United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Philadelphia, PA, Employer

__________________________________________

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Docket No. 18-1741

Issued: July 5, 2019

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 19, 2018 appellant, through counsel, filed a timely appeal from an April 9, 

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.3

 

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.

3 The Board notes that, following the April 9, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish an injury on July 20, 

2016 in the performance of duty as alleged. 

FACTUAL HISTORY

On August 3, 2016 appellant, then a 47-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that, while in the performance of duty at 3:40 p.m. on July 20, 2016, she slipped

and fell in the employing establishment’s retail store, causing injury to her right knee, backside,

hip, back, hand, wrist, arm, shoulder, and neck. She stopped work on July 21, 2016 and has not 

returned. On the reverse side of the claim form, T.K., a supervisor, contended that appellant was 

not in the performance of duty when injured. 

In a July 21, 2016 incident report, T.K. indicated that appellant reported that on July 20, 

2016 at 3:40 p.m. to 3:50 p.m., she had gone to the Veterans Canteen Store, located on the third 

floor of the employing establishment, she crouched down to look at a computer on the bottom row 

of the display rack and lost her balance. Although appellant placed her right hand out to break her 

fall, she hit her knees on the floor and then fell onto her buttocks. She indicated that after this 

incident she purchased her items, left the store and returned to her workstation. Appellant noted 

that she awoke the next morning and noticed pain in her right hand, wrist and arm, up across the 

shoulders, the right side of her neck, and right knee. T.K. indicated that appellant was sent to 

Occupational Health and that she had returned with work restrictions and a recommendation to see 

a private physician. 

A copy of a July 21, 2016 document entitled “Employee Injury Report” was provided.

4

 It 

noted the history of injury that appellant was at the employing establishment’s retail store lost her 

balance and fell while squatting down to look at the bottom area of the display case. An assessment 

that the fall appeared to have exacerbated preexisting chronic pain from a fall at work years ago 

was provided. A copy of appellant’s July 21, 2016 restrictions and recommendations from an 

occupational health physician with an illegible signature were also provided. 

In an August 1, 2016 report, Dr. Michael D. Cirigliano, a Board-certified internist, noted 

that appellant fell at work on July 20, 2016 and injured her knees, and her neck and hip on the right 

side. He indicated that x-ray studies showed significant cervical spine pathology and a small 

effusion of the right knee. No diagnosis was provided.

In an August 3, 2016 statement, D.C., operational manager of Veteran Canteen Service, 

related that on July 20, 2016 she was ringing up a customer at the retail store and heard a loud 

thump. When she turned around, she saw appellant down on the floor in front of the electronics

case. D.C. recounted that appellant repeatedly stated that she was okay when asked and continued 

shopping. She indicated that there was nothing on the floor to cause appellant to fall.

In an August 4, 2016 statement, S.S., an employing establishment workers’ compensation 

specialist, noted that appellant worked on the first floor in Building 1 and that the July 20, 2016

incident occurred while she was performing personal shopping at the employing establishment’s 

canteen store located on the third floor of Building 2. She alleged that, while the alleged injury 

 

4 The author of this report cannot be identified. 
3

occurred on premises, it was not in the performance of duty as appellant continued to shop after 

the alleged injury and that she was not on an authorized break time at the time of incident, 3:40 

p.m.

In a development letter dated August 9, 2016, OWCP informed appellant of the type of 

evidence needed to establish her claim. It asked her to further explain what exactly she was doing 

in the employer’s canteen store when the injury occurred. In a separate letter of even date, OWCP 

asked that the employing establishment address whether appellant was assigned duties that 

required her to be in the employer’s canteen store on July 20, 2016 or whether she was performing

any activity which, by its nature, was considered reasonably incidental to the assignment. It

afforded both parties 30 days to provide additional information.

In a September 6, 2016 statement, S.S., asserted that appellant was not on an official break 

or engaged in any official duties at the time and place of the injury. Diagrams of the area where 

appellant worked and the area where the alleged injury took place were provided.

By decision dated September 14, 2016, OWCP denied appellant’s claim, finding that she 

was not in the performance of duty on July 20, 2016, as alleged. It found that she was not 

performing official duties and that there was no medical evidence of record which established a 

medical condition causally related to the work injury or event.

On October 20, 2016 appellant requested a review of the written record before an OWCP 

hearing representative. Additional evidence, including medical evidence, was submitted.

In an undated statement, appellant asserted that she was at work and on the employing 

establishment premises when she slipped and fell on July 20, 2016. In a December 19, 2016 Form 

CA-110 telephone record, she indicated that she was on her afternoon break at the employer’s 

retail store because the cafeteria was closed and she went to grab something to eat. Appellant also 

submitted her department lunch schedule for July 20, 2016, indicating her lunch break was 

scheduled from 1:30 p.m. to 2:00 p.m.

By decision dated January 13, 2017, an OWCP hearing representative affirmed OWCP’s 

September 14, 2016 decision. He found that while appellant was on break and on the employing 

establishment premises, she was performing a personal activity with a specific nonemploymentrelated objective when she bent down or crouched to look at a computer on the bottom shelf in the 

store and fell. Accordingly, appellant had not established that the injury occurred in the 

performance of her federal employment duties.

