United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

U.S. POSTAL SERVICE, KENTUCKIANA 

DISTRICT, Louisville, KY, Employer

__________________________________________

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Docket No. 17-0995

Issued: November 3, 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 April 6, 2017 appellant, through counsel, filed a timely appeal from a January 31, 

2017 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.

ISSUE

The issue is whether appellant met her burden of proof to establish an employmentrelated injury in the performance of duty on July 14, 2014.

 

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 asserts that the January 31, 2017 decision is contrary to law and fact

FACTUAL HISTORY

On March 3, 2016 OWCP received a December 13, 2014 traumatic injury claim (Form 

CA-1) from appellant, then a 54-year-old rural carrier who was working as a supervisor of 

customer services. Appellant alleged that she injured her shoulders and neck when she was 

involved in a motor vehicle accident at approximately 7:40 a.m. on July 14, 2014. She stopped 

work that day and did not return.

In correspondence dated March 3, 2016, an employing establishment human resources 

specialist controverted the claim. He indicated that the claim form was not received until 

March 3, 2016 and, at the time of the accident on July 14, 2014, appellant was not acting as a 

rural carrier, but instead was driving from her home to her duty station where she acted as 

supervisor of customer services. Pay information and a prior March 4, 2015 letter from the 

human resources specialist, which had not been mailed, also indicated that at the time of the 

July 14, 2014 motor vehicle accident, appellant had been working in a supervisory position. The 

letter cited employing establishment procedures indicating that rural carriers were protected 

under FECA if an injury was sustained while in the performance of duty. The procedures noted 

that rural carriers were considered to be in the performance of duty for purposes of FECA when 

driving their own vehicle between their home and the post office and between the post office and 

their home, provided employing establishment records indicated that the carrier was required to 

furnish their own vehicle. They further indicated that an investigation was conducted to 

determine if an injury occurred on the way to or from the assigned postal facility, as well as if the 

carrier was clearly working within the scope of employment at that time.

An employing establishment accident report noted that the motor vehicle accident 

occurred at 7:40 a.m. on July 14, 2014, and that appellant was a rural carrier.

By letter dated March 7, 2016, OWCP informed appellant of the evidence needed to 

support her claim. Appellant was asked to provide answers to an attached questionnaire which 

questioned whether she was going to deliver mail on the day of the accident or oversee customer 

service operations. She was afforded 30 days to respond. 

In a decision dated April 11, 2016, OWCP noted that appellant had not responded to the 

March 7, 2016 development letter and denied the claim because she had failed to submit medical 

evidence containing a diagnosis caused by the July 14, 2014 motor vehicle accident. 

Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings 

and Review. Copious medical evidence was submitted. An emergency department report dated 

July 14, 2014 noted that appellant was seen on a nonurgent basis following a motor vehicle 

accident. Dr. Michael Howard, a Board-certified family physician, diagnosed shoulder and 

lumbosacral strain. Appellant was discharged that day. Dr. David P. Bealle, a Board-certified 

orthopedic surgeon, performed right shoulder arthroscopic rotator cuff repair on October 15, 

2014, and left rotator cuff repair on February 11, 2015. On November 13, 2015 Dr. Gregory B. 

Lanford, a Board-certified neurosurgeon, performed anterior cervical discectomy at C5-6 for a 

herniated disc.
3

Evidence of record indicates that appellant received a third-party settlement regarding the 

July 14, 2014 motor vehicle accident. Correspondence from OWCP to an attorney representing 

appellant in her third-party claim dated October 5, 2016 noted that, as appellant did not have an 

accepted FECA case, no refund was due OWCP. A Long Form Statement of Recovery (Form 

EN-1108) documented the third-party recovery. The EN-1108 reported a gross recovery of 

$300,000.00. After deducting attorney’s fees ($99,990.00), court costs ($1,862.03), and an 

additional 20 percent ($39,629.59), the balance remaining was $158,518.38. The form noted that 

there had been no OWCP disbursements, and that the $158,518.38 would be a credit against 

future FECA benefits, if the claim was ever accepted.

At the hearing, held on December 6, 2016, appellant testified that she was terminated by 

the post office on September 17, 2016 because she could no longer physically perform her job 

duties. She described the July 14, 2014 motor vehicle accident and her medical condition and 

treatment, stating that she had been released from care in April 2016, but continued to have 

problems with her shoulders. Appellant indicated she was seeking wage-loss compensation from 

the date of injury and reimbursement for medical expenses. When questioned by the hearing 

representative, appellant testified that on the date of injury she was driving to a detail position as 

a supervisor of customer services at the Benton, Kentucky, post office. She indicated that she 

had been an acting supervisor at various post offices for most of the time since 2008, and had 

continuously been working as a supervisor for the 18-month period prior to the motor vehicle 

accident. Appellant indicated that she was reimbursed for travel to the Benton Post Office 

because of its distance from her home (over 50 miles), noting that it was the only detail for 

which her travel was reimbursed, and that she had been there for four months. She stated that 

she had not submitted a request for travel reimbursement for July 14, 2014.

