United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

U.S. POSTAL SERVICE, MEDICAL UNIT, 

Detroit, MI, Employer

__________________________________________

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Docket No. 18-0465

Issued: August 1, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 January 8, 2018 appellant, through counsel, filed a timely appeal from a November 27, 

2017 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 appellant has met her burden of proof to establish an injury in the 

performance of duty on December 16, 2016, as alleged.

FACTUAL HISTORY

On December 16, 2016 appellant, then a 50-year-old occupational health nurse, filed a 

traumatic injury claim (Form CA-1) alleging that, at 10:10 a.m. on December 16, 2016, she 

sustained an injury when she slipped and fell on black ice located in the front of the building where 

she worked.

3

 She asserted that she injured her entire right side, right knee, right ankle, back, and 

shoulder. Appellant did not stop work.

On the reverse of the claim form, appellant’s immediate supervisor checked a box marked 

“no” indicating that appellant was not injured in the performance of duty on December 16, 2016

as alleged. The supervisor added the notation, “Placing personal items in her car on the clock.”

Appellant submitted a portion of an authorization for examination and/or treatment form 

(Form CA-16) which was completed on December 17, 2016 by Dr. Olivia Batmanghelichi, an 

attending family practitioner.

4

In a January 12, 2017 development letter, OWCP requested that appellant submit 

additional factual information describing how the claimed December 16, 2016 injury occurred. It 

asked appellant to indicate whether she was on a personal break when the incident occurred, and 

whether she was required to go to her car while on break. OWCP also requested that appellant

submit a report from an attending physician which included a medical explanation as to how the 

reported work incident caused or aggravated a medical condition.

Appellant submitted a January 28, 2017 statement in which she asserted that on 

December 16, 2016, while at work performing her duties, she was instructed by her immediate 

supervisor to move her workstation belongings to the medical unit. She noted that she did not 

have enough space to put all her belongings in the new location, so she eliminated items that she 

did not need and that could be placed in her car (which was parked in front of the building where 

she worked). Appellant advised that, in the performance of her job duties, she also had to mail 

several employees’ letters at the post office which was located outside the building approximately

15 to 20 feet from the main employee entrance. She indicated that it was a regular practice for

nurses to walk to the building next door to mail letters via Priority Mail, which was the only way 

to mail letters of importance requiring receipts. Appellant asserted that she had to go outside of 

her work building to get to the building next door because a security door prevented her from 

passing between buildings without going outside.

 

3 Appellant listed the location of her fall as 1401 West Fort Street, Detroit, MI.

4 Dr. Batmanghelichi referenced a December 16, 2016 fall in front of appellant’s work building and provided 

diagnoses which were illegible.
3

Appellant reported that she packed a box with the belongings from her workstation (such 

as awards and health fair materials), placed the box on a cart, and rolled the cart downstairs and 

off the elevator. She pushed the cart outside the door of the building, placed the items into her car, 

and then proceeded to push the cart back inside. Appellant advised that she turned and slipped,

falling on a black sheet of unsalted ice on the ground in front of her work building. She fell on her 

entire backside, right shoulder, and right knee. Appellant indicated that she was not on a personal 

break, was never off the clock, and was performing duties assigned by her supervisor. She asserted 

that nurses always had permission from supervisors to go to their vehicles or the store, to pick up 

lunch across the street, or to take a short walk around the building without verbal permission.

Appellant submitted a photograph which she asserted showed where the December 16, 

2016 fall occurred and two photographs depicting a door with a sign noting that badge access to 

the door was restricted to limited personnel. She also submitted e-mails documenting her leave 

issues prior to December 16, 2016, an October 27, 2016 notice of removal for failure to adhere to 

attendance regulations, and a claim for compensation (Form CA-7) for the period December 16, 

2016 to January 23, 2017.

In a December 18, 2016 statement, a former coworker asserted that she worked at the 

employing establishment until September 2016 and that the medical unit nurses were always able 

to leave the building for brief periods to go to the store, pick up lunch, and drop off mail without 

clocking in or out.

In a February 4, 2017 statement, another former coworker noted that she used to work in 

the medical unit as a clerk and she asserted that she was never told that she could not leave the 

building where she worked or had to clock out to get lunch across the street or to go to her car.

