United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, VA

MEDICAL CENTER, Battle Creek, MI, 

Employer

__________________________________________

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Docket No. 23-0510

Issued: November 2, 2023

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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 1, 2023 appellant, through counsel, filed a timely appeal from a September 27, 

2022 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 her burden of proof to establish a traumatic injury 

in the performance of duty on February 18, 2022, as alleged.

FACTUAL HISTORY

On February 19, 2022 appellant, then a 69-year-old librarian, filed a traumatic injury claim 

(Form CA-1) alleging that on February 18, 2022 at 8:15 a.m. she sustained a fractured patella when 

she slipped and fell on an ice patch while in the performance of duty. She stopped work on 

February 21, 2022. On the reverse side of the claim form, P.B., appellant’s supervisor,

controverted the claim, asserting that appellant was not injured in the performance of duty as she 

was not scheduled to work on her “holiday off.” She noted that appellant had forgotten that it was 

her day off work.

In an e-mail dated February 23, 2022, appellant expressed her concerns regarding

mitigating expenses and loss from misinformation and guidance she received from the employing 

establishment’s employee health office following the alleged February 18, 2022 incident. She

stated that at the time of her fall she was told that her injury was covered by FECA, and her 

healthcare was arranged by the employing establishment, but she incurred additional expenses due 

to miscommunications by the employee health office. In addition, appellant expressedher concern 

about her FECA status, although she had been assured that her claim would be approved.

In a report dated February 21, 2022, Dr. Mark D.Russell, an osteopath and Board-certified 

orthopedic surgeon,noted that appellant fell three days prior and he diagnosed closed nondisplaced 

comminuted left patella fracture, initial encounter. 

In a development letter dated February 24, 2022, OWCP informed appellant that the 

evidence of record was insufficient to establish her claim. It advised her of the type of factual and 

medical evidence necessary to establish her claim and provided a questionnaire for her completion. 

OWCP requested that appellant provide a detailed description of the February 18, 2020 incident. 

In a separate development letter of even date, it requested the employing establishment provide 

information regarding whether she was in the performance of dutyat the time of the alleged injury. 

OWCP afforded both parties 30 days to provide the necessary evidence.

OWCP subsequently received additional medical evidence. 

OWCP also received a copy of appellant’s timesheet summary for the period February 13 

through 26, 2022, which noted that the code used on February 18, 2022 was “LH-Holiday.” 

In response to OWCP’s development letter, the employing establishment submitted a letter 

dated March 14, 2022, controverting appellant’s claim. It asserted that she was not in the

performance of duty on February 18, 2022 since she was not scheduled to work on that day, as it 

was her designated holiday (President’s Day) off work due to her compressed work schedule. The 

employing establishment further asserted that appellant was not prescheduled for overtime work 

or compensation time on that day. Additionally, it contended that she had failed to establish causal 

relationship. 
3

In an undated letter, P.B. related that appellant’s in lieu of day occurred every other 

Monday. She further related that appellant was not scheduled to work on February 21, 2022 

therefore appellant’s holiday off work fell on Friday, February 18, 2022. P.B. indicated that this 

was consistent with the employing establishment’s policy regarding in lieu of holiday schedules

for employees, such as appellant, who had a compressed work tour. She further indicated that at 

the time of injury, while appellant was on the employing establishment’s property, appellant was 

leaving the building to return home. P.B. maintained that appellant was not working in an official

capacity as it was her day off work. She related that appellant’s tour started at 7:00 a.m. P.B. 

noted that around 7:30 a.m. appellant contacted her by telephone stating that she had come to work,

but forgot that day was her holiday. At that time, appellant related that she was going home. P.B. 

indicated that she was not aware that appellantwas on the employing establishment’s campus until 

she called her at 7:30 a.m. She reiterated that appellant was not scheduled to work on February 18, 

2022 and advised that she did not have preapproval for overtime work or compensation time on 

that date.

P.B. submitted an employing establishment police report dated February 18, 2022, the

employing establishment’s policy, and reports dated February 18, 2022 from employee health.