By decision dated January 31, 2017, an OWCP hearing representative affirmed the 

April 11, 2016 decision, as modified to reflect that appellant was not in the performance of duty 

when injured on July 14, 2014. He further found that the fact that she was entitled to 

reimbursement for travel on July 14, 2014 was insufficient to place her in the performance of 

duty.

LEGAL PRECEDENT

Congress, in providing for a compensation program for federal employees, 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 “the disability or death of an employee resulting 

from personal injury sustained while in the performance of his duty.”

3

 The phrase “while in the 

performance of duty” has been interpreted by the Board to be the equivalent of the commonly 

found prerequisite in workers’ compensation law of “arising out of and in the course of 

employment.” In addressing this issue, the Board has held: “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 

 

3

5 U.S.C. § 8102(a); Angel R. Garcia, 52 ECAB 137 (2000).
4

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

 In deciding whether an injury is covered by FECA, the test is whether, 

under all the circumstances, a causal relationship exists between the employment itself, or the 

conditions under which it is required to be performed, and the resultant injury.5

The Board has also 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 as they do not arise out of and in the course of employment. Rather such injuries 

are merely the ordinary, nonemployment hazards of the journey itself, which are shared by all 

travelers.6 Due primarily to the myriad of factual situations presented by individual cases over 

the years, certain exceptions to the general rule have developed where the hazards of travel may 

fairly be considered a hazard of employment. Exceptions to the general coming and going rule 

have been recognized, which are dependent upon the relative facts of each claim: (1) where the 

employment requires the employee to travel on the highways; (2) where the employer contracts 

to and does furnish transportation to and from work; (3) where the employee is subject to 

emergency calls, as in the case of firefighter; (4) where the employee uses the highway to do 

something incidental to his or her employment with the knowledge and approval of the 

employer; and (5) where the employee is required to travel during a curfew established by local,

municipal, county, or state authorities because of civil disturbances or other reasons.7 OWCP 

procedures indicate: 

“Where the Employment Requires the Employee to Travel. This situation will 

not occur in the case of an employee having a fixed place of employment unless 

on an errand or special mission. It usually involves an employee who performs 

all or most of the work away from the industrial premises, such as a chauffeur, 

truck driver, or messenger. In cases of this type, the official superior should be 

requested to submit a supplemental statement fully describing the employee’s 

assigned duties and showing how and in what manner the work required the 

employee to travel, whether on the highway or by public transportation. In injury 

cases a similar statement should be obtained from the injured employee.”

8

It is a well-established principle that where the employee as part of his or her job is 

required to bring along his or her own car, truck or motorcycle for use during the working day, 

the trip to and from work is by that fact alone embraced within the course of employment.9

 

4 George E. Franks, 52 ECAB 474 (2001).

5 Mark Love, 52 ECAB 490 (2001).

6

See R.G., Docket No. 16-1419 (issued December 6, 2016).

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.6(b) (August 1992).

9 Lex K. Larson, Larson’s Workers’ Compensation, § 15.05 (2013).
5

Because rural carriers may use their own transportation to deliver their routes, which is a 

benefit to the employer, they may be deemed to be in the performance of their duties when they 

are driving their vehicles to and from their route, when they are required by the employing 

establishment to provide their own transportation.10

Regarding payment for expense of travel, Larson provides that “in the majority of cases 

involving a deliberate and substantial payment for the expense of travel, or the provision of an 

automobile under the employee’s control, the journey is held to be in the course of 

employment.”

11

ANALYSIS

The Board finds that appellant did not sustain an injury in the performance of duty on 

July 14, 2014. As noted, it is well established that as to employees having fixed hours and place 

of work, injuries occurring on the premises while they are going to and coming from work before 

or after working hours or at lunchtime are compensable, but if the injury occurs off the premises, 

it is not compensable.12 However, where the employee, as part of his or her job, is required to 

bring along his or her own car, truck, or motorcycle for use during the working day, the trip to 

and from work is by that fact alone embraced within the course of employment.13 Because rural 

carriers may use their own transportation to deliver their routes, which is a benefit to the 

employer, they may be deemed to be in the performance of their duties when they are driving 

their vehicles to and from their route, when they are required by the employing establishment to 

provide their own transportation.14

In the case at hand, by her own testimony, at the time of the motor vehicle accident on 

July 14, 2014 appellant was not driving her vehicle to work as a rural carrier. Rather, she was 

driving to the Benton, Kentucky, post office where she had been an acting supervisor for four 

months. She had been acting as a supervisor for most of the time since 2008 and continuously 

for the 18 months prior to the motor vehicle accident. Thus, the “rural carrier” exception would 

not apply, and appellant would be held to the standard going and coming rule. Regardless of 

whether appellant used her private vehicle while acting as a rural carrier, she was not scheduled 

to perform the task of delivering mail on July 14, 2014. Rather, she was driving to the Benton, 

Kentucky, post office where she had been an activing supervisor for four months.