In a February 23, 2017 e-mail to several employing establishment officials, appellant’s 

immediate supervisor advised that, on December 16, 2016, she had asked appellant to empty her 

desk and bring the contents to the medical unit. She indicated that she received a call from 

appellant a short time after the request and she reported that she hurt her ankle “outside on the 

sidewalk.” The immediate supervisor noted that she then asked appellant what she was doing 

outside. She advised that she had not given appellant permission to move her car and fill her car 

with items from her workplace. The immediate supervisor asserted that appellant did not inform 

her that she was engaging in such activities. She indicated that appellant was still on the clock at 

the time of her claimed injury and asserted that she was not allowed to leave the building, unless 

she was going out to lunch and/or off the clock.

In an unsigned December 16, 2016 statement, an unidentified individual indicated that 

appellant was approached at approximately 9:30 a.m. on December 16, 2016 to confirm that she 

had gotten the e-mail advising her that her computer was being moved to the third floor. The 

individual asked appellant when she was going to arrive at the medical unit. Appellant responded 

that she had a lot of items to move and she was told that she could use a cart. At approximately 

10:15 a.m., appellant indicated that she had a lot of personal items, including plants, that she had 

taken to her car, and that she had to make a report because she had fallen. The individual told

appellant that she could not leave the building if she was on the clock, unless it was lunch, and 

appellant responded that she did not know that policy. Appellant later questioned why she could 

not leave the building to take a break or to go to her car that was parked in front of the building
4

and the individual responded that it was the policy of the employing establishment. She later 

walked the individual out to the location where she claimed she had fallen, and said that the fall 

occurred “on the curb and the street.” The individual indicated that appellant advised that she had 

since moved her car. 

Appellant also submitted a December 17, 2016 attending physician’s report (Form CA-20) 

and January 21, 2017 note from Dr. Batmanghelichi who diagnosed back, right shoulder, and right 

foot contusions due to the December 16, 2016 fall. In a February 12, 2017 report,

Dr. Batmanghelichi diagnosed sprains/strains of the cervical, thoracic, and lumbar spines, cervical 

spondylosis without myelopathy, lumbosacral spondylosis without myelopathy, radiculopathy, 

headaches, right shoulder/arm strain, right shoulder contusion with exacerbation, and possible 

acute tendinitis secondary to the December 16, 2016 fall.

By decision dated February 27, 2017, OWCP denied appellant’s claim, finding that the 

evidence of record did not establish that the injury was sustained in the performance of duty on 

December 16, 2016 as alleged. It found that appellant was not in the performance of her regularly 

assigned work duties when she fell because she chose to put personal items into her car. OWCP

noted that such placing of personal items into her car was not incidental to her employment. It

also found that there was no indication that appellant had to mail employees’ letters on 

December 16, 2016 as part of her work duties. 

On March 27, 2017 appellant, through counsel, requested a telephone hearing with a 

representative of OWCP’s Branch of Hearings and Review. 

During the hearing held on September 13, 2017, counsel argued that on December 16, 2016 

appellant was not involved in personal business or something not associated with her work and 

asserted that, if appellant was moving personal items, it was for the benefit of the employing 

establishment. He argued that, when moving workstations, the employing establishment would 

expect that personal items would be removed as part of the change. Counsel claimed that mailing 

certified letters was part of appellant’s job duties and that this was another work function that she 

performed on December 16, 2016. He asserted that appellant described a logical path of 

movement and that she did not deviate from her employment because she fell as she returned 

towards the building to mail letters as part of her work duties.

Appellant testified that on December 16, 2016 her immediate supervisor had directed her 

to move her work space because she wanted her back in the medical unit area with the rest of the 

staff. She indicated that she loaded a cart with belongings she was moving to her new area, along 

with some personal items and letters. Appellant took an elevator down to the main floor, and went 

out the door of her work building with the cart in order to place some belongings in her car that 

was right in front of her work building. She noted that, after placing items in her car, she turned 

around and slipped on some ice. Appellant fell directly in front of the entrance of the employing 

establishment, i.e., the entrance that led back to the medical unit. She testified that several times 

per week, as part of her job duties, she copied medical records requested by postal workers and 

mailed them using either a Priority or certified mail service. Appellant noted that to mail these 

records she had to leave her work building though the main entrance/exit and go next door. 

