A.C. and Department of Veterans Affairs, Ann Arbor VA Medical Center (Board decision, March 4, 2025)

ECAB final decision. The Board affirmed denial of a nursing assistant’s injury claim. It found that her collision on the commute home was outside the performance of duty. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A VA nursing assistant reported injuries after the rideshare vehicle she was driving struck a deer on her way home from work. She had dropped off a coworker, her scheduled work had ended, and the van was not a government vehicle. The Board found that the trip did not fall within a recognized exception to the rule excluding ordinary travel to and from work. It affirmed OWCP’s denial of the injury claim.

Decision snapshot

• Authority: FECA; 5 U.S.C. § 8101.
• Outcome: Denial of the injury claim affirmed.
• Key point: A commute in a rideshare vehicle after the work shift ended was not travel in the performance of duty on these facts.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.C., Appellant
)
)
and ) Docket No. 24-0764
)
Issued: March 4, 2025
DEPARTMENT OF VETERANS AFFAIRS,
)
ANN ARBOR VA MEDICAL CENTER,
)
Ann Arbor, MI, Employer
)
__________ )

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 JANICE B. ASKIN, Judge

JURISDICTION

On July 15, 2024 appellant, through counsel, filed a timely appeal from a June 26, 2024 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.
ISSUE

The issue is whether appellant has met her burden of proof to establish a traumatic injury in the performance of duty on October 24, 2022, as alleged.

FACTUAL HISTORY

On November 21, 2022 appellant, then a 59-year-old nursing assistant, filed a traumatic injury claim (Form CA-1) alleging that at 8:25 p.m. on October 24, 2022 she injured the right side of her back, neck, and wrist, and sustained a right shoulder rotator cuff tear that required surgery when she struck a deer with the rideshare vehicle she was operating after dropping her coworker off, while in the performance of duty. On the reverse side of the claim form, H.N., appellant’s acting manager, controverted the claim, contending that appellant was not in the performance of duty when injured because her claimed injury occurred outside of her tour of duty, in a rideshare vehicle, off the employing establishment’s premises, and while she was not involved in off- premises duties. H.N. further noted that the rideshare vehicle was not a government vehicle according to human resources. She reported appellant’s regular work hours as 7:30 a.m. to 8:00 p.m., Monday and Tuesday.

Appellant submitted medical evidence in support of her claim.

In a development letter dated November 23, 2022, OWCP informed appellant of the deficiencies of 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. In a separate development letter of even date, OWCP requested that the employing establishment provide additional information relevant to the question of whether appellant was in the performance of duty at the time of her claimed October 24, 2022 employment incident. It afforded both parties 30 days to submit the necessary evidence.

In a December 6, 2022 response to OWCP’s development questionnaire, appellant reiterated her history of injury and medical treatment received on October 24, 2022. She asserted that she was in the performance of duty when injured. Appellant asserted that she was driving a rideshare vehicle and possessed a gas card for the vehicle, which were “afforded to her” by the employing establishment. She explained that she commuted 100 miles round trip with two other commuters on her scheduled workdays. Appellant contended that, by law, she was driving an employing establishment rented vehicle to her home at the time of the accident, and thus, she was still considered to be on duty. She further contended that she was on her regularly-assigned route and performing her regularly-assigned duties at the time of injury as she was commuting from work. Lastly, appellant contended that she was authorized to work at the time of the accident.

In a December 19, 2022 letter, H.N. further controverted appellant’s claim. She noted that the claimed incident occurred more than 30 minutes after the end of appellant’s tour of duty and that the rideshare program was a benefit to employees and not a requirement.

By decision dated December 28, 2022, OWCP accepted that the October 24, 2022 employment incident occurred as alleged. However, it denied appellant’s traumatic injury claim, finding that the medical evidence of record was insufficient to establish a diagnosed medical

2 condition in connection with the accepted employment incident. It therefore found that the requirements had not been met for establishing an injury under FECA.

On January 4, 2023 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. Counsel submitted a copy of a document entitled “Commute with Enterprise VANPOOL COORDINATOR AND OPTIONAL DRIVER AGREEMENT.” The document was signed by appellant as the vanpool coordinator on June 12, 2022.

Appellant subsequently submitted additional medical evidence.