The general “coming and going” rule would preclude coverage under FECA for this 

injury, unless appellant established an applicable exception. There are, however, no recognized 

exceptions that are applicable under these circumstances. No evidence was presented as to an 

emergency call, a contract by the employer for transportation, a requirement of travel by 

 

10 L.T., Docket No. 09-1798 (issued August 5, 2010).

11 Supra note 9 at § 14.07.

12 See R.G., supra note 6.

13 Supra note 9 at § 15.05 (2013); supra note 10.

14 Supra note 10.
6

highways or use of the highway for an incident of employment with knowledge and approval of 

the employing establishment. There is no indication that the employing establishment expressly 

or impliedly agreed that employment service should begin when appellant left home on July 14, 

2014, nor any special inconvenience, hazard or urgency of travel that would bring it within 

coverage under FECA.15

Turning to consideration of travel reimbursement, the Board finds that the record fails to 

establish that, because appellant was reimbursed for mileage for the trip from her home to the 

Benton post office, the monetary reimbursement from the employing establishment constituted 

“all or substantially all” of the cost of her travel to work such as to constitute a “deliberate and 

substantial payment” of the expenses of travel so as to bring the trip itself within the course of 

employment. Larson indicates that a majority of such cases involve the determination of 

whether a “deliberate and substantial payment” was made for the expense of the travel.16 Factors 

to consider include whether an automobile is provided for the travel, whether transportation 

involves a considerable distance or payment is made as a special inducement to hire.17 Larson 

notes, however, that a travel allowance must be distinguished from mere extra pay,18 i.e., added 

compensation with no evidence that the travel is sufficiently important in itself to be regarded as 

part of the service performed. The treatise discusses several court cases which have noted that to 

apply an exception to the going and coming rule, the employing establishment must defray “all 

or substantially all” of the cost of travel.19

In the case Jon Louis Van Alstine,

20 where the employee was working a detail at an 

alternative work site, the Board noted that the employee was reimbursed at 31 cents a mile for 

the 13-mile difference between the work sites, but found it readily apparent that this monetary 

reimbursement from the employing establishment was not for “all or substantially all” of the cost 

of his travel to work. 

In this case, although appellant testified that she was reimbursed for mileage from home 

to the Benton post office because it was more than 50 miles from her home, the record does not 

indicate the rate of reimbursement. Nonetheless, the Board finds that the reimbursement for 

mileage by appellant’s employing establishment was not intended to cover “all or substantially 

all” of the cost of her travel to work. Thus, the reimbursement for mileage in this case did not 

constitute a “deliberate and substantial payment” of the expenses of travel. Furthermore, under 

most circumstances, the travel must be sufficiently important in itself to be regarded as part of 

 

15 Federal (FECA) Procedure Manual, supra note 9; see L.P., Docket No. 07-959 (issued August 2, 2007).

16 Supra note 10 at § 14.04(1).

17 Id. at § 14.07(2).

18 Id. at § 14.07(3).

19 See Ricciardi v. Aniero Concrete Co., 64 N.J. 60, 312 A.2d 139 (1973). The employing establishment paid 40 

percent of the commuting expenses which was found an inadequate percentage to bring the accident under the 

exception to the going and coming rule.

20 56 ECAB 136 (2004).
7

the service performed and therefore within the performance of the employee’s duties.21 There is 

also no evidence to support that appellant was on a special mission from the time she left home 

on July 14, 2014. The facts do not show that the trip to work was in any way different from her 

ordinary commute to her detail position at the Benton post office. Appellant did not establish 

any special degree of inconvenience or urgency or show that the trip, in and of itself, was a 

substantial part of any service for which she was employed.22 Her trip to work was to report at 

her assigned time as an acting supervisor and no different from that of other supervisors of 

customer service. The drive to work was no more for the benefit of the employing establishment

than any other worker’s commute. Appellant’s commute was not by any mandate of the 

employing establishment.

23

The Board therefore concludes that, based on these considerations, OWCP properly

found that appellant was not in the performance of duty at the time of the July 14, 2014 motor 

vehicle accident, and was thus not entitled to workers’ compensation coverage under FECA.

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 her burden of proof to establish an 

employment-related injury in the performance of duty on July 14, 2014.

 

21 Supra note 10 at § 14.07(3); see R.C., 59 ECAB 427 (2008).

22 Supra note 20.

23 M.H., Docket No. 10-1337 (issued April 19, 2011).
8

ORDER

IT IS HEREBY ORDERED THAT the January 31, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 3, 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