United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.T., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

COMMISSARY AGENCY, 

Fort Sam Houston, TX, Employer

__________________________________________

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Docket No. 19-1546

Issued: March 5, 2020

Appearances: Case Submitted on the Record

Anthony S. Arenas, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 12, 2019 appellant, through counsel, filed a timely appeal from a June 5, 2019 

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 June 30, 2014, as alleged.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts 

are as follows.

On July 3, 2014 appellant, then a 40-year-old security specialist, filed a traumatic injury

claim (Form CA-1) alleging that, at 1:00 p.m. on Monday, June 30, 2014, he sustained injuries to

his neck, shoulder, and right leg due to a fall at his home in San Antonio, TX.4 He attached a

statement in which he explained that, on the date of injury, he was in the process of relocating his 

telework items from his home to the Commissary at Fort Sam Houston, TX, at the direction of his 

supervisor. Appellant indicated that, as he was carrying a box of reference materials and supplies 

down the stairs in his home, his right leg gave out and he tumbled down the last six steps.

On the reverse side of the Form CA-1, appellant’s immediate supervisor indicated that

appellant’s duty station was at Fort Sam Houston Commissary and that his regular work hours 

were 7:30 a.m. to 4:00 p.m., Monday through Friday. In a July 9, 2014 statement attached to the 

Form CA-1, he contended that appellant had not sustained an injury in the performance of duty on 

June 30, 2014 because his alleged injury occurred at home despite the fact that he had directed 

appellant on three occasions prior to June 30, 2014 to report to the Fort Sam Houston Commissary 

at 7:00 a.m. on June 30, 2014.5 The supervisor indicated that he knew nothing about appellant 

making trips back and forth from his home to the Fort Sam Houston Commissary to relocate his 

office supplies. He indicated that appellant never asked him for permission to carry out this task 

and he did not approve it. The supervisor noted that appellant’s duty station on June 30, 2014 was 

the Fort Sam Houston Commissary. He indicated that he had advised appellant on June 26, 2014 

that he was taking him off his telework schedule of five days per week and that appellant instead 

had to report to and work at the Fort Sam Houston Commissary.

In a June 27, 2014 statement, a store director for the employing establishment indicated

that he was present on June 26, 2014 when appellant’s immediate supervisor advised appellant

that he was taking him off his telework schedule of five days per week. He noted that appellant’s

immediate supervisor told appellant to pack up his things and bring them with him on Monday,

June 30, 2014, to his workplace at the Fort Sam Houston Commissary.

In a July 22, 2014 e-mail to an injury compensation specialist for the employing 

establishment, appellant’s immediate supervisor indicated that his comment to appellant to “bring

 

3 Docket No. 16-0927 (issued February 13, 2017); Docket No. 17-1695 (issued May 15, 2018).

4 Appellant stopped work on the date of injury.

5 The record contains a June 13, 2014 e-mail in which appellant’s supervisor directed him to report to the Fort Sam

Houston Commissary for work on June 30, 2014.
3

his work things” with him when he reported to the Fort Sam Houston Commissary on June 30,

2014 was not meant to imply that he had approved trips to and from his residence.

Appellant submitted July 7, 17, and August 21, 2014 reports in which an attending 

physician listed a date of injury as June 30, 2014 and a diagnosis of “right leg/head.” The physician 

indicated that appellant was totally disabled from work.

By decision dated August 26, 2014, OWCP denied appellant’s claim, finding that he had 

established that an employment incident occurred on June 30, 2014 as alleged, but that he had not 

submitted medical evidence sufficient to establish a medical condition causally related to the 

accepted employment incident. It concluded, therefore, that the requirements had not been met to 

establish an injury as defined by FECA.

On October 22, 2014 appellant requested reconsideration of the August 26, 2014 decision. 

He submitted additional medical evidence and continued to argue that he followed his supervisor’s 

order in June 2014 to relocate his work belongings from his home to the Fort Sam Houston 

Commissary.

