United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.R., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION,

Dayton, OH, Employer

__________________________________________

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Docket No. 18-1490

Issued: April 4, 2019

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 July 31, 2018 appellant, through counsel, filed a timely appeal from a May 29, 2018 

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 appellant has met his burden of proof to establish an injury in the

performance of duty on January 25, 2013.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case

as set forth in the prior Board decisions are incorporated herein by reference. The relevant facts 

are as follows.

On January 23, 2014 appellant, then a 50-year-old medical administration specialist, filed 

a traumatic injury claim (Form CA-1) alleging that at 8:30 a.m. on January 25, 2013 he sustained 

injury due to a motor vehicle accident 25 miles east of Louisville, Kentucky. He did not stop work 

at the time of the alleged January 25, 2013 employment injury, but he stopped work on 

November 25, 2013. On the same form, appellant’s immediate supervisor checked a box marked 

“No” indicating that the claimed January 25, 2013 employment injury had not occurred in the 

performance of duty and noted, “The purpose of the trip was exclusively to explore employment 

opportunities, [appellant] was not on a work detail.” The supervisor indicated that appellant’s 

regular-duty station was the employing establishment medical center and that his regular hours 

were 7:30 a.m. to 4:00 p.m., Monday through Friday.

In a January 23, 2014 statement, appellant indicated that on January 25, 2013 he was on 

orders to proceed to a detailed assignment at the employing establishment’s Valley Coastal Bend 

Health Care System facilities in Harlingen and Corpus Christi, Texas. He advised that he was 

driving in an ice storm near Louisville on January 25, 2013, the first day of his trip, when at 

approximately 8:00 or 9:00 a.m. he was involved in a motor vehicle accident, which caused his 

vehicle to roll over four times. Appellant indicated that his injuries, including pain/bruising in his 

neck and extremities, did not appear severe at the time of the January 25, 2013 accident, and that 

he continued his trip to the Valley Coastal Bend Health Care System facilities. He noted that, 

when he returned to work in Dayton, Ohio, he reported the accident to his immediate supervisor 

and another employee, sought medical treatment from employing establishment physicians, and 

used annual and sick leave. Appellant asserted that his need for total hip replacement surgery was 

related to the January 25, 2013 accident.

In a report of contact with a “Date of Contact” of February 6, 2014, it was indicated that, 

“[Appellant] requested approval to take a trip to Texas to interview for a potential job 

assignment(s) and early placement out of the Technical Career Field Program [(TCFP)].” The 

document provided the text of appellant’s January 24, 2013 e-mail to several individuals, including 

his immediate supervisor, which was entitled, “Use of [TCFP] Funds for Final Placement Site 

Visit.” In this e-mail appellant indicated that he wanted to clarify the purpose of his trip after 

speaking with an individual in the Chief Business Office of the TCFP. He advised that he was 

going to two locations in Texas, the primary location being in Harlingen, Texas, and the secondary 

location being in Corpus Christi, Texas, to engage in site visits for permanent placement to 

 

3 Docket No. 16-0544 (issued June 15, 2017).
3

complete the TCFP. Appellant indicated that he had already undergone telephone interviews and 

that the positions in both locations met the final placement criteria for the TCFP.4

In a letter dated February 6, 2014, a workers’ compensation specialist for the employing 

establishment indicated that the employing establishment was challenging appellant’s claim for a 

January 25, 2013 injury. She advised that appellant was not in the performance of duty when the 

alleged work-related injury occurred on January 25, 2013 and that the purpose of his trip to Texas 

was exclusively to explore employment opportunities. The specialist noted that he was not on a 

work-detail status from the employing establishment medical center as alleged. She indicated that 

a 120-day commitment agreement for the TCFP, signed by appellant on December 21, 2012, 

provided that the employing establishment could not offer him a position at the end of the TCFP, 

and that he was responsible for finding suitable employment prior to the end of the term of the 

TCFP.