On January 9, 2018 counsel requested reconsideration and provided factual and legal 

arguments. He stated, as indicated in appellant’s statement, that appellant’s injury occurred while 

she was purchasing a snack in the employing establishment’s multipurpose room. Counsel argued 

that appellant’s presence in the multipurpose room, which she was authorized to use while the 

canteen and snack shop were under construction, fell within the Personal Comfort Doctrine and 

that her actions in crouching to view the items in the glass display case failed to amount to a 

deviation from her performance of duty. 

In a five-page January 9, 2018 statement, appellant noted, in pertinent part, that on July 20, 

2016 she was not able to take either her morning or lunch break and that she went to the makeshift 

store in the multipurpose room to purchase a snack. She indicated that all employees were 

permitted to utilize the store in the multipurpose room during the reconstruction of the canteen and 
4

snack shop. Appellant described the multipurpose room, noting that large shelving acted as aisles 

and that the space was cluttered, with merchandise everywhere. She indicated that she picked up 

a soda and a snack in the back of the “store” and, as she was walking back to the front where the 

cash register was, she saw a glass display case and, out of curiosity, glanced at its contents. 

Appellant noted that there was a computer at the bottom of the display case and that, as she started 

to lean or squat down to look at the computer, she slipped and fell and lost her balance. She noted 

that she sat on the floor for what seemed like several minutes before getting up from the floor and 

paying for her purchase. Appellant indicated that she was embarrassed and felt “shaky.” She 

returned to her office and, on the way to her cubby, informed her Assistant Service Chief of the 

fall. Appellant also submitted medical evidence. 

By decision dated April 9, 2018, OWCP denied modification of its January 13, 2017 

decision. Based upon counsel’s explanation that she went to the multipurpose room “store”

because the canteen and snack shop were closed for construction, it found that appellant’s presence 

in the store was not a deviation from duty. However, OWCP found that appellant’s intentional act 

of bending down to look at the computer at the very bottom shelf of the display case, losing her 

balance, and falling, was a deviation that was not immaterial and, thus, removed her from the 

performance of duty.

LEGAL PRECEDENT

An employee seeking benefits under FECA 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,5that 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.6 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.7

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.”

8

 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.”

9

 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 or she may 

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

 

5 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

6

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

ECAB 312 (1988).

7 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

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

8 5 U.S.C. § 8102(a).

9 A.K., Docket No. 16-1133 (issued December 19, 2016); Charles Crawford, 40 ECAB 474, 476-77 (1989).
5

reasonably fulfilling the duties of his or her employment or engaged in doing something incidental 

thereto.”

10

 This alone is not sufficient 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.11

Injuries arising on the premises may be approved if the employee was engaged in activity 

reasonably incidental to the employment, such as: (a) personal acts for the employee’s comfort, 

convenience, and relaxation; (b) eating meals and snacks on-premises; or (c) taking authorized 

coffee breaks.12

The Board has previously noted that in the workers’ compensation treatise, The Law of 

Workers’ Compensation, A. Larson addresses the close relationship between the deviation doctrine 

and personal comfort doctrine in those cases where the smallness of the deviation is immaterial.13 

He relates that there are insubstantial deviations of momentary diversion that, if undertaken by an 

inside employee working under fixed time and place limitation, would be compensable under the 

personal comfort doctrine.14

ANALYSIS

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

The evidence establishes that appellant was injured on the employing establishment 

premises at approximately 3:40 p.m. on July 20, 2016. At the time of the injury, she was in the 

employer’s Veterans Canteen Store to get a snack, as she had not been able to take either her 

morning or lunch break. On her way to the cash register, appellant bent, crouched, or squatted 

down to look at a computer located on the lower shelf of a display case. She lost her balance and 

fell. The Board finds that this momentary act to look at a display case while walking to the cash

register did not remove appellant from the performance of her duty as it was an inconsequential 

diversion.15 For these reasons, the Board concludes that she was in the performance of duty when 

she was injured on July 20, 2016 as alleged. 

As appellant has met her burden of proof to establish the factual portion of her claim, the 

case is remanded to OWCP for evaluation of the medical evidence to determine causal relationship 

 

10 See A.S., Docket No. 18-1381 (issued April 8, 2019); D.L., 58 ECAB 667 (2007); Mary Keszler, 38 ECAB 735, 

739 (1987).

11 M.T., Docket No. 16-0927 (issued February 13, 2017); Vitaliy Y. Matviiv, 57 ECAB 193 (2005); Eugene G. Chin,

39 ECAB 598 (1988).

12 See A.P., Docket No. 18-0886 (issued November 16, 2018); T.L., 59 ECAB 537 (2008); see Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4a(2) (August 1992).

13 See L.K., Docket No. 08-0084 (issued June 23, 2009); David P. Sawchuk, 57 ECAB 316 (2006); Janet M. Abner, 

53 ECAB 275 (2002), citing A. Larson, The Law of Workers’ Compensation, Vol. 1, § 19.63. A. Larson, The Law of 

Workers’ Compensation, Vol. 1, § 19.63.

14 Id.; see A.P., supra note 12.

15 Id.
6

between appellant’s medical condition(s) and the accepted employment incident. Following 

further development of the evidence as necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 9, 2018 decision of the Office of Workers’

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

with this opinion.

Issued: July 5, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board