In a November 18, 2014 letter, an injury compensation specialist for the employing

establishment contended that appellant was not in the performance of duty when his accident

occurred on June 30, 2014. She advised that he was not authorized to be at his residence at the

time of injury.

By decision dated March 9, 2015, OWCP denied appellant’s claim for a June 30, 2014

employment injury. It noted that it was modifying the basis for the denial because he had not

shown that he fell while in the performance of duty on June 30, 2014. OWCP noted, “Your case 

remains denied as you have not met the performance of duty element of your claim.”

On December 8, 2015 appellant, through counsel, requested reconsideration of the 

March 9, 2015 decision. Counsel argued that appellant was responding to a direct order from his 

supervisor to pack up and move his things from his home to the Fort Sam Houston Commissary 

when he was injured on June 30, 2014. He asserted that appellant’s supervisor did not direct 

appellant to pack up his things on a day prior to Monday, June 30, 2014, but rather specifically 

told him to pack them up on June 30, 2014 and bring them with him.

By decision dated February 29, 2016, OWCP denied modification of its March 9, 2015 

decision.

On April 1, 2016 appellant appealed to the Board. By decision dated February 13, 2017,6

the Board affirmed OWCP’s February 29, 2016 decision, finding that he had not shown that his 

claimed June 30, 2014 injury occurred in the performance of duty. The Board found that appellant 

was not at a place where he may have reasonably been expected to be in connection with the 

employment when he fell at his home on June 30, 2014 because his duty station was the Fort Sam 

Houston Commissary and his supervisor directed him to report there at 7:00 a.m. on that date. The 

Board noted that appellant’s supervisor indicated that he had not authorized appellant to travel 

 

6 See supra note 3.
4

back and forth between his home and the Fort Sam Houston Commissary on June 30, 2014.7 It 

noted that appellant was expected to report to his duty station at the Fort Sam Houston Commissary

and perform his usual duties at the time of his fall on June 30, 2014. Therefore, he was not

reasonably fulfilling the duties of his employment or engaged in something incidental thereto at 

the time of his June 30, 2014 fall.

On May 1, 2017 appellant, through counsel, requested reconsideration of his claim. 

Counsel argued that appellant’s supervisor had the responsibility to make sure that appellant fully 

understood his instructions in June 2014 particularly given that appellant had cognitive deficits 

and did not process information the same way as everyone else. He asserted that appellant’s 

supervisor failed to advise appellant that, if he had more items than he could bring in one trip, he 

could bring the items to work with him on July 1, 2014. Counsel submitted a two-page excerpt 

from an undated and unsigned report that described appellant’s cognitive functioning testing.

In a May 23, 2017 letter, an injury compensation specialist indicated that, prior to the 

alleged June 30, 2014 incident, appellant teleworked 100 percent of his work schedule, which 

required him to work independently without constant supervisory oversight and/or directions.

By decision dated June 14, 2017, OWCP denied modification.

8

 

On August 1, 2017 appellant again appealed to the Board. By decision dated May 15, 

2018,9the Board affirmed OWCP’s June 14, 2017 decision, finding that he had not shown that his 

claimed June 30, 2014 injury occurred in the performance of duty. 

On March 7, 2019 appellant, through counsel, requested reconsideration. Counsel again 

argued that appellant had cognitive deficits to such a degree that he was unable to understand his 

supervisor’s instructions regarding the expectations of his work activities on June 30, 2014. In 

support of this argument, counsel attached an August 6, 2018 report of Dr. Barbara Hardin, a 

clinical psychologist.

