United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.H., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Oklahoma City, OK, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1372 

Issued: September 20, 2016 

Appearances: Case Submitted on the Record 

Chris Kannady, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 5, 2015 appellant, through counsel, filed a timely appeal from a December 17, 

2014 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 OWCP met its burden of proof to rescind acceptance of appellant’s 

traumatic injury claim. 

FACTUAL HISTORY 

On May 11, 2013 appellant, then a 51-year-old transportation security officer, filed a 

traumatic injury claim (Form CA-1) for injuries to her left hand and wrist sustained when she fell 

while walking to her employing establishment at 3:26 a.m. Her duty hours were listed as 3:30 

a.m. to 12:00 p.m., Tuesday through Saturday. A coworker indicated that she was about 20 feet 

ahead of appellant, when she heard appellant cry out and she turned around and saw appellant on 

the pavement. On the claim form, the employing establishment controverted the claim noting 

that appellant fell between the employee parking lot, which was not controlled or maintained by 

the employing establishment, and the entrance to the airport terminal. 

Appellant submitted a May 11, 2013 emergency department report and a May 22, 2013 

report and authorization request from Dr. Robert S. Unsell, a hand surgeon. 

In a May 28, 2013 letter, OWCP advised appellant of the deficiencies in her claim and 

afforded her 30 days to submit the requested factual and medical information. In a separate 

May 28, 2013 letter, it requested that the employing establishment respond to several questions 

regarding such matters as the location of appellant’s claimed injury relative to her workstation, 

the ownership of the parking lot facilities, whether parking spaces were assigned, and whether 

appellant was engaged in official duties at the time of the injury. 

In a June 12, 2013 letter, appellant indicated that the injury did not occur in the parking 

lot.3

 Rather, it occurred in the exit lane of the airport passenger pickup, between the employee 

parking lot and the entrance to the airport entry terminal. The injury occurred at approximately 

3:24 a.m. and her work shift began 3:30 a.m. Appellant indicated that the employing 

establishment was located inside the airport terminal and, when the injury occurred, she was 

reporting to work and was close to the entry of the airport terminal. 

Appellant submitted several reports pertaining to the nature of her injury, which included 

work limitation slips of May 24 and June 3, 2013, May 11, 2013 discharge instructions from 

Health Care, a May 16, 2014 medical confirmation form which indicated that she received 

medical care from May 11 through 23, 2013, a May 28, 2014 duty status report, a May 22, 2013 

report from Dr. Unsell, a May 24, 2013 report from Dr. Joseph A. Blough, a family practitioner, 

a June 10, 2013 physical therapy prescription, a May 22, 2013 physician prescription/patient 

agreement, and a June 13, 2013 x-ray request. 

In a June 2, 2013 letter, the employing establishment controverted the claim. It noted at 

the time of the claimed incident, appellant was off duty and walking in a public area that was not 

owned, operated, controlled, or managed by the employing establishment. The claimed incident 

 3

 Appellant noted that while the employing establishment required her to park in the parking facilities and issues 

scan/swipe card and decals for employee’s vehicles, it was her responsibility to pay for parking. 
3

occurred at 3:26 a.m., at least four minutes before the beginning of her scheduled work shift of 

3:30 a.m. and 10 minutes from her actual duty station. Further, appellant did not sustain the 

claimed injury in the parking lot, rather she was walking from a parking lot, across a public road, 

on a path determined by her, to her duty station. It advised that employees were not directed, or 

required, to walk a certain route and there was no route or path specifically designated for 

employees to travel. Attached was an aerial photograph of the airport which showed the location 

of appellant’s accident and the location of her work area. The employing establishment noted it 

controlled the TSA office. All other areas were controlled by the Airport Trust. 

On July 1, 2013 OWCP accepted the claim for a left wrist sprain. It noted that the 

employing establishment had controverted the claim because the injured worker “fell between 

the parking lot and entering the building.” OWCP noted that she fell at approximately “3:24 

a.m. while entering the building to report to work.” It also noted that appellant’s usual work shift 

began at 3:30 a.m. so she was within 30 minutes of her usual work shift. OWCP concluded that 

the evidence supported that this employee was a federal employee who sustained a disabling 

traumatic injury in the performance of duty. It advised the employing establishment to continue 

appellant’s regular pay for the period of disability not to exceed 45 days. 

