United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.O., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Portland, OR, Employer

__________________________________________

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Docket No. 19-0390

Issued: January 9, 2020

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 12, 2018 appellant, through counsel, filed a timely appeal from an

October 30, 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 17, 2018 as alleged.

FACTUAL HISTORY

On January 22, 2018 appellant, then a 48-year-old police officer, filed a traumatic injury 

claim (Form CA-1) alleging that on January 17, 2018 at 4:05 p.m. he injured his knee when he 

slipped and fell on wet steps while in the performance of duty. He stopped work on that date. On 

the reverse side of the claim form, appellant’s supervisor, G.A., indicated that appellant’s regular 

work hours were from 7:00 p.m. to 7:00 a.m. He also checked a box marked “No” indicating that 

the alleged injury did not occur in the performance of duty. G.A. noted that the injury was reported 

about 55 minutes prior to appellant’s scheduled work time. 

Emergency department discharge instructions dated January 17, 2018 indicated that 

appellant was treated for complaints of right knee pain after a fall at work. 

In a January 24, 2018 development letter, OWCP informed appellant that the evidence 

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

factual evidence needed and provided a questionnaire for his completion. OWCP afforded him 30 

days to submit the necessary factual information and medical evidence.

OWCP received a work status note dated January 19, 2018 by Thalia Brent, a nurse 

practitioner, who recommended no patrolling or duties that would require significant walking or

climbing stairs until February 5, 2018. 

In a January 22, 2018 e-mail, a supervisor, G.A., addressed the time discrepancy in 

appellant’s traumatic injury claim. He explained that appellant had signed up for overtime from 

3:00 p.m. to 7:00 p.m. before his scheduled 7:00 p.m. tour of duty started, but appellant had called 

prior to the 3:00 p.m. overtime shift and advised that he would not be coming in to work until 5:00 

p.m. G.A. reported that he claimed that he slipped in the stairwell coming in from Lot 8 area, into 

building 101 after parking in the reserved police parking area lot. G.A. indicated that he did not 

know if this was a normal routine for appellant because he worked nightshift and was not 

appellant’s direct supervisor. He also reported that appellant was to begin work at 5:00 p.m. 

In a January 22, 2018 employing establishment incident form report, G.A. noted a date of 

injury of January 17, 2018 at 4:05 p.m. He recounted that appellant slipped and fell in a stairwell 

due to wet stairs while reporting for his duty shift. G.A. indicated that weather conditions were 

rainy. 

In a January 24, 2018 report of contact, G.H., with the VA Police Service, related that on 

January 17, 2018 at 3:03 p.m., he called appellant on his cell phone, but the call went to voicemail. 

At 3:35 p.m. appellant returned his call and G.H. inquired if he was coming in for the overtime 

shift he had signed up for, which had been scheduled to start at 3:00 p.m. Appellant noted that he 

had been instructed that if he had come in at 3:00 p.m. it would have put him over 16 hours worked 
3

for the day. G.H. reported that appellant stated that he would be in and start work at 5:00 p.m. so 

not to exceed his hours. 

In a January 26, 2018 examination report, Dr. Stephen Southerland, a Board-certified 

orthopedic surgeon, described the January 17, 2018 slip and fall injury at work. He provided 

examination findings for appellant’s right knee and assessed a medial collateral ligament (MCL)

sprain. Dr. Southerland recommended further diagnostic evaluation to rule out a meniscal tear or 

reduced patellar dislocation. He completed a work status report, recommending that appellant not 

return to work. Dr. Southerland subsequently requested authorization for a magnetic resonance 

imaging (MRI) scan. 

On February 6, 2018 appellant completed the development questionnaire. He noted that 

on January 17, 2018 he was reporting for a scheduled overtime shift at 5:00 p.m. Appellant 

explained that the staircase was wet due to rainy weather and when he stepped down onto his right 

foot, he slipped. He indicated that his right knee folded to the left and he felt a severe pop and 

immediate pain. Appellant noted that he made his way to Room 131 and called his Sergeant on 

the emergency line. In response to the question regarding why appellant was on agency premises 

at 4:00 p.m., even though his regular tour of duty began at 7:00 p.m., he reported that he was on 

the premises to “gear up” as a police officer for scheduled overtime from 5:00 to 7:00 p.m. 

Appellant submitted a January 28, 2018 police report which indicated that on January 17, 

2018 he called the emergency line to report that he had fallen down and injured his right knee in 

building 101 while on his way to work. He was transported to the emergency room for treatment. 

By decision dated February 26, 2018, OWCP denied appellant’s claim. It accepted that the 

January 17, 2018 incident occurred as alleged and that appellant was diagnosed with a knee 

condition, but denied appellant’s claim finding that he failed to establish that the alleged injury 

occurred while in the performance of duty. OWCP specifically noted that it did not receive 

evidence that appellant was required to arrive at work 55 minutes prior to his scheduled start time. 

Appellant continued to submit medical reports and letters by Dr. Southerland dated 

March 5 to September 6, 2018 for treatment of a grade 2 sprain of his right knee MCL. He was 

released to modified duty on March 6, 2018 and to full duty on April 9, 2018. In a September 6, 

2018 letter, Dr. Southerland opined that appellant’s fall at work was the cause of his MCL sprain. 

On March 22, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. A telephonic hearing was held on August 1, 2018. Counsel

contended that the January 17, 2018 injury occurred in the performance of duty because appellant 

was “furthering the employer’s business” at the time of the injury. Appellant testified that prior to 

their shift starting, police officers came to work in plain clothes, went to the locker room, changed 

into their uniform, and put on their gear. He also indicated that approximately 15 minutes before 

every duty shift, police officers were required to be in full uniform and have all gear and equipment 

for a brief meeting. Appellant alleged that he had parked his car around 3:55 p.m. in his designated 

parking area and was walking down the stairs in the building on his way to the locker room in 

order to change when he slipped on the stairs and fell down.
4

Appellant submitted additional diagnostic evaluations, including a February 14, 2018 right 

knee MRI scan, a March 23, 2018 lumbar spine MRI scan, an April 9, 2018 electromyography and 

nerve conduction velocity (EMG/NCV) study, and an April 9, 2018 cervical spine MRI scan. 