Following a preliminary review, by decision dated May 5, 2023, OWCP’s hearing representative vacated the December 28, 2022 decision finding that the case was not in posture for decision as OWCP had not addressed the issue of whether appellant was in the performance of duty at the time of the claimed injury. The case was remanded for further development followed by a de novo decision.

In a May 11, 2023 development letter, OWCP requested that the employing establishment provide additional information relevant to whether appellant was in the performance of duty at the time of her claimed October 24, 2022 employment incident.

In response, the employing establishment submitted a document entitled “Application for Public Transit Fare Benefit” indicating an authorized vanpool from Vanpool Enterprise, totaling $280.00 per month. This document did not indicate that appellant was the applicant, and the form was not signed by appellant. It also received the employing establishment’s October 2012 handbook entitled “Transit Benefit and Bicycle Benefit Programs” and January 3, 2022 “Financial Policy” addressing its transit benefit program.

In a May 31, 2023 response to OWCP’s May 11, 2023 development letter, A.G., a human resources specialist/consultant, contended that the alleged October 24, 2022 employment incident did not involve a temporary duty (TDY) travel incident. She maintained that the rideshare program was a car/vanpool subsidy option for employees to use to and from work instead of a bus ticket subsidy.

By de novo decision dated July 7, 2023, OWCP denied appellant’s traumatic injury claim.
It accepted that the October 24, 2022 employment incident occurred as alleged and that a medical condition had been diagnosed in connection with the event, but found that appellant had not established that the alleged injury occurred while in the performance of duty as she was participating in a voluntary rideshare program, not a mandatory program at the time of the alleged injury.

On July 19, 2023 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

Following a preliminary review, by decision dated September 27, 2023, OWCP’s hearing representative vacated the July 7, 2023 decision, finding that OWCP had incorrectly denied the claim based on performance of duty without first reviewing whether the medical evidence of record established a medical diagnosis in connection with the accepted October 24, 2022 employment

3 incident. The case was remanded for OWCP to review the medical evidence of record and followed by a de novo decision.

OWCP continued to receive additional medical evidence.

By de novo decision dated October 27, 2023, OWCP again denied appellant’s traumatic injury claim. It accepted that the October 24, 2022 employment incident occurred as alleged and that a medical condition had been diagnosed in connection with the event. However, the claim remained denied as appellant had not established that the October 24, 2022 incident occurred in the performance of duty as alleged as appellant was participating in a voluntary rideshare program at the time of the claimed injury.

On October 31, 2023 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

Following a preliminary review, by decision dated November 30, 2023, OWCP’s hearing representative vacated the October 27, 2023 decision and remanded the case for further development on the issue of whether appellant was in the performance duty on October 24, 2022. The hearing representative directed OWCP to obtain information additional information regarding whether the employing establishment contracted for and/or furnished appellant’s transportation to and from work.

In a December 4, 2023 development letter, OWCP requested that the employing establishment provide additional information regarding its participation with the rideshare program and the benefits received by appellant as a participant in that program.

In a December 13, 2023 statement, A.G. responded to OWCP’s December 4, 2023 development letter. She contended that the employing establishment did not own the rideshare vehicles, or own, manage, or maintain gas cards, vehicle maintenance, etc., for the rideshare program vehicles or transit monthly bus pass/ticket program. A.G. further contended that appellant was not driving an employing establishment/United States government vehicle on the date of injury and was not on TDY. She noted that appellant was driving home after her tour of duty in a rideshare vehicle. A.G. maintained that appellant did not travel for duty, noting that employees could not travel for duty in a rideshare vehicle. She related that the rideshare program was a subsidy program offered to reduce emissions, etc., with carpool or local bus transit options. A.G. asserted that appellant was not traveling between multiple job sites, again noting that the rideshare program was designed like a carpool. She related that appellant was not on a business trip, in any training, or on a special errand/mission, rather she was on her way home after work hours. A.G. further related that the employing establishment did not control the place or the vehicle where the employment incident occurred. The rideshare and bus subsidy programs were options for employees to travel to and from work. A.G. maintained that at the time of injury, appellant was not engaged in any activities incidental to her employment, required to travel during a curfew imposed by a government or municipality, subject to emergency duty, or engaged in a special errand or mission at the request of her supervisor(s). She indicated that all employees engaged in coming and going to their residence to get to and from work. A.G. contended that appellant’s trip to/from work was no different than any other employee with fixed hours and a place of work. She claimed that her injuries were ordinary, nonemployment hazard of the journey to/from work , which

4 was shared by all travelers. A.G. also claimed that the rideshare company and not the employing establishment provided insurance coverage to participants in the program.