On July 15, 2013 OWCP received the employing establishment July 10, 2013 letter 

further requesting that the acceptance of the claim be revisited on its merits as it contended that 

appellant was not in the performance of duty when the injury occurred as she was off duty and 

off-premises. The employing establishment maintained that appellant fell while walking on a 

public road on her way to the airport terminal building from the parking lot. At the time of the 

incident, appellant was walking on a road owned/leased, controlled, and maintained by the 

Oklahoma City Airport Trust. It contendcd that OWCP had failed to give any weight to what the 

employing establishment had raised in this claim. 

Further medical evidence pertaining to appellant’s claim was submitted. 

In a telephone conversation dated December 17, 2013, OWCP advised Randy Baker (a 

Human Resources Specialist from the employing establishment) that OWCP had reviewed the 

file again and noted that a statement from appellant indicated that employees were allowed to 

park in the employee parking lot and given a swipe card and identification for the vehicles. 

Appellant claimed that she was in the posture of crossing the walk toward the entry way of the 

building to report for duty and pointed out that OWCP found that this case should be accepted. 

The employing establishment, in its January 31, 2014 letter, reiterated that appellant was 

off duty when the accident occurred, that her work hours were 3:30 a.m. to 12:00 p.m., that the 

injury occurred at 3:26 a.m., that she was at least 10 minutes away from her assigned duty station 

within the airport terminal, and that she was therefore late for work. It disputed the contention 

that the employing establishment paid for appellant’s parking permit. It clarified that the 

employing establishment had no control over the parking lots, roads, walkways, sidewalks, and 

easements as they are owned/leased, controlled and maintained by the Oklahoma City Airport 

Trust, that everyone including airport employees, airport contractors, airline carrier employees, 

employing establishment employees, and airport police, fire and rescue professionals are all 

equally subject to the ordinary nonemployment hazards of the journey. It cited to Bettie J. 
4

Broadway, 44 ECAB 265 (1992), and Sallie B. Wynecoff, 39 ECAB 186 (1997) to support the 

proposition that appellant was not in the performance of duty. 

OWCP advised the employing establishment, by letter dated February 19, 2014, that it 

apologized that its arguments had not previously been addressed and advised that the file would 

be re-reviewed and a formal response would be issued. 

By decision dated March 5, 2014, OWCP proposed to rescind the acceptance of the claim 

as the issue of whether appellant was in the performance of duty at the time of the incident had 

not been properly developed. Accordingly, it concluded that a notice to rescind acceptance of 

the claim was to be issued to establish whether the wrist sprain arose in the course of 

employment and whether the diagnosed condition was causally related to the May 11, 2013 

incident.4

Following that decision, OWCP provided appellant, by letter dated March 7, 2015, a 

copy of the information submitted by the employing establishment in support of its 

challenge/controversion. It provided appellant 30 days within which to submit a detailed 

statement in support of her claim or in response to the challenge. 

In a letter dated March 28, 2014, addressed to OWCP’s Branch of Hearings and Review, 

appellant stated: “Please accept the notices as a request for an appeal.” She provided OWCP 

with additional supporting documentation refuting the employing establishment’s claims and 

assumptions surrounding the incident and its decision to rescind acceptance of the claim. She 

asserted that at the time of the incident, she was on premises and in uniform. Appellant was at 

the airport to report to work and was less than two minutes from clocking in at the main office. 

She indicated that she took an oath of commitment and, as a sworn officer for the employing 

establishment, it was her responsibility to maintain and provide security for the traveling public 

when she was on airport grounds regardless of her duty status. Appellant further indicated that 

the employing establishment authorized the use of Operational Playbook applications, which 

described additional duties of TSA officers during the advent of a potential breech in security, 

and advised that playbook calls covered additional areas through the flight line, airport ramp 

areas, pedestrian curb sides and crosswalks, public parking lots (hourly/extended), rental car 

parking lot, all general airport grounds, and passenger gate areas for all airlines. She contended 

that while none of those areas were owned, leased, operated or maintained by the employing 

establishment, TSA officers were required to work in those various areas during a Playbook call. 

Appellant contended that she was in uniform and in a designated work area at the time of the 

incident. After her fall, she walked from the curbside area of the grounds and into the employing 

establishment offices and clocked in within two minutes. Appellant stated that she was in the 

performance of duty in all areas she walked as she patrolled those areas and answer questions 

and assists the public on those same premises. Additional evidence submitted showed appellant 

clocked in at 3:28 a.m. May 12, 2013. Additional maps of where the incident occurred was 

submitted along with additional medical evidence. 

