United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Aurora, OH, Employer

__________________________________________

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Docket No. 18-1725

Issued: May 15, 2019

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 13, 2018 appellant, through counsel, filed a timely appeal from a May 31, 

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 her burden of proof to establish an injury in the 

performance of duty.

FACTUAL HISTORY

On July 7, 2017 appellant, then a 37-year-old carrier field representative/modified rural 

carrier associate, filed an occupational disease claim (Form CA-2) alleging that she developed left

shoulder, arm, elbow, and back conditions when driving to training while in the performance of 

duty. She first became aware of her condition and of its relationship to her federal employment 

on June 19, 2017. Appellant sought medical treatment on that same date and stopped work on 

June 20, 2017.

In a July 7, 2017 narrative statement, appellant reported that on June 9, 2017 her original 

modified job located in Akron, Ohio ended. She was told to report to a station located in 

Cleveland, Ohio on June 12, 2017 at 7:30 a.m. for training for her new modified job offer, which 

assigned her to work at various offices in Northern Ohio from 7:30 a.m. to 4:00 p.m. Tuesday 

through Friday. Appellant reported that she was paid mileage differential by the employing 

establishment for the difference in travel from her home to her original duty station in Aurora, Ohio

and the location for training in Cleveland, Ohio. She advised that her injury occurred on June 19, 

2017 at approximately 4:05 p.m. to 5:15 p.m. while she was driving home from the 

Cleveland, Ohio facility in heavy traffic. Appellant reported that she was driving in five lanes of 

stop and go traffic with cars crossing in all directions. She reported twisting, turning, and pulling 

towards the steering wheel to check her blind spots when she began to feel a great amount of 

discomfort in her left shoulder and arm. Appellant stated that she was in excruciating pain by the 

time she arrived home and did not drive again until July 7, 2017. 

In support of her claim, appellant submitted an offer of modified assignment form from the 

employing establishment for a rural carrier associate position which was signed on June 12, 2017. 

The position was for 30 hours per week from 7:30 a.m. to 4:00 p.m. Tuesday through Friday. The 

location of the position was documented as “various offices in Northern Ohio.” Appellant also 

submitted a June 23, 2017 postal service claim for reimbursement for expenditures on official 

business form (PS Form 1164). The form noted her official duty station located in Aurora, Ohio

and documented the difference in mileage for travel to the Cleveland, Ohio station from her home. 

The mileage differential amounted to 28 miles and a reimbursement of $14.98 for each trip. 

Appellant claimed mileage reimbursement for the difference in travel to and from work for four 

days of training on June 12, 13, 14, and 19, 2017. 

In a development letter dated July 18, 2017, OWCP informed appellant that the evidence 

of record was insufficient to support her claim, noting that the evidence failed to establish that she 

was injured in the performance of duty. It advised her of the medical and factual evidence needed. 

OWCP provided appellant a questionnaire for completion and requested further information to 

determine if she was in the performance of duty at the time of her injury. It noted that it appeared 

that she was claiming her injury occurred as a result of her commute to and from work for training. 

OWCP requested that appellant indicate if she was on the clock while she was driving for her 

training, when her workday began once she arrived at the training site, and if she was in a paid 
3

travel status for the entire period of the training. It afforded her 30 days to submit the necessary 

evidence. 

In an August 3, 2017 narrative statement, appellant responded to OWCP’s questionnaire 

and provided further information pertaining to her June 19, 2017 left shoulder injury. She reported 

that she originally injured her left shoulder on May 18, 2013 and returned to limited duty on 

September 1, 2014, but still remained under the care of her physician.3 Appellant reported that on 

June 19, 2017 she had been working on her newly assigned limited-duty training requirement for 

four of the eight training days when she had to seek emergency medical treatment for her left 

shoulder. She reported that she was required to drive an additional 28 miles per day in heavy 

traffic to attend the training which was located in Cleveland, Ohio. Appellant further reported that 

the employing establishment paid for her mileage. She explained that, on June 19, 2017 at 

approximately 4:10 p.m., she was driving in extremely heavy traffic on her way home from the 

Cleveland, Ohio station. Appellant reported that her left arm was injured because she had to use 

her arm for defensive driving techniques. She also reported that her training duties required her to 

use her left arm to shuffle papers which she also believed contributed to her driving injury. 

In support of her claim, appellant submitted a number of medical reports dated June 20 

through September 11, 2017 documenting diagnostic testing, physical restrictions, and appellant’s 

progress. 

By decision dated October 13, 2017, OWCP denied the claim finding that the evidence 

submitted was insufficient to establish that appellant was injured in the performance of duty. It 

explained that 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. 

On October 26, 2017 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. 

