United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.C., Appellant

and

DEPARTMENT OF HOUSING AND URBAN 

DEVELOPMENT, OFFICE OF HOUSING, 

Milwaukee, WI, Employer

__________________________________________

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Docket No. 17-1927

Issued: April 12, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 12, 2017 appellant, through counsel, filed a timely appeal from a March 29, 

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 February 7, 2017, as alleged.

FACTUAL HISTORY

On February 14, 2017 appellant, then a 61-year-old account executive, filed a traumatic 

injury claim (Form CA-1) alleging that, at 11:45 a.m. on February 7, 2017, she sustained an injury 

to the right side of her body while in the performance of duty. She indicated that she was seated 

in a chair during lunch when it collapsed under her, causing her to fall into other furniture.3 

Appellant listed the location of the accident as near the coffee stand on the main level of the 

building at 310 W. Wisconsin Avenue in Milwaukee, Wisconsin. She stopped work on February 8, 

2017 and returned to work on February 9, 2017. On the reverse side 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 February 7, 2017 and advised that the employing establishment was 

controverting the “performance of duty/premise[s] issue.”

In an unsigned February 7, 2017 return to work report, an unidentified individual indicated 

that appellant was seen on February 7, 2017 by Dr. Myron O. Bodnar, an attending Board-certified 

internist, for an injury reported as occurring on that date. The individual listed the diagnoses of 

right shoulder and right hip injuries (initial encounter) and noted that appellant could return to 

work on February 9, 2017 without restrictions.

In a February 16, 2017 letter, a workers’ compensation specialist indicated that the 

employing establishment was controverting appellant’s claim for a February 7, 2017 employment 

injury due to insufficient evidence to establish that it occurred in the performance of duty. The 

specialist indicated that an employee must be on the employing establishment premises to be 

covered under FECA, and that such premises include areas that are federally-owned or maintained. 

She noted that appellant produced a February 16, 2017 e-mail statement, sent to the workers’

compensation department of the employing establishment in which she advised that the coffee 

stand where she was injured on February 7, 2017 was a space shared by federal, state, and private 

sector parties.4

In a February 27, 2017 development letter, OWCP requested that appellant submit 

additional evidence in support of her claim, including a physician’s opinion supported by a medical 

explanation as to how the reported work incident caused or aggravated a medical condition. It 

 

3 Appellant indicated that she was already experiencing nerve and joint pain prior to her claimed February 7, 2017 

accident, but that the accident reinjured the right side of her body. A coworker provided a statement on the claim 

form that she witnessed appellant’s chair collapse on February 7, 2017, which caused her to fall into other furniture.

 

4 OWCP attached a copy of appellant’s February 16, 2017 e-mail statement in which she indicated that the coffee 

stand where she was injured on February 7, 2017 was located on the mezzanine level of the building, and that it was 

a space shared by federal, state, and private sector parties. Appellant listed the name of the property manager of the 

coffee stand, an employee of Urban Retail Properties Co. She indicated that she fell from a high counter top metal 

chair. Several pages printed from the internet were also added to the case record, including a description of Urban 

Retail Properties Co. and partially redacted contact information for the property manager.
3

requested that appellant complete and return an attached questionnaire which posed various 

questions regarding the circumstances of her claimed February 7, 2017 employment injury, 

including whether she was on the employing establishment premises at the time and whether she 

was performing her regularly assigned duties. On February 27, 2017 OWCP also requested that 

the employing establishment answer several questions, including whether, at the time of the 

claimed employment injury, appellant was on premises which were owned, operated, or controlled 

by the employing establishment, and whether she was performing official duties or engaged in 

activities reasonably incidental to her job.

In a March 6, 2017 letter, the workers’ compensation specialist for the employing 

establishment responded to OWCP’s February 27, 2017 request for more information. The 

specialist indicated that, at the time of the claimed February 7, 2017 employment injury, appellant 

was not on premises owned, operated, or controlled by the employing establishment. She advised 

that the owner of the property where the accident occurred at 11:45 a.m. on February 7, 2017 was 

Urban Retail Properties. Although the coffee stand where the accident occurred was located inside 

the same building as appellant’s office, it was a common-type area shared by federal, state, and 

private sector parties. The specialist reported that, at the time of the claimed injury, appellant was 

on her lunch break off the employing establishment premises. Appellant was not in travel status 

and was not performing her regular duties.

