United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.B., Appellant 

and 

U.S. POSTAL SERVICE, BUCHANAN 

STATION, Chicago, IL, Employer 

__________________________________________ 

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Docket No. 17-0536 

Issued: June 22, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 January 10, 2017 appellant, through counsel, filed a timely appeal from a 

November 8, 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 6, 2015. 

 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

FACTUAL HISTORY 

On March 12, 2015 appellant, then a 55-year-old carrier technician, filed a traumatic 

injury claim (Form CA-1) alleging that on March 6, 2015 she sustained contusions and abrasions 

to her left skull as the result of a fight with a coworker. 

In a March 6, 2015 authorization for examination and treatment (Form CA-16), an 

employing establishment manager noted an injury date of March 6, 2015 and that appellant had 

been involved in a fight with a coworker. Medical treatment was approved for face injury/neck 

pain due to the March 6, 2015 incident. 

Appellant submitted a March 7, 2015 report from Dr. Androni J. Henry, a physician 

specializing in emergency medicine, relating that appellant was seen in the emergency room on 

March 6, 2015. Dr. Henry requested appellant be excused from work for the period March 6 

to 9, 2015. 

In a March 9, 2015 duty status report (Form CA-20), Dr. Kanayo Odeluga, a physician 

Board-certified in internal medicine and occupational medicine, diagnosed facial injury due to a 

March 6, 2015 incident. He also provided work restrictions. 

In March 13, 2015 work status summary, Dr. Odeluga diagnosed face, neck, and scalp 

contusion and cervicalgia. He released appellant to return to work with restrictions effective 

March 9, 2015. Dr. Odeluga reported that the injury occurred when a coworker assaulted 

appellant and punched her in the face. 

In an April 9, 2015 letter, the employing establishment controverted the claim based on 

findings from an investigation of the incident. It stated that appellant’s behavior leading to the 

altercation was unbecoming of an employee, the conduct was willful, and not in the performance 

of duty. The employing establishment informed OWCP that she only filed the claim after being 

placed on emergency leave pending a thorough investigation of the incident. A March 12, 2015 

statement from an employing establishment manager related that appellant and a coworker were 

involved in a physical altercation in the women’s restroom. Neither the manager nor the postal 

inspectors observed any visible bruising on appellant. 

On April 17, 2015 OWCP received supplemental notes dated March 9, 2015 from 

Dr. Odeluga diagnosing cervicalgia and face, scalp, and neck contusion. Dr. Odeluga reported 

that appellant explained that a coworker had assaulted appellant, by punching her in the face, on 

March 6, 2015 and she was seen following her visit to the emergency room. Appellant 

complained of face and neck pain. Dr. Odeluga provided findings on examination and work 

restrictions. 

By letter dated April 21, 2015, OWCP informed appellant that the evidence of record was 

insufficient to establish her claim. Appellant was advised as to the medical and factual evidence 

required and afforded 30 days to provide this information. No further evidence was received. 

By decision dated May 22, 2015, OWCP denied appellant’s claim as it found that she had 

not been in the performance of duty at the time of the March 5, 2015 incident. It noted that she 

had failed to provide details regarding the fight, including its origin. 
3

In a letter dated August 8, 2015, appellant requested reconsideration of the denial of her 

claim. In an attached statement, she related that while on lunch break she was washing her hands 

in the ladies room on March 6, 2015 when a coworker physically assaulted her. Appellant stated 

that there was no personal association outside of work or any animosity between them. The 

coworker came in during the time appellant began to wash her hands and stood at the sink right 

next to her. While appellant was retrieving a paper towel to dry her hands she glanced back at 

the coworker who asked her “what the ‘f...’ you looking at.” The coworker got up close to 

appellant and hit her several times in the face. A clerk was also in the ladies room who came out 

of a stall and placed herself between them. Appellant related that the employing establishment 

had conducted an investigation of the incident, but had not provided her with a copy of the 

report. She contended that the incident was in the performance of duty and that she had filed a 

grievance. 

By decision dated May 9, 2016, OWCP denied modification of the May 22, 2015 

decision. It found that the evidence submitted by appellant failed to establish that she had been 

in the performance of duty at the time of the altercation with a coworker. 

On June 17, 2016 OWCP received a March 7, 2015 report from Dr. Joel Benveniste, a 

Board-certified radiologist, who related that a computerized tomography scan of appellant’s 

facial bones revealed no evidence of fracture or destructive change. 

On August 22, 2016 OWCP received counsel’s request for reconsideration. In support of 

the request for reconsideration, it received an April 11, 2015 grievance letter addressed to 

appellant’s union. In this statement, appellant reiterated the circumstances surrounding the 

assault and further noted that she did not throw any punches, but grabbed her assailant’s shirt in 

self-defense. She further explained that she informed the station manager that she wanted her 

assailant arrested. Appellant then called the police, but the station manager told her to leave the 

building. She stated that she left the building and did not return inside; when the police arrived 

they told her they could not do anything for her. 

By decision dated November 8, 2016, OWCP denied modification. 

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, 

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

 3

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

4 A.K., Docket No. 09-2032 (issued August 3, 2010); C.O., Docket No. 09-0217 (issued October 21, 2009). 
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 she may reasonably be expected to be in connection with the employment; and 

(3) while she was reasonably fulfilling the duties of his employment or engaged in doing 

something incidental thereto.5

This alone is not sufficient 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.6

OWCP’s procedure manual provides, “The employing [establishment] is required to 

complete the reports and statements needed and then submit the evidence to OWCP. In several 

types of claims (e.g., stress claims, claims with POD [performance of duty] issues such as 

premises, temporary duty travel, or recreational injuries), a statement from the employing 

[establishment] is imperative to properly develop and adjudicate the claim.”7

ANALYSIS 

Appellant filed a traumatic injury claim for injuries sustained on March 6, 2015 when she 

was involved in a fight or altercation in the ladies room and was punched in the face by a 

coworker. She went into the ladies room while on a lunch break. At the time of the assault, 

appellant was performing her duties during work hours. As discussed, however, time, place, and 

manner are not alone sufficient to establish entitlement to compensation. Appellant must also 

establish that her injury arose out of her employment or that a factor of her employment gave rise 

to the assault.8

The Board finds that the case is not in posture for decision regarding whether a factor of 

employment gave rise to the assault. 

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

arbiter. While appellant has the burden to establish entitlement to compensation, OWCP shares 

the responsibility in the development of the evidence, particularly when such evidence is of the 

character normally obtained from the employing establishment or other governmental source.9

 

The employing establishment, in an April 9, 2015 letter, controverted the claim based on 

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

6

 A. Larson, The Law of Workers’ Compensation § 8.00 (2006); see also R.S., 58 ECAB 660 (2007). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7(a)(2) 

(June 2011). 

8 See B.T., Docket No. 15-0786 (issued June 10, 2015). 

9 See L.L., Docket No. 12-0194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008). 
5

findings from an investigation of the incident, but did not provide OWCP with a copy of any 

report or findings from the investigation. OWCP cited the lack of evidence from the employing 

establishment as a basis for the denial of appellant’s claim. 

On remand, OWCP should obtain a report investigating the March 6, 2015 incident from 

the employing establishment to clarify whether the altercation/fight was within or outside the 

performance of duty. After such further development as deemed necessary, it should issue an 

appropriate decision. 

CONCLUSION 

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

ORDER 

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

Compensation Programs dated November 8, 2016 is set aside and the case is remanded for 

further proceedings consistent with this decision of the Board. 

Issued: June 22, 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