United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., son of J.M., Appellant 

and 

U.S. POSTAL SERVICE, BULK MAIL 

CENTER, Jersey City, NJ, Employer 

__________________________________________ 

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Docket No. 16-1725 

Issued: May 11, 2017 

Appearances: Case Submitted on the Record

James D. Muirhead, 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 August 15, 2016 appellant, through counsel, filed a timely appeal from a March 10, 

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

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether the employee’s death on December 27, 2010 occurred in the 

performance of duty. 

FACTUAL HISTORY 

On March 4, 2011 appellant completed a claim for death benefits (Form CA-5) alleging 

that the death of his father was related to “exposure” at work that caused a heart attack. A 

supervisor’s report of employee’s death (Form CA-6) dated June 5, 2012 indicated that on 

December 26, 2010 the employee “punched out of work” at 7:00 p.m.3 The supervisor reported 

that there was a snowstorm, the employee was seen at 4:00 a.m. on December 27, 2010 at the 

employing establishment cafeteria, and the employee’s son was supposed to pick up the 

employee from work. 

In a December 28, 2010 memorandum, an employing establishment supervisor reported 

that the employee was a clerk and on December 26, 2010 had asked to leave work early due to a 

snowstorm that occurred earlier in the day. According to the supervisor, the police reported that 

the employee had called his son at approximately 5:00 a.m. on December 27, 2010 from the 

Dunkin Donuts franchise, located in the employing establishment cafeteria. The son was 

supposed to pick up the employee at the intersection of McDermott Drive and County Road, but 

had not picked up his father. The supervisor reported that the employee’s body was found in 

“Veterans Plaza at the entrance to McDermott Drive.” 

Appellant submitted an autopsy report dated December 30, 2010. The medical examiner 

reported the cause of death was arteriosclerotic cardiovascular disease and diabetes mellitus, 

with “exposure to cold” as a contributory cause. 

By decision dated August 27, 2013, OWCP denied the claim for compensation. It found 

the death did not occur until after the employee left the postal facility. 

On May 30, 2014 appellant, through counsel, requested reconsideration and submitted a 

May 23, 2014 report from Dr. Malcolm Hermele, an internist. Dr. Hermele provided a history 

that it appeared the employee was waiting on the employing establishment premises for a ride 

from his son, at an area called Memorial Park, and “essentially froze to death.” He wrote that it 

was his understanding the employee had a massive heart attack and was caught in a blizzard. 

Dr. Hermele indicated that he had reviewed incident reports and witness statements. He opined 

that “the cold weather contributed to and was the proximal cause of a fatal arrhythmia and 

myocardial infarction in [the employee’s] already compromised cardiovascular system. This 

event occurred while he was on the [employing establishment] premises on or about 

[December 27 to 28, 2010].” 

OWCP did not initially address the reconsideration request. On March 25, 2015 

additional evidence was submitted. An incident report dated December 28, 2010 from the 

“inspection postal police force” indicated that the employee’s son reported that he talked with his 

 3

 A time sheet indicated that the employee’s normal work hours were 1:00 p.m. to 9:50 p.m. 
3

father by phone at 5:00 a.m. on December 27, 2010. The employee was at the Dunkin Donuts 

and requested to be picked up. The report indicates that the Military Park section of the 

employing establishment facility was searched adjacent to the County Road entrance, and the 

employee’s body was discovered. A “preliminary serious accident report” indicated that the 

body was found approximately 50 feet from the McDermott Drive employee entrance. 

