United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.P., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, New York, NY, Employer

__________________________________________

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Docket No. 22-0491

Issued: March 8, 2023

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 21, 2022 appellant, through counsel, filed a timely appeal from a 

December 13, 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 over the merits of this case.3

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.

3 The Board notes that, following the December 13, 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 May 10, 2020, as alleged.

FACTUAL HISTORY

On May 14, 2020 appellant, then a 51-year-old special agent, filed a traumatic injury claim 

(Form CA-1) alleging that on May 10, 2020 he sustained a fractured left forearm (ulnar) and a 

fractured right ring finger with torn tendons, as well as a torn tendon in the right middle finger,

while in the performance of duty. He explained that he was involved in a physical altercation 

while taking necessary police action to subdue a violent felon. Appellant indicated on the claim 

form that the injury occurred at 11:00 p.m. The reverse side of the claim form indicated that his

regular work hours were 10:00 a.m. to 6:00 p.m. The employing establishment acknowledged that 

appellant was injured in the performance of duty. Appellant stopped work on May 11, 2020. 

OWCP received a copy of a May 11, 2020 police report describing the incident. 

In a development letter dated May 18, 2020, OWCP informed appellant of the type of 

factual and medical evidence necessary to establish his claim. In a separate development letter of 

even date, it requested that the employing establishment provide additional information regarding 

appellant’s traumatic injury claim, including comments from a knowledgeable supervisor 

regarding the accuracy of appellant’s statements. OWCPafforded both parties 30 days to respond.

In a May 19, 2020 statement, C.Q., appellant’s supervisor, noted that on May 10, 2020 at 

“23:58 p.m. [11:58 p.m.],” appellant notified him that appellant had been assaulted and injured 

and had to go to the hospital. He explained that appellant related that, at approximately “23:10

[11:10],” appellant’s 15-year-old daughter and a friend were followed and threatened by a man as 

they walked home. Appellant’s daughter called appellant who left his residence, witnessed the 

unidentified man harassing and threatening his daughter and friend, and he confronted the man as 

his daughter reached their residence. Appellant identified himself as a “cop/police” and told the 

man to leave. A confrontation occurred initiated by the man, the man then retrieved a wooden 

plank and assaulted appellant, fracturing his arm and injuring his hand. C.Q. noted that appellant 

was transported to the hospital for treatment and that appellant confirmed that there was no history 

between appellant and the attacker, who was charged with assault in the second degree , a felony. 

OWCP received May 11, 2020 x-rays of appellant’s left hand and a May 14, 2020 

treatment note from Dr. David V. Tuckman, Board-certified in hand surgery and orthopedic 

surgery, who diagnosed a left ulnar shaft fracture, right middle finger bony mallet, and right ring 

finger bony mallet. 

By letter dated June 16, 2020, to the employing establishment, OWCP requested additional 

information as to whether appellant’s alleged injury occurred in the performance of duty. It noted

that the incident occurred at his personal residence while off duty. OWCP afforded the employing 

establishment 10 days to respond. No response was received.

By decision dated June 29, 2020, OWCP denied the claim for compensation, finding that 

appellant was not in the performance of duty at the time of the May 10, 2020 incident. It explained 

that the evidence was insufficient to establish that he sustained an injury or medical condition “that 
3

arose during the course of employment and within the scope of compensable work factors as 

defined by FECA.”

On July 20, 2020 appellant requested a review of the written record by a representative of 

OWCP’s Branch of Hearings and Review. 

OWCP received a copy of appellant’s position description and a July 17, 2020 report from

Dr. Tuckman. 

By decision dated October 8, 2020, an OWCP hearing representative affirmed the 

January 15, 2020 decision. The hearing representative explained that appellant had a fixed place 

and hours of work, the incident occurred outside of appellant’s scheduled work hours, there was 

no evidence that appellant was performing official duties at the time of the assault, and the assault 

occurred for reasons unrelated to his employment. OWCP’s hearing representative found that the 

assault constituted an off-premises injury and did not arise out of and in the scope and course of 

employment. 

On September 21, 2021 counsel for appellant requested reconsideration and submitted new 

evidence. He argued that appellant did not have a fixed place and hours of work and that the injury 

occurred in the performance of duty. 

In a September 21, 2021 statement, P.F., the Special Agent in Charge, indicated that 

appellant was in the performance of duty when the incident occurred. P.F. explained that, at the 

time of the May 10, 2020 incident, appellant was a special agent subject to Law Enforcement 

Availability Pay (LEAP), and that a requirement of LEAP was that special agents were required 

to work or be available to work outside of their scheduled duty hours. In addition, P.F. noted that 

appellant was designated as a peace officer by the State of New York, having the authority to 

intervene if a misdemeanor or felony is committed in his presence. P.F. indicated that “during the 

incident on May 10, 2020 appellant was deemed to be acting within the scope of his employment 

and should be covered” by OWCP. 

Dr. Tuckman continued to treat appellant and provided treatment notes dated May 14, 

June 16, and July 16, 2020. 