The specialist attached a copy of a 120-day commitment agreement signed by appellant on 

December 21, 2012 in which it was noted that his two-year anniversary date as an intern in the 

TCFP was September 26, 2013. Appellant signed a certification block in which he affirmed that, 

since his work facility could not offer him a position at the end of the TCFP, he understood that it 

was his responsibility to find suitable placement prior to the two-year anniversary of the date he 

was hired into the TCFP. He further affirmed that he agreed to work with the national career field 

program manager to find placement and that he understood he had to accept or decline a placement 

offer at least 60 days prior to his two-year anniversary date.

In a February 20, 2014 development letter, OWCP requested that appellant submit 

additional factual and medical evidence and to complete an attached questionnaire in support of 

his claimed January 25, 2013 employment injury. On the same date it requested additional 

information from the employing establishment and asked it to complete an attached questionnaire.

Appellant submitted a March 10, 2014 statement in which he asserted that various 

documents he was submitting in connection with the statement showed that he was on “approved 

travel” when he was injured in the January 25, 2013 accident. He indicated that he was driving 

his private-owned vehicle because a government-owned vehicle was not available for use.

Appellant asserted that the January 25, 2013 accident occurred on the most direct route between 

the employing establishment medical center and the Valley Coastal Bend Health Care System 

facilities. He indicated that he reported the January 25, 2013 accident to an official at the Valley 

Coastal Bend Health Care System facility in Harlingen, Texas when he arrived there after the 

accident.

Appellant submitted a January 18, 2013 e-mail to a TCFP official in which he advised that 

he had been asked to travel the following week to Corpus Christi, Texas for a site visit. His e-mail 

was sent in response to a January 18, 2013 e-mail of the TCFP official indicating that a position 

opening might be announced. In a series of e-mails between appellant and an official with the 

Valley Coastal Bend Health Care System, dated January 23 and 24, 2013, appellant indicated that 

his travel to the Valley Coastal Bend Health Care System facilities had been approved by his 

 

4 Appellant submitted a document which indicated that he provided an expense report to the employing 

establishment on February 21, 2013.
4

“chief” and that he would be using TCFP funds for the trip. The official advised that the specialist 

would be able to meet with him on January 31, 2013 to discuss a position opening at the Harlingen, 

Texas facility. She indicated that she had no authority to discuss position openings at the Corpus 

Christi, Texas facility. In a January 24, 2013 e-mail to appellant, which was copied to his 

immediate supervisor, a TCFP program manager in Atlanta advised that TCFP funds could “be 

used towards a site visit for permanent placement.” In a February 4, 2013 e-mail to his immediate 

supervisor in Dayton, Ohio, appellant advised that he was home and that he had “an interesting 

run in with an ice storm ... which is why I am going to the [physician] today.” He indicated that 

he would submit a travel authorization request.

A March 28, 2013 e-mail sent to appellant through an automated response system indicates, 

“You have an Expense Report which has been approved,” and lists his immediate supervisor as 

the “Final Approver.” A document lists expenses he incurred for lodging, meals, and mileage for 

the period January 25 to February 4, 2013 and contains the comments, “Site visit to south Texas 

for [TCFP] final placement. Shortened trip due to accident and business being done early.” The 

last page of the document indicates that appellant submitted an expense report on 

February 21, 2013.

Appellant also submitted a Memorandum of Understanding (MOU) signed in March 2013 

by appellant, officials of the Valley Coastal Bend Health Care System, and officials of the 

employing establishment medical center, including appellant’s immediate supervisor. The 

document concerns the prospective relocation of appellant’s job from the employing establishment 

medical center to the Valley Coastal Bend Health Care System effective September 26, 2013.

Appellant would begin working as a supervisory medical administration specialist at the 

Harlingen, Texas facility. An MOU with the heading “Final Placement,” indicates that on May 6, 

2013 he would be transferred to the position of supervisory medical administration specialist at 

the Harlingen, Texas facility and that, effective September 26, 2013, he would be permanently 

placed in the position. In a May 6, 2013 memorandum to the TCFP program manager in Atlanta, 

appellant indicated that he made a site visit to Harlingen, Texas in January 2013. E-mails from 

mid-May 2013 show that he made the transfer to the Harlingen, Texas facility on May 6, 2013.