There were three witness statements submitted to the record. In a December 29, 2010 

statement, a coworker reported that at about 7:00 a.m. on December 27, 2010 the employee left 

the cafeteria and she saw him in the cross walk in front of a stopped truck. The coworker 

indicated that the employee was “making backward strides” toward the facility entrance. A 

second coworker submitted an undated statement that at 10:00 p.m. on December 26, 2010 the 

employee was in the cafeteria trying to contact someone. The witness indicated that at 6:00 a.m. 

the employee was walking outside to the “guard shack” when he fell. According to the witness, 

he asked the employee if he was okay, was told yes, and the employee asked him to close the 

guard shack door. In addition, the witness asked the employee if he wanted a ride home, and 

was told no. A third witness submitted an undated statement, writing that the employee received 

a call at approximately 3:00 a.m. The witness wrote that at 6:00 a.m. when “we were going 

home” the employee fell in snow, was asked if he needed a ride, but he did not. Counsel 

submitted a June 24, 2015 letter noting that a reconsideration request had previously been 

submitted. 

By decision dated September 23, 2015, OWCP denied modification. It found the 

employee was not on the clock, and the evidence did not show that his work, or presence in the 

parking lot, contributed to his death. OWCP noted the death did not occur within a reasonable 

time frame after he stopped work, and weather events did not constitute a special hazard. 

On October 15, 2015 counsel again requested reconsideration. The evidence submitted 

included a statement from appellant, who asserted that his father called him at 2:00 a.m. on 

December 27, 2010 and reported that the parking lot was not plowed and he could not leave 

because of the snow. Appellant indicated that the employee stated that his car was stuck in the 

parking lot, and appellant told his father that he could pick him up at 7:00 a.m. because the roads 

were not clear. According to appellant, he tried to call his father at the Dunkin Donuts at 5:30 

a.m. to tell him the roads still were not clear, but the employee could not be located and did not 

have a cell phone. Appellant wrote that the parking lot was not cleared until 4:00 p.m. on 

December 27, 2010, and he felt the employee’s death was the result of his being stuck at the 

employing establishment due to the snow storm. 

By decision dated March 10, 2016, OWCP denied modification. It found the employee’s 

death did not arise out of his work duties and he was not in the performance of duty. OWCP 

found that “although the [employee] was witnessed as being on the premises, the [employee] did 

not pass away on the premises of the [employing establishment] but rather the day after his shift 

ended and in Veteran’s Plaza which is not owned by the [employing establishment]. 

Accordingly, he was not performing any duties or assigned work at the time of his death.” 
4

LEGAL PRECEDENT 

FECA provides for the payment of compensation for the disability or death of an 

employee resulting from personal injury sustained “while in the performance of ... duty.”4

 In 

order to be covered, an injury must occur at a time when the employee may reasonably be said to 

be engaged in their master’s business, at a place where they may reasonably be expected to be in 

connection with their employment, and while they were reasonably fulfilling the duties of his 

employment or engaged in doing something incidental thereto.5

 For an employee with fixed 

hours and a fixed workplace, an injury that occurs on the employing establishment premises 

when the employee is going to or from work, before or after working hours or at lunch time, is 

compensable.6

 However, that same employee with fixed hours and a fixed workplace would 

generally not be covered when an injury occurs off the employing establishment premises while 

traveling to or from work.7

 The reason for the distinction is that the latter injury is often merely 

a consequence of the ordinary, nonemployment hazards of the journey itself which are shared by 

all travelers.8

ANALYSIS 

In the present case, appellant has claimed that the death of the employee on 

December 27, 2010 was causally related to cold exposure at work during a snowstorm. The 

record indicated that the employee normally worked from 1:00 p.m. to 9:50 p.m. On 

December 26, 2010 he worked until 7:00 p.m. then he spent time in the employing establishment 

cafeteria. Appellant asserted that the employee had his car in the parking lot but was unable to 

drive due to the snowstorm. The employee was outside at times during the morning hours, going 

to the “guard shack” and then at 7:00 a.m. was walking to meet his son for a ride home when he 

collapsed. 