By decision dated December 13, 2021, OWCP denied modification of the October 8, 2020 

decision. It found that there was no evidence that appellant was on unscheduled duty at the time 

of the incident, and that a peace officer designation did not fall within the coverage of FECA. 

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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 filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 

4

Supra note 2.
4

employment injury. These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 5

The phrase sustained while in the performance of duty is regarded as the equivalent of the 

coverage formula commonly found in workers’ compensation laws, namely, arising out of and in 

the course of employment.6 In the course of employment relates to the elements of time, place, 

and work activity.7 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 his or her master’s business, at a place when 

he or she may reasonably be expected to be in connection with his or her employment, and while 

he or she was reasonably fulfilling the duties of the employment, or engaged in doing something 

incidental thereto.8

ANALYSIS

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

In this case, appellant indicated on the claim form that he was injured in a physical 

altercation while taking necessary police action to subdue a violent felon. The evidence of record 

establishes that appellant’s 15-year-old daughter and her friend were followed and threatened by 

the assailant as they walked home. As appellant’s daughter approached their residence, appellant 

identified himself as a “cop/police” and asked the assailant to leave. The assailant then retrieved 

a wooden plank, assaulted and injured appellant. Appellant confirmed that there was no history 

between himself and the assailant who was charged with assault in the second degree, a felony. 

He noted that the injury occurred at 11:00 p.m. and that his regular work hours were 10:00 a.m. to 

6:00 p.m. A May 19, 2020 statement from C.Q., appellant’s supervisor, confirmed the 

circumstances of the injury as described by appellant.

The Board has held that an injury occurs in the performance of duty according to FECA 

when the employee is injured: (1) at a time when the employee may be reasonably stated to be 

engaged in the employer’s business; (2) at a place where the employee may reasonably be expected 

to be in connection with the employment; and (3) while the employee was reasonably fulfilling 

the duties of his employment or engaged in doing something incidental thereto.9

OWCP also received a statement from P.F., an employing establishment Special Agent in 

Charge, who indicated that “during the incident on May 10, 2020 appellant was deemed to be 

acting within the scope of his employment and should be covered” by OWCP. P.F. explained that 

appellant was a special agent subject to LEAP, which required that appellant work or be available 

5

See M.D., Docket No. 19-0841 (issued December 2, 2020); J.L., Docket No. 20-0717 (issued October 15, 2020); 

J.W., Docket No. 18-0183 (issued January 4, 2019); DeloresC. Ellyett, 41 ECAB 992 (1990).

6 This construction makes the statute effective in those situations generally recognized as properly within the scope 

of workers’ compensation law. D.T., Docket No. 19-1486 (issued January 17, 2020); BernardD. Blum, 1 ECAB 

1 (1947).

7 R.E., Docket No. 18-0515 (issued February 18, 2020); J.G., Docket No. 17-0747 (issued May 14, 2018).

8 M.T., Docket No. 19-1546 (issued March 5, 2020); see J.B., Docket No. 17-0378 (issued December 22, 2017).

9

See K.P., Docket No. 98-1574 (issued January 12, 2000); see also M.D., Docket No. 19-0841 (issued 

December 2, 2020).
5

to work outside of his scheduled duty hours. In addition, P.F. noted that appellant’s position as a 

special agent made him a peace officer of the State of New York who must intervene if a 

misdemeanor or felony is committed in his presence. 

The Board notes that OWCP’s procedures recognize that FECA coverage can be afforded 

in cases wherein the documentary evidence of record establishes that the appellant was performing 

emergency duty, or was in a special mission status. However, certain documentary evidence must 

be obtained. Although P.F. provided a written response to OWCP’s development letter, 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. Further 

documentation is required to establish that appellant was authorized to perform emergency duty 

or a special mission as a LEAP or peace officer, and as such, that he was required to intervene if a 

misdemeanor or felony was committed in his presence at any location, at any time. Without this 

information, the case record is incomplete.10

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

arbiter.11 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. 12 

The Board finds that OWCP insufficiently developed the evidence regarding whether he was in 

the performance of duty at the time of the alleged injury.

13

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

must be remanded for further development of the claim.14 On remand, OWCP shall obtain 

clarifying information as to the employing establishment’s policies. Following this and other such 

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

CONCLUSION

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

10 See K.R., Docket No. 21-0368 (issued May 16, 2022); see also R.H., Docket No. 20-1011 (issued February 17, 

2021); S.T., Docket No. 20-0588 (issued September 16, 2020).

11 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).

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

13 D.C., Docket No. 19-0846 (issued October 17, 2019); Federal (FECA) Procedure Manual, Part 2 --Claims, Initial 

Development of Claims, Chapter 2.800.5d(1) (June 2011); see also Performance of Duty, Chapter 2.804.4f (August 

1992).

14 See S.T., Docket No. 20-0588 (issued September 16, 2020).
6

ORDER

IT IS HEREBY ORDERED THAT the December 13, 2021 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: March 8, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board