OWCP also received reports dated April 24 and June 25, 2018 regarding medical treatment 

that appellant had received for cervical and lower back conditions.

By decision dated October 30, 2018, an OWCP hearing representative affirmed the 

February 26, 2018 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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,4that 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.5 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.6

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of duty.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” pertains to the work setting, locale, and time of injury, whereas 

arising out of the employment encompasses not only the work setting, but also the requirement 

that an employment factor caused the injury.9 

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

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

 

3

Id.

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

153 (1989). 

5

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

ECAB 312 (1988).

6 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).

7 5 U.S.C. § 8102(a); T.M., Docket No. 19-0050 (issued June 18, 2019); J.K., Docket No. 17-0756 (issued 

July 11, 2018).

8 This construction makes the statute actively effective in those situations generally recognized as properly within 

the scope of workers’ compensation law. R.K., Docket No. 18-1269 (issued February 15, 2019); J.K., id.

9 L.B., Docket No. 19-0765 (issued August 20, 2019); L.P., Docket No. 17-1031 (issued January 5, 2018); G.R., 

Docket No. 16-0544 (issued June 15, 2017); Cheryl Bowman, 51 ECAB 519 (2000).
5

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

ANALYSIS

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

Appellant alleged that on January 17, 2018 at 4:05 p.m. he slipped and fell in an employing 

establishment building while he was on his way to the locker room prior to his overtime shift 

starting at 5:00 p.m. Whether an injury occurs in the performance of duty is a preliminary issue 

addressed before the merits of the claim are adjudicated.13 The factors considered in determining 

whether an employee arriving at work is in the performance of duty are whether the injury occurred 

on the employing establishment’s premises, the time interval before the work shift, and the activity 

at the time of the injury.14 Appellant has established that he was injured on the employing 

establishment’s premises. However, location alone is insufficient to establish performance of duty. 

The Board must also consider the time of the injury and whether it arose out of appellant’s 

employment.15

The evidence of record establishes that appellant’s injury occurred 55 minutes before he 

had planned to commence work at 5:00 p.m. The record also contains evidence that on that date,

at approximately 3:00 p.m., the time at which the shift he had signed up for was scheduled to begin, 

G.H. left him a message inquiring if he intended to cover his 3:00 p.m. shift. Approximately 30 

minutes later, appellant returned this call to G.H. and informed him that he planned to be in at 5:00 

p.m. due to the number of hours he had worked. The Board concludes that it is not in a position 

 

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 R.K., supra note 8; Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general rule 

of workers’ compensation law in circumstances where the employee was on an authorized break. See Eileen R. 

Gibbons, 52 ECAB 209 (2001).

13 P.L., Docket No. 16-0631 (issued August 9, 2016); see also M.D., Docket No. 17-0086 (issued August 3, 2017).

14 T.M., supra note 7; E.V., Docket No. 16-1356 (issued December 6, 2016).

15 Supra note 9.
6

to make an informed decision on whether appellant was permitted by G.H. to commence his 

workday following the telephone call which inquired whether appellant was planning to report to 

work. Based on the record currently before the Board it is unclear whether G.H. intended to permit 

appellant to report to work as he was needed to cover the shift, or whether he was not permitted to 

report to work until 5:00 p.m.

OWCP’s procedures provide that it should obtain relevant information from an official 

superior to determine why an employee was on the premises for more than “reasonable interval”

before the start of his or her work shift.16 Its procedures further provide that if the supervisor is 

unaware of why the employee was on the premises, OWCP should seek this information from 

coworkers and procure a statement from the injured employee.17 The Board thus finds that OWCP 

has not properly developed the evidence as to whether appellant was properly on the premises of 

the employing establishment at the time of injury such that she should be considered in the 

performance of duty.18 OWCP should have fully discharged its responsibility to obtain a statement 

from an official superior or appellant specifically addressing the question of why he was on the 

employing establishment premises 55 minutes before the start of his work shift and whether he 

was permitted by G.H. to report to duty following the 3:35 p.m. phone conversation.

19

 

On remand OWCP should obtain clarifying information from the employing establishment 

and determine whether appellant was either instructed or permitted to be on the employing 

establishment premises at 4:05 p.m. and, if so, whether appellant was acting in the furtherance of 

his master’s business and with its knowledge or benefit. Following such further development as 

deemed necessary, OWCP shall issue a de novo decision. 

CONCLUSION

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

 

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4.d (August 1992).

17 Id.

18 Appellant also alleged that the employing establishment’s policy required him to arrive prior to work to change 

from civilian clothing into his law enforcement uniform and be prepared for a briefing. OWCP did not inquire whether 

the employing establishment has a policy relating to the preparations allowed on its premises prior to the 

commencement of a work shift. The record should also be developed to determine whether the employing 

establishment required its officers in appellant’s position to report to work to comply with its policies, if any, regarding 

preparations for the start of work. 

19 See T.M., Docket No. 19-0050 (issued June 18, 2019) (the Board found that although the employee had arrived 

55 minutes prior to her scheduled work shift, OWCP had not properly developed why she was on the employing 

establishment premises at the time of injury). 
7

ORDER

IT IS HEREBY ORDERED THAT the October 30, 2018 decision of the Office of

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

consistent with this decision of the Board.

Issued: January 9, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board