 4

 Although this decision was set out as a “proposal” to rescind, appellant rights were attached to that decision and 

no further decision rescinding the claim was issued. 
5

A hearing was held telephonically before a hearing representative on October 14, 2014. 

At the hearing, appellant testified that on May 11, 2013 she and a coworker left the parking lot 

area and were walking toward the building. They were in the passenger pick-up lane, when she 

fell at 3:26 a.m. Appellant came into work and clocked in at 3:28 a.m. and worked for 

approximately six hours, with her hand swollen. She eventually reported the injury, filled out the 

required paperwork, and went to the emergency room. Appellant indicated that she did not know 

who owns the passenger pickup lane where the incident occurred, but stated she patrols that area 

and it was incidental to her work duties when she does playbook duties, which involved 

patrolling and determining whether any type of security breaches exist. 

Following the hearing the employing establishment asserted, in a November 17, 2014 

letter, that appellant was not in the performance of duty at the time of the incident. It noted that 

contrary to appellant’s assertion she was “a few yards” away from the entrance, she was “1,350 

feet or 45.3.33 yards” away from the entry to her duty station. The employing establishment 

further rejected appellant’s assertion that the injury occurred in an area that was incidental to her 

work area as the incident occurred on a public road and she was never tasked to perform 

playbook activities on a public road. Further, at the time of injury, appellant was not clocked in 

or performing her duties. 

By decision dated December 17, 2014, an OWCP hearing representative affirmed 

OWCP’s March 5, 2014 rescission decision, finding that appellant was not in the performance of 

duty when injured. The hearing representative recounted the testimony at the hearing and the 

argument from the employing establishment and found that “[t]o this reviewer, it was clear, even 

to [appellant], that she was not on [the employing establishment] property when she was injured. 

She thus encountered ‘the ordinary, nonemployment hazards of the journey itself ... shared by 

all travelers. Given this, [OWCP]’s March 5, 2014 rescission decision is AFFIRMED, as 

[appellant] was not in the performance of duty when injured.” (Emphasis in the original.) 
6

LEGAL PRECEDENT 

The Board has upheld OWCP’s authority to reopen a claim at any time on its own motion 

under 5 U.S.C. § 8128 and, where supported by the evidence, set aside or modify a prior decision 

and issue a new decision.5 The Board has noted, however, that the power to annul an award is 

not an arbitrary one and that an award for compensation can only be set aside in the manner 

provided by the compensation statute.6

 It is well established that once OWCP accepts a claim, it 

has the burden of justifying termination or modification of compensation. This holds true where 

OWCP later decides that it has erroneously accepted a claim for compensation. In establishing 

that its prior acceptance was erroneous, OWCP is required to provide a clear explanation of its 

rationale for rescission.7

 

OWCP’s procedures note that “a rescission decision should contain a brief background of 

the claim, discuss the evidence on which the original decision was based, and explain why 

[OWCP] finds that the decision should be rescinded. The evidence used to rescind the claim 

should be thoroughly discussed so that it is clear to the reader how the case was incorrectly 

adjudicated, and why the original decision is now being invalidated.”8

FECA provides for payment of compensation for disability or death of an employee 

resulting from personal injury sustained while in the performance of duty.9 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.10 In the course of employment relates to the elements of time, place, and work 

activity. To arise in the course of employment, an injury must occur at a time when the 

employee may reasonably be said to be engaged in her master’s business, at a place when she 

may reasonably be expected to be in connection with her employment, and while she was 

reasonably fulfilling the duties of her employment or engaged in doing something incidental 

thereto. As to the phrase in the course of employment, the Board has accepted the general rule of 

workers’ compensation law that, as to employees having fixed hours and places of work, injuries 

occurring on the premises of the employing establishment, while the employees are going to or 

from work, before or after working hours, or at lunch time, are compensable.11 

 5 Eli Jacobs, 32 ECAB 1147 (1981). 

6 Doris J. Wright, 49 ECAB 230 (1997); Shelby J. Rycroft, 44 ECAB 795 (1993). 

7 Alice M. Roberts, 42 ECAB 747 (1991). See also A.V., Docket No. 13-643 (issued January 14, 2014). 

8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400(d) (February 2013). 

9

 5 U.S.C. § 8102(a). 

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

scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947). 

