United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.B., Appellant

and

DEPARTMENT OF THE ARMY, ARMY 

INTELLIGENCE & SECURITY COMMAND, 

Fort Huachuca, AZ, Employer

__________________________________________

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Docket No. 20-1446

Issued: March 19, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 28, 2020 appellant filed a timely appeal from a May 18, 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.

ISSUE

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

occurred in the performance of duty on April 17, 2019, as alleged.

FACTUAL HISTORY

On April 22, 2019 appellant, then a 44-year-old intelligence specialist, filed a traumatic 

injury claim (Form CA-1) alleging that on April 17, 2019 she tore her left knee meniscus when 

 

1 5 U.S.C. § 8101 et seq.
2

she slipped and twisted her left knee while in the performance of duty. She indicated that after 

exercising at the gym she slipped on standing water in the shower. Appellant stopped work on 

April 17, 2019. The record reveals that appellant was stationed in Germany at the time of the 

incident. 

OWCP received a position description for an intelligence specialist and a medical report.

2

 

In a letter dated May 7, 2019, W.P., an injury compensation specialist for the employing 

establishment, controverted appellant’s claim alleging that the incident did not occur in the 

performance of duty. He noted that the alleged injury occurred 45 minutes after the start of her 

scheduled work shift while she was in the locker room. W.P. indicated that appellant was 

participating in an informal personal fitness activity that did not coincide with a lunch or break 

period.

In a May 7, 2019 development letter, OWCP informed appellant that of the deficiencies of 

her claim, requested additional factual and medical evidence, and provided a questionnaire for her 

completion. It afforded her 30 days to respond. No response was received within the allotted time.

By decision dated June 7, 2019, OWCP denied appellant’s claim finding that she had not 

established that the April 17, 2019 employment incident occurred as alleged. It concluded, 

therefore, that the requirements had not been met to establish an injury as defined by FECA.

On April 2, 2020 appellant requested reconsideration. In an April 8, 2020 statement, she 

asserted that the injury occurred during working hours, on the employing establishment premises, 

while in the shower after participating in an informal physical fitness program. Appellant indicated 

that she was conducting physical fitness to prepare for either a civilian or Army Reserves potential 

deployment. She noted that deployment was a job requirement and that she was required to 

maintain a minimal level of physical fitness in order to pass a health physical.

Appellant submitted a completed questionnaire signed on April 8, 2020. She described 

that on the morning of April 17, 2019 she tore her left knee meniscus when she slipped in the 

shower due to standing water from a clogged drain. Appellant reported that nobody was in the 

locker room at the time and she managed to hop out of the shower on her right leg. She noted that 

a colleague then assisted her to a chair. Appellant recounted that she was taken to the emergency 

room where she underwent emergency surgery to repair a torn meniscus in her left knee. She 

indicated that she was showering after exercising in a gym maintained by the employing 

establishment. Appellant noted that both the gym and locker room were on the employing 

establishment premises. She explained that she was participating in an informal workout program 

to prepare for potential deployment. Appellant reported that she was not required to use the gym 

and did not pay a membership to use the gym facilities. She explained that, although exercise was 

not part of her job, she was required to maintain a baseline level of fitness in order to deploy, which 

was a job requirement. Appellant noted that she was not participating in a formal agency physical 

fitness plan (PFP). She reported that the accident occurred at 9:45 a.m. and that she had quickly 

 

2 The medical report is in the German language.
3

checked her e-mail before she went to the gym. Appellant indicated that her shift normally began 

at 9:00 a.m., but she was allowed flexibility during the day in order to exercise. 

In a September 16, 2019 witness statement, Specialist (SPC) K.V. recounted that when she 

walked into the restroom she saw appellant leaning against the wall unable to move. She noted 

that appellant appeared to have just showered. K.V. indicated that she helped appellant get into a 

rolling chair and called the clinic to see if appellant could get an appointment. She reported that 

another civilian helped her push the rolling chair to appellant’s car and helped appellant get into 

the car. K.V. noted that appellant had informed her that she had to go to the hospital for emergency 

knee surgery.

OWCP also received medical evidence, including a June 5, 2019 report by Dr. K. Diener, 

an orthopedic specialist; an August 20, 2019 report by Dr. Joseph M. Layug, a Board-certified 

orthopedic surgeon; a September 17, 2019 report by Dr. L. Eckhard, a specialist in orthopedic and 

trauma surgery; a September 20, 2019 report by Dr. Oliver C. Singer, a neurologist; and an 

October 28, 2019 report by Dr. A. Kiekenbeck, a specialist in orthopedic and trauma surgery3

In an April 10, 2020 letter, OWCP informed the employing establishment that appellant 

had submitted a reconsideration request and requested additional factual information about the 

circumstances surrounding the alleged April 17, 2019 employment incident. 

