United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, FEDERAL AIR 

MARSHAL SERVICE, 

Egg Harbor Township,NJ, Employer

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Docket No. 21-0308

Issued: May 16, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 December 29 2020 appellant, through counsel, filed a timely appeal from a 

December 3, 2020 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 a traumatic injury 

in the performance of duty on March 7, 2016, as alleged.

FACTUAL HISTORY

On February 22, 2019 appellant, then a 44-year-old federal air marshal, filed a traumatic 

injury claim (Form CA-1) alleging that at 10:00 a.m. on March 7, 2016 he injured his shoulder and 

knee when he was struck by a vehicle when jogging while in the performance of duty. He did not 

stop work. On the reverse side of the claim form the employing establishment contended that 

appellant was jogging while on temporary duty (TDY) and was not in the performance of duty at 

the time of the alleged incident. It further noted that he failed to report his injury to the supervisor 

on duty at the time of his injury and no longer worked at the employing establishment.

In a March 1, 2019 witness statement, M.C., a coworker, indicated that on the morning of 

March 7, 2016, he and appellant were on TDY and were jogging when he witnessed appellant 

being struck by a vehicle. He attested that appellant went up and onto the hood of the vehicle 

before sliding/falling back onto the ground. M.C. noted that the vehicle drove away without 

stopping. He further indicated that, following the accident, appellant complained to him of pain 

in his shoulder and knee and was walking with a limp.

In a March 5, 2019 development letter, OWCP informed appellant of the deficiencies of 

his claim. It requested that he submit additional factual and medical evidence and provided a 

factual questionnaire for his completion. OWCP afforded appellant 30 days to submit the 

necessary evidence. No further information was received.

By decision dated April 12, 2019, OWCP denied appellant’s traumatic injury claim,

finding that he had not established the medical component of fact of injury, as no medical condition 

was diagnosed. It concluded, therefore, that the requirements had not been met to establish an 

injury as defined by FECA.

In a June 12, 2019 medical report, Dr. John W. Ellis, Board-certified in family medicine, 

noted that appellant was in Miami, Florida on March 7, 2016 when he was struck by a vehicle on 

the left side while jogging with his coworker, injuring his left shoulder, flank, and arm. Appellant 

reported that he was thrown up on the hood of the vehicle. Dr. Ellis indicated that shortly 

thereafter, appellant also developed pain in his right shoulder and knee. He noted that a May 3, 

2016 x-ray of the left shoulder revealed an acromioclavicular (AC) joint separation while a 

May 22, 2017 x-ray of the right knee demonstrated no joint effusion or degeneration. Dr. Ellis 

also noted that a June 5, 2017 magnetic resonance imaging (MRI) scan of the right knee revealed 

a medial meniscus tear and patellar tendinosis. He conducted a physical examination and 

diagnosed right shoulder AC joint separation, right shoulder tendinitis, right shoulder probable 

rotator cuff tear, right knee strain, and a right knee medial meniscus tear. Dr. Ellis indicated that 

appellant previously had contusions on the left side of his body, which were now resolved. He 

opined that appellant’s injuries arose out of and in the course of his employment and that they 

contributed to, aggravated, and/or caused appellant’s diagnosed conditions. Dr. Ellis explained 

that, although appellant had preexisting tendinitis in both shoulders and tendinitis and arthritis in 
3

both knees and ankles, being hit on the left side of the body on March 7, 2016 caused jerking on 

the contralateral right side of the body separating the clavicle from the AC joint of the right 

shoulder, as well as the medial meniscus injury in the right knee.

On June 27, 2019 appellant requested reconsideration.

By decision dated September 25, 2019, OWCP modified the April 12, 2019 decision, 

finding that the medical evidence of record was sufficient to establish a diagnosed medical 

condition. However, the claim remained denied, as appellant was found not to be in the 

performance of duty at the time of the accepted March 7, 2016 employment incident.

On September 17, 2020 appellant, through counsel, requested reconsideration.

