United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

TIBOR RUBIN VA MEDICAL CENTER, 

Long Beach, CA, Employer

__________________________________________

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Docket No. 21-1017

Issued: March 9, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 25, 2021 appellant, through counsel, filed a timely appeal from a May 14, 2021 

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 to consider the merits of this case.

ISSUE

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

The issue is whether appellant was an employee, as defined under 5 U.S.C. § 8101(1)(B),

at the time of her alleged February 24, 2020 employment incident.

FACTUAL HISTORY

On September 22, 2020 appellant, then a 60-year-old hospital housekeeping aide, filed a 

traumatic injury claim (Form CA-1) alleging that on February 24, 2020 she injured her right 

shoulder when mopping floors, emptying trash cans, cleaning empty beds, and refilling paper 

towels while in the performance of duty. She stopped work on September 9, 2020.

In support of her claim, appellant provided a September 22, 2020 work excuse note, which 

indicated that she could return to full-duty work on October 22, 2020. The note further indicated 

that her condition was not the result of an industrial accident or an occupational disease.

In a September 28, 2020 development letter, OWCP advised appellant of the deficiencies 

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

provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the 

necessary evidence. No additional evidence was received.

By decision dated November 4, 2020, OWCP denied appellant’s traumatic injury claim,

finding that the evidence of record was insufficient to establish that the claimed incident occurred 

as alleged. It noted that she had not responded to its September 28, 2020 development 

questionnaire requesting specific factual information regarding the claimed injury. OWCP 

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

FECA.

On January 25, 2021 appellant resigned from the employing establishment effective 

February 1, 2021. She alleged that she sustained her first injury after being trained for two days. 

Appellant asserted that she was cleaning three to four beds at a time within 10 to 15 minutes, as 

she was taught. She requested help, but her supervisor informed her that there was no help 

available. Appellant further alleged that she pushed Big Ben dumpsters down the sidewalk and up 

a hill several times by herself when the trash compactor was broken, as she was again denied help. 

She contended that her physician indicated that she should perform limited duty with no repetitive 

motions.

On March 26, 2021 appellant, through counsel, requested reconsideration. She submitted 

the completed development questionnaire and related that on February 2, 2020, she started 

working for the employing establishment as a compensated work therapy housekeeper. In the 

middle of February 2020, while cleaning an empty patient bed, appellant experienced right 

shoulder pain. She contended that she notified her physician in March 2020. Appellant asserted 

that there were no witnesses to her injury, but that she called her then-supervisor for help, and 

subsequently reported her right shoulder injury to her current supervisor in April 2020. She 

contended that she did not sustain any other shoulder injury between the date of injury and the date 

that she first reported her claim to her current supervisor and physician. Appellant clarified that 

she was claiming a traumatic injury.
3

In a June 24, 2020 note, Dr. Rodney Wishnow, a Board-certified internist, noted that on 

February 28, 2020 appellant injured her right shoulder while cleaning patient rooms. He noted 

that she continued to have pain to her right shoulder off and on. Dr. Wishnow diagnosed right 

shoulder strain.

On July 22, 2020 Dr. Amarpreet K. Bath, an internist, found that appellant could perform 

light-duty work with no pushing, pulling, or heavy lifting or reaching due to her right shoulder 

injury. She directed her to avoid repetitive motions until further notice.

On August 11, 2020 Dr. Martin C. Tynan, an orthopedic surgeon, examined appellant due 

to right shoulder pain. He noted that she had attributed her shoulder pain to overuse and repetitive 

motions while cleaning at work. Appellant alleged that her pain was worsened by lifting heavy 

objects and overhead activities. On July 13, 2020 she underwent a right shoulder magnetic 

resonance imaging (MRI) scan which demonstrated mild-to-moderate rotator cuff and long head 

biceps tendinosis and moderate biceps tenosynovitis. This scan also provided findings suspicious 

for distal clavicular osteolysis most commonly seen with repetitive microtrauma. Dr. Tynan 

provided a steroid injection of the right shoulder and found that appellant could perform light duty.

Appellant also resubmitted the September 22, 2020 work excuse form.

Appellant provided a series of notes dated February 4 through July 24, 2020 addressing her 

right shoulder and right wrist pain signed by nurses and social workers from the employing 

establishment.3

In an April 29, 2021 letter of controversion, the employing establishment contended that 

on February 2, 2020 appellant was not an employee, but was participating in a compensated work 

therapy program with the employing establishment. She was selected as a housekeeping aid and 

began working on May 4, 2020.

