matter of personal convenience. The activity was a voluntary one not required of
the employees, and the mere knowledge of the practice by appellant's supervisors
was not sufficient to make an informal office practice an activity incidental to em-
ployment. Mary Keszler, 38 ECAB 735 [1987].
PERSONAL COMFORT DOCTRINE
It cannot be said that the task of having a prescription filled for her sister is an
activity "incidental" to the employment. The Board has held "It is well-settled that
an employee who within the time and space limits of employment engages in an act
which ministers to personal comfort or necessity does not leave the course of em-
ployment and an injury sustained on his way to or from, or during the use of toilet
facilities is ordinarily compensable as arising out of and in the course of employ-
ment." Similarly the Board has found “the drinking of coffee and similar beverages,
or the eating of a snack, . . . during recognized breaks in the daily work hours is
now so generally accepted in the industrial life of our Nation as to constitute a
work-related activity falling into a general class of activities closely related to per-
sonal ministrations so that engaging in such activity does not take an employee out
of the course of his employment." The task of filling her sister's prescription cannot
be likened to those acts and is not considered an activity which is necessary for per-
sonal comfort or personal ministration and therefore is not incidental to appellant's
employment. Joanne Curtis, 38 ECAB 122 [1986].
The drinking of coffee and similar beverages, or the eating of a snack, during rec-
ognized breaks during daily work hours is now so generally accepted in the industri-
al life of our nation as to consitute a work-related activity falling into a general
class of activity closely relate to personal ministrations so that engaging in such ac-
tivity does not take an employee out of the course of his or her employment. The
operative principle for "off-premises" breaks is whether the employer, in all circum-
stances, including duration, shortness of off-premises distance, and limitations on
off-premises activity during the interval, can be deemed to have retained authority
over the employee. Mary Keszler, 38 ECAB 735 [1987].
The Board found that the activity in which appellant was engaged at the time of
her injury was in the nature of a personal convenience and not an activity which
can be considered closely related to personal ministration. The informal arrange-
ment whereby appellant placed money in public parking meters in order that she
and certain co-employees could continue to park in the vicinity of the employing
establishment, while not prohibited by the employing establishment, was readily
distinguishable from such activities as have been accepted by the Board as necessar-
ily personal comfort or ministration. Mary Keszler, 38 ECAB 735 [1987].
Appellant's injury was not sustained while in the performance of duty. Appellant
was on the employing establishment's premises approximately 20 minutes after she
had clocked out filling a prescription for her sister in a hospital also located on the
employing establishment's premises when she was abducted, robbed, and sexually
assaulted. It cannot be said that the employment itself caused the injuries. The in-
dustrial premises rule is inapplicable in the instant case as one of the prerequisites
to its application is lacking, in that appellant's injuries were sustained after regular
working hours, and there is no evidence to show that her continued presence on the
industrial premises was necessarily due to conditions of her employment. On the
contrary, the evidence established that appellant's presence on the employing estab-
lishment's premises after regular working hours was for her personal convenience
in that she intended to have and did have the prescription for her sister filled, a
task unrelated to the employment and of a personal nature. Joanne Curtis, 38
ECAB 122 [1986].
The Board found that the evidence failed to establish that appellant sustained an
injury in the performance of duty. Appellant's injury was sustained in the course of
his employment, as it occurred on the premises of the employing establishment at a
time when appellant apparently was reporting to work. This alone, however, was
not sufficient to establish his entitlement to compensation benefits. Appellant did
not establish that his injury arose out of his employment. The injury did not occur
when he was engaged in the employing establishment's business or in the duties he
was employed to perform. Instead the injury occurred during an altercation with
employing establishment police while appellant was being cited for committing an
illegal act. This altercation did not occur in the performance of appellant's duty,
and the injuries sustained in the altercation were not compensable under the Act.
Jeremiah Bowles, 38 ECAB 652 [1987].
Under special circumstances the industrial premises are constructively extended
to hazardous conditions which are proximately located to the premises and may
therefore be considered as hazards of the employing establishment. The main con-
sideration is whether the conditions giving rise to the injury are causally connected
to the employment. Appellant did not show that the parking spaces located on a
public street across from the Federal Building in which the employing premises
were located formed part of the premises of the employing establishment. Mary
Keszler, 38 ECAB 735 [1987].
Under the FECA, an injury sustained by a plant employee, having fixed hours
and place of work while going to or coming from work is generally not compensable
because it does not occur in the performance of duty. However, exceptions to the
rule have been declared and one recognized exception is that an employee driving to
and from work is covered under workers' compensation while on the premises of the
employer. Charles E. Taylor, 38 ECAB 850 [1987].
