United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.F., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

El Segundo, CA, Employer

__________________________________________

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Docket No. 19-0980

Issued: December 23, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On April 2, 2019 appellant filed a timely appeal from a February 13, 2019 merit decision 

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 has met his burden of proof to establish a traumatic injury 

in the performance of duty on April 29, 2018, as alleged.

FACTUAL HISTORY

On Sunday, April 29, 2018 appellant, then a 39-year-old federal air marshal, filed a

traumatic injury claim (Form CA-1) alleging that he sustained a back and leg injury when he was 

 

1 5 U.S.C. § 8101 et seq.
2

involved in a motor vehicle accident (MVA) at 12:15 p.m. that day while in the performance of 

duty. He indicated that the accident occurred while he was in travel status, in route from his home 

in San Bernardino, California to Los Angeles International Airport (LAX) where he was to begin 

a mission. On the reverse side of the claim form J.L., an employing establishment supervisor, 

controverted the claim. He noted that appellant’s usual duty station was on Walnut Avenue in 

El Segundo, California, and his regular work hours were 2:00 p.m. to 10:00 p.m., Sunday through 

Thursday. J.L. contended that appellant was off-duty at the time of the MVA on April 29, 2018 

as he was to report to work at 1:50 p.m., but was injured at 12:15 p.m. He further asserted that the 

injury occurred off the employing establishment’s premises and that appellant was not involved in 

official “off premises” duties.

A California Highway Patrol collision information form noted a date of April 29, 2018 and 

a time of 12:40 p.m., provided no information other than how to obtain a copy of the collision 

report.

Appellant also submitted an undated statement in which he maintained that, at the time of 

the MVA, he was “on official duty status, traveling to my location” at LAX to fly a domestic 

mission. He asserted that he was on official travel status at the time of the MVA, and that his 

official duty at the airport started at 11:05 a.m. Appellant indicated that he was on the most direct 

route from his residence to his duty location, and he attached a copy of a map with directions from 

San Bernardino, California to LAX. He noted that he was not in a government-owned car, but that 

the expenses of his travel were reimbursable. Appellant also submitted a copy of an employing 

establishment voucher for travel from October 1, 2017 to September 30, 2018.

In a development letter dated May 16, 2018, OWCP informed appellant that the evidence 

submitted was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence needed, and provided a questionnaire for his completion. OWCP requested further 

information to determine whether appellant was in the performance of duty at the time of hisinjury. 

It afforded her 30 days to submit the necessary evidence.

In a separate May 16, 2018 letter, OWCP asked the employing establishment to respond to 

appellant’s claim.

An April 29, 2018 California Highway Patrol collision report indicated that a rear-end 

traffic collision occurred on I-605 Southbound, 75 feet north of Telegraph Road at 12:40 p.m. on 

that date. It noted that the two cars involved sustained minor damage and were driven away by 

their respective owners. The report noted that the weather was clear, that it was daylight and dry 

with no unusual conditions, that no pedestrians were involved, that alcohol was not a factor in the 

collision and that appellant complained of back pain.

Medical evidence submitted included an April 29, 2018 work activity status report in which

Dr. Doug Plata, who practices family medicine, diagnosed strain of the muscle, fascia, and tendon 

at neck level, contusion of the right thigh, and strain of the muscle and tendon of the thorax. 

Dr. Plata advised that appellant could perform sedentary work with restrictions. In a May 1, 2017 

report, Angelica Ross, a physician assistant, provided examination findings and diagnosed cervical 

and thoracic strains and left thigh contusion. In work activity status reports dated May 4 to 11, 
3

2018, Dr. William Downs, who practices occupational medicine, diagnosed lumbar radiculopathy 

and strain of muscle and tendon and back. He advised that appellant could not work. A May 17, 

2018 magnetic resonance imaging (MRI) scan of the lumbar spine demonstrated stenosis 

secondary to a disc herniation at L4-5.

In a May 24, 2018 response to OWCP’s development questionnaire, appellant indicated 

that he had reported the incident to J.L. at the Los Angeles field office, and to L.G., the on-duty 

supervisor. He described immediate symptoms of soreness and tenderness, and noted that he had 

been treated by urgent care that evening and was put on restrictions and prescribed physical 

therapy. Appellant indicated that he did not have an injury to his neck or back prior to the MVA. 