Appellant asserted that she previously had been able to go to her car if she had left something such 

as her lunch or a bag. She testified that she was punched in, using a timecard, at the time of her 
5

fall on December 16, 2016 and that she was not required to punch out in order to post mail or to 

move items at the direct order of her immediate supervisor.

In a September 29, 2017 letter, the employing establishment’s manager of health and 

resource management advised that by regulation craft employees such as appellant were not to 

leave the work facility while on the clock unless they were performing some or all of their assigned 

duties. He contended that appellant was not performing any of her assigned duties while putting 

her personal items in her personal car. The manager also asserted that personal vehicles could not 

park for extended periods in front of the employing establishment’s building, with employees only 

being allowed to have their vehicles there for a brief period to run in and out of the building. He 

also asserted that taking mail to a retail counter at that time of the morning identified by appellant

was counter to the employing establishment’s operating procedures. The manager noted that there 

was an outgoing mail receptacle that was collected and taken to the retail area daily by the general 

clerk. He indicated that traveling to the building next door did not require one to go to the main 

floor and out the exit of the employing establishment’s building. The manager asserted that 

appellant knew there was an access gate on the fifth floor that she had access to and that she could 

use to roll a cart through. 

In an October 25, 2017 statement, appellant responded to the September 29, 2017 letter by 

contending that the medical unit nurses always were allowed to go out of the building without 

permission and without punching out. She asserted that they were allowed to park in front of the 

building and indicated that, just recently, the “parking allowed” signs had been covered up with 

plastic tape by the employing establishment.5 Appellant also submitted copies of October 2, 2017 

disability slips from Dr. Batmanghelichi. 

By decision dated November 27, 2017, OWCP’s hearing representative affirmed OWCP’s 

February 27, 2017 decision. She found that appellant failed to meet her burden of proof to 

establish an injury in the performance of duty on December 16, 2016. She discussed why appellant 

was not in the performance of duty at the time of her fall, noting that there was no employment 

requirement that appellant move personal items to her car at that time. The hearing representative 

indicated that appellant chose to take herself out of her employment to engage in a personal 

objective, i.e., moving personal items to her car, at the time the injury occurred. She also found 

that the evidence did not show that appellant was carrying out an employment activity of posting 

work-related mail around the time she fell. 

LEGAL PRECEDENT

An employee seeking benefits under FECA6 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, that an injury was sustained in the performance of duty as alleged, 

and that any disability and/or specific condition for which compensation is claimed are causally 

 

5 Appellant also submitted photographs which she claimed, in an attached note, showed cars parked in front of her 

work building at 1401 West Fort Street and of a sign partially covered by tape. 

6 See supra note 2.
6

related to the employment injury.7 These are the essential elements of each compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8

FECA provides for payment of compensation for personal injuries sustained while in the 

performance of duty.9 The Board has interpreted the phrase “in the performance of duty” as the 

equivalent of the coverage formula commonly found in workers’ compensation laws, namely, 

“arising out of and in the course of employment.10 To occur in the course of employment, an 

injury generally must occur: (1) at a time when the employee may be reasonably said to be 

engaged in the 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.11

With respect to employees having fixed hours and a fixed place of work, the Board has 

recognized the general “premises rule” that injuries that occur off premises while going to or 

coming from work or during an employee’s lunch period are not compensable because they do not 

arise out of and in the course of employment, but are merely the ordinary, nonemployment hazards 

of the journey itself, which are shared by all travelers.12

In defining the parameters of an employing establishment’s premises, the Board has 

indicated that the premises of the employing establishment, as that term is used in workers’

compensation law, 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.13 Therefore, the Board considers whether 

the area giving rise to the injury is part of either the actual or constructive premises of the 

employing establishment and, to determine actual premises, the Board generally looks to whether 

the area giving rise to the injury is owned or controlled by the employing establishment.14

If the injury does not occur on the actual premises, the Board looks to whether it occurred 

on the constructive premises.15 The Board may, under special circumstances, constructively 

 

7 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

8 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury caused 

by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an 

occupational disease refers to an injury produced by employment factors which occur or are present over a period 

longer than a single workday or work shift. 20 C.F.R. §§ 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).

9 5 U.S.C. § 8102(a).