In a September 14, 2020 statement, appellant again asserted that on March 7, 2016 he 

sustained injuries when he was struck by a vehicle while in the performance of duty. He alleged 

that, when the incident occurred, he was on a scheduled layover to Miami, Florida and was jogging 

with his coworker before heading back on his scheduled flight to Detroit, Michigan. Appellant 

asserted that his job as a federal air marshal required a multitude of skillsets and physical fitness. 

He contended that, due to this expectation, federal air marshals were required to conduct a health 

fitness assessment (HEA) quarterly. Appellant contended that it was customary for federal air 

marshals to exercise during layovers. He asserted that running and jogging countered the effects 

of prolonged sitting, and that it was a regular part of his job to go for jogs or runs while on layovers 

in other cities.

In a September 29, 2020 development letter, OWCP requested additional factual 

information from the employing establishment. It posed four questions requesting that the 

employing establishment provide information relative to appellant’s duties, including whether or 

not he was on authorized TDY while in Florida, whether it was typical for federal air marshals to 

jog during layovers between flights, and whether jogging while on layovers was a “well-known 

and well-accepted” part of a federal air marshal’s job.

In a November 24, 2020 response to OWCP’s development questionnaire, appellant’s 

supervisor, L.B., controverted the claim. He acknowledged that on March 7, 2016 appellant was 

in a TDY status in the Miami, Florida area. L.B. also indicated that he failed to report his injury 

and that he was unaware that he was injured on March 7, 2016 until he submitted his Form CA-1. 

He contended that appellant was assigned rest time in Miami before securing flights returning to 

Detroit. L.B. asserted that he appeared to be injured during his nonduty, TDY period. He indicated 

that, while federal air marshals were encouraged to maintain physical fitness, they were not 

mandated to follow a specific physical fitness regimen. L.B. noted that, during nonduty and TDY 

periods, federal air marshals may treat this time as any other unpaid nonduty period.

By decision dated December 3, 2020, OWCP denied modification of the September 25, 

2019 decision.
4

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 Board has interpreted the phrase “sustained while in the performance of duty” 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” encompasses 

the work setting, the locale, and time of injury. The phrase “arising out of the employment”

encompasses not only the work setting, but also a causal concept with the requirement being that 

an employment factor caused the injury.9 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.10 In deciding whether an injury is covered by 

3

Supra note 2.

4 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989).

5 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E.Chadden, Sr., 40 ECAB 312 (1988).

6 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

DeloresC.Ellyett, 41 ECAB 992 (1990).

7

See 5 U.S.C. § 8102(a); see J.N., Docket No. 19-0045 (issued June3, 2019).

8

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

Valerie C. Boward, 50 ECAB 126 (1998).

9 L.B., Docket No. 19-0765 (issued August20, 2019); G.R., Docket No. 16-0544 (issued June15, 2017); Cheryl 

Bowman, 51 ECAB 519 (2000).

10 A.S., Docket No. 18-1381 (issued April8, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary 

Keszler, 38 ECAB 735, 739 (1987).
5

FECA, the test is whether, under all circumstances, a causal relationship exists between the 

employment itself, or the conditions under which it is required to be performed and the resultant 

injury.11

The Board has held that, where an employee is on travel status or a temporary-duty 

assignment, he or she is covered by FECA 24 hours a day with respect to any injury that results 

from activities essential or incidental to his or her temporary assignment. 12

With regard to recreational or social activities, the Board has held that such activities arise 

in the course of employment when: (1) they occur on the premises during a lunch or recreational 

period as a regular incident of the employment; or (2) the employing establishment, by expressly 

or impliedly requiring participation or by making the activity part of the service of the employee, 

brings the activity within the orbit of employment; or (3) the employing establishment derives 

substantial benefit from the activity beyond the imaginable value of improvement in employee 

health and morale is common to all kinds of recreation and social life.13

OWCP’s procedures provide that employees who are injured while exercising or 

participating in a recreational activity during authorized lunch or break periods in a designated 

area of the employing establishment premises have the coverage of FECA whether or not the 

exercise or recreation was part of a structured physical fitness plan (PFP). Injuries which occur 