In a completed questionnaire dated March 23, 2022, appellant asserted that the employing 

establishment did not alert her about her in lieu of holiday schedule, and she did not receive the 

2022 bulletin containing the in lieu of holiday schedules. Thus, she contended thatshe was in the 

performance of duty on February 18, 2022. Appellant explained that there was considerable 

variation from one year to the next year when the in lieu of day occurred, noting that in 2021 her 

holiday for President’s Day did not change her schedule. She noted that her in lieu of date for 

Juneteenth and Christmas was Tuesday and not Friday, as it was for President’s Day. Due to these 

inconsistencies, appellant was unaware that her in lieu of date for President’s Day was Friday, 

February 18, 2022.

By decision dated March 28, 2022, OWCP accepted that the February 18, 2022 incident 

occurred as alleged, and that a medical condition was diagnosed in connection with the accepted 

employment incident. However, it denied appellant’s traumatic injury claim, finding that she was 

not in the performance of the duty at the time of the employment incident, because the evidence 

established that she was not authorized to work on February 18, 2022. Thus, OWCP found that 

she did not sustain an injury and/or medical condition that arose in the course of employment and 

within the scope of compensable work factors as defined by FECA.

On March 29, 2022 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

During a telephonic hearing held on July 6, 2022 appellant testified that she did not know 

that she was not supposed to work on February 18, 2022 until her husband, an employing 

establishment employee, called and told her about her work status. She claimed that her work 

schedule indicated a shortened schedule on that day. Appellant further claimed that the official 

time keeping system did not indicate in lieu of days until after they had occurred. She related that 

it indicated that she was assigned to work on February 18, 2022. Appellant noted that her in lieu 

of days changed every year as they fell on a Friday or Tuesday. 
4

In a July 26, 2022 response to the July 6, 2022 hearing transcript, the employing

establishment advised that appellant had an alternative work schedule consisting of eight shifts for 

nine hours per day and one shift for eight hours per day every bi-weekly pay period. Appellant’s

nonscheduled workday under this agreement was Monday. The President’s Day holiday fell on 

her nonscheduled workdayof February 21, 2022which made Friday, February 18, 2022 herin lieu 

of paid time off holiday. The employing establishment indicated that on February 18, 2022 

appellant arrived at work at approximately 6:30 a.m., and she was subsequently told by her 

husband that she did not have to work on that day. Appellant called her supervisor at 

approximately 7:30 a.m. to tell her that she mistakenly came to work on her in lieu of day off and 

was leaving for the day. While leaving at 8:30 a.m., she slipped on ice and injured her left knee. 

The employing establishment maintained that at the time of the February 18, 2022 employment 

incident, appellant’s supervisor was unaware of her presence on the employing establishment 

campus on that day, and she had neither requested nor received approval for overtime work or 

compensation time on that day. It also maintained that, although it understood that appellant had 

mistakenly reported to work on her in lieu of paid holiday, her hearing testimony demonstrated,

her understanding of her normal work schedule, and in lieu of holiday pay schedules. 

In a statement dated August 9, 2022, appellant responded to the employing establishment’s 

statements. She related that the leave calendar, which was used by supervisors, was not official,

and it erroneously showed that she was scheduled to telework on February 18, 2022 when the 

correct telework date was February 14, 2022. Appellant contended that the agency representatives 

did not appear to rely on the official timekeeping system, because it did not indicate in lieu of 

holiday days for individuals on compressed schedules. In addition, she related that she never 

received the policy which identified in lieu of holiday schedules, noting that this was the only 

reliable source for these schedules because the dates changed each year. Appellant acknowledged 

that she did not request overtime or compensation time for February 18, 2022 explaining that both 

the leave calendar and the timekeeping system showed that she was scheduled to work on 

February 18, 2022. By decision dated August 17, 2022, OWCP’s hearing representative vacated 

the March 28, 2022 decision, finding that the record was unclear as to whether appellant 

mistakenly came to work on an unassigned or assigned date. The hearing representative instructed 

OWCP to obtain information from the employing establishmentregarding whether work days were 

as fluid and fluctuating as portrayed by appellant’s hearing testimony. OWCP was also instructed 

to obtain a detailed description of how employees’ work schedules, including in lieu of days, were 

promulgated and how this information was conveyed to employees.

