United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 15-1881 

Issued: October 7, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 17, 2015 appellant filed a timely appeal from the July 7, 2015 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim. 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant met her burden of proof to establish that she was in the 

performance of duty at the time she was injured on July 16, 2014. 

On appeal, appellant contends that she was in the performance of duty at the time of the 

incident, noting that she was on a paid break. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On July 21, 2014 appellant, then a 54-year-old program support assistant, filed a 

traumatic injury claim (Form CA-1) alleging that she was walking on her break by a food truck 

outside the employing establishment’s building in which she worked when she fell on her left 

side and sustained injuries to her left shoulder and left arm. The employing establishment 

controverted appellant’s claim alleging that she was on her break and off-premises when she fell. 

It indicated that she stated to witnesses that she was walking to a Wawa convenience store, 

which was a block away, not to the food truck at the time of her fall. The employing 

establishment also noted that witnesses stated that appellant’s shoes were not strapped properly 

and that she changed her shoes before reporting to the employee health unit. 

On August 18, 2014 appellant responded to questions from OWCP. She indicated that 

she went on her break on July 16, 2014 around 10:30 a.m., and as she was walking in front of the 

food truck along with her coworker, and passing other coworkers, she fell down, striking the 

pavement and injuring her left side. Appellant noted that the pavement was not level where she 

fell. She indicated that she bruised the left side of her elbow and she suffered a swollen left hand 

and extreme pain in her shoulder which was jarred from the brunt of the fall. 

The record contains multiple witness statements. In an August 18, 2014 statement, L.G. 

stated that on July 16, 2014 at 10:30 a.m., while on a break, she was walking with appellant 

outside towards the truck in front of the employing establishment, and as they were walking, 

appellant fell on her left side in front of the food truck. She noted that appellant was assisted to 

her feet by herself and two men. 

D.P. noted that he was a police corporal who was assigned to the visitor’s entrance when 

he saw a lady, later identified as appellant, being assisted to her feet. He noted that appellant 

was lying on the ground in front of the food truck that is located on the pavement at the left of 

the entrance to the medical center. D.P. stated that he did not see her fall, but he was notified2

that the location of the fall was not on the property of the employing establishment. 

In an August 19, 2014 statement, J.K. indicated that at 10:20 a.m. on July 16, 2014 he 

was outside of the employing establishment waiting in line at the food truck when he observed 

appellant fall to the ground while walking past the food truck. He also noticed that the strap on 

appellant’s shoe was not strapped correctly holding on her shoe at the time she fell. 

In an August 18, 2014 statement, appellant’s secondary supervisor stated that appellant 

called from her cubicle to report the incident. He walked with her to employee health and she 

walked on her own without support. The supervisor noted that appellant told him that she was 

walking on the city sidewalk in front of the hospital when she suddenly fell down and landed on 

her left side. 

 2

 The record of evidence does not establish who notified D.P. that the location of the fall was not on the premises 

of the employing establishment. 
3

By decision dated September 8, 2014, OWCP denied appellant’s claim because the 

evidence of record did not establish that appellant was in the performance of duty at the time of 

her injury. 

On September 22, 2014 appellant requested a telephone hearing. In a statement received 

by OWCP on September 30, 2014, she indicated that she had no knowledge as to who owned the 

sidewalk where she fell. Appellant noted that routinely she would take a 15-minute break and 

walk the premises and that, while on break at around 10:30 a.m., she tripped and fell on the left 

side directly in front of the food truck which was on the premises outside the employing 

establishment. She stated that she noticed that the pavement was a little bit higher on one side 

than the other. Appellant described the location of the food truck as follows: 

“In other words, you have your medical facility, you have your grass, your gates 

and when you walk outside there’s a vendor truck which serves employees. It 

serves the public, a lot of employees who actually work for the [employing 

establishment] and, you know, I guess any passer byes. But it’s on the grounds.” 

Counsel argued that the sidewalk was on the employing establishment grounds, noting that the 

employing establishment sweeps the sidewalk and cleans the sidewalk and salts the sidewalk. 

He noted that the food truck was 20 yards from the gate. 

Appellant submitted a letter to staff from the medical center director dated March 10, 

2015 expressing thanks for the job well done during last week’s snow storm clearing parking 

lots, salting sidewalks, and assisting veterans. She also submitted an October 2014 

memorandum from the employing establishment with regard to snow removal procedures. This 

letter noted that the facility management support has the responsibility for the removal of ice and 

snow within the boundaries of the medical center. The memorandum also detailed the order in 

which the sidewalks would be cleaned. Appellant also submitted a March 2012 memorandum 

with regard to maintenance of facilities and equipment, noting that the service chief of facility 

management is responsible for the maintenance and repair of all buildings and grounds on the 

site. 

 By decision dated July 7, 2015, the hearing representative affirmed the denial of the 

claim as appellant was not in the performance of duty at the time of the injury. 

