United States Department of Labor

Employees’ Compensation Appeals Board

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R.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Phoenix, AZ, Employer

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Docket No. 17-1483

Issued: December 5, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 21, 2017 appellant filed a timely appeal from an April 4, 2017 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). 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 has met her burden of proof to establish that she sustained 

an injury on March 15, 2016 in the performance of duty, as alleged.

FACTUAL HISTORY

On April 27, 2016 appellant, then a 58-year-old enforcement removal assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on March 15, 2016 she injured her left leg 

when she stepped in a space between concrete pads on a sidewalk approaching the entrance to 

 

1

5 U.S.C. § 8101 et seq.
2

her work location. The injury occurred at 11:00 a.m. and her duty hours were from 8:00 a.m. to 

4:30 p.m. Appellant did not stop work. The employing establishment indicated on the claim 

form that she was not in the performance of duty at the time of the incident as she was “walking 

into [the] building.”

A May 3, 2016 x-ray of the lumbar spine showed status post interbody fusion at L2-3 and 

L5-S1 and degenerative disc disease. On May 17, 2016 a nurse practitioner noted that appellant 

had left leg pain and referred her for physical therapy.2 A June 20, 2016 magnetic resonance 

imaging (MRI) scan revealed a suspected left L1-2 posterior disc protrusion impressing the 

thecal sac with bilateral foraminal stenosis, retrolisthesis at T12 to L1 and L3-4, anterolisthesis 

of L5 in relation to S1, marked stenosis at L1 through S1, disc bulges at multiple levels, and 

degenerative changes.

OWCP, by letter dated February 8, 2017, informed appellant that it had paid a limited 

amount of medical expenses as her claim initially appeared minor and was uncontroverted. It 

was now formally adjudicating her claim. OWCP requested that appellant submit a 

comprehensive report from her attending physician addressing the causal relationship between 

any diagnosed condition and the alleged work incident.

In a report dated March 2, 2017, Dr. Joshua Zeidler, an osteopath, related that appellant 

was initially treated on May 3, 2016 for “complaints of leg pain occurring from an injury 

acquired at work a month or so prior to the visit.” The diagnosis was lumbago with left sciatica. 

Dr. Zeidler reviewed the results of diagnostic testing and opined that appellant’s “injury has most 

likely exacerbated her degenerative disc disease.”

By decision dated April 4, 2017, OWCP denied appellant’s traumatic injury claim. It 

found that she had not submitted sufficient medical evidence to establish that she sustained a 

diagnosed condition due to the accepted March 15, 2016 work incident.

On appeal appellant contends that she submitted a detailed medical report supporting 

causation.

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 

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

employment or engaged in doing something incidental thereto.4 For an employee with fixed 

hours and a fixed workplace, an injury that occurs on the employing establishment premises 

when the employee is going to or from work, before or after working hours or at lunch time, is 

 

2 Appellant underwent physical therapy in June and July 2016. 

3

5 U.S.C. § 8102(a).

4 Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).
3

compensable.5 However, that same employee with fixed hours and a fixed workplace would 

generally not be covered when an injury occurs off the employing establishment premises while 

traveling to or from work.6 The reason for the distinction is that the latter injury is often merely 

a consequence of the ordinary, nonemployment hazards of the journey itself which are shared by 

all travelers.7

The employing establishment premises may include all the property owned by the 

employing establishment.

8

 Although it does not have ownership and control of the place where 

an injury occurred, the locale may nevertheless be considered part of the premises.9 The 

proximity exception to the premises rule states that under certain circumstances the industrial 

premises are constructively extended to those hazardous conditions which are proximate to the 

premises and may, therefore, be considered as hazards of the employing establishment.10 

ANALYSIS

The Board finds that the case is not in posture for decision. Appellant contended that she 

sustained an injury to her left leg on March 15, 2016 at 11:00 a.m. when she stepped into a space 

on a sidewalk between concrete pads while walking with a coworker. Her duty hours were from 

8:00 a.m. to 4:30 p.m. The employing establishment controverted the claim, contending that 

appellant was not in the performance of duty at the time of the incident as she was walking into 

the building. OWCP did not develop this aspect of her claim to determine whether she was in 

the performance of duty at the time of the alleged March 15, 2016 employment incident.

A claimant seeking compensation under FECA has the burden to establish the essential 

elements of her claim by the weight of the evidence, including that she sustained an injury in the 

performance of duty.11 Nonetheless, proceedings under FECA are not adversarial in nature and 

OWCP is not a disinterested arbiter. While the claimant has the burden to establish entitlement 

to compensation, OWCP shares 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 will remand the case for OWCP to develop the factual 

evidence and determine whether appellant was in the performance of duty at the time of the 

March 15, 2016 incident.13 Following such development as deemed necessary, it shall issue a de 

novo decision on appellant’s claim.

 

5

Id.; Denise A. Curry, 51 ECAB 158, 160 (1999).

6

Idalaine L. Hollins-Williamson, 55 ECAB 655, 658 (2004).

7

Id.

8

See Denise A. Curry, supra note 5.

9

Id.

10 D.M., Docket No. 13-535 (issued June 6, 2013).

11 See Elaine Pendleton, 40 ECAB 1143 (1989).

12 See Shirley A. Temple, 48 ECAB 404 (1997); Mary A. Wright, 48 ECAB 240 (1996).

13 See F.L., Docket No. 15-1172 (issued October 2, 2015).
4

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 4, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: December 5, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board