Appellant submitted a March 16, 2017 attending physician’s report (Form CA-20) from

Dr. Matthew Wichman, an attending Board-certified orthopedic surgeon, who listed the history of 

injury as a fall at work on February 7, 2017 injuring the shoulder and hip. Dr. Wichman diagnosed 

adhesive capsulitis of the right shoulder and osteoarthritis of the right hip. He determined that 

appellant was totally disabled from February 7 to 8, 2017 and could return to her regular work on 

February 9, 2017. In a March 16, 2017 duty status report (CA-17), Dr. Wichman indicated that 

appellant could resume her regular work on February 9, 2017 without restrictions.

In a March 29, 2017 decision, OWCP denied appellant’s claim for a February 7, 2017

employment injury. It determined that appellant established that she was a federal civilian 

employee who filed a timely claim, that the injury, accident, or employment factor occurred, and 

that a medical condition had been diagnosed in connection with an injury or event. OWCP further 

found, however, that appellant’s claim for a February 7, 2017 employment injury was denied on 

the basis that the element of performance of duty had not been met. It asserted that the evidence 

of record did not establish that the injury and/or medical condition arose during the course of 

employment and within the scope of compensable work factors. OWCP advised that the reason 

for this finding was that appellant was at lunch and not performing any company business at the 

time of the claimed injury on February 7, 2017. It also found that appellant had not submitted

rationalized medical evidence establishing that a medical condition was causally related to the 

work injury or event.
4

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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 

related to the employment injury.6 These are the essential elements of each compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7

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

performance of duty.8 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.

9

 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.10 

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.11

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.12 Therefore, the Board considers whether 

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

 

5 See supra note 2.

 

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

7 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).

8 5 U.S.C. § 8102(a).

 

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

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

 

11 Mary Keszler, 38 ECAB 735 (1987).

12 D.B., Docket No. 13-0510 (issued June 10, 2013); Dollie J. Braxton, 37 ECAB 186 (1985).
5

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.

13

 

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

on the constructive premises.14 The Board may, under special circumstances, constructively 

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

proximity rule.15 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.

16

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

employer.17

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,18 or which are in the nature of necessary 

personal comfort or ministration.19 

ANALYSIS

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

met her burden of proof to establish an injury in the performance of duty on February 7, 2017.

Appellant filed a traumatic injury claim alleging that, at 11:45 a.m. on February 7, 2017,

she sustained an injury to the right side of her body. She indicated that she was seated in a chair 

during lunch when it collapsed under her, causing her to fall into other furniture. Appellant listed 

the location of the accident as near the coffee stand on the main level of the building in which she 

worked. OWCP denied appellant’s claim for a February 7, 2017 employment injury, finding that 

it did not occur in the performance of duty. 

The Board finds that OWCP did not provide adequate facts and findings in its March 29, 

2017 decision regarding the reason it denied appellant’s claim for a February 7, 2017 work injury. 

OWCP concluded that appellant was not in the performance of duty at the time of her February 7, 

2017 accident, but it did not provide a clear 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 

 

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

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

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

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

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

 

18 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).

 

19 J.L., Docket No. 14-0368 (issued August 22, 2014).
6

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.20 In 

its cursory March 29, 2017 decision, OWCP solely based its decision relative on the single fact 

that appellant was at lunch and was not performing any company business at the time of the 

claimed injury on February 7, 2017. However, it did not explore the premises issue, nor did it

consider whether her accident would been covered under various recognized exceptions such as 

the personal comfort and ministration doctrine.21

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.22 Its procedures further 

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.”

23

 These requirements are supported by Board precedent.24

For the above-noted reasons, appellant would not 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 February 7, 2017 work injury.25

CONCLUSION

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

met her burden of proof to establish an injury in the performance of duty on February 7, 2017. The 

case is remanded to OWCP for further development.

 

20 See supra notes 10 through 17.

21 See supra notes 18 through 19.

 

22 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.”

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

(February 2013).

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

 

25 See supra notes 22 through 24. 
7

ORDER

IT IS HEREBY ORDERED THAT the March 29, 2017 decision of the Office of 

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

action consistent with this decision.

Issued: April 12, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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