By decision dated May 14, 2021, OWCP modified its prior decision to find that appellant

was not a federal civilian employee at the time of her injury on February 2, 2020.

LEGAL PRECEDENT

As defined by FECA, the term employee includes an individual rendering personal service 

to the United States similar to the service of a civil officer or employee of the United States, 

without pay or for nominal pay, when a statue authorizes the acceptance or use of the service, or 

authorizes payment of travel or other expenses of the individual.4 Determining whether an unpaid 

or nominally paid individual is an employee is a two-step process.5 Initially, the issue is whether 

the department or agency is authorized by statute to accept or use the service of the in dividual.6 

3 The remainder of these documents relate to appellant’s dental care.

4

5 U.S.C. § 8101(1)(B).

5 Federal (FECA) Procedure Manual, Part 2 --Claims, Civil Employee, Chapter 2.802.9 (September 2020).

6

Id.
4

The second step is to ascertain whether the services rendered were similar to the service of a U.S. 

civil officer or employee.7 When both questions are answered in the affirmative, an individual is 

a covered employee under FECA.8

Section 2.802.10 of OWCP’s procedures9 provides:

“Volunteer Workers with the Department of Veterans Affairs. OWCP has 

determined that the Department of Veterans Affairs (DVA) has statutory authority 

to use the services of persons who serve without compensation in its Volunteer 

Service Program. Therefore, the [claims examiner] need not ask the DVA to cite 

its statutory authority for using the services of these individuals.

"However, the [claims examiner] must be certain that the injured or deceased 

individual was “rendering a personal service of a kind similar to those of civilian 

officers or employees of the United States” as required by 5 U.S.C. 8101(1)(B)....

“The [claims examiner] may affirmatively determine the status of these individuals 

when the service performed by the injured or deceased individual is clearly like the 

services in well-established positions in the Federal service, e.g., nurse’s aide, 

recreation supervisor, etc. Otherwise, the question should be submitted for 

determination by a Quality Assurance and Mentoring Examiner or higher 

adjudicative authority.”

ANALYSIS

The Board finds that appellant was an employee as defined under 5 U.S.C. § 8101(1)(B) at 

the time of her alleged February 24, 2020 employment incident.

Appellant indicated that on February 2, 2020, she started working for the employing 

establishment as a compensated work therapy housekeeper. She alleged an employment incident 

resulting in a right shoulder injury on February 24, 2020. The employing establishment 

acknowledged that on February 2, 2020 appellant was participating in a compensated work therapy 

program and that she was formally hired as a housekeeping aid on May 4, 2020. 

As noted above, determining whether an unpaid or nominally paid individual is an 

employee is a two-step process.10 

Regarding the first step of whether the department or agency is authorized by statute to 

accept or use the service of the individual, the record indicates that appellant began participating 

7

Id.

8 E.G., mother of J.G., Docket No. 13-2125 (issued July 25, 2014); Sandra Davis, 50 ECAB 450 (1999); Larry 

Knoke, 39 ECAB 353 (1988); George Abraham, father of Anne Abraham, 36 ECAB 194, 196 (1984).

9

Supra note 6 at Chapter 2.802.10.

10 Supra note 6.
5

in a compensated work therapy program with the employing establishment on February 2, 2020, 

and that she was a participant in the compensated work therapy program at the time of her alleged 

injury on February 24, 2020. OWCP has determined that the Department of Veterans Affairs has 

statutory authority to use the services of persons who serve without compensation in its Volunteer 

Service Program. The Board thus finds that the employing establishment was authorized by statute 

to accept or use the service of appellant.

Regarding the second step of whether the services rendered were similar to the service of 

a U.S. civil officer or employee, the record indicates that appellant’s position in the compensated 

work therapy program with the employing establishment was that of housekeeper. On May 4, 

2020 appellant was hired by the employing establishment as a housekeeping aid. The Board thus 

finds that the services she rendered under the compensated work therapy program were similar to 

the service of a U.S. employee.

For these reasons, the Board finds that appellant has met her burden to establish that she 

was an “employee” within the meaning of section 8101(1)(B), and that she was a covered 

employee under FECA at the time of her February 24, 2020 alleged injury. The case must, 

therefore, be remanded to OWCP for consideration of appellant’s traumatic injury claim. 

Following any further development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that appellant was an employee as defined under 5 U.S.C. § 8101(1)(B) at 

the time of her alleged February 24, 2020 employment incident.
6

ORDER

IT IS HEREBY ORDERED THAT the May 14, 2021 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 9, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board