In a December 12, 2023 e-mail to A.G., D.C., a rideshare company commute branch manager, provided information regarding damages/bills paid in relation to appellant’s motor vehicle accident. D.C. advised that since the employing establishment was not a party to the rental agreement, he could not share information about claims. He noted that since the employing establishment did not provide automobile insurance to their riders, appellant did receive coverage through the rideshare company. D.C. explained that the rideshare company applied the transit subsidy first to the monthly rental amount for each rider in the vanpool, and then applied the balance of any subsidy amount to a fuel card for riders’ use. The fuel allowance covered most groups, but if a vanpool ran out of fuel funds, then it was the responsibility of the groups to cover the difference out of their pockets.

In a December 13, 2023 e-mail, D.C. informed A.G. that since contractual agreements were between the drivers/coordinators and the rideshare company, he could not disclose specific information regarding appellant’s claim without her permission. He related that the rideshare company was self-insured, and it paid 100 percent of vehicle damages. D.C. further related that every driver/coordinator voluntarily enrolled in its program. He noted that they may qualify for a benefit that helped to cover the cost of the program through the employing establishment, but the program was open to the public to join.

OWCP received copies of the rideshare company documents entitled “Risks and Insurance (Frequently Asked Questions),” which indicated coverage provided by Enterprise for authorized drivers operating commute vehicles during commuting and non -commuting hours, proof of insurance was provided in each glove compartment, and Enterprise was self -insured for physical damage; “Commute with Enterprise VANPOOL COORDINATOR AND OPTIONAL DRIVER AGREEMENT,” and “Commute with Enterprise Driver Agreement.”

In statements dated December 6 and 19, 2023, M.S., a transit benefits manager, also responded to OWCP’s December 4, 2023 development letter. He noted that the rideshare program used by appellant was not arranged and/or contracted for by the employing establishment as the program was voluntary. M.S. further noted that appellant was not contracted directly for the rideshare. Additionally, he noted that the employing establishment did not arrange which employees traveled in the same rideshare vehicle. M.S. indicated that appellant received a subsidy benefit distribution to pay for her rideshare. He also indicated that the employing establishment did not directly pay for the rideshare on her behalf. M.S. related that appellant paid the balance of her rideshare cost not covered by her transit subsidy. He further related that she was not given a gas card by the employing establishment. Appellant directly received the gas card from the rideshare company.

E-mails dated December 20, 2023 between M.S., A.G., and D.K., an assistant vice president of risk management for the rideshare company, indicated that the availability of a “med pay” policy in the amount of $5,000.00 was afforded to all authorized commute drivers and coordinators in the event of an accident.

5
OWCP received excerpts from an October 18, 2011 employing establishment Transit Benefit Program handbook, which outlined employee eligibility. The handbook indicated that benefits were limited to actual commuting costs and were paid directly to the employee .

A copy of a transit subsidy charge card agreement form from the employing establishment was submitted, showing a monthly subsidy of $300.00.

By de novo decision dated February 5, 2024, OWCP again denied appellant’s traumatic injury claim, finding that she was not in the performance of duty at the time of the claimed injury on October 24, 2022. It again noted that she participated in a voluntary rideshare program rather than a mandatory program at the time of the alleged injury.

On February 13, 2024 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

By decision dated June 26, 2024, OWCP’s hearing representative affirmed the February 5, 2024 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA 3 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 timely filed within the applicable time limitation period 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

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 of 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

3
Id.
4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. Cameron, 41 ECAB 153 (1989). 5 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 R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
See 5 U.S.C. § 8102(a); see M.B., Docket No. 20-1072 (issued November 10, 2022); J.N., Docket No. 19-0045 (issued June 3, 2019).