OWCP received an April 21, 2020 memorandum from T.G., a site information officer for 

the employing establishment, in response to its letter of inquiry. T.G. noted that appellant was not 

participating in an agency-approved PFP. He also indicated that appellant was not required but 

encouraged to participate in the physical fitness activity, but that the employing establishment 

encouraged all civilian employees to participate in physical fitness. T.G. cited to Army Regulation 

600-63, Chapter 5 Physical Health, 5-2 Fitness Program; CPOL -- Employee Wellness Program; 

and INSCOM Policy #33, INSCOM Fitness Options. He further reported that the employing 

establishment would have benefited from appellant’s participation in an agency-approved PFP. 

T.G. explained that being physically fit would enable appellant to meet all job requirements, 

including deployments and prolonged tours of duty (TOD). He clarified that employees were 

permitted and encouraged to participate in a regular program of exercise and that appellant was 

not violating any rules or regulations. T.G. indicated that there was a “verbal agreement” between 

the employees and previous supervisor to participate in the physical fitness activity. He reported 

that the alleged April 17, 2019 injury occurred on an employing establishment fitness facility

during regular working hours.

In an April 22, 2020 letter, W.P., an injury compensation specialist for the employing 

establishment, indicated that a cardiovascular physical fitness program and periodic medical 

examination were not required for appellant’s position as an intelligence specialist, operations. 

By decision dated May 18, 2020, OWCP modified the June 7, 2019 decision. It accepted 

that the April 17, 2019 employment incident occurred as alleged and that appellant was diagnosed 

 

3 The reports appears to have been translated from the German language to the English language. 
4

with a left knee meniscus tear. However, OWCP denied appellant’s claim finding that she was 

not in the performance of duty at the time of the alleged April 17, 2019 employment incident. 

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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,5that 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.6 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.7

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.8

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.”

9

 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.10 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 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 his or her 

employment; and (3) while he or she was reasonably fulfilling the duties of his or her employment 

 

4 Supra note 1.

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

153 (1989). 

6

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

ECAB 312 (1988).

7 R.R., Docket No. 19-0048 (issued April 25, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., 

Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

8 See 5 U.S.C. § 8102(a); see J.N., Docket No. 19-0045 (issued June 3, 2019).

9 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).

10 L.B., Docket No. 19-0765 (issued August 20, 2019); G.R., Docket No. 16-0544 (issued June 15, 2017); Cheryl 

Bowman, 51 ECAB 519 (2000).
5

or engaged in doing something incidental thereto.11 In deciding whether an injury is covered by 

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.12 

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

is engaged in activity reasonably incidental to his or her employment, such as: (a) personal acts 

for the employee’s comfort, convenience, and relaxation; (b) eating meals and snacks on-premises; 

or (c) taking authorized coffee breaks.

13

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.14

OWCP 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 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.

15

ANALYSIS

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

Appellant filed a traumatic injury claim alleging that on April 17, 2019 she injured her left 

knee when she slipped and fell in the shower after exercising in a gym maintained by the 

employing establishment. OWCP denied her claim finding that she was not in the performance of 

 

11 A.S., Docket No. 18-1381 (issued April 8, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary 

Keszler, 38 ECAB 735, 739 (1987).

12 J.C., Docket No. 17-0095 (issued November 3, 2017); Mark Love, 52 ECAB 490 (2001).

13 A.G., Docket No. 18-1560 (issued July 22, 2020); A.P., Docket No. 18-0886 (issued November 16, 2018); J.O., 

Docket No. 16-0636 (issued October 18, 2016). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Performance of Duty, Chapter 2.804.4(a)(2) (August 1992).

14 L.B., Docket No. 19-0765 (issued August 20, 2019); S.B., Docket No. 11-1637 (issued April 12, 2012); Ricky A. 

Paylor, 57 ECAB 568 (2006); see also A. Larson, The Law of Workers’ Compensation § 22.00 (2015).

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

duty at the time of the April 17, 2019 incident. It determined that appellant was not engaged in 

activities that were incidental to her employment or related in any way to the employing 

establishment’s business. OWCP noted that the employing establishment had confirmed that 

appellant was not enrolled in a formal PFP and that it did not require participation in a physical 

fitness program. 