during the use of fitness and recreational facilities furnished by the employing establishment 

outside of official work hours, on or off the premises, are not compensable if the employee was 

not participating in a structured PFP. The mere fact that the employing establishment allows 

employees to use its facilities on their own time does not create a sufficient connection to the 

employment to bring any resulting injury within the coverage of FECA.14

ANALYSIS

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

The evidence of record demonstrates that at 10:00 a.m. on March 7, 2016 appellant 

sustained multiple injuries when he was struck by a vehicle while jogging while in a temporary 

duty status in Miami, Florida. The incident occurred at the time and place, and in the manner, as 

alleged; however, OWCP denied the claim, finding that he was not in the performance of duty 

when injured as he was not injured on federal property nor while on official duty.

In a November 24, 2020 response to OWCP’s September 29, 2020 development letter, L.B. 

indicated that appellant was encouraged, but not required, to participate in any specific physical 

11 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).

12 D.R., Docket No. 16-1395 (issued February 2, 2017); T.C., Docket No. 16-1070 (issued January 24, 2017).

13 N.B., Docket No. 20-1446 (issued March 19, 2021); L.B., Docket No. 19-0765 (issued August20, 2019); S.B., 

Docket No. 11-1637 (issued April12, 2012); Ricky A. Paylor, 57 ECAB 568 (2006); see alsoA. Larson, The Law of 

Workers’Compensation § 22.00 (2015).

14 Federal (FECA) Procedure Manual, Part 2 --Claims, Performance of Duty, Chapter 2.804.18(b) (March 1994).
6

fitness activity. He further asserted that he appeared to be injured during his nonduty hours and 

that federal air marshals were permitted to treat this time as they would during any other unpaid 

nonduty period. The Board notes that OWCP’s procedures require that, in cases of injured air 

marshals, certain documentary evidence must be obtained. 15 Although L.B. provided a written 

response to OWCP’s development questionnaire, his response was insufficient as he did not 

provide copies of employing establishment policies and procedures, or any other information 

needed for a full and fair adjudication of this case. Moreover, OWCP did not ask the employing 

establishment to address air marshals’ quarterly HEA, as referenced by appellant. Without this 

information, the case record is incomplete.16

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter.17 While appellant has the burden of proof to establish entitlement to compensation, OWCP 

shares the responsibility in the development of the evidence, particularly when such evidence is of 

the character normally obtained from the employing establishment or other governmental source. 18 

The Board finds that OWCP insufficiently developed the evidence regarding whether appellant 

was in the performance of duty at the time of injury on March 7, 2016.19

As OWCP failed to request all the information as required under its procedures, the case 

must be remanded for further development of the claim. 20 On remand OWCP shall obtain 

clarifying information as to the employing establishment’s policies, specifically regarding its

quarterly HEA, and appellant’s duties on the date of incident, including development of whether 

physical fitness was incidental to appellant’s employment as an air marshal and whether the 

employing establishment benefited from his physical fitness. It shall further inquire as to whether 

the quarterly HEA required him to engage in the physical fitness activity.

Following this and other 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 decision.

15 Federal (FECA) Procedure Manual, id. at Chapter 2.804.7 (August 1992).

16 See R.H., Docket No. 20-1011 (issued February 17, 2021); S.T., Docket No. 20-0588 (issued 

September 16, 2020).

17 J.F., Docket No. 19-0980 (issued December 23, 2020); A.W., 59 ECAB 593 (2008); Ann P. Drennan, 47 ECAB 

750 (1996); Richard Michael Landry, 39 ECAB 232 (1987).

18 T.T., Docket No. 20-0383 (issued August 3, 2020).

19 D.C., Docket No. 19-0846 (issued October 17, 2019); Federal (FECA) Procedure Manual, supra note 14 at 

Chapter 2.800.5(d)(1); see alsoChapter 2.804.4(f).

20 See S.T., supra note 16.
7

ORDER

IT IS HEREBY ORDERED THAT the December 3, 2020 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: May 16, 2022

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