He reported that, at the time of the MVA, he was in route to official duty at LAX to go on temporary 

duty for the government. Appellant reported that his last scheduled day of work at the field office 

was April 26, 2018 and that he was on the most direct route of travel when the MVA occurred.

In correspondence dated June 5, 2018, Z.N., a senior human resources specialist at the 

employing establishment, controverted appellant’s claim. She maintained that appellant was not 

in the performance of duty at the time of the MVA because it occurred while he was commuting 

to his place of work in his personally-owned vehicle. Z.N. reported that on April 29, 2018 

appellant was scheduled on a domestic overnight trip and was to report directly to LAX at 1:50 

p.m. She referenced an employing establishment policy, identified as OLE 3404, that governed

when a mission commenced, noting that it provided that a federal air marshal’s “mission day began 

upon arrival at the temporary-duty location,” which in appellant’s case was LAX, and that it would 

begin when the air marshal was “physically inside the airport terminal or, by the direction of a 

superior, the marshal was to report to a different location for a specific mission.” Z.N. indicated 

that J.L., appellant’s supervisor, had advised that he was to report to work at 1:50 p.m. and, 

therefore, appellant was off duty when the MVA occurred. She noted that, based on the accident 

report, he was injured at 12:15 p.m., off of the employing establishment premises, and at that time 

he was not involved in “off premises” official duties. Z.N. maintained that this case involved a 

routine commute to LAX for a mission assignment, reiterating the policy that, in the case of 

domestic missions, the start of duty began upon physical arrival inside the airport terminal. She 

maintained that, at the time of the MVA, appellant was not reasonably thought to be engaged in 

his master’s business as he was not on official duty when it occurred, he was off premises, was not 

driving a government-owned vehicle, and was to arrive at LAX airport at 1:50 p.m. Z.N. continued 

that it could not be asserted that appellant was reasonably fulfilling the duties of the employment 

as his master’s business would not have started until he physically arrived inside LAX that day. 

On June 1, 2018 Dr. Kamran Aflatoon, an osteopath specializing in orthopedic surgery, 

noted a history that appellant was in an MVA and had complaints of radiating low back pain. He 

reviewed the MRI scan, provided examination findings, and diagnosed lumbar disc bulge, 

lumbago, and lumbar spine sprain and strain. Appellant was also treated by Dr. Donna Cloughen, 

a chiropractor, from June 5 to 13, 2018. Dr. Cloughen diagnosed MVA, lumbar disc bulge and 

lumbar stenosis.

By decision dated July 2, 2018, OWCP denied the claim finding that appellant was not in 

the performance of duty when injured on April 29, 2018.
4

On November 26, 2018 appellant requested reconsideration. In an attached statement, he 

asserted that he was in the performance of duty when injured on April 29, 2018 and he referenced

by attachment a prior accepted claim regarding a similarly situated employee.

In support of his reconsideration request, appellant submitted evidence previously of record 

and reports from Dr. Cloughen dated April 29 to June 26, 2018 who reiterated her diagnoses. In a 

report dated June 29, 2018, Dr. Aflatoon noted seeing appellant in follow up and recommended 

that his care be transferred to a physiatrist. In an October 4, 2018 report, Dr. James Brown, a 

family physician, noted treating appellant for 15 years. He reported the history of the April 29, 

2018 MVA and diagnosed lumbar intervertebral disc displacement, and strain of the muscle, 

fascia, and tendon of the lower back. Dr. Brown opined with reasonable medical certainty that 

appellant had not been able to perform the essential elements of his job since April 29, 2018 and 

that he was partially disabled from work.

By a decision dated February 13, 2019, OWCP denied modification of the July 2, 2018 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA2 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,3that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

to the employment injury.4 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5

In providing for a compensation program for federal employees, Congress 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 disability or death of an employee resulting from personal 

injury sustained while in the performance of duty.6

 

2 Supra note 1.

3

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. 

Cameron, 41 ECAB 153 (1989).

