United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION CENTRAL 

OFFICE, Washington, DC, Employer

__________________________________________

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Docket No. 19-1136

Issued: November 22, 2019

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 25, 2019 appellant, through counsel, filed a timely appeal from a November 14, 

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 appellant submitted additional evidence on appeal. 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 in the 

performance of duty on March 17, 2016, as alleged.

FACTUAL HISTORY

On September 14, 2016 appellant, then a 53-year-old program manager of identity, 

credential, and access management, filed a traumatic injury claim (Form CA-1) alleging that at 

12:15 p.m. on March 17, 2016 she sustained permanent hearing damage and tinnitus in both ears

while in the performance of duty. She reported that her injury occurred when a very loud, sustained 

squealing noise emitted from a speaker. On the reverse side of the claim form, the employing 

establishment indicated that appellant was injured in the performance of duty. 

To support her claim appellant submitted several e-mails. A February 22, 2016 e-mail 

described a six-week team building activity called March Mayhem Challenge, which encouraged 

physical activity, camaraderie, and wellness. In e-mails dated March 24 and 25, 2016, appellant 

informed S.J., a wellness fitness coordinator at the employing establishment, that she had 

experienced ringing in her ears ever since “that loud noise in the gym class.” In e-mails dated 

September 13 and 14, 2016, appellant requested information about how to file a claim for a work 

injury at the Veterans Affairs Central Office (VACO). She related that, after several trips to a 

specialist, she was advised that the damage to her ears was permanent. 

OWCP also received medical reports by Dr. Thomas Lee, a Board-certified 

otolaryngologist. In an initial April 8, 2016 report, Dr. Lee recounted that appellant was exposed 

to loud noise last month at the gym and now had tinnitus. He reviewed her history and conducted 

audiometric and tympanogram testing. Dr. Lee diagnosed comprehensive diagnosed sensorineural 

hearing loss in both ears and tinnitus of both ears. He continued to treat appellant and provided 

medical reports dated May 23 and August 22, 2016. In a development letter dated September 30, 

2016, OWCP informed appellant of the factual and medical deficiencies of her claim. It provided 

a questionnaire for her completion regarding the circumstances of her claimed March 17, 2016 

injury, including whether she was on the employing establishment premises at the time and 

whether she was performing her regularly assigned duties. OWCP also requested that appellant 

provide a narrative medical report from her physician explaining how the reported work incident 

caused or aggravated her medical condition. In a separate development letter of even date, it 

requested that the employing establishment answer several questions, including whether, at the 

time of the claimed employment injury, appellant was on the employing establishment’s premises 

during regular working hours and whether she was performing official duties or engaged in 

activities reasonably incidental to her job. OWCP afforded both parties 30 days to respond. 

On October 17, 2016 appellant responded to OWCP’s development questionnaire. She 

noted that her injury occurred on March 17, 2016 at noon during her lunch break. Appellant 

explained that she was waiting for a fitness class to begin at the gym in the fitness facility located 

in the VACO building when the speakers malfunctioned, emanating a high-pitched squealing 

noise. She recounted that the noise persisted for nearly a minute until one of the managers came 

into the room and turned the sound system off. Appellant indicated that she began to experience 

ringing in her ears when she left the gym and that she had difficulty hearing her children that 

evening. She explained that she did not immediately file a claim because she thought the effects 

of the injury were temporary. Appellant noted that it was not until her last appointment on 
3

August 22, 2016 that she was informed that her hearing loss and tinnitus were permanent. She 

responded “No” that she did not sustain any other injury or have any similar disability or symptoms 

before the injury. Appellant clarified that she was on the employing establishment premises in the 

fitness facility located in the VACO building during her lunch hour when the injury occurred. She

reported that her participation in the activity was optional, but that employees were encouraged to 

participate in health and fitness activities and received monthly newsletters with information, 

including fitness class schedules. Appellant noted that she was a disabled veteran with a back 

injury, hip bursitis, and arthritis, and that exercise and stretching are part of her physical therapy. 