In her August 6, 2018 report, Dr. Hardin advised that, as the former director of the Student 

Psychological and Testing Services at St. Mary’s University, she supervised the program for 

students with disabilities and was familiar with appellant’s situation and medical diagnosis. She 

indicated that appellant was evaluated in the fall of 2000 to determine why he was having academic 

difficulties and noted that, at the time, he was diagnosed with a nonverbal learning disability and 

an auditory perceptual disorder. Dr. Hardin reported that, under the diagnostic system in use today, 

this would be considered on the top of the autism spectrum and represented a lifelong

 

7 The Board indicated that, although the supervisor told appellant to “bring his work things” with him when he 

reported to the Fort Sam Houston Commissary on June 30, 2014, this comment could not be reasonably interpreted as 

approval for appellant to leave his workplace and travel back and forth between his home and his duty station during 

the workday without prior approval.

8 The decision noted that it denied modification of the Board’s February 13, 2017 decision. OWCP is not authorized

to review Board decisions. Although the Board’s February 13, 2017 decision was the last merit decision prior to 

OWCP’s issuance of its June 14, 2017 decision, OWCP’s February 29, 2016 decision was the appropriate subject of 

possible modification by OWCP. See 20 C.F.R. § 501.6(d).

9 See supra note 3.
5

developmental disorder which indicated that appellant has a particular difficulty understanding the 

pragmatics of language and nonverbal cues. She maintained that appellant would have trouble 

recognizing a person’s facial expression that most people would recognize as signifying annoyance 

and that he would misunderstand sarcasm and take it literally. Dr. Hardin noted that this condition 

was compounded by the diagnosis of auditory perceptual disorder. She advised that the examiner 

who evaluated appellant in 2000 concluded, “[Appellant’s] difficulties with oral language and 

visual auditory learning would likely suggest that he frequently misunderstands directions and has 

trouble following lectures at class.... He appears to be unable to process visual and auditory 

information simultaneously.”

Dr. Hardin further noted that the testing results from 2000 indicated that appellant had a 

concrete approach to situations and weak recall or understanding of narrative information. 

Appellant was below average in his ability to understand directions. Dr. Hardin indicated that 

appellant’s strong points included his expressive vocabulary and reading decoding skills, but 

asserted that these expression skills might make it appear that he understands more than he actually 

does. She maintained that appellant’s disabilities would cause considerable functional limitations

in that he would interpret things literally and miss the subtle nuances of sarcasm, frustration, or 

annoyance in language in the workplace. Dr. Hardin reported that appellant processed information 

slower than most people and advised that he was provided assistance for note taking at St. Mary’s

University and was given additional time for examinations. She maintained that appellant did not 

advocate well for himself and did not always recognize when he should clarify an interaction or a 

directive.10

By decision dated June 5, 2019, OWCP denied modification.

11

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.”

12

 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.”

13

 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 

 

10 In connection with the March 2019 reconsideration request, appellant, through counsel, also submitted an undated 

personnel document from the employing establishment which indicated that he had a handicap of “94 -- Learning 

Disability.” Appellant also submitted December 12, 2017 and May 9, 2018 duty status reports (Form CA-17) from 

an attending physician who indicated that he was medically retired, as well as diagnostic testing reports from 2018 

which evaluated his physical condition.

11 The decision noted that it denied modification of the Board’s May 15, 2018 decision. Although the Board’s 

May 15, 2018 decision was the last merit decision prior to OWCP’s issuance of its June 5, 2019 decision, OWCP’s 

June 14, 2017 decision was the appropriate subject of possible modification by OWCP. See supra note 8.

12 5 U.S.C. § 8102(a).

13 T.L., Docket No. 19-0805 (issued November 18, 2019); Charles Crawford, 40 ECAB 474, 476-77 (1989).
6

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

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

thereto.14 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.15

As a general rule, off-premises injuries sustained by employees having fixed hours and 

place of work, while going to or coming home from work or during a lunch period, are not 

compensable as they do not arise out of and in the course of employment, but are merely the 

ordinary, nonemployment hazards of the journey itself, which are shared by all travelers.16 When 

an employee has a definite place and time for work and the time for work does not include the 

lunch period, the trip away from, and back to the premises for the purposes of getting lunch is 

indistinguishable in principle from the trip at the beginning and end of the workday and is governed 

by the same rules and exceptions.17 Exceptions to the general rule have been made in order to 

protect activities that are so closely related to the employment itself as to be incidental thereto,18

or which are in the nature of necessary personal comfort or ministration.19

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

service at home: 

“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 [employing 

 

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

739 (1987).