11 Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general rule of workers’ 

compensation law in circumstances where the employee was on an authorized break. See Eileen R. Gibbons, 52 

ECAB 209 (2001). 
7

Regarding what constitutes the premises of an employing establishment, the Board has 

stated: 

“The term ‘premises as it is generally used in workmen’s compensation law, is 

not synonymous with’ property. The former does not depend on ownership, nor 

is it necessarily coextensive with the latter. In some cases ‘premises may include 

all the’ property owned by the employer; in other cases, even though the employer 

does not have ownership and control of the place where the injury occurred, the 

place is nevertheless considered part of the ‘premises.”12

Underlying the proximity exception to the premises rule is the principle that course of 

employment should extend to any injury that occurred at a point where the employee was within 

the range of dangers associated with the employment.13 The most common ground of extension 

is that the off-premises point at which the injury occurred lies on the only route, or at least on the 

normal route, which employees must traverse to reach the premises, and that therefore the special 

hazards of that route become the hazards of the employment.14 Factors that generally determine 

whether an off-premises point used by employees may be considered part of the premises include 

whether the employing establishment has contracted for exclusive use of the area and whether 

the area is maintained to see who may gain access to the premises.15 

ANALYSIS 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying the 

termination or modification of compensation. This holds true where, as here, OWCP later 

decides that it has erroneously accepted a claim.16 

The Board finds that OWCP did not meet its burden of proof to rescind acceptance of 

appellant’s traumatic injury claim. On July 1, 2013 OWCP accepted the traumatic injury claim 

for a left wrist sprain as the evidence of record supported that appellant was a federal employee 

who sustained a disabling, traumatic injury in the performance of duty. In its March 5, 2014 

decision, it rescinded acceptance of the claim finding that appellant had not met the fourth 

element, performance of duty as defined by FECA, and that the claim should have been further 

developed for this element of the claim. OWCP began the process of further developing the 

 12 Denise A. Curry, 51 ECAB 158 (1999). 

13 Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004). 

14 A. Larson, The Law of Workers’ Compensation, Chapter 13.01(3) (December 2013) explains that the most 

common ground of extension of the premises doctrine is that the off-premises point at which the injury occurred lies 

on the only route, or at least on the normal route, which employees must traverse to reach the employing 

establishment, and that therefore the special hazards of that route become the hazards of the employment. Larson 

has also explained in § 13.02(2) (December 2013) that the zone of danger concept has been extended for slips and 

falls on ice which occur to public sidewalks immediately in front of the employer’s place of business. Michael K. 

Gallagher, 48 ECAB 610 (1997); J.D., Docket No. 16-0104 (issued April 5, 2016). 

15 Linda D. Williams, 52 ECAB 300 (2001). 

16 Walter Asberry, Jr., 36 ECAB 686 (1985). 
8

claim, but prior to the completion of that process, appellant requested a hearing from the 

March 5, 2014 decision. 

In the December 17, 2014 decision, the hearing representative determined that the issue 

before her was whether appellant had suffered a traumatic injury in the course of her 

employment. She found that the traumatic injury occurred off-premises and that appellant 

encountered “the ordinary, nonemployment hazards of the journey itself ... shared by all 

travelers” and was thus not in the performance of duty when injured. The issue before the 

hearing representative, however, was whether OWCP had properly met its burden of proof to 

rescind acceptance of the claim. 

The Board finds that the March 5, 2014 decision rescinding acceptance of the claim 

failed to provide a clear explanation or its rationale for rescission. Rather, this decision provided 

only a conclusory finding citing to general legal precedent concerning the going and coming 

rule. As noted above, a rescission decision should contain a brief background of the claim, 

discuss the evidence on which the original decision was based, and explain why OWCP finds 

that the decision should be rescinded. The evidence used to rescind the claim should be 

thoroughly discussed so that it is clear to the reader how the case was incorrectly adjudicated, 

and why the original decision is now being invalidated.17 OWCP has not complied with its own 

procedures and, thus, has not met its burden of proof to rescind acceptance of appellant’s claim. 

As the Board has determined that OWCP has not met its burden of proof to rescind 

acceptance of the claim, it is unnecessary to adjudicate the issue of whether the injury occurred 

in the performance of duty. The Board will therefore reverse the December 17, 2014 decision. 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to rescind acceptance of 

appellant’s traumatic injury claim. 

 17 Supra note 8. 
9

ORDER 

IT IS HEREBY ORDERED THAT the December 17, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: September 20, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board