In a statement dated October 18, 2016, C.L., a supervisory program analyst, responded to 

OWCP’s development letter. He indicated “Yes” that the employing establishment concurred with 

appellant’s allegations. C.L. related that appellant immediately shared details with him of the 

employment incident that occurred while at work at VACO. He clarified that appellant’s 

participation in the activity was optional and explained that many VA employees participated in 

exercise activities during their break periods. C.L. responded “Yes” that the injury occurred on 

the employing establishment’s premises during regular work hours. 

OWCP also received an October 18, 2016 statement from D.S., a wellness and fitness 

specialist at the VACO Fitness Center, who related that he learned of appellant’s injury after

talking with her and discussing it with S.J., the program coordinator, who confirmed the incident 

and circumstances. 

The employing establishment also provided an official position description for a 

supervisory program manager. 

In an October 24, 2016 letter, Dr. Rithu Chea, a Board-certified internist, noted dates of 

examination and treatment as April 8, May 23, and August 22, 2016. She related that appellant 

received comprehensive audiometry and tympanometry testing and was diagnosed with 

“sensorineural hearing loss in both ears and tinnitus of both ears secondary to mild acoustic trauma 

and cerumen impaction as a result of exposure to loud noise while [appellant] was at the fitness 

center in her office building.” Dr. Chea reported that appellant was exposed to loud noise while 

at the fitness center in her office building on March 17, 2016 that caused sensorineural hearing 

loss in both ears and tinnitus of both ears. She concluded that appellant’s reported work incident 

caused sensorineural hearing loss in both ears and tinnitus of both ears. Dr. Chea also provided an 

April 8, 2016 examination report and audiological testing report. 

By decision dated November 4, 2016, OWCP denied appellant’s claim, finding that she 

was not in the performance of injury when injured on March 17, 2016. It found that, although the 

injury occurred on the employing establishment’s premises and during her tour of duty, the act of 

going to the gym during her lunch break was a matter of personal convenience, and she was not 

performing duties incidental to her employment or from which her employing establishment 

derived substantial benefit. 

On November 30, 2016 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on 

May 30, 2017. 

Appellant submitted various printouts from the employing establishment’s website about 

the Employee Health and Well-Being program. It noted that the mission of the VA Health 
4

Administration’s Employee Health and Well-Being program was to provide staff with the 

educational and training opportunities and resources needed to reduce the incidence of preventable 

illness, injury, and impairment. The program was designed to focus on the overall health and wellbeing of VA employees by helping them to establish and maintain healthy lifestyles through 

educational tools and resources. It explained that the VA Employee Health and Wellness Program 

provided monthly health observances, events, guidance on establishing health and wellness 

program, wellness resources, and educational material. 

Appellant also submitted a May 2017 newsletter about employee health, a Spring 2016 VA 

Employee Health and Wellness bulletin, and a schedule of fitness classes from the VACO Fitness 

Center. She also provided a copy of the Office of Personnel Management (OPM) Health and 

Wellness Policy and provided additional printouts from OPM’s website about work-life reference 

materials. 

OWCP also received an employing establishment memorandum entitled “Liability Related 

to Physical Fitness Activities in the Workplace.” It explained that, according U.S. Department of 

Labor (DOL) guidelines, FECA coverage for employees injured while engaged in physical fitness 

activities was provided when an injured employee was engaged in an activity that was specifically 

identified in that employee’s Physical Fitness Program (PFP). The memorandum defined a PFP 

as an “[employing establishment] initiated and structured program that allowed employees to 

participate in specified physical exercise activities.” It indicated: “If an employee is injured while 

engaging in a physical fitness activity or recreational activity that is not part of a PFP, FECA 

coverage is considered on a case-by-case basis.” 

Appellant submitted a copy of OWCP’s “A Handbook for Employing Agency Personnel”

Publication CA-810, section 304 “Performance of Duty.” She also submitted a printout of FECA’s 

Frequently Asked Questions. 

In a January 5, 2017 statement, appellant related that, as part of its health and wellness 

program, the employing establishment published a quarterly “VA Employee Health and Wellness”

newsletter. She indicated that she was including a newsletter from earlier that year that encouraged 

employees to do yoga, which she noted that was the class that she was waiting for when she 

suffered the hearing loss injury. 

