United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.C., Appellant 

and 

DEPARTMENT OF THE ARMY, PICATINNY 

ARSENAL, NJ, Employer 

__________________________________________ 

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Docket No. 16-0824 

Issued: September 1, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 15, 2016 appellant filed a timely appeal from October 6, 2015 and 

February 18, 2016 merit decisions 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 over the merits of this case. 

ISSUE 

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

performance of duty on June 22, 2015. 

FACTUAL HISTORY 

On June 24, 2015 appellant, then a 31-year-old mechanical engineer, filed a traumatic 

injury claim (Form CA-1) alleging that at 5:45 p.m. on June 22, 2015 he injured his left Achilles 

tendon while playing in an intramural softball game. 

 1

 5 U.S.C. § 8101 et seq. 
2

In a report dated June 23, 2015, Dr. Philip D’Ambrosio, a Board-certified orthopedic 

surgeon, described a history that appellant ruptured his left Achilles tendon while playing 

softball. Following physical examination, the physician recommended surgery, which would 

require six to eight weeks of recovery plus physical therapy. On July 1, 2015 Dr. D’Ambrosio 

surgically repaired a traumatic tear of the left Achilles tendon. He submitted follow-up reports 

and on August 13, 2015 advised that appellant could return to work on August 22, 2015. On an 

attending physician’s report dated August 13, 2015, Dr. D’Ambrosio reported that appellant 

injured his left Achilles tendon at a company ball game. He checked a form box marked “yes,” 

indicating that the condition was employment related. 

Appellant returned to full-time regular duty with no restrictions on August 24, 2015. He 

filed a claim for compensation (Form CA-7) on August 24, 2015, for the period 

August 7 to 21, 2015. The employing establishment indicated that he had received continuation 

of pay from June 23 to August 6, 2015. Dr. D’Ambrosio provided follow-up care. 

By letter dated August 28, 2015, OWCP informed appellant of the evidence needed to 

support his claim. In a separate letter, it requested that the employing establishment provide 

information regarding the circumstances of the claimed June 22, 2015 injury. 

In a statement dated September 15, 2015, appellant indicated that he was not required to 

participate in the June 22, 2015 softball game, that it was an optional activity run by the 

employing establishment’s Morale, Welfare, and Recreation (MWR) program, which provided 

activities to help maintain a healthy and good work environment. He further related that the 

game, which was played on a field maintained by MWR on the employing establishment’s 

premises, did not occur during regular working hours, but after work. Appellant advised that 

MWR provided the rules and equipment, organized the schedules, and indicated that all games 

were played on employing establishment fields. 

On September 24, 2015 John F. Kostka, an employing establishment manager, answered 

OWCP’s questions regarding the June 22, 2015 injury. He advised that appellant was not 

required to participate in the activity which, he assumed, was for employee morale. Mr. Kostka 

related that all employees were permitted, but not required to participate, and that the claimed 

injury did not occur during working hours, but after work. He concluded that the employing 

establishment provided leadership, equipment, and facilities. 

By decision dated October 6, 2015, OWCP denied the claim, finding that appellant was 

not in the performance of duty when injured on June 22, 2015. OWCP explained that the 

evidence of record was insufficient to establish that the claimed condition arose during the 

course of employment and within the scope of compensable work factors, noting that he was not 

required to participate in the softball game which occurred after his regular working hours. 

On December 4, 2015 appellant requested reconsideration. He maintained that the 

claimed injury occurred in the performance of duty, relating that the softball league was a formal 

recreation activity provided by MWR for both civilians and military personnel, and that all 

games were played on employing establishment premises. Appellant cited the case Mary A. 
3

Minter2

 in support of his claim. He submitted a September 29, 2015 report in which 

Dr. D’Ambrosio advised that appellant reported a history that, while at work on June 22, 2015, 

he injured his Achilles tendon running bases at a softball game. Dr. D’Ambrosio described 

appellant’s medical treatment, including the July 1, 2015 surgery, and postoperative care. He 

opined that the injury clearly occurred during the sporting event and that, it appeared to him, if 

this was a sponsored event the claim should be accepted. Dr. D’Ambrosio continued to provide 

follow-up care. The record also includes hospital records of appellant’s ambulatory surgery on 

July 1, 2015. 

In a February 18, 2016 decision, OWCP denied modification of the October 6, 2015 

decision. It found that the June 22, 2015 injury did not occur in the performance of duty, noting 

that it was a recreational activity that was not a requirement of employment and that his 

employing establishment did not incur a benefit from his participation beyond boosting morale. 