6
The Board has interpreted the phrase “while in the performance of duty” to be the equivalent of the commonly found requisite in workers’ compensation law of arising out of and in the course of employment. 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. In addressing this 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 the employment; and (3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in doing something incidental thereto. 8 In deciding whether an injury is covered by FECA, the test is whether, under all the circumstances, a causal relationship exists between the employment itself, or the conditions under which it is required to be performed and the resultant injury. 9

The Board has recognized that, as a general rule, off-premises injuries sustained by employees having fixed hours and places of work while going to or coming from work, are not compensable, as they do not arise out of and in the course of employment. Such injuries are merely the ordinary, nonemployment hazards of the journey itself, which are shared by all travelers. There are recognized exceptions which are dependent upon the particular facts relative to each claim: (1) where the employment requires the employee to travel on the highways; (2) where the employing establishment contracts to and does furnish transportation to and from work; (3) where the employee is subject to emergency calls, as in the case of firefighters; and (4) where the employee uses the highway to do something incidental to his employment with the knowledge and approval of the employing establishment. 10

The Board has also held that an exception to the general going and coming rule is made for travel from home when the employee is to perform a special errand. In such a situation, the employing establishment is deemed to have agreed, expressly or impliedly, that the employment service should begin when the employee leaves home to perform the special errand. The essence of the exception, however, is not found in the fact that a greater or different hazard is encountered, but in the agreement to undertake a special task. For this reason, coverage is afforded from the time the employee leaves home, even though in time and route the journey may be, in part, identical to that normally followed in going to work. 11

8
K.G., Docket No. 18-1725 (issued May 15, 2019); Kathryn S. Graham Wilburn, 49 ECAB 458 (1998).
9
See K.K., Docket No. 21-0538 (issued July 25, 2022); J.C., Docket No. 17-0095 (issued November 3, 2017); Mark Love, 52 ECAB 490 (2001). 10 K.G., supra note 8; J.H., Docket No. 10-0185 (issued July 19, 2010); Connie J. Higgins (Charles H. Higgins), 53 ECAB 451 (2002); Melvin Silver, 45 ECAB 677 (1994).
11
See C.C., Docket No. 20-0759 (issued September 22, 2021); M.H., Docket No. 10-1337 (issued April 19, 2011);
Elmer L. Cook, 11 ECAB 163 (1964).

7
ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a traumatic injury in the performance of duty on October 24, 2022, as alleged.

Appellant alleged that at 8:25 p.m. on October 24, 2022 she sustained injuries when she was driving a motor vehicle that hit a deer while in the performance of duty. She advised that she was driving a rideshare vehicle at the time of injury and the accident occurred after she had dropped her coworker at home while on the way to her own home. The Board finds that appellant has not met her burden of proof because she was not in the course of her employment at the time of her claimed October 24, 2022 injury and therefore was not in the performance of duty.

Statements and letters from appellant, as well as H.N., appellant’s manager, A.G., a human resources specialist/consultant, and M.S., a transit benefits manager, reveal that appellant’s claimed injury occurred at 8:25 p.m. on October 24, 2022, after her tour of duty had ended at 8:00 p.m., and when she was on her way home from work, driving a rideshare vehicle rather than a government vehicle, and not performing work duties, on TDY, traveling between multiple job sites, on a business trip, in any training, or on a special errand/mission. This evidence negates a finding that appellant’s injury occurred due to the previously noted exceptions to the general going and coming rule. 12

The case record contains several documents related to appellant’s participation in the rideshare program, including her signed commuter vanpool agreement dated June 12, 2022, insurance coverage provided by the rideshare company, and the employing establishment’s Transit Benefit Program handbook. The employing establishment has explained that appellant participated in a voluntary rideshare program that was a subsidy benefit option and not a requirement for employees to use to and from work. It further indicated that the employing establishment did not own the rideshare vehicles or manage employee participation in carpools. The Board finds that the evidence of record demonstrates that appellant’s motor vehicle accident on October 24, 2022 occurred during her participation in a voluntary rideshare program that was a subsidy benefit option.

Appellant has not shown that her claimed October 24, 2022 injury occurred at a time when her employment required her to travel on the highways, where she was subjected to emergency calls, and where she used the highway to do something incidental to her employment with the knowledge and approval of the employing establishment, where the employing establishment contracted to and furnished transportation to and from work .13 Thus, she was not in the performance of her duties when the motor vehicle accident occurred. 14

12
Supra note 10 and 11.
13
Supra note 10.
14
P.R., Docket No. 17-1038 (issued September 22, 2017); see also Mary V. Tucker, Docket No. 00-1409 (issued September 7, 2001).

8
As there is no evidence of record to substantiate a traumatic injury in the performance of duty on October 24, 2022, as alleged, the Board finds that appellant 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 October 24, 2022, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the June 26, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 4, 2025
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

9