Appellant submitted her fitness center membership contract with the VACO Fitness 

Center. She had checked a box indicating that she selected the option for Personalized Program 

with Comprehensive screening. 

By decision dated August 31, 2017, the hearing representative affirmed the November 4, 

2016 decision finding that the injury did not occur in the performance of duty. She found that the 

evidence failed to establish that appellant’s March 17, 2016 activity was a regular part of or a 

regular incident of her employment or the requirements of her job duties. The hearing 

representative noted that appellant’s participation in the fitness class was voluntary. 

On August 16, 2018 appellant, through counsel, requested reconsideration. Counsel 

asserted that pursuant to Federal (FECA) Procedure Manual 2.0804.18, injuries that arise from 

participation in an employing establishment’s physical fitness program are compensable under 

FECA, regardless of whether participation occurs during regular work hours or on the employing 

establishment’s premises. He also cited that employees who are injured while exercising in a 
5

recreational activity during authorized lunch break periods in a designated area of the employing 

establishment premises are covered under FECA whether or not the exercise was part of a 

structured PFP. Counsel further contended that, according to Federal (FECA) Procedure Manual 

2.0804.4, an affirmative response by the official superior is sufficient to establish performance of 

duty unless the facts or other evidence indicate that the answer may be incorrect. He related that 

he was enclosing an October 25, 2017 memorandum from the employing establishment, which 

demonstrated that appellant was injured while participating in an employer-sponsored program on 

its premises. Counsel further argued that she had submitted sufficient medical evidence to

establish a medical diagnosis of her injury and requirement of ongoing care for her work-related 

conditions. He concluded that appellant had met all of the requirements to establish her traumatic 

injury claim. 

OWCP received an August 10, 2018 impact statement from appellant. Appellant described 

the March 17, 2016 employment incident and the permanent hearing loss and tinnitus that she 

sustained in both ears. She expressed the difficulties she experienced in her daily activities and 

the depression she had suffered from since the claimed employment incident. 

In an October 26, 2017 letter, C.L., a supervisory program analyst at VACO, noted his 

disagreement with the August 31, 2017 decision. He asserted that appellant was injured while 

participating in an “employer-sponsored program on the [employing establishment] premises.” 

C.L. also related that the employing establishment derived substantial benefit from appellant’s 

participation in the VA Employee Health & Wellness Program and referenced its mission and 

policy. He cited to Guidance on Performance of Duty from DOL in support of his argument that 

appellant was injured while in the performance of duty. C.L. pointed out that appellant was injured 

during her lunch break on the employing establishment’s premises and while engaged in activities 

that were approved as part of an individual plan developed under a formal physical fitness program 

managed by the employing establishment. 

OWCP also received a March 26, 2018 examination and audiology report by Dr. Lee. 

By decision dated November 14, 2018, OWCP denied modification of the August 31, 2017 

decision. It found that the evidence of record failed to establish that appellant’s March 17, 2016 

injury arose out of the performance of her duties. 

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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 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 

 

4 Supra note 2.

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

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

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.”

8

 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.9 To arise in the course of employment, an injury must occur: (1) at a time when 

the employee may reasonably be stated to be engaged the master’s business; (2) at a place when 

he or she may reasonably be expected to be in connection with his or her employment; and 

(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in 

doing something incidental thereto.10 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.11

It is well established as a general rule of workers’ compensation law that, as to employees 

having fixed hours and places of work, injuries occurring on the premises of the employing 

establishment, while the employees are going to or from work, before or after working hours, or 

at lunch time, are compensable.12

With regard to recreational or social activities, the Board has held such activities arise in 

the course of employment when: (1) they occur on the premises during a lunch or recreational 

period as a regular incident of the employment; (2) the employing establishment, by expressly or 

impliedly requiring participation or by making the activity part of the service of the employee, 

brings the activity within the orbit of employment; or (3) the employing establishment derives 

 

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 See M.T., Docket No. 17-1695 (issued May 15, 2018); S.F., Docket No. 09-2172 (issued August 23, 2010); 

Valerie C. Boward, 50 ECAB 126 (1998).