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

6 See 5 U.S.C. § 8102(a); see J.N., Docket No. 19-0045 (issued June 3, 2019).
5

The Board has interpreted the phrase while in the performance of duty to be the equivalent 

of the commonly found requisite in workers’ compensation law of arising out of and in the course 

of employment. The phrase “in the course of employment” encompasses the work setting, the 

locale, and time of injury. The phrase “arising out of the employment” encompasses not only the 

work setting, but also a causal concept with the requirement being that an employment factor 

caused the injury. In addressing this issue, the Board has held that 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 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.7 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.8

The Board has recognized that, as a general rule, off-premises injuries sustained by 

employees having fixed hours and places 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. Such injuries are merely 

the ordinary, nonemployment hazards of the journey itself, which are shared by all travelers. There 

are recognized exceptions which are dependent upon the particular facts relative to each claim: 

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

employing establishment contracts to and does furnish transportation to and from work; (3) where 

the employee is subject to emergency calls, as in the case of firefighters; and (4) where the 

employee uses the highway to do something incidental to his employment with the knowledge and 

approval of the employing establishment.9

The Board has also held that an exception to the general going and coming rule is made for 

travel from home when the employee is to perform a special errand. In such a situation, the 

employing establishment is deemed to have agreed, expressly or impliedly, that the employment 

service should begin when the employee leaves home to perform the special errand. Ordinarily, 

cases falling within this exception involve travel which differs in time, or route, or because of an 

intermediate stop, from the trip which is normally taken between home and work. In such a case, 

the hazard encountered during the trip may differ from that involved in normally going to and 

returning from work. The essence of the exception, however, is not found in the fact that a greater 

or different hazard is encountered, but in the agreement to undertake a special task. For this reason, 

coverage is afforded from the time the employee leaves home, even though in time and route the 

journey may be, in part, identical to that normally followed in going to work.10

 

7 K.G., Docket No. 18-1725 (issued May 15, 2019); Kathryn S. Graham Wilburn, 49 ECAB 458 (1998). 

8

J.C., Docket No. 17-0095 (issued November 3, 2017); Mark Love, 52 ECAB 490 (2001). 

9

J.H., Docket No. 10-0185 (issued July 19, 2010); Connie J. Higgins (Charles H. Higgins), 53 ECAB 451 (2002); 

Melvin Silver, 45 ECAB 677 (1994).

10 M.H., Docket No. 10-1337 (issued April 19, 2011); Elmer L. Cook, 11 ECAB 163 (1964). 
6

In addressing the going and coming rule, Larson in workers’ compensation treatise has 

explained, “when the employee is paid an identifiable amount as compensation for time spent in a 

going or coming trip, the trip is within the course of employment.”

11

 Regarding payment for 

expense of travel, Larson further 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.12

OWCP’s procedures indicate that for injuries sustained while on travel status, the record 

must contain evidence showing when and where the employee last performed official duty; the 

distance between the place of injury and the place where official duty was last performed; between 

what points the employee was traveling when injured; the purpose of the trip; when and where the 

employee was next expected to perform official duty; whether the injury occurred on the direct or 

most usually traveled route between the place of last official duty and the place where the employee 

was expected to next perform official duty and, if not, the nature and extent of the deviation should 

be given with a full explanation of the reason for such deviation; whether at the time of the injury 

the employee was riding in or driving a Government-owned vehicle; and whether the employee’s 

travel expenses were reimbursable. In injury cases, this information should be supplied by the 

injured employee, with the official superior confirming or refuting the employee’s allegations.

13

 

The claims examiner should request a copy of the employee’s travel authorization, and a map or 

diagram showing the location of the place where official duty was last performed, the place where 

the employee was next expected to perform official duty, the shortest or most usually traveled 

route between these points, and the place where the accident occurred. For workers having a fixed 

place of employment, who are injured while on an errand or special mission, the claims examiner

will obtain the same information as for workers in travel status.14

ANALYSIS

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

In controverting the claim, Z.N., an employing establishment workers’ compensation 

manager, noted that appellant was driving his personal vehicle at the time of the accident and was 

to report for duty at LAX at 1:50 p.m., and that the accident occurred at 12:15 p.m. She reported 

that J.L., appellant’s supervisor, agreed that appellant was not in the performance of duty. Z.N.

maintained that employing establishment policies supported that, during domestic missions, which 

was appellant’s scheduled duty that day, an air marshal’s duty began upon the marshal’s physical 

arrival inside the airport which, in this case would have been 1:50 p.m. at LAX. 

