United States Department of Labor

Employees’ Compensation Appeals Board

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N.S., Appellant

and

DEPARTMENT OF AGRICULTURE, U.S. 

FOREST SERVICE, Albuquerque, NM, 

Employer

__________________________________________

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Docket No. 19-0520

Issued: July 17, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 4, 2019 appellant, through counsel, filed a timely appeal from a July 12, 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 her burden of proof to establish an injury on 

January 9, 2018, while in the performance of duty, as alleged.

FACTUAL HISTORY

On January 25, 2018 appellant, then a 65-year-old project manager, filed a traumatic injury 

claim (Form CA-1) alleging that on January 9, 2018 at 3:20 p.m. she fractured her right leg and 

ankle when she slipped and fell on ice on the driveway at her residence.

3

 On the reverse side of 

the claim form, the employing establishment advised that she was not in the performance of duty 

at the time of the injury as it “occurred at home after teleworking and after hours.” It indicated 

that appellant’s regular-duty hours were 6:00 a.m. until 2:30 p.m. Appellant’s supervisor, in an 

addendum to the form, related that appellant “had received a work headset to use, but it was not 

the correct one. She had to take the headset back to UPS [United Parcel Service] and while in her 

driveway she slipped on ice, hitting her head and breaking her right leg and right ankle.”

In a development letter dated January 31, 2018, OWCP advised appellant of the type of 

factual and medical evidence needed to establish her claim, including a detailed description of the 

January 9, 2018 employment incident and whether she was performing her job duties at the time 

of the alleged incident. It afforded her 30 days to provide the necessary evidence. In a 

development letter of even date, OWCP requested that the employing establishment address 

whether appellant was on premises that it owned, operated, or controlled at the time of the 

January 9, 2018 incident. It further requested that it provide the exact time of the incident and a 

specific explanation regarding whether she was performing work duties or activities reasonably 

incidental to her employment. 

On February 8, 2018 the employing establishment indicated that it did not own or “control 

the area in which [appellant] suffered her accident, which is outside her official telework area.” It 

advised that the she had worked until 3:30 p.m. on January 9, 2018 and that the incident had 

occurred at 3:20 p.m. The employing establishment responded “Yes” to the questions of whether 

appellant was engaged in official duties that necessitated her being off the premises and whether 

she was performing her assigned duties or an activity reasonably incidental to employment.

By decision dated March 8, 2018, OWCP denied appellant’s traumatic injury claim finding

that the January 9, 2018 incident had not occurred in the performance of duty. It accepted that the 

January 9, 2018 incident occurred as alleged, but determined that appellant was not within the 

course of employment as the incident had occurred more than 30 minutes after the end of her 

workday and outside of her residence. 

Thereafter, OWCP received appellant’s February 12, 2018 response to its development 

letter. Appellant related that she had fallen on January 9, 2018 on black ice between 3:20 and 3:40 

 

3 The claim form indicated that the injury occurred at 3:20 a.m., but appellant and the employing establishment 

subsequently clarified that the incident occurred at 3:20 p.m.
3

p.m. while going “to return a headset to UPS....” She advised that she had been performing her 

employment duties at the time of her fall.

Appellant submitted a January 8, 2018 e-mail to her supervisor. She informed her 

supervisor that she intended to work nine hours on January 8 and 9, 2018 to earn time to take off 

for an appointment on January 10, 2018. Appellant’s supervisor accepted her request in a 

January 8, 2018 e-mail response. 

In a statement dated March 20, 2018, appellant related that she had received an e-mail from 

a communication vendor on January 9, 2018 requesting that she “send back a headset that was 

purchased in error.” She advised that it was office practice that “the employee returns packages 

to the UPS store themselves instead of calling UPS for pick up.” Appellant indicated that she 

slipped and fell at approximately 3:20 p.m. on January 9, 2018 on her way to the UPS store to 

return the headset.

On March 28, 2018 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review. 

By decision dated July 12, 2018, OWCP’s hearing representative affirmed the March 8, 

2018 decision. He found that the employing establishment had not sufficiently explained how 

appellant’s activity on January 9, 2018 occurred within the scope of her work duties. The hearing 

representative found that the fall occurred as part of a hazard shared by all travelers and that there 

was no evidence that she was on a special errand or assignment of the employing establishment. 

He thus found that appellant had not established that she was in the performance of duty at the 

time of the January 9, 2018 incident.