9 L.B., Docket No. 19-0765 (issued August 20, 2019); G.R., Docket No. 16-0544 (issued June 15, 2017); Cheryl 

Bowman, 51 ECAB 519 (2000).

10 A.S., Docket No. 18-1381 (issued April 8, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary 

Keszler, 38 ECAB 735, 739 (1987).

11 D.C., Docket No. 18-1216 (issued February 8, 2019); R.B., Docket No. 16-1071 (issued December 14, 2016); 

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

12 Eileen R. Gibbons, 52 ECAB 209 (2001); Narbik A. Karamian, 40 ECAB 617, 618 (1989).
7

substantial benefit from the activity beyond the imaginable value of improvement in employee 

health and morale is common to all kinds of recreation and social life.13

OWCP’s procedures provide that injuries and occupational diseases arising from 

participating in an employing establishment’s PFP are compensable under FECA.14 It further 

provides that employees who are injured while exercising or participating in a recreational activity 

during authorized lunch or break periods in a designated area of the employing establishment 

premises are covered under FECA whether or not the exercise or recreation was part of a structured 

PFP.15 The procedures also outline the evidence necessary to demonstrate that an injury resulted 

from participation in a PFP. For traumatic injury claims, the CA-1 form must be accompanied by 

a statement from the employee’s supervisor indicating that the employee was enrolled in the PFP, 

and that the injury was sustained while the employee was performing authorized exercises under 

the program. If the statement from the supervisor is not submitted with the CA-1 form, it must be 

requested.16

ANALYSIS

The Board finds that appellant has established that an incident occurred in the performance 

of duty on March 17, 2016 as alleged.

As noted above, OWCP’s procedures provide that, to demonstrate that an injury resulted 

from participation in a PFP, a CA-1 form must be accompanied by a statement from the employee’s 

supervisor indicating that the employee was enrolled in the PFP, and that the injury was sustained 

while the employee was performing authorized exercises under the program.17 Appellant’s claim 

form included a statement from the employing establishment acknowledging that she was in the 

performance of duty at the time of the claimed injury. In an October 18, 2016 statement, C.L., a 

supervisory program analyst for the employing establishment, indicated that “yes” he agreed with 

her allegations. In an October 26, 2017 letter, he reiterated that appellant was participating in an 

“employer-sponsored program on the [employing establishment] premises” when the March 17, 

2016 alleged injury occurred. C.L. emphasized that she was engaged in activities that were 

approved as part of an individual plan developed under a formal PFP. 

The Board thus finds that appellant has established that she was in the performance of duty 

at the time of the March 17, 2016 alleged employment injury. 

As appellant has established that the March 17, 2016 employment incident factually 

occurred, the question becomes whether this accepted employment incident caused an injury.18 

 

13 L.B., Docket No. 19-0765 (issued August 20, 2019); S.B., Docket No. 11-1637 (issued April 12, 2012); Ricky A. 

Paylor, 57 ECAB 568 (2006); Kenneth B. Wright, 44 ECAB 176 (1992); see also A. Larson, The Law of Workers’

Compensation § 22.00 (2015).

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.18 (March 1994).

15 Id. 

16 Id. at Chapter 2.804.18(c). 

17 Id.

18 M.L., Docket No., 19-0361 (issued October 24, 2019); Willie J. Clements, 43 ECAB 244 (1991).
8

The Board will, therefore, set aside OWCP’s November 14, 2018 decision and remand the case to 

OWCP for consideration of the medical evidence. Following this and other such further 

development as deemed necessary, OWCP shall issue a de novo decision addressing whether 

appellant has met her burden of proof to establish an injury causally related to the accepted 

employment incident.

CONCLUSION

The Board finds that appellant has met her burden of proof to establish an incident in the 

performance of duty on March 17, 2016, as alleged. However, the Board further finds that this 

case is not in posture for decision with regard to whether she sustained an injury causally related 

to the accepted March 17, 2016 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the November 14, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision of the Board.

Issued: November 22, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board