A hearing was held on March 16, 2018. At the hearing, appellant testified that her official 

duty station was located in Aurora, Ohio. Her previous modified-duty assignment was eliminated

and she was temporarily transferred to Cleveland, Ohio for training of her new modified 

assignment which was going to be located in Chagrin Falls. Appellant noted that she had a history 

of left shoulder injury from her prior claim which she continued to have problems with, OWCP 

File No. xxxxxx015. She reported that her shoulder flare-up occurred after clocking out at training

in Cleveland, Ohio. Appellant was no more than five minutes into her trip home when she entered 

a ramp to get on a five-lane highway which was congested with traffic. This caused her to tense 

up and grip the steering wheel as she tried to maneuver through the lanes, resulting in her left 

shoulder injury. Appellant testified that she was not provided wages for travel to and from her 

home and the training located in Cleveland, Ohio. Counsel argued that she was in the performance 

 

3 The record reflects that, under OWCP File No. xxxxxx015, OWCP accepted appellant’s May 18, 2013 traumatic 

injury claim for left rotator cuff sprain of shoulder and upper arm, complete left rotator cuff rupture, left bicipital 

tenosynovitis, and adhesive capsulitis of the left shoulder. Appellant underwent OWCP-approved surgery on 

December 23, 2013 and April 10, 2014. On September 20, 2014 she returned to work with restrictions. 
4

of duty because she was traveling for training and had not been assigned a new work location as 

her official duty station. The record was held open for 30 days. 

In a letter dated March 23, 2018, counsel argued that appellant was in the performance of 

duty at the time of her injury. He maintained that she was on a special mission to obtain training 

in another designated city, the duty was assigned, she was in a travel status and last performed her 

duties in Cleveland, Ohio and the training and travel were required. Counsel referenced Chapter 

2.800.4 of OWCP’s procedures in support of his arguments.4 

By decision dated May 31, 2018, OWCP’s hearing representative affirmed the October 13, 

2017 decision finding that the evidence of record was insufficient to establish that appellant was 

injured in the performance of duty. 

LEGAL PRECEDENT

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.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. In the course of employment deals with the work setting, the locale and time of 

injury whereas, arising out of the employment, encompasses not only the work setting, but also a 

causal concept, 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.6 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.7

The Board has recognized, as a general rule that 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 

 

4 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804 (August 1994). 

5 See 5 U.S.C. § 8102(a).

6 Kathryn S. Graham Wilburn, 49 ECAB 458 (1998).

7 Mark Love, 52 ECAB 490 (2001).
5

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.8

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.9

In addressing the going and coming rule, Larson relates, “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”

10

 Regarding payment for expense of travel, Larson states 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.11

ANALYSIS

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

performance of duty.

12

The record reflects that appellant’s regularly assigned duty station was located in 

Aurora, Ohio with fixed work hours from 7:30 a.m. to 4:00 p.m., a location 19 miles from her 

home. On June 12, 2017 she accepted an offer for a modified rural carrier associate and began her 

two week training assignment in Cleveland, Ohio on that date. Appellant’s fixed work hours 

remained the same during her training, her commute did not occur during her work hours. She 

received reimbursement in the amount of $14.98 from the employing establishment for the mileage 

differential from Aurora, Ohio to Cleveland, Ohio due to the additional 28 miles of travel for each 

 

8 Connie J. Higgins (Charles H. Higgins), 53 ECAB 451 (2002); Melvin Silver, 45 ECAB 677 (1994).

9 Elmer L. Cook, 11 ECAB 163 (1964).

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

11 A. Larson, id. 

12 Jon Louis Van Alstine, Docket No. 03-1600 (issued November 1, 2004).
6

commute to and from work. At the March 16, 2018 hearing, appellant testified that she was not 

provided wages for travel to and from her home to attend the training. 

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.13 Regarding the exceptions to the 

going and coming rule, appellant’s employment did not require that she travel on the highways 

and she was not engaged in a special errand or mission incidental to her employment at the time 

of the injury. As the Board held in the case of Joyce Hodge,

14 the fact that appellant was reporting 

to an alternate worksite or that she was attending training did not exclude her from the going and 

coming rule. The Board concluded that appellant’s injury was the result of an ordinary, 

nonemployment hazard of the journey itself, which was shared by all travelers. Similarly, in the 

case at bar, no evidence of record supports that appellant’s injury falls within any of the exceptions 

to the general going and coming rule.15

In considering application of the “special errand” exception to the going and coming rule, 

Larson provides:

“The rule excluding off-premises injuries during the journey to and from work does 

not apply if the making of that journey or the special degree of inconvenience or 

urgency under which it is made, whether or not separately compensated for, is in 

itself a substantial part of the service for which the work is employed.”

16

 

Counsel argues that appellant was in the performance of duty because the nature of the trip 

represents a special mission to obtain training in another designated city. The Board is not 

persuaded by this argument as the evidence does not establish that the trip made on June 19, 2017

was in any way other than her ordinary commute to and from a work location.