While the record indicates that appellant had fixed duty hours from 2:00 p.m. to 10:00 p.m., 

Sunday through Thursday, the Board finds further development of the record is needed to 

 

11 A. Larson, The Law of Workers’ Compensation § 14.06(1) (2008).

12 Id.

13 Id.

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(d)(e) (August 1992).
7

determine if appellant was in the performance of duty when the MVA occurred at 12:15 p.m. on 

Sunday, April 29, 2018. 

The Board has recognized that FECA covers an employee 24 hours a day when the 

employee is on travel status and engaged in activities essential or incidental to such duties.15 

However, as the Board noted in the case M.H.,

16 air marshals are not in travel status while 

commuting to work. 

Although Z.N. cited to employing establishment policies regarding an air marshal’s 

mission day and duties, a copy of these policies are not found in the record before the Board. Of 

further note, the record indicates that appellant was to report to LAX at 1:50 p.m. on April 29, 

2018 to begin his duty. This was outside his regular duty hours that began at 2:00 p.m. The Board 

finds that the record is unclear of the factual chronology on the date of incident as it is unclear 

whether appellant was to arrive at LAX at 1:50 p.m. or board a domestic flight at that time, thus 

necessitating an earlier arrival time.

The Board also notes that the record does not contain evidence regarding reimbursement 

policies of the employing establishment regarding mileage or any other expenses of appellant’s air 

marshal duties during his travel to the airport.

17

The Board notesthat OWCP proceduresrequire that in cases of injured air marshals, certain

documentary evidence must be obtained.18 Herein, although Z.N. provided a statement, she did

not provide a copy of employing establishment policies or other information needed for a full and

fair adjudication of this case.

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, 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.19 

The Board finds that OWCP insufficiently developed the evidence regarding whether appellant

was in the performance of duty at the time of injury on April 29, 2018.

20

 

15 See A.W., 59 ECAB 593 (2008); Ann P. Drennan, 47 ECAB 750 (1996); Richard Michael Landry, 39 ECAB 

232 (1987).

16 See M.H., supra note 10. 

17 See Jon Luis Van Alstine, 56 ECAB 136 (2004) (The Board found it readily apparent that monetary 

reimbursement from the employing establishment was not for “all or substantially all” of the cost of his travel to work 

where the employee was working a detail at an alternative work site and was reimbursed at 31 cents a mile for the 13-

mile difference between the work sites.) 

18 Federal (FECA) Procedure Manual, supra note 14 at Chapter 2.804.7 (August 1992).

19 T.T., Docket No. 20-0383 (issued August 3, 2020).

20 D.C., Docket No. 19-0846 (issued October 17, 2019); Federal (FECA) Procedure Manual, supra note 14 at 

Chapter 2.800.5(d)(1); see also Chapter 2.804.4(f).
8

As OWCP failed to request all the information as required under its procedures, the case 

must be remanded for further development of the claim.21 On remand OWCP shall obtain

clarifying information as to the employing establishment policies and appellant’s duties on the

date of incident including development of whether he was in travel status or on a special mission 

from his regularly assigned work on the date of incident. It shall further inquire as to whether he 

was compensated for mileage or was to be reimbursed for mileage or any of his other expenses

related to his mission on April 29, 2018. Further OWCP shall determine the basis for why 

appellant was instructed to report at 1:50 p.m. on the date of incident. 

Following this and other such further development as deemed necessary, OWCP shall issue 

a de novo decision.22

CONCLUSION

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

 

21 See S.T., Docket No. 20-0588 (issued September 16, 2020).

22 Id.
9

ORDER

IT IS HEREBY ORDERED THAT the February 13, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for proceedings 

consistent with this opinion of the Board.

Issued: December 23, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board