The premises of the employer are not necessarily coterminous with the property
owned by the employer; they may be broader or narrower and are dependent more
on the relationship of the property to the employment than on the status or extent
of legal title. Charles E. Taylor, 38 ECAB 850 [1987].
Appellant failed to establish that the U. S. Customs House where the incident oc-
curred formed part of the premises of the employing establishment. The fact that
the property was owned by the federal government is not sufficient to consider the
site of appellant's injury as part of the employing establishment premises. Appel-
lant stated personal reasons for his purpose for being at the U. S. Customs House
and was not engaged in any activity related to the performance of his official duties.
There must exist a closer nexus between the federal property on which an injury
occurs and the use made and benefit received by the employing establishment from
that particular piece of federal property before it can be considered to be part of the
employing establishment premises. Charles E. Taylor, 38 ECAB 850 [1987].
Recreational or social activities are within the course of employment when: (1)
They occur on the premises during a lunch or recreation period as a regular inci-
dent of the employment; or (2) The employer, by expressly or impliedly requiring
participation, or by making the activity part of the services of an employee, brings
the activity within the orbit of the employment; or (3) The employer derives sub-
stantial direct benefit from the activity beyond the intangible value of improvement
in employee health and morale that is common to all kinds of recreation and social
life. Nancy S. Hardin, 38 ECAB 285 [1986].
Appellant was injured in an automobile accident while returning to work from a
birthday luncheon held in honor of her supervisor. The Board found that appellant's
attendance at the luncheon was of a personal nature, voluntarily participated in by
the employees at her office and not a sanctioned recreational or social activity.
Nancy S. Hardin, 38 ECAB 285 [1986].
The case was remanded to the Office for further development to establish whether
the road on which the accident occurred was part of the premises of the employing
establishment. The record was unclear as to the boundaries of the employing estab-
lishment or the control it exerted over the road on which the accident occurred.
Nancy S. Hardin, 38 ECAB 285 [1986].
Appellant alleged his injury occurred while on a sledding trip sponsored by the
Job Corps. The case record was not fully developed on this aspect of the case as the
employing establishment never responded to the Office's request for information.
The Office was instructed to develop the factual evidence of record by securing fur-
ther information as to whether the sledding trip in question was organized or in any
way sanctioned by the Job Corps so as to place appellant within the performance of
duty when injured. Roy R. Bean, 38 ECAB 401 [1987].
SPECIAL MISSION, TEMPORARY DUTY OR TRAVEL
At the time of the April 13, 1985 incident, which appellant described as "pulled
out lower back during coughing spasm due to cold and sore throat," appellant was
on a temporary duty assignment away from his regular place of employment. While
on such an assignment he is covered by the Federal Employees' Compensation Act
24 hours a day with respect to any injury that results from activities incidental to
his temporary assignment. The fact that an employee was on a special mission or in
travel status during the time that a disabling condition manifested itself does not
raise an inference that the condition was causally related to the incidents of the
employment. There is no evidence that appellant's back condition on April 13, 1985
resulted from activities incidental to his employment, as his "coughing spasm due to
cold and sore throat," the episode that precipitated his back pain, has not been
shown to have any relationship to his employment or to activities incidental to his
employment. Rene Bonnin, 38 ECAB 193 [1986].
Larson, in his treatise on Workers' Compensation, sets forth the general criteria
for performance of duty as it relates to travelling employees, as follows: "Employees
whose work entails travel away from the employer's premises are held in the major-
ity of jurisdictions to be within the course of their employment continuously during
the trip, except when a distinct departure on a personal errand is shown. Thus, inju-
ries arising out of the necessity of sleeping in hotels or eating in restaurants away
from home are usually held compensable." Janice K. Matsumura, 38 ECAB 262
[1986].
The Federal Employees' Compensation Act covers an employee 24 hours a day
when he or she is on travel status or on a temporary assignment or a special mis-
sion and engaged in activities essential or incidental to such duties. However, when
the employee deviates from the normal incidents of his or her trip and engages in
activities, personal or otherwise, which are not reasonably incidental to the duties
of the temporary assignment contemplated by the employer, the employee ceases to
be under the protection of the Act and any injury occurring during these deviations
is not compensable. Janice K. Matsumura, 38 ECAB 262 [1986].