As noted above, a critical question with respect to whether the employee was in the 

performance of duty while outside is whether he remained on the employing establishment 

premises. OWCP did not develop the record on this issue and its findings are incomplete and 

unsubstantiated. It found the employee did not pass away on the premises as “Veterans Plaza” 

was not owned or controlled by the employing establishment. The Board notes that the claim in 

this case was not based solely on exposure where the employee collapsed. Moreover, it is not 

clear from the record what constituted the employing establishment’s premises. The report from 

the employing establishment police indicated that they only searched the military park section of 

the “facility” without further explanation. 

 4

 5 U.S.C. § 8102(a). 

5 Roma A. Mortenson-Kindschi, 57 ECAB 418, 423-24 (2006). 

6 Idalaine L. Hollins-Williamson, 55 ECAB 655, 658 (2004). 

7 Id. 

8 R.C., 59 ECAB 427, 430 (2008). 
5

The employing establishment was never asked to provide information with respect to the 

premises. OWCP makes a finding, without further explanation, that the Veterans Plaza was not 

owned by the employing establishment. It is not clear what evidence they relied on to make such 

a finding. Moreover, the “premises” is not determined solely by ownership. The term premises 

as it is generally used in workmen’s compensation law, is not synonymous with property. The 

former does not depend on ownership, nor is it necessarily coextensive with the latter. In some 

cases premises may include all the property owned by the employer; in other cases, even though 

the employer does not have ownership and control of the place where the injury occurred, the 

place is nevertheless considered part of the premises.9

OWCP did not properly develop the evidence with respect to premises. There was no 

request from the official superior in the form of a statement describing the boundaries of the 

premises showing whether the employee was within those boundaries when walking to the guard 

shack or to meet his son, nor does the record of evidence contain a diagram showing the 

boundaries of the industrial premises.10 OWCP must properly make a finding as to premises in 

this case.11

Once the issue of premises is properly resolved, then OWCP can then make proper 

findings on the other relevant issues presented in this case. As noted above, an employee going 

from work while on the premises may remain in the course of employment. The Board has held 

the course of employment can embrace a reasonable interval before and after official working 

hours while the employee is on the premises engaged in preparatory or incidental acts. What 

constitutes a reasonable interval depends not only on the length of time involved but also on the 

circumstances occasioning the interval and the nature of the employee’s activity.12 

OWCP did not make adequate findings as to the circumstances related to the snowstorm 

in this case. It did not request any information from the employing establishment as to the 

condition of the parking lot on December 26 and 27, 2010, or other relevant information. It is 

not clear whether the employing establishment was aware that the employee had remained at 

work, or had expressly or impliedly required employees to remain.13 The Board notes there was 

no indication that the employing establishment expressly prohibited remaining at work.14 To 

properly determine a “reasonable interval” after work hours in this case, OWCP must have 

adequate information regarding the circumstances surrounding the employee’s remaining at work 

after his work shift ended. 

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter. While appellant has the burden of proof to establish entitlement to compensation. 

 9 Denise A. Curry, 51 ECAB 158 (1999). 

10 See C.B., Docket No. 15-1881 (issued October 7, 2016). 

11 See L.M., Docket No. 11-0373 (issued September 22, 2011). 

12 J.O., Docket No. 09-1432 (issued February 3, 2010); see also J.D., Docket No. 16-0104 (issued April 5, 2016). 

13 See B.R., Docket No. 11-0153 (issued September 30, 2011). 

14 See Suzanne Eyssi, Docket No. 84-0989 (issued July 19, 1985). 
6

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.15 The Board finds that OWCP did not sufficiently develop the evidence 

regarding the issues in this case.16

The case will be remanded to OWCP for further development. OWCP should secure the 

necessary evidence to make a proper determination as to premises and the issue of a reasonable 

interval after work based on the circumstances of this case. After such further development as is 

necessary, it should issue an appropriate decision. 

CONCLUSION 

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

ORDER 

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

Compensation Programs dated March 10, 2016 is set aside and the case is remanded for further 

development consistent with this decision of the Board. 

Issued: May 11, 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 

 15 L.L., Docket No. 12-194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008). 

16 Supra note 11; see also supra note 10.