10 Charles E. McAndrews, 55 ECAB 711 (2004); Charles Crawford, 40 ECAB 474 (1989).

11 Robert T. Romans, 53 ECAB 620 (2002).

12 Mary Keszler, 38 ECAB 735 (1987).

13 D.B., Docket No. 13-0510 (issued June 10, 2013); Dollie J. Braxton, 37 ECAB 186 (1985).

14 F.L., Docket No. 15-1172 (issued October 2, 2015); Albert L. Young, Docket No. 97-2130 (issued June 25, 1999).

15 J.B., Docket No. 17-0378 (issued December 22, 2017).
7

extend the employing establishment’s premises to the area giving rise to the injury pursuant to the 

proximity rule.16 Such circumstances exist, for example, if the employing establishment has 

contracted for exclusive use of the area or maintains the area to see who may gain access to it, or 

if the area is used exclusively or principally by employees for the convenience of the employing 

establishment.17 Mere use, alone, is not sufficient to bring the area within the premises of the 

employer.18

ANALYSIS

The Board finds that the case is not in posture for decision regarding whether appellant met 

her burden of proof to establish an injury in the performance of duty on December 16, 2016, as 

alleged.

Appellant filed a claim alleging that on December 16, 2016 she sustained injury when she 

slipped and fell on black ice located in the front of the building where she worked. She asserted 

that, when she fell, she had just placed items in her car as part of her supervisor’s instructions to 

move to another workplace and that, if she had not fallen, she would have mailed several workrelated letters as part of her employment duties.

The Board finds that OWCP did not provide adequate facts and findings in its decisions

regarding the reason it denied appellant’s claim for a December 16, 2016 employment injury. 

OWCP concluded that appellant was not in the performance of duty at the time of her 

December 16, 2016 accident, but it did not provide a complete explanation of how it reached this 

conclusion. Most significantly, it did not make a determination regarding whether appellant was 

actually on the employing establishment premises at the time of the accident. As noted above, the 

question of whether a given claimed injury occurred on the premises of an employing 

establishment is an important component in determining whether an injury occurred in the 

performance of duty.19 In its February 27 and November 27, 2017 decisions, OWCP based its 

denial of appellant’s claim on its conclusion that appellant was not performing any company 

business at the time of the claimed injury on December 16, 2016. However, it did not explore the 

premises issue, including whether the claimed injury occurred on the premises under the proximity 

rule.20

 

16 M.P., Docket No. 10-0054 (issued July 27, 2010).

17 C.K., Docket No. 11-0905 (issued October 19, 2011); R.R., Docket No. 07-1929 (issued October 22, 2008).

18 K.P., Docket No. 12-1033 (issued December 6, 2012).

19 See supra notes 11 through 18.

20 See A.C., Docket No. 17-1927 (issued April 12, 2018) (case remanded to OWCP to fully consider premises 

doctrine and other matters relevant to determination of whether claimed injury occurred in the performance of duty).
8

In deciding matters pertaining to a given claimant’s entitlement to compensation benefits, 

OWCP is required by statute and regulation to make findings of fact.21 OWCP’s proceduresfurther 

specify that a final decision of OWCP “should be clear and detailed so that the reader understands 

the reason for the disallowance of the benefit and the evidence necessary to overcome the defect 

of the claim.”

22

 These requirements are supported by Board precedent.23

For the above-noted reasons, appellant would not fully understand the reason for OWCP’s 

disallowance of her claim and the evidence necessary to overcome the defect of her claim. 

Therefore, the case will be remanded to OWCP for further development, including the issuance of 

a de novo decision containing adequate facts and findings and a statement of reasons regarding 

appellant’s claim for a December 16, 2016 employment injury.24

CONCLUSION

The Board finds that the case is not in posture for decision regarding whether appellant met 

her burden of proof to establish an injury in the performance of duty on December 16, 2016, as 

alleged.

 

21 5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or 

against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP 

“shall contain findings of fact and a statement of reasons.”

22 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5c(3)(e) 

(February 2013).

23 See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

24 Where an employing establishment properly executes a Form CA-16 authorizing medical treatment related to a 

claim for an employment injury, the form creates a contractual obligation, which does not involve the employee 

directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim. See Tracy P. 

Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to 60 days 

from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).
9

ORDER

IT IS HEREBY ORDERED THAT the November 27, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for action 

consistent with this decision.

Issued: August 1, 2018

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