United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BOISE VA MEDICAL CENTER, Boise, ID, 

Employer

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Docket No. 21-1032

Issued: July 14, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 25, 2021 appellant filed a timely appeal from a May 10, 2021 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 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the May 10, 2021 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

ISSUE

The issue is whether appellant has met his burden of proof to establish a traumatic injury 

in the performance of duty on September 3, 2020, as alleged.

FACTUAL HISTORY

On February 10, 2021 appellant, then a 66-year-old medical clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on September 3, 2020 at approximately 8:45 a.m. he injured his 

left hand, left elbow, and knees when he fell when checking into a medical appointment on the 

employing establishment’s premises while in the performance of duty. He explained that, once he 

arrived at the clinic, he was checking in at a kiosk when he dropped his identification card, bent 

over to retrieve it, and fell. On the reverse side of the claim form, the employing establishment 

contended that appellant was not in the performance of duty at the time of injury as he was on 

“approved leave status.” Appellant did not stop work. 

A leave request form dated August 28, 2020, indicated that appellant requested sick leave 

to attend a medical appointment on September 3, 2020 from 8:30 a.m. to 10:00 a.m. An employing 

establishment supervisor approved the request on August 28, 2020. 

In a development letter dated April 7, 2021, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence necessary to establish his 

claim and provided a factual questionnaire for his completion. OWCP afforded appellant 30 days 

to respond.

In an undated response, appellant indicated that on September 3, 2020 he attended a 

medical appointment with Dr. Marcel Roy, a Board-certified internist, on the employing 

establishment’s premises. He noted that he walked from his office down to the location of the 

clinic and, along the way, escorted a veteran who was having trouble finding the location. Once 

there, appellant was checking into his appointment at a kiosk when he dropped his identification 

card, leaned forward to retrieve it, and fell onto his right hand and knee. 

In a discharge note dated September 4, 2020, Dr. Rick Wright, an osteopath, Boardcertified in emergency medicine, indicated that appellant was treated at the emergency department 

on that date for right knee pain after a fall. He obtained a history of appellant experiencing 

numbness and tingling of the right leg and pain in appellant’s right lower back due to a fall that 

occurred while he was checking in for a medical appointment on September 3, 2020.

In a November 12, 2020 medical report, Dr. Alejandro A. Homaechevarria, a Boardcertified family and sport medicine specialist, indicated that appellant related complaints of right 

knee pain which he attributed to a fall in September 2020. He reviewed a magnetic resonance 

imaging (MRI) scan of the right knee dated October 20, 2020, which he found demonstrated a 

medial meniscus tear, medial femorotibial compartment chondromalacia, probable medical 

collateral ligament sprain, joint effusion, and increased fluid in the medial popliteal fossa. 

Dr. Homaechevarria noted appellant’s history of right knee meniscal surgery in 2008 and 

diagnosed primary osteoarthritis of the right knee and a recent tear of the medial meniscus. 
3

In a February 26, 2021 report, Dr. Nicholas J. Yokan, a Board-certified orthopedic 

surgeon, indicated that appellant related right shoulder pain after a fall in September 2020. He 

reviewed a January 12, 2021 MRI scan of the right shoulder, which he found demonstrated a tear 

of the anterior supraspinatus. Dr. Yokan diagnosed a right shoulder rotator cuff tear and 

recommended arthroscopic surgical repair. 

By decision dated May 10, 2021, OWCP found that appellant had established that the 

September 3, 2020 incident occurred as alleged and that a medical condition had been diagnosed 

in connection with the incident. It denied his claim, however, as the medical evidence of record 

was insufficient to establish that he was in the performance of duty at the time the September 3, 

2020 incident occurred as he was on leave and not within the course of employment and within 

the scope of compensable work factors as defined by FECA. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including 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

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 for 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.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 

3

Supra note 1.

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 G.A., Docket No. 21-1362 (issued February 23, 2023); 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 M.H., Docket No. 21-0891 (issued December 22, 2021); R.R.,Docket No. 19-0048 (issued April25, 2019); 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).

7

5 U.S.C. § 8102(a).
4

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. In addressing the 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 stated 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 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.9 In deciding whether an injury is covered by FECA, the test is whether, under 

all the circumstances presented, causal relationship exists between the employment itself, or the 

conditions under which it is required to be performed, and the resultant injury. 10

Injuries arisingon the employing establishment’s premises may be approved if the claimant 

was engaged in activity reasonably incidental to his or her employment. 11 However, an 

employee’s presence on the premises does not of itself afford FECA protection.12 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. 13

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a traumatic 

injury occurred in the performance of duty on September 3, 2020, as alleged.

The record reflects that on August 28, 2020 appellant submitted a request for sick leave to 

attend a physician’s appointment on September 3, 2020 from 8:30 a.m. to 10:00 a.m. An 

employing establishment supervisor approved the request on August 28, 2020. On the Form CA-1, 

appellant noted that his accident occurred on September 3, 2020 at 8:45 a.m. when he was checking 

in to a medical appointment. In his subsequent response to OWCP’s development questionnaire, 

he indicated that he left his office to attend a medical appointment and escorted a veteran to the 

8

See M.Z., Docket No. 20-1078 (issued December 16, 2022); N.B., Docket No. 20-1446 (issued March 19, 2021);

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

Crawford, 40 ECAB 474, 476-77 (1989).

9

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

10 A.G., Docket No. 18-1560 (issued July 22, 2020); J.C.,Docket No. 17-0095 (issued November 3, 2017); Mark 

Love, 52 ECAB 490 (2001).

11 K.A., Docket No. 20-0787 (issued September 16, 2021);A.P., Docket No. 18-0886 (issued November 16, 2018); 

S.M., Docket No. 16-0875 (issued December 12, 2017); J.O., Docket No. 16-0636 (issued October 18, 2016); T.L., 59 

ECAB 537 (2008). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 

2.804.4a(2) (August 1992).

12 Id. at Chapter 2.804.4c(2) (August 1992).

13 J.O., Docket No. 16-0636 (issued October 18, 2016).
5

same location whom he had encountered along the way. Once at the clinic, appellant was checking 

in at a kiosk, dropped his identification, bent over to retrieve it, and fell.

The Board finds that the evidence of record is insufficient to establish that appellant was 

engaged in the employing establishment’s business, reasonably fulfilling the duties of his 

employment, or engaged in an activity incidental thereto at the time of the September 3, 2020 

incident. When he fell, appellant was on preapproved sick leave and was attending a personal 

medical appointment.14 Although the appointment took place on the employing establishment’s 

hospital premises, there is no evidence supporting that he was in the performance of duty at that 

time. Appellant indicated that he assisted a veteran in finding the clinic; however, once he arrived 

at the appointment to check in, there is no evidence of record to suggest that he was fulfilling any 

duties of his federal employment or engaged in an activity reasonably incidental thereto. Thus, 

the Board finds that he has not established that he sustained an injury in the performance of duty

on September 3, 2020, as alleged.

15

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s 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 while 

in the performance of duty on September 3, 2020, as alleged.

14 See M.Z., supra note 8.

15 Id. See also J.N., Docket No. 19-0045 (issued June 3, 2019).
6

ORDER

IT IS HEREBY ORDERED THAT the May 10, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 14, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board