LEGAL PRECEDENT 

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

essential elements of his or her claim including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that an injury was sustained in the performance of duty as 

alleged, and that any disability and/or specific condition for which compensation is claimed are 

causally related to the employment injury. Regardless of whether the asserted claim involves 

traumatic injury or occupational disease, an employee must satisfy this burden of proof.3

 

Section 8102(a) of FECA provides for payment of compensation for disability or death of 

an employee resulting from personal injury sustained while in the performance of duty.4 This 

phrase is regarded as the equivalent of the coverage formula commonly found in workers’ 

compensation laws; namely, arising out of and in the course of employment.5

 “Arising in the 

course of employment” relates to the elements of time, place, and work activity. To arise in the 

course of employment, an injury must occur at a time when the employee may reasonably be 

stated to be engaged in her master’s business, at a place where he or she may reasonably be 

expected to be in connection with the employment and while he or she was reasonably fulfilling 

the duties of employment or engaged in doing something incidental thereto. This alone, 

however, is not sufficient to establishment entitlement to compensation. The employee must 

also establish the concurrent requirement of an injury “arising out of the employment.” This 

requires that a factor of employment caused the injury.6

 

 2

 52 ECAB 127 (2000). 

3 Gary J. Watling, 52 ECAB 278 (2001). 

4

 5 U.S.C. § 8102(a). 

5 See Bernard E. Blum, 1 ECAB 1 (1947). 

6 R.S., 58 ECAB 660 (2007). 
4

In order to determine whether an employee actually sustained an injury in the 

performance of duty, OWCP begins with an analysis of whether fact of injury has been 

established. Generally, fact of injury consists of two components which must be considered in 

conjunction with one another. The first component to be established is that the employee 

actually experienced the employment incident or exposure, which is alleged to have occurred.7

 

In order to meet his or her burden of proof to establish the fact that he or she sustained an injury 

in the performance of duty, an employee must submit sufficient evidence to establish that he or 

she actually experienced the employment injury or exposure at the time, place, and in the manner 

alleged.8

 The second component is whether the employment incident caused a personal injury 

which generally can be established only by medical evidence.9

 

With regard to recreational or social activities, the Board has held that such activities 

arise in the course of employment when: (1) they occur on the premises during a lunch or 

recreational period as a regular incident of the employment; (2) the employing establishment, by 

expressly or impliedly requiring participation or by making the activity part of the service of the 

employee, brings the activity within the orbit of employment; or (3) the employing establishment 

derives substantial direct benefit from the activity beyond the intangible value of improvement in 

employee health and morale that is common to all kinds of recreation and social life.10 

The mere fact that a claimant was on the premises at the time of injury is not sufficient to 

establish entitlement to compensation benefits. It must also be established that the claimant was 

engaged in activities which may be described as incidental to the employment, i.e., that he or she 

was engaged in activities which fulfilled his employment duties or responsibilities thereto.11 

ANALYSIS 

The Board finds that appellant had failed to meet his burden of proof to establish an 

injury in the performance of duty on June 22, 2015. 

While the facts indicate that appellant was on the employing establishment premises 

when he injured his left Achilles tendon on June 22, 2015 while playing softball, the injury did 

not occur during a lunch or recreational period as a regular incident of his employment. By his 

own admission, the softball game was played after work. Thus, while appellant met the premises 

 7 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012, 

June 1995). 

8 Linda S. Jackson, 49 ECAB 486 (1998). 

9 John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee); 10.5(q) 

(traumatic injury and occupational disease defined, respectively). 

10 S.B., Docket No. 11-1637 (issued April 12, 2012); R.P., Docket No. 10-1173 (issued January 19, 2011); 

Ricky A. Paylor, 57 ECAB 568 (2006); Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); Kenneth B. Wright, 44 

ECAB 176 (1992); see also A. Larson, The Law of Workers’ Compensation § 22.00 (2012). 

11 A.K., Docket No. 09-2032 (issued August 3, 2010). 
5

aspect of the first test, he did not meet the time aspect of the first test for coverage of recreational 

activities.12

With respect to an express or implied requirement to participate in the activity, appellant 

acknowledged and Mr. Kostka indicated that appellant was not required to participate in the 

softball game, nor was softball part of his work or tasks incidental to his work. Rather, softball 

was merely a recreational activity provided for employee morale. Even though the employing 

establishment provided equipment and facilities and set the schedule for the games, the record 

supports that this was part of the employing establishment’s MWR program. 

There is no evidence of record to show that participation in the activity was made part of 

the services of appellant. When the degree of employing establishment involvement descends 

from compulsion to mere sponsorship or encouragement, the questions become closer and the 

tests include whether the employing establishment sponsored or financed the event and whether 

attendance was voluntary.13 However, there is no evidence that the employing establishment 

encouraged appellant’s activity as part of his employment, and its involvement must be 

considered de minimis and insufficient to bring the activity within the course of employment.14 

Accordingly, there is no evidence that the second test has been met. 

With respect to the third test, Mr. Kostka essentially indicated that the only benefit to the 

employing establishment was related to employee morale and well-being. No evidence in the 

record suggests that the activity was related in any notable way to the employing establishment’s 

business. Consequently, there is no evidence that the employing establishment derived 

substantial direct benefit from the activity beyond that intangible value of improvement in 

employee health and morale that is common to all kinds of recreational activity.15

Considering these various factors, the Board finds that the evidence of record does not 

show that appellant’s activities on June 22, 2015 at the time of his claimed injury constituted 

recreational activities within the performance of duty.16 

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 did not meet his burden of proof to establish that he 

sustained an injury in the performance of duty on June 22, 2015. 

 12 Ricky A. Paylor, supra note 10. 

13 See Kenneth B. Wright, supra note 10. 

14 Ricky A. Paylor, supra note 10. 

15 Id. 

16 As to appellant’s reliance on Minter, supra note 2, in that case the Board found that appellant had failed to 

establish that an injury during a volleyball game occurred in the performance of duty. 
6

ORDER 

IT IS HEREBY ORDERED THAT the February 18, 2016 and October 6, 2015 

decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: September 1, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board