Appellant submitted an undated Kentucky Uniform Police Traffic Collision Report 

describing the January 25, 2013 motor vehicle accident. He also submitted medical evidence in 

support of his claim, including a February 26, 2014 report in which Dr. Jarvis Earl, an attending 

Board-certified orthopedic surgeon, indicated that he was totally disabled from December 4, 2013 

to February 28, 2014 and partially disabled from March 1 to 21, 2014.

In a March 21, 2014 letter, the workers’ compensation specialist for the employing 

establishment, who had produced the February 6, 2014 letter submitted earlier, responded to 

OWCP’s February 20, 2014 request for additional information. The specialist advised that 

appellant was not on an official temporary-duty (TDY) assignment at the time of his January 25, 

2013 accident. She indicated that he traveled to Texas for a job interview, as expressed through a 

January 24, 2013 e-mail in which he noted that he would use TCFP funds for such travel. The 

specialist advised that, prior to the January 25, 2013 accident, appellant last performed his official 

duties on January 22, 2013 at his regular-duty station, i.e., the employing establishment medical 

center. She indicated that he was expected to perform his next official duty on February 4, 2013 
5

at his regular-duty station in Dayton. The specialist advised that appellant was not riding in or 

driving a government-owned car on January 25, 2013.

In a February 5, 2013 report of contact, appellant’s immediate supervisor noted that 

appellant informed her that he had returned to the Dayton Veterans Affairs Medical Center 

following a trip to Texas to interview for a job as a part of his attempt to obtain early placement 

out of the TCFP. The supervisor noted that appellant advised her that he had been involved in a 

motor vehicle accident on January 25, 2013 while driving to Texas. Appellant further informed 

her that he had suffered some bruising without serious injury and that he continued with his trip 

plans following the accident. The supervisor noted, “[Appellant] was not in a detail status, but 

rather in a travel status.”

In a March 29, 2014 statement, appellant responded to the employing establishment’s 

March 21, 2014 letter. He again asserted that he was required by the TCFP to travel to another 

site for placement and that this fact was supported by the MOU in the record.

By decision dated May 6, 2014, OWCP found that appellant had not met his burden of 

proof to establish an injury in the performance of duty on January 25, 2013. It determined that the 

evidence of record failed to support that the claimed injury occurred in the performance of duty as 

it did not occur in “the course of employment and within the scope of compensable work factors 

as defined by ... FECA.” OWCP explained that appellant’s January 25, 2013 accident had not 

occurred while he was on official duty status, but rather occurred while he was engaged in the 

personal mission of traveling to Texas for a job interview.5

On April 21, 2015 appellant, through counsel, requested reconsideration of OWCP’s 

May 6, 2014 decision. He submitted copies of e-mails that were exchanged between him and a 

TCFP national program manager. In an April 8, 2015 e-mail to the coordinator, appellant referred 

to himself as a TCFP intern in the class of 2011. He advised that in January 2013 he was traveling 

to Texas for a site visit on a short detail and that, while he was in Texas, he was also going to 

interview for a permanent placement position with the Valley Coastal Bend Health Care System.

He asked the coordinator to provide an opinion regarding whether he was in the line of duty while 

traveling to Valley Coastal Bend Health Care System facilities for a site visit. In an April 9, 2015 

e-mail, the coordinator replied, “As long as you were on official travel orders for a site visit as part 

of your two-year training program, I would consider that on duty as for another other [sic] official 

trip you would take for [Valley Coastal Bend].”

By decision dated November 25, 2015, OWCP denied modification of its May 6, 2014 

decision finding that appellant had not established an injury in the performance of duty on 

January 25, 2013. It found that appellant’s activities on January 25, 2013 had not occurred in the 

course of his employment or arising out of his employment.