LEGAL PRECEDENT 

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

employee resulting from personal injury sustained while in the performance of duty.3

 In order to 

be covered, 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 where she may reasonably be expected to be in 

 3

 This construction makes the statue actively effective in those situations generally recognized as properly within 

the scope of workers’ compensation law. See Bernard D. Blum, 1 ECAB 1 (1947). 
4

connection with her employment,4 and while she was reasonably fulfilling the duties of her 

employment or engaged in doing something incidental thereto.5

The Board has recognized as a general rule that off-premises injuries sustained by 

employees having fixed hours and places of work while going to or coming from work or during 

a lunch period, are not compensable, as they do not arise out of and in the course of employment. 

Rather, such injuries are merely the ordinary, nonemployment hazards of the journey itself, 

which are shared by all travelers.6

Exceptions to the premises doctrine have been made to protect activities that are so 

closely related to the employment itself as to be incidental thereto,7

 or which are in the nature of 

necessary personal comfort or ministration.8

 The Board has also found that the 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.9

 This exception contains two components. 

The first is the presence of a special hazard at the particular off-premises point. The second is 

the close association of the access route with the premises, so far as going and coming are 

concerned. The main consideration in applying this rule is whether the conditions giving rise to 

the injury are causally connected to the employment.10

 OWCP’s procedures provide: 

If the employee has a fixed place of work, the claims examiner must ascertain 

whether the employee was on the premises when the injury occurred. The 

answers to the appropriate sections of Forms CA-1, CA-2 and CA-6 contain 

information on this point. If clarification is needed, it should be secured from the 

official superior in the form of a statement which describes the boundaries of the 

premises and shows whether the employee was within those boundaries when the 

injury occurred. Where indicated, the clarification should include a diagram 

 4 Narbik A. Karamian, 40 ECAB 617, 618 (1989). With regard to what constitutes the premises, the Board has 

held that the term premises, as it is generally used in workers’ 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 employing establishment; in other cases even though it does not have 

ownership and control of the place where the injury occurred the place is nevertheless considered part of the 

premises. Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971). 

5 See Thomas E. Keplinger, 46 ECAB 699 (1995); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Performance of Duty, Chapter 2.804.6 (August 1992). 

6 See John M. Byrd, 53 ECAB 684 (2002); see also Gabe Brooks, 51 ECAB 184 (1999); Thomas P. White, 37 

ECAB 728 (1986); Robert F. Hart, 36 ECAB 186 (1984). 

7 See Maryann Battista, 50 ECAB 343 (1999) (activities such as delivering a bad check list and checking on a 

customer’s telephone were incidental to employee’s listed duties). 

8 J.L., Docket No. 14-0368 (issued August 22, 2014). 

9 R.O., Docket No. 08-2088 (issued February 18, 2011). 

10 Shirley Borgos, 31 ECAB 222 (1979). 
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showing the boundaries of the industrial premises and the location of the injury 

site in relation to the premises.11

ANALYSIS 

The Board finds that this case is not in posture for decision as the record is insufficient to 

determine whether appellant was on the premises of the employing establishment at the time of 

her July 16, 2014 fall and injury. 

The Board notes that the primary issue for resolution on appeal is whether she was on the 

premises and therefore in the performance of duty at the time she fell and was injured. The 

claimant has alleged that she was on the premises of the employing establishment at the time of 

her fall and that the employing establishment has control over and maintains the area where the 

fall occurred. The employing establishment controverted the claim and relied upon statements of 

L.G., D.P., and J.K. However, none of the statements were made by witnesses to the actual fall 

and its location. Despite the dispute over the exact location of the fall and the boundaries of the 

premises, OWCP did not undertake development of these factual aspects of the claim. There 

was no request from the official superior in the form of a statement describing the boundaries of 

the premises showing whether the employee was within those boundaries when the injury 

occurred, nor does the record of evidence contain a diagram showing the boundaries of the 

industrial premises and the location of the injury site in relation to the premises. 

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

arbiter. 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 did not sufficiently develop the evidence 

regarding whether appellant was on the premises of the employing establishment at the time of 

injury.13

 On remand OWCP should obtain information from the employing establishment and 

determine where appellant fell on July 16, 2014 and whether that location was owned, managed, 

or controlled by the employing establishment and thus a part of its premises. It should then 

determine whether appellant was in the performance of duty. Following such further 

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

CONCLUSION 

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

 11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(b) (August 1992); 

see also D.D., Docket No. 15-0837 (issued July 10, 2015). 

12 L.L., Docket No. 12-194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008). 

13 See Rosie P. Colmer, Docket No. 03-116 (issued May 2, 2003). 
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ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated July 7, 2015 is set aside and the case is remanded for further 

proceedings consistent with this decision. 

Issued: October 7, 2016 

Washington, D.C. 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board