 

work setting, but also the requirement that an employment factor caused the injury.6 

The Board has recognized that Larson, in his treatise, The Law of Workers’ 

Compensation, sets forth the general criteria for performance of duty as it relates to travel 

employees or employees on temporary-duty assignments as follows: 

“Employees whose work entails travel away from the employer’s premises are 

held in the majority of jurisdictions to be within the course of their employment 

continuously during the trip, except when a distinct departure on a personal errand 

is shown.”7

 

The Board has similarly recognized that FECA covers an employee 24 hours a day when 

the employee is on travel status and engaged in activities essential or incidental to such duties.8 

 3

 5 U.S.C. § 8101 et seq.

4 W.W., Docket No. 09-1619 (issued June 2, 2010); J.P., 59 ECAB 178 (2007); Michael S. Mina, 57 ECAB 

379 (2006). 

5 G.T., 59 ECAB 447 (2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Elaine Pendleton, 40 ECAB 

1143, 1145 (1989). 

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

Bonnie A. Contreras, 57 ECAB 364 (2006). 

7

 Larson, The Law of Workers’ Compensation, § 25.01 (2009); see also Susan A. Filkins, 57 ECAB 630 (2006); 

Lawrence J. Kolodzi, 44 ECAB 818 (1993). 

8 See L.A., Docket No. 09-2278 (issued September 27, 2010); Ann P. Drennan, 47 ECAB 750 1996); Richard 

Michael Landry, 39 ECAB 232 (1987) and cases cited therein. 
6

ANALYSIS 

Appellant alleged that she sustained face, neck, back, shoulder, and right knee injuries on 

April 23, 2015 as a result of a motor vehicle accident while on travel status. By decision dated 

June 19, 2015, OWCP denied her claim finding that she was not within the scope of her 

employment at the time of the April 23, 2015 motor vehicle accident. A hearing representative 

affirmed the denial of her claim in a June 24, 2016 decision. The issue on appeal is whether 

appellant was in the performance of duty at the time of the April 23, 2015 motor vehicle 

accident. 

The Board finds that appellant has met her burden of proof to establish that she was in the 

performance of duty at the time of the April 23, 2015 incident. 

It is undisputed that appellant was on official travel status to Baton Rouge, LA, from 

Memphis, TN for the period April 19 to 24, 2015 at the time she sustained injury. She 

completed her work on April 22, 2015 and travelled back to Memphis, TN from Baton Rouge, 

LA on April 23, 2015. 

Prior to departing Baton Rouge on April 23, 2015 appellant spent additional hours 

shopping for steel-toed boots before departing at 2:00 p.m. Appellant testified at OWCP’s 

hearing that the purchase of steel-toed boots had been approved by supervisors, B.R. and E.E. 

Appellant related that while driving home, during the afternoon, she encountered a rain storm 

and had to pull off the highway to wait for the weather to clear. Early that evening, while 

continuing her travel back to Memphis, appellant exited the highway to obtain gas and food. She 

was back on her direct route home when the vehicle she was driving was struck by another 

vehicle. 

While the employing establishment controverted the claim alleging that the motor vehicle 

accident occurred after appellant’s work hours of 8:00 a.m. to 4:30 p.m., FECA covers an 

employee 24 hours a day when the employee is on travel status and engaged in activities 

essential or incidental to such duties.9

The Board has held that an employee on travel away from her normal post of duty is 

extended coverage under FECA for all ordinary incidents which the employer would normally 

contemplate as occurring in the course of such mission.10 The employing establishment 

 9 See id.

10 A.W., 59 ECAB 593 (2008). (The employee was authorized to travel with coworkers in an employing 

establishment van to attend a one-day out of town conference. After the conference ended, the employee and a 

coworker walked through a nearby casino and the Boardwalk area in Atlantic City, New Jersey, prior to dining at a 

restaurant in that area. The employee fell after she exited the restaurant on her way back to the van for the return 

trip to the employing establishment. The Board found it was a reasonable necessity that an employee attending the 

conference eat at a local restaurant before departing for a three-hour, bus trip to the employing establishment in 

Baltimore, Maryland. The Board found that the employee’s injury was sustained in the performance of duty and 

reversed an OWCP decision rescinding acceptance of the claim.) S.C., Docket No. 08-2440 (issued June 22, 2009). 

(The employee was attending a mandatory out-of-town training conference. After eating dinner, she went shopping 

at a local Target store with coworkers where her slip and fall occurred. The Board found that the employee’s 

shopping at a Target store was not incidental to the duties of her temporary assignment as it was a personal activity. 

She ceased to be under the protection of FECA due to this deviation. Thus, her injury was found not to be in the 

performance of duty.)
7

authorized travel to Baton Rouge, LA from Memphis, TN for the period April 19 to 24, 2015. 

On her return trip to Memphis on April 23, 2015 she was involved in an automobile accident. 

Appellant remained in the course of employment with respect to all normal incidents of 

her employment.11 She resumed travel back to Memphis following shopping for steel-toed 

boots, which were required for her job, and after stopping for gas and food. These were 

activities incidental to her employment and travel status.12 

At the actual time of the accident, appellant had resumed her travel back to Memphis. 

She was not engaged in a deviation for personal reasons at the time of the accident.13 The Board 

finds that appellant was in the performance of duty when she sustained injury on April 23, 2015. 

As the incident giving rise to injury occurred while driving back to Memphis, TN it arose in the 

course of appellant’s employment.14 

The case will therefore be remanded to OWCP for further development of the medical 

evidence regarding the issue of appellant’s injury and disability arising from the April 23, 2015 

incident. 

CONCLUSION 

The Board finds that appellant was injured while in the performance of duty on 

April 23, 2015. 

 11 Compare Richard Michael Landry, 39 ECAB 232 (1987) and cases cited therein at 237-38. 

12 See A.W., supra note 10. 

13 Compare A.D., Docket No. 13-490 (issued August 6, 2013) (Appellant was injured in a motor vehicle accident 

in Lake City, FL while returning to Panama City, FL from her temporary duty station in Jacksonville, FL. On her 

return trip to Panama City, FL, appellant stopped on Saturday in Orlando, FL to visit her sister, which had been 

approved by her supervisor, and then resumed her trip to Panama City, FL from Orlando, FL on Sunday. The injury 

occurred on a day she was not scheduled to work and on a route that was not a main business route. The Board 

found appellant’s injury was not sustained in the performance of duty as the origin of her injury was her travel from 

Orlando, FL, which was not incidental or essential to her temporary-duty assignment in Jacksonville, FL) 

14 See L.A., supra note 8. 
8

ORDER 

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

Compensation Programs dated June 24, 2016 is reversed. The case is remanded for further 

development in conformance with this decision. 

Issued: September 27, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board