By letter dated August 19, 2022, OWCP requested that the employing establishment 

provide additional information in response to the issues raised in the hearing representative’s 

August 17, 2022 decision. In an August 29, 2022 response, P.B. advised that the employing 

establishment followed the employing establishment’s policy which identified days off when a 

holiday occurred on an in lieu of day. These days were set in advance by the policy and were not 

fluid. P.B. stated that appellant’s lieu of day occurred every other Monday. She indicated that the 

in lieu of holiday for Washington’s birthday was February 18, 2022. P.B. inserted a notice from 

the policy which indicated that for President’s Day on Monday, February 21, 2022 the in lieu of 

date was Friday, February 18, 2022. She noted that beginning February 28, 2022 she requested 

her staff to use the scheduling system, and that appellant would not have seen her schedule for 

February 18, 2022 since they were not using the system at that time.
5

In a statement dated September 1, 2022, appellant indicated that the timekeeping system 

displayed inaccurate, and misleading information on in lieu of holiday days for employees working 

a compressed work schedule. She noted that on August 30, 2022 her supervisor was unable to 

locate the 2022 policy to share with her. Because the timekeeping system was confusing, 

appellant’s supervisor was using the scheduling system. Appellant concluded that there was no 

effective or reliable dissemination of holiday schedules at the employing establishment because

the OCHCO Bulletin was not posted online and there were no e-mail alerts or reminders. She 

attached a copy of the policy which showed Friday, February 18, 2022 as the in lieu of holiday 

date for President’s Day on Monday, February 21, 2022. 

In a letter dated September 23, 2022, OWCP requested clarification from P.B. as to

whether appellant had sufficient resources to know when her in lieu of day occurred for President’s 

Day in 2022 prior to February 18, 2022. It also requested that P.B. explain her statement that 

appellant would not have seen her schedule for February 18, 2022. Additionally, OWCP asked if 

appellant had access to the policy and, if not, what action she could have taken. 

In a September 26, 2022 letter, P.B. responded that appellant would have had access to the 

payroll system, which would have shown her timecard and work schedule. She advised that the 

employing establishment currently used two systems for timekeeping/scheduling and that prior to 

February 18, 2022 it only used one system. Lastly, P.B. maintained that she had no knowledge of 

whether appellant was aware of the policy at the time of her injury. She noted, however, that 

appellant could have used internet to search for the policy, or asked her for assistance if she did 

not have access to it.

By decision dated September 27, 2022, OWCP denied modification.

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,

4

that 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

3

Id.

4 L.E., Docket No. 22-1282 (issued February 22, 2023); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 

59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5 L.E., id.; 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 L.E., id.; 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); Delores C. Ellyett, 41 ECAB 992 (1990).
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

 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 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

ANALYSIS

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

injury in the performance of duty on February 18, 2022, as alleged.

The record reflects that appellant had a compressed work schedule consisting of eight shifts 

for nine hours per day and one shift for eight hours per day every bi-weekly pay period with a 

nonscheduled workday falling on Monday. President’s Day, a federal holiday, fell on Monday on 

February 21, 2022 which was her nonscheduled workday. The employing establishment’s 2022 

policy identified in lieu of days for that year with February 18, 2022 designated as appellant’s in

lieu of day for the February 21, 2022 holiday. Appellant’s timesheet summary for the period 

February 13 to 26, 2022 noted that the holiday code was used for February 18, 2022. While 

appellant was correct in her assertion that the leave calendar was incorrect and conflicted with the 

2022 policy, the payroll system also showed her schedule and timecard. The record establishes 

7

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

8

See L.E., id. 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 August 20, 2019);G.R., Docket No. 16-0544 (issued June 15, 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).

11 A.G., Docket No. 18-1560 (issued July22, 2020); J.C., Docket No. 17-0095 (issued November 3, 2017);Mark 

Love, 52 ECAB 490 (2001).
7

thatshe had available resourcesin the form of the “payroll system and the policy, to determine her 

in lieu of holiday. Under the circumstances of this case, the Board finds that appellant did not 

sustain an injury in the performance of duty on February 18, 2022 as she was neither scheduled to 

work nor requested to work on that day. Thus, the Board finds that she has not met her burden of 

proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this 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 her burden of proof to establish a traumatic 

injury in the performance of duty on February 18, 2022, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the September 27, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 2, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board