United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.B., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERAL REVENUE SERVICE, 

Syracuse, NY, Employer

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Docket No. 21-0667

Issued: March 3, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 15, 2021 appellant filed a timely appeal from an October 1, 2020 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2

ISSUE

The issue is whether appellant has met her burden of proof to establish that an injury 

occurred in the performance of duty on May 20, 2020, as alleged.

FACTUAL HISTORY

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the issuance of the October 1, 2020 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

On June 1, 2020 appellant, then a 55-year-old internal revenue agent, filed a traumatic 

injury claim (Form CA-1) alleging that on May 20, 2020 she fractured her left upper extremity

while in the performance of duty. She further explained that, while working from home, she 

tripped and fell while trying to kick a toy to her cat. On the reverse side of the claim form B.D., 

an employing establishment supervisor, indicated that appellant was in telework status and that the 

incident occurred during scheduled work hours, but controverted the claim, contending that 

appellant was not in the performance of duty. Appellant stopped work on the date of injury and 

returned to work with restrictions on June 8, 2020.

In a June 3, 2020 development letter, OWCP informed appellant of the deficiencies of her 

claim. It advised her of the type of factual and medical evidence needed to establish her claim and 

afforded her 30 days to submit the necessary evidence.

In a statement dated June 8, 2020, appellant indicated that at the time of her injury, she was 

walking to her home office when she noticed a cat toy in her path. While trying to kick it toward 

her cat, her right foot skidded on the floor and she fell, landing on her left arm and face. Appellant

indicated that she believed she was in the performance of duty at the time of the injury, because 

she was ordered to work from home until further notice due to the closing of federal buildings due 

to COVID-19.

In a report dated May 21, 2020, Dr. Russell M. LaFrance, a Board-certified orthopedic 

surgeon, diagnosed appellant with a left proximal humerus fracture including the greater tuberosity 

with endosteal scalloping in the humeral head. He noted a history that she fell while kicking a cat 

toy across her wood floor.

By decision dated July 8, 2020, OWCP denied appellant’s claim, finding that she had not 

established that her injury was sustained in the performance of duty. It found that she was injured 

while working from home and engaged in an act for personal comfort and convenience. OWCP 

further noted that the personal comfort doctrine did not apply to employees working at home and 

that only activities directly related to official duties were covered. It further found that the activity 

appellant was engaged in at the time of her injury was not directed to the actual performance of 

the duties of her federal employment. Consequently, OWCP concluded that the requirements had 

not been met to establish an injury or medical condition as defined by FECA.

On August 6, 2020 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review. In support of her request, she submitted a second 

statement reiterating that she believed she was in the performance of duty when she was injured, 

because she was instructed to work from home effective March 23, 2020. Appellant also explained 

that, due to the sensitive nature of her work materials involving taxpayer information, she utilized

a confined space in her home as an office, and when she finishes her coffee in the morning, she 

takes the cup downstairs to her kitchen so that it does not take up necessary office space. She

related that on May 20, 2020 she was returning to her home office from the kitchen and tried to 

kick a toy to her cat, missed, and went flying onto the ground in front of her stairs.

By decision dated October 1, 2020, OWCP’s hearing representative affirmed OWCP’s 

denial of the claim.
3

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,3that 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.4 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.5

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.”

6

 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.”

7

 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 stated to be engaged in the master’s business, at a place where the employee may 

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

reasonably fulfilling the duties of his employment or engaged in doing something incide ntal 

thereto.8 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.9

Its procedures provide that ordinarily, the protections of FECA10 do 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 benefit of the employer.

11

3

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

153 (1989).

4

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

ECAB 312 (1988).

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

DeloresC. Ellyett, 41 ECAB 992 (1990).

6

5 U.S.C. § 8102(a).

7

See D.L., Docket No. 19-0276 (issued April20, 2020); M.T., Docket No. 17-1695 (issued May15, 2018); S.F., 

Docket No. 09-2172 (issued August23, 2010); Charles Crawford, 40 ECAB 474, 476-77(1989).

8

See M.T., id.; Mary Keszler, 38 ECAB 735, 739 (1987).

9

See M.T., id.; Eugene G. Chin, 39 ECAB 598, 602 (1988).

10 Supra note 1.

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

see also M.T., Docket No. 16-0927 (issued February 13, 2017); S.F., Docket No. 09-2172 (issued August23, 2010). 
4

In determining whether an injury occurs in a place where the employee may reasonably be 

or constitutes a deviation from the course of employment, the Board will focus on the nature of 

the activity in which the employee was engaged and whether it is reasonably incidental to the 

employee’s work assignment or represented such a departure from the work assignment that the 

employee becomes engaged in personal activities unrelated to his or her employment. 12

ANALYSIS

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

performance of duty on May 20, 2020, as alleged.

As noted above, for employees performing official duties at home, OWCP has provided 

that employees must be directly engaged in the performance of their duties to be covered under 

FECA.13 Appellant alleged that she was injured when she kicked a toy to her cat. Her actions

constitute a deviation from the course of employment. At the time of the slip and fall, appellant 

was not engaged in an activity essential to her employment or reasonably incidental to the duties 

that she was hired to perform.14 The Board thus finds that the injury she sustained did not occur 

in the performance of her federal employment duties.

For these reasons, the Board finds that appellant has not met her burden of proof to establish 

an injury in the performance of duty on May 20, 2020, 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 her burden of proof to establish an injury, in the 

performance of duty on May 20, 2020, as alleged.

12 See A.S., Docket No. 17-1880 (issued December 12, 2018); T.C., Docket No. 16-1070 (January 24, 2017).

13 Supra note 1

14 Id.
5

ORDER

IT IS HEREBY ORDERED THAT the October 1, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 3, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board