15 D.C., Docket No. 18-1216 (issued February 8, 2019); Eugene G. Chin, 39 ECAB 598 (1988).

16 A.B., Docket No. 15-0288 (issued May 21, 2015); Donna K. Schuler, 38 ECAB 273-74 (1986).

17 Id.

18 The Board has stated that these exceptions have developed where the hazards of the travel may fairly be 

considered a hazard of the employment and that they are dependent upon the particular facts and related situations: 

(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 firemen; and (4) where the employee uses the highway to do something incidental to his employment, 

with the knowledge and approval of the employing establishment. B.P., Docket No. 14-0411 (issued July 17, 2014); 

Betty R. Rutherford, 40 ECAB 496, 498-99 (1989).

19 Id.
7

establishment]. 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.”

20

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish an injury in the 

performance of duty on June 30, 2014, as alleged.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s June 14, 2017 merit decision because the 

Board considered that evidence in its May 15, 2018 decision. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.21 

Therefore, the current analysis now will focus on the relevant evidence received since OWCP’s 

June 14, 2017 merit decision, which is the evidence that was not before the Board when it last 

reviewed appellant’s claim on May 15, 2018.

In support of March 2019 reconsideration request, appellant submitted an August 6, 2018 

report of Dr. Hardin, a clinical psychologist who worked at St. Mary’s University when appellant 

studied there. In this report, Dr. Hardin referenced an evaluation conducted by another examiner 

at St. Mary’s University in 2000, 18 years prior. She generally indicated that the evaluation 

showed that appellant was below average in his ability to understand directions. Dr. Hardin noted 

that appellant was diagnosed with nonverbal learning disability and an auditory perceptual disorder 

and she emphasized that these conditions made it difficult for him to recognize when he was 

annoying people or when they were using sarcasm. 

On appeal counsel argues that this report shows that appellant had cognitive deficits to such 

a degree that he was unable to understand his supervisor’s instructions regarding the expectations

of his work activities on June 30, 2014. The Board notes that Dr. Hardin’s generalized referenced 

to this evaluation from 2000 would be of limited utility in evaluating appellant’s ability to 

understand an instruction from his supervisor given approximately 14 years later. The record does 

 

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

see also S.F., Docket No. 09-2172 (issued August 23, 2010).

21 See B.R., Docket No. 17-0294 (issued May 11, 2018).
8

not contain a complete, signed copy of the evaluation from 2000 referenced by Dr. Hardin and 

therefore the specific basis for Dr. Hardin’s opinion on appellant’s cognitive abilities is unclear.22 

The Board finds that appellant has not submitted convincing evidence that he did not have the 

capability to understand his supervisor’s instructions in June 2014.

23

In connection with the March 2019 reconsideration request, appellant also submitted an 

undated personnel document from the employing establishment which indicated that he had a 

handicap of “94 -- Learning Disability.” However, this vague reference to a learning disability 

would not show that appellant was unable to understand the instructions given to him by his 

supervisor in June 2014.

For these reasons, the Board finds that appellant has not established an injury in the 

performance of duty on June 30, 2014, as alleged. 

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607. 

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish an injury in the 

performance of duty on June 30, 2014, as alleged.

 

22 See K.C., Docket No. 18-1330 (issued March 11, 2019) (a report that is or bears an illegible signature lacks proper 

identification and cannot be considered probative medical evidence as the author cannot be identified as a physician).

23 Moreover, the Board notes that there is other evidence in the case record which tends to show that appellant had 

the capability to understand his supervisor’s instructions in June 2014. For example, appellant had performed his 

security specialist position at home for an extended period without direct, onsite supervision.
9

ORDER

IT IS HEREBY ORDERED THAT the June 5, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 5, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board