While OWCP focused on whether appellant’s physical fitness routine was incidental to her 

employment, the Board initially notes that appellant’s April 17, 2019 slip and fall incident did not 

occur while she was exercising, but after she had finished exercising and was taking a shower in 

the locker room. The Board has found that activities encompassing personal acts for the 

employee’s comfort, convenience and relaxation; eating meals and snacks on the premises, 

including established coffee breaks; and the employee’s presence on the premises for a reasonable 

time before or after specific working hours, are reasonably incidental to employment and are, 

therefore, in the course of employment.16 The Board notes that the personal comfort doctrine is 

intended to provide coverage to employees while injured on the employing establishment premises 

when ministering to their personal comfort.17 This doctrine holds that acts of personal comfort, 

such as eating a snack, using the bathroom, or drinking water or other beverage, are considered to 

be in the performance of duty.18 In this case, the evidence establishes that appellant was injured 

on the employing establishment premises at approximately 9:45 a.m. during her regular work 

hours. At the time of the injury, she was using the locker room in the employing establishment’s 

fitness facility in order to take a shower after exercising. The Board finds that such action would 

fall under the personal comfort doctrine.

19

The Board has held that recreational activities can 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; (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.20 Furthermore, OWCP 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 PFP.21 

With regard to the first criterion, there is no factual dispute that appellant’s injury took 

place on the employing establishment premises during the course of her employment. OWCP has 

 

16 Supra note 13.

17 J.O., Docket No. 16-0636 (issued October 18, 2016); Sari A. Shapiroholland, 47 ECAB 682 (1996).

18 A.P., Docket No. 18-0886 (issued November 16, 2018); James P. Schilling, 54 ECAB 641 (2003).

19 See V.O., 59 ECAB 500 (2008) (the Board found that an employee’s injury occurred in the performance of duty 

when he slipped and fell on the bathroom floor of the employing establishment). 

20 Supra note 14.

21 Supra note 15.
7

acknowledged that the April 17, 2019 incident occurred on the premises and during regular work 

hours. Appellant explained that both the gym and locker room were maintained by the employing 

establishment and that the injury occurred at 9:45 a.m. during her regular work hours. In an 

April 21, 2020 memorandum, the employing establishment also reported that the alleged April 17, 

2019 injury occurred in an employing establishment fitness facility during regular working hours. 

With regard to the second criterion, the Board finds that the employing establishment 

implicitly required participation in physical fitness such that it made the activity part of the service 

of the employee. In his response to the OWCP letter of inquiry dated April 21, 2020, T.G., the 

site information officer indicated that appellant was not required but encouraged to participate in 

the physical fitness activity.

In T.L.,

22 the Board determined that the claimant was injured in the performance of duty 

while playing basketball as he waited for a session to start during an annual training course. The 

evidence of record indicated that the employing establishment encouraged “networking” during 

its training and that the agenda specifically scheduled “Lunch/Networking.” Similarly, in this case 

the employing establishment indicated that all civilian employees were encouraged to participate 

in physical fitness. The employing establishment also indicated that there was a “verbal 

agreement” between the employee and a previous supervisor, which provided appellant flexibility 

during her workday to exercise. Therefore, the Board finds that the appellant has satisfied the 

second criterion. 

The Board further finds that appellant has satisfied the third criterion that the employing 

establishment derived a substantial direct benefit from appellant exercising at the fitness facility. 

Appellant explained that although exercise was not required of her job, she was expected to 

maintain a baseline level of fitness in order to deploy as part of her job. In an April 21, 2020 

memorandum, the employing establishment also indicated that being physically fit would enable 

appellant to meet all job requirements, including deployments and TOD. Thus, the Board finds 

that the third criterion has been met in determining whether a recreational activity has occurred. 

As such the Board finds that appellant was within the performance of duty on April 17, 2019 as 

alleged.

The case with be remanded to determine whether appellant has sustained and injury 

casually related to the accepted April 17, 2019 employment incident.

After such further development as it deems necessary, OWCP shall issue an appropriate

de novo decision on this matter. 

CONCLUSION

The Board finds that appellant has met her burden of proof to establish that she was in the 

performance of duty on April 17, 2019, as alleged. The Board further finds, however, that the case 

is not in posture for decision regarding whether appellant’s injury resulted from the accepted 

April 17, 2019 employment incident.

 

22 Docket No. 19-0805 (issued November 18, 2019).
8

ORDER

IT IS HEREBY ORDERED THAT the May 18, 2020 decision of the Office of Workers’

Compensation Programs is reversed, and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: March 19, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board