 

5

In a letter dated February 26, 2015, appellant, through counsel, requested reconsideration of OWCP’s May 6, 

2014 decision. He submitted a January 23, 2015 medical report of Dr. Earl. By decision dated March 5, 2015, OWCP 

denied appellant’s request for further review of the merits of his claim pursuant to 5 U.S.C. § 8128(a). 
6

Appellant appealed OWCP’s November 25, 2015 decision to the Board and, by decision 

dated June 15, 2017,6the Board set aside OWCP’s November 25, 2015 decision and remanded the 

case to OWCP for further development. The Board indicated that it was unable to make a 

determination regarding appellant’s claimed January 25, 2013 employment injury because there 

was conflicting evidence in the record as to whether appellant’s January 25, 2013 accident 

occurred while he was on an employment-related site visit or whether he was on a personal job 

hunting trip. It noted that a workers’ compensation specialist for the employing establishment 

indicated that appellant was not on a work-detail status from the employing establishment Medical 

Center as alleged and that he was not on an official TDY or travel assignment at the time of his 

January 25, 2013 accident. However, although appellant’s immediate supervisor noted that on 

January 25, 2013 appellant was “not in a detail status,” she also made the contradictory statement

that he was “in a travel status.”

The Board also indicated that a TCFP national program manager provided evidence 

regarding the nature and purpose of appellant’s January 2013 trip to Texas which contradicted 

evidence from appellant’s immediate supervisor and the workers’ compensation specialist for the 

employing establishment.7 The Board noted that further uncertainty regarding the relationship of 

appellant’s trip to his employment was created by the fact that expenses for his trip were 

reimbursed by the employing establishment. The record reflects that a TCFP official in Atlanta 

advised appellant on January 24, 2013 that he could use TCFP funds for his trip to Texas, and that 

his request for reimbursement of expenses for the period January 25 to February 5, 2013 was later 

approved by his immediate supervisor. The Board directed OWCP to issue a de novo decision 

regarding appellant’s claim after carrying out further development with respect to the abovedescribed conflicting evidence.

On remand OWCP sent a July 20, 2017 development letter to the employing establishment 

which posed various questions regarding appellant’s travel to Texas in January 2013. It asked 

whether official agency travel orders were issued for appellant’s travel to Texas in January 2013. 

If such orders were issued, the employing establishment was to provide a copy to show the dates 

that appellant was authorized to be in official travel status. OWCP noted that a TCFP official 

advised that TCFP funds could be used towards a “site” visit for permanent placement and 

indicated that there was documentation in the file showing that appellant was reimbursed for his 

travel to Texas. It asked the employing establishment to verify if the reimbursement occurred due 

to appellant being in official travel status or for some other reason. OWCP afforded the employing 

establishment 30 days to respond.

In an August 16, 2017 letter, a benefits specialist for the employing establishment indicated 

that she was confused by appellant’s case because it had been denied on May 6, 2014 and it 

 

6 Supra note 3.

7

In an April 8, 2015 e-mail to the TCFP national program manager, appellant advised that in January 2013 he was 

traveling to Texas for a site visit on a short detail and that, while he was in Texas, he was also going to interview for 

a permanent placement position with the Valley Coastal Bend Health Care System. He asked the TCFP national 

program manager to provide an opinion regarding whether he was in the line of duty while traveling to the Valley 

Coastal Bend Health Care System facilities for a site visit. In an April 9, 2015 e-mail, she replied, “As long as you 

were on official travel orders for a site visit as part of your two-year training program, I would consider that on duty 

as for another other [sic] official trip you would take for [Valley Coastal Bend].”
7

appeared that a reconsideration request was denied in 2015. She indicated that the employing 

establishment had not received anything to show the case had been reopened and she noted, “I am 

resending the information that is already in the case file stating [appellant] went to Texas for a job 

interview according to documents. What he told the TCFP was not something we were privileged 

to. He stated it was an interview, more than once.” The benefits specialist submitted documents 

which were already in the record, including the February 5, 2013 report of contact from appellant’s 

immediate supervisor, the 120-Day Commitment Agreement for the TCFP signed by appellant on 

December 21, 2012, and the February 6 and March 21, 2014 letters from a workers’ compensation 

specialist for the employing establishment. 