The Board found that appellant's injury was not sustained while in the perform-
ance of duty. Appellant was on temporary duty in the Philippines and was author-
ized to travel between Subic and Manila where the employing establishment main-
tained offices. It was reasonably forseeable that appellant's normal activities inci-
dental to her temporary assignment would take her to localities in and around
these two areas of the Philippines. Appellant's trip to Subic and Olongapo City were
activities reasonably incidental to her temporary duty assignment as she traveled to
participate in activities organized by the employing establishment. However, her
subsequent trip to Banake, at a distance approximately 220 miles northeast of Subic
and 310 miles north of Manila, was a substantial deviation from the normal activi-
ties reasonably incidental to her employment and made for purposes which were
personal and recreational in nature. Under the facts of the present case, a volun-
tary deviation to a locality several hundred miles from appellant's temporary duty
station which was not made in pursuance of an activity directed by her employer
nor arising out of the necessity of her employment cannot bring appellant within
the protective mantle of the Act since at the time of injury she was engaged in an
activity which was personal in nature and not reasonably incidental to her employ-
ment. Janice K. Matsumura, 38 ECAB 262 [1986].
PROCEDURE ON APPEAL TO OR REVIEW BY BOARD
Under 20 C.F.R. section 10.2 the administration and implementation of the Feder-
al Employees' Compensation Act, except for 5 U.S.C. section 8149 as it pertains to
the Board, is delegated and assigned to the Director of the Office of Workers' Com-
pensation Programs. 5 U.S.C. section 8149 established the Board with "The author-
ity to hear and, subject to applicable law and rules and regulations of the Secretary,
make final decisions on appeals taken to claims of employees." These provisions es-
tablish the Office's authority to render decisions and decide all questions arising
under the Act subject only to an appeal to the Board. The Board's appellate jurisdic-
tion makes it the ultimate authority on the proper interpretation and application of
the Act. Wendy S. Warner, 38 ECAB 103 [1986].
A federal court in considering suits under the Federal Tort Claims Act has juris-
diction to determine a substantial question of coverage of a plaintiff under the Fed-
eral Employees' Compensation Act. The Office, however, has exclusive jurisdiction
in the cases before it, to decide all questions arising under the Act, subject to review
and final decision by the Board. Decisions of federal courts, while instructive, are
not binding on the Office or the Board. Wendy S. Warner, 38 ECAB 103 [1986].
Where an employee dies while a claim is before the Office, the claim is not extin-
guished; rather, the employee's rights pass to his or her estate and any appeal from
an adverse decision must be on behalf of the estate. See Mrs. Hobart M. Byllesby, 4
ECAB 667 (1952). Where an employee dies after having filed an appeal with the
Board, the Board's decision-making power extends to the compensation claim itself
and the appeal may proceed provided there is the substitution of a proper appellant
in interest before the Board, (See Albert F. Kimbrell, 4 ECAB 662 (1952)) or the em-
ployee's designated representative requests the Board to render a decision. (See
Lorie C. Josey, 25 ECAB 85 (1973)). The employee filed a proper appeal during his
lifetime and died after filing his appeal. The Board dismissed the appeal because
there was no substitution of a proper appellant for the deceased employee made in
the instant case and the employee had not otherwise designated a representative to
proceed with the appeal. John J. Cremo, 38 ECAB 153 [1986].
The Board concluded that the appeal by the employing establishment must be dis-
missed. There is no ambiguity in the language used in section 8149 of the FECA
where it is stated that the Board has the authority to hear and make final decisions
on appeals taken from determinations and awards with respect to claims of employ-
ees. The regulations issued pursuant to the FECA also specifically limit the right to
appeal a final decision of the Office to the Board to employees or their duly author-
ized representatives. John J. O'Rourke, 38 ECAB 324 [1986].
On appeal appellant requested a review of an Office denial of a schedule award
for a permanent impairment to his left and right legs. The Board noted that the
record did not contain a final Office decision with respect to that issue. Thus, the
Board had no jurisdiction to consider appellant's request on this appeal pursuant to
20 C.F.R. section 501.2(c). George A. Phillips, 38 ECAB 513 [1987].
In situations where the Office considers a physician to whom it refers the employ-
ee an impartial specialist under section 8123(a) of the Act, the Board itself weighs
the medical evidence to determine whether there is in fact a conflict of medical
opinion at the time of the Office's referral. Melvina Jackson, 38 ECAB 443 [1987].
PULMONARY OR RESPIRATORY CONDITIONS
The Board found that the case was not in posture for decision. There was conflict-
ing medical evidence in the record as to whether appellant had pneumoconiosis, and
if so, whether it was caused, precipitated, accelerated or aggravated by factors of his
federal employment. The Office was instructed to refer appellant, a statement of ac-
cepted facts, and the entire case record to an impartial specialist for a definitive
diagnosis and reasoned opinion on whether appellant had any pulmonary condition
or impairment which was causally related to his federal employment. Elias F.
Snyder, 38 ECAB 156 [1986].
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