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 The phrase “sustained 

while in the performance of duty” in FECA is regarded as the equivalent of the commonly found 

requisite in workers’ compensation law of arising out of and in the course of employment.5

In order to be covered under FECA, an injury must occur at a time when the employee may 

reasonably be stated to be engaged in his or 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.6

 

4 5 U.S.C. § 8102(a).

5 See M.S., Docket No. 18-0465 (issued August 1, 2018).

6 A.C., Docket No. 17-1927 (issued April 12, 2018).
4

OWCP’s procedures address off-premises injuries sustained by workers who perform 

service at home. It provides:

“Ordinarily, the protection of [FECA] does not extend to the employee’s home, but 

there is an exception when the injury is sustained while the employee is performing 

official duties. In situations of this sort, the critical problem is to ascertain whether 

at the time of injury the employee was in fact doing something for the employer. 

The official superior should be requested to submit a statement showing:

(a) What directives were given to or what arrangements had been made with 

the employee for performing work at home or outside usual working hours;

(b) The particular work the employee was performing when injured; and

(c) Whether the official superior is of the opinion the employee was 

performing official duties at the time of the injury, with appropriate 

explanation for such opinion.”

7

OWCP’s procedures further provide that if the statements are not “sufficiently detailed or 

are otherwise insufficient to permit a proper determination, additional statements should be 

obtained from others in a position to know the circumstances.”

8

ANALYSIS

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

OWCP accepted that on January 9, 2018 appellant, during a scheduled telework shift, 

slipped and fell on ice on her driveway at her residence. However, it denied the claim finding that 

the evidence of record was insufficient to establish that she had sustained the injury while in the 

performance of duty. 

Appellant alleged that she slipped and fell on ice on the driveway outside of her residence 

when she left her home to return a work headset to the UPS store, consistent with instructions from 

a communication vendor.

OWCP requested that the employing establishment address whether appellant was 

performing her assigned duties or activities reasonably incidental to her employment at the time 

she slipped and fell. On February 8, 2018 the employing establishment responded affirmatively

that her work duties required her to be off the premises and that she was engaged in her assigned 

duties or an activity reasonably incidental to employment at the time of the January 9, 2018 

incident.

 

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1) (August 1992); 

see also M.T., Docket No. 17-1695 (issued May 15, 2018).

8 Federal (FECA) Procedure Manual, id. at Chapter 2.804.5(f)(3).
5

OWCP’s procedures provide coverage under FECA for off-premises workers who perform 

services from home for their employing establishment.9 OWCP has provided that employees 

engaged in the performance of their duties during authorized telework are covered under FECA.10 

In these cases, the procedures direct OWCP to determine whether the employee was performing 

assigned duties, was engaged in an activity reasonably incidental to the assignment, or had 

deviated from the assignment and was engaged in a personal activity.11

The Board finds that OWCP failed to properly adjudicate whether appellant’s off-premises 

activity was part of or incidental to her employment duties at the time of the claimed injury on 

January 9, 2018.12 As noted, OWCP’s procedures provide that the official superior should submit 

a statement regarding the details of the matter and, if such statements are not sufficiently detailed, 

additional statements should be obtained from others in a position to know the circumstances.13 

Appellant’s supervisor generally maintained that she was in the performance of duty at the time of 

the alleged incident, but did not provide any detail regarding the work activities that she was 

performing or why her action of returning the headset on January 9, 2018 occurred during the 

course of employment. Consequently, this statement is insufficiently detailed to constitute proper 

development of the factual basis of the claim.14

It is well established that proceedings under FECA are not adversarial in nature and while 

the claimant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.15 Accordingly, the 

case is remanded for further development, including obtaining and analyzing evidence regarding 

whether appellant was reasonably fulfilling the duties of her federal employment or was engaged 

in activities incidental thereto on January 9, 2018.

Following this and any other development deemed necessary, OWCP shall issue a de novo

decision on the merits of appellant’s claim.

CONCLUSION

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

 

9 Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.804.5(a)(4).

10 Id.

11 Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.804.5(b); R.H., Docket No. 15-1339 (issued 

June 13, 2016).

12 R.H., id.

13 See supra notes 7 and 8; see also A.S., Docket No. 18-1381 (issued April 8, 2019).

14 See A.S., id.

15 See A.G., Docket No. 19-0153 (issued May 13, 2019).
6

ORDER

IT IS HEREBY ORDERED THAT the July 12, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this opinion of the Board.

Issued: July 17, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board