By decision dated September 21, 2017, OWCP found that appellant had not met his burden 

of proof to establish an injury in the performance of duty on January 25, 2013. It noted that all of 

the evidence submitted by the benefits specialist for the employing establishment in August 2017 

had already been considered in prior decisions and did not establish that appellant was on official 

duty status during his trip to Texas in January 2013. OWCP noted, “[A]fter after a thorough review 

of all evidence, your claim for compensation is denied because the fourth basic element, 

performance of duty, has not been met. Specifically, your case is denied because the evidence is 

insufficient to establish that the injury and/or medical condition arose during the course of 

employment and within the scope of compensable work factors....”

On October 3, 2017 appellant, through counsel requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearing and Review. During the hearing, held on March 15, 

2018, counsel asserted that on January 25, 2013 appellant was on travel status which was approved 

by employing establishment officials and the TCFP program manager.8

By decision dated May 29, 2018, OWCP’s hearing representative affirmed OWCP’s 

September 21, 2017 decision. She determined that appellant failed to establish that he sustained 

an injury in the performance of duty on January 25, 2013. The hearing representative found that, 

at the time of his January 25, 2013 accident, appellant was on a “personal job hunting trip” and 

was not on approved travel status. 

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.”

9

 The phrase 

“sustained 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.”

10

 The phrase “in the course of employment” is recognized as relating to 

the work situation, and more particularly, relating to elements of time, place, and circumstance. 

To arise in the course of employment, an injury must occur at a time when the employee may 

reasonably be said to be engaged in the master’s business, at a place where he may reasonably be 

 

8 Prior to the hearing being held, appellant submitted several documents which were already in the case record.

9 5 U.S.C. § 8102(a).

10 Charles Crawford, 40 ECAB 474, 476-77 (1989).
8

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

duties of his employment or engaged in doing something incidental thereto.”

11

 This alone is 

insufficient 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.12 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.13

The Board has held that, where an employee is on travel status or a TDY assignment, he 

or she is covered by FECA 24 hours a day with respect to any injury that results from activities 

essential or incidental to his or her temporary assignment.14

ANALYSIS

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

In its June 15, 2017 decision, the Board set aside OWCP’s November 25, 2015 decision 

and remanded the case to OWCP for further development because there was conflicting evidence 

in the case record as to whether appellant’s January 25, 2013 accident occurred while he was on 

an employment-related site visit or whether he was on a personal trip for the purpose of finding 

alternate employment. The Board provided a detailed description of the evidence in the case record 

which conflicted, but OWCP failed to carry out adequate development of these specific matters 

upon remand. OWCP sent a July 20, 2017 development letter to the employing establishment 

which posed various questions regarding appellant’s travel to Texas in January 2013. Despite

receiving a response from the employing establishment which did not fully answer the posed 

questions, OWCP did not conduct any further development of the evidence.15

Under FECA, although it is the burden of an employee to establish his or her claim, OWCP 

also has a responsibility in the development of the factual evidence, particularly when such 

evidence is of the character normally obtained from the employing establishment or other 

government source.16

Therefore, the case must be remanded to OWCP in order for it to carry out the development 

originally directed by the Board in its June 15, 2017 decision. As delineated above, the Board’s 

 

11 Mary Keszler, 38 ECAB 735, 739 (1987). 

12 Eugene G. Chin, 39 ECAB 598, 602 (1988).

13 See id.

14 D.R., Docket No. 16-1395 (issued February 2, 2017); T.C., Docket No. 16-1070 (issued January 24, 2017).

15 In an August 16, 2017 letter, a benefits specialist for the employing establishment merely indicated that appellant 

had indicated that he went to Texas for an interview. She attached several documents which were already in the case 

record and which had previously been considered by OWCP.

16 Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James Clark, 39 ECAB 1311, 1318-19 (1988).
9

June 15, 2017 decision described in detail the conflicting evidence in the case record pertaining to 

such matters as whether appellant was on travel status in January 2013, and whether his trip to 

Texas was approved as work related by employing establishment officials or the TCFP program 

manager. After carrying out this development, OWCP shall issue a de novo decision regarding 

appellant’s claim for a January 25, 2013 employment injury.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the May 29, 2018 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings 

consistent with this decision.

Issued: April 4, 2019

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