17

 Appellant has not 

established any special degree of inconvenience or urgency or shown that the trip, in and of itself, 

constituted a substantial part of any service for which she was employed.18 The record reflects 

that she was proceeding from the Cleveland, Ohio station to her home after her work shift had 

ended at the customary time. This was a trip that appellant made every day to and from work, 

similar to her commute to and from work at the Aurora, Ohio station.

19

 As such, there is no 

evidence that she was performing an important service for her employing establishment on 

 

13 Id.

14 Docket No. 96-1958 (issued December 8, 1998).

15 J.N., Docket No. 14-1764 (issued December 2, 2015).

16 Larson, supra note 10 at Chapter 14. See Connie J. Higgins (Charles H. Higgins), supra note 8.

17 Supra note 13.

18 Supra note 9 at § 14.05(3). 

19 See Mary Margaret Grant, 48 ECAB 696 (1997).
7

June 19, 2017 other than driving her car from work to home such that her commute would be 

characterized as a special mission.

20

 

Turning to consideration of travel reimbursement, Larson indicates that a majority of cases 

involve the determination of whether a “deliberate and substantial payment” was made for the 

expense of the travel.21 Factors to consider include whether an automobile is provided for the 

travel, whether transportation involves a considerable distance, or payment is made as a special 

inducement to hire.22 Larson notes, however, that a travel allowance must be distinguished from 

mere extra pay,23 i.e., added compensation with no evidence that the travel is sufficiently important 

in itself to be regarded as part of the service performed. The treatise discusses several court cases 

which have noted that, to apply an exception to the going and coming rule, the employing 

establishment must defray “all or substantially all” of the cost of travel.24

In this case, the employing establishment’s PS Form 1164 indicates that appellant was 

reimbursed $14.98 for the 28-mile difference between the worksites in Aurora and 

Cleveland, Ohio totaling $29.96 daily. The form reflects that appellant had three days of training 

in the first week and was injured in the second week following her fourth day of training on her 

commute home. Similar to the case of Jon Louis Van Alstine,

25 it is readily apparent that her

monetary reimbursement from her employing establishment was not for “all or substantially all”

of the cost of her travel to work. The record reflects that appellant was to be reimbursed only the 

difference in mileage between her home and the Aurora, Ohio station (19 miles) and the 

Cleveland, Ohio station (47 miles). The Board finds that the payment solely for the difference in 

mileage in this case does not constitute a “deliberate and substantial payment” of the expenses of 

travel, such as to constitute an exception to the going and coming rule. 

The Board further finds that appellant was not compensated for the time spent traveling to 

and from work for the training in Cleveland, Ohio.

26

 Nor was appellant in a travel status at the 

time of the injury. She did not establish a special degree of inconvenience or urgency or show that 

 

20 See Asia Lynn Doster, 50 ECAB 351 (1999).

21 Larson, supra note 10 at § 14.04(1).

22 Id. at § 14.07(2).

23 Id. at § 14.07(3).

24 See Ricciardi v. Aniero Concrete Co., 64 N.J. 60, 312 A.2d 139 (1973). The employing establishment paid 40 

percent of the commuting expenses which was found an inadequate percentage to bring the accident under the 

exception to the going and coming rule.

25 Supra note 12. In this case, the Board found that appellant was not in the performance of duty when he was 

working a detail at an alternative worksite and was injured during his commute to work. The Board noted that 

appellant was reimbursed at 31 cents a mile for the 13-mile difference between his regular and alternate worksites. 

However, it found that this monetary reimbursement for payment of mileage differential from his employing 

establishment did not constitute a “deliberate and substantial payment” of the expenses of travel, such as to constitute 

an exception to the going and coming rule.

26 For cases involving travel to a training seminar; see Sondra J. Mills, 33 ECAB 1092 (1982); see also Janet R. 

Landesberg, 50 ECAB 538 (1999).
8

her commute for training, in and of itself, was a substantial part of a service for which she was 

employed.27 Appellant’s travel to attend training was no more for the benefit of the employing 

establishment than any other worker’s commute.28 She, therefore, has failed to establish an injury 

in the performance of duty.29

CONCLUSION

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

performance of duty. 

ORDER

IT IS HEREBY ORDERED THAT the May 31, 2018 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: May 15, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

27 Supra note 16. See generally M.H., Docket No. 10-1337 (issued April 19, 2011). 

28 L.P., Docket No. 07-959 (issued August 2, 2007).

29 The Board notes the medical evidence of record submitted in support of appellant’s claim related her left shoulder 

conditions to the long hours spent driving to Cleveland, Ohio for her work training. Given that appellant has failed to 

establish that her injury occurred in the performance of duty, further consideration of the medical evidence is 

unnecessary. See Bonnie A. Contreas, 57 ECAB 364, 368 n.10 (2006).