United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.L., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, St. Louis, MO, Employer 

__________________________________________ 

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Docket No. 17-0528 

Issued: June 6, 2017 

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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 10, 2017 appellant, through counsel, filed a timely appeal from a 

December 7, 2016 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 met her burden of proof to establish an injury in the 

performance of duty on February 21, 2014, as alleged. 

FACTUAL HISTORY 

The case has previously been before the Board.3

 The facts and the circumstances 

outlined in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are set forth below. 

On February 21, 2014 appellant, then a 55-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that at 5:55 a.m. on that date she tripped and fell on uneven sidewalk in 

front of the employing establishment’s building, injuring her right wrist and knee. The 

employing establishment challenged the claim as she was going to work and thus not in the 

performance of duty. It provided appellant work hours as 6:00 a.m. until 2:30 p.m. 

Appellant, in a statement received May 23, 2014, advised that she tripped and fell on a 

sidewalk while walking to the employing establishment. She submitted medical evidence in 

support of her claim. 

In a decision dated June 4, 2014, OWCP denied appellant’s claim after finding that the 

medical evidence was insufficient to establish a diagnosed condition as a result of the accepted 

February 21, 2014 employment incident. 

On June 27, 2014 appellant requested reconsideration and submitted additional medical 

evidence. OWCP, by decision dated September 29, 2014, denied modification of its June 4, 

2014 decision. It determined that appellant had not submitted a reasoned medical opinion 

attributing a diagnosed condition to the accepted work incident. 

Appellant, through counsel, requested reconsideration on December 30, 2014 and 

submitted supporting medical evidence. 

In a decision dated March 26, 2015, OWCP again denied modification of the June 4, 

2014 decision after finding that appellant had not submitted sufficient medical evidence to show 

that she sustained an injury on February 21, 2014. 

Appellant appealed to the Board. In a decision dated October 2, 2015, the Board set 

aside the March 26, 2015 decision. The Board found that OWCP had not developed the issue of 

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

February 21, 2014 fall. The Board remanded the case for OWCP to determine whether she was 

in the performance of duty at the time of the February 21, 2014 incident. 

 3

 Docket No. 15-1172 (issued October 2, 2015). 
3

OWCP, in letters dated October 21 and December 14, 2015, requested that the employing 

establishment provide information as to whether appellant was on its premises at the time of her 

fall and provide a diagram of the boundaries of the premises. 

In a February 1, 2016 response, a representative of the employing establishment advised 

that appellant was not on its premises, but instead “on property owned by the State of Missouri.” 

She advised that the employing establishment did not own, control, or operate the property, that 

appellant was injured at 5:55 a.m., that her duty hours began between 6:00 a.m. and 6:30 a.m., 

and that she was “close to walking on [employing establishment] property in order to enter the 

[employing establishment] building.” 

By decision dated February 2, 2016, OWCP again denied appellant’s claim. It found that 

she was not in the performance of duty at the time of her fall as she was not on the premises of 

the employing establishment. 

On February 8, 2016 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. Appellant submitted computer search results showing that the 

Federal Government owned her work building. 

At the telephone hearing, held on October 11, 2016, appellant related that at the time of 

her injury she was walking from public transportation to her work building. She advised that she 

was “crossing the street and walking on the opposite side of the street to get into the building.” 

Appellant related that she was heading to the employing establishment’s main building entrance. 

There was another entrance on the side of the building. Appellant asserted that she was five to 

seven steps from the front door when she fell on an uneven sidewalk. Counsel noted that the 

employing establishment was the only building tenant. 

In a decision dated December 7, 2016, an OWCP hearing representative affirmed the 

February 2, 2016 decision. She found that appellant was not on the premises of the employing 

establishment at the time of her fall and there was no evidence supporting the premises should 

constructively extend to the sidewalk. 

On appeal counsel asserts that the evidence conflicts regarding ownership of the property. 

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.4

 The phrase 

sustained while in the performance of duty in FECA is regarded as the equivalent of the 

commonly found requisite in workers’ compensation law of arising out of and in the course of 

employment.5

 4

 5 U.S.C. § 8102(a). 

5 See Valerie C. Boward, 50 ECAB 126 (1998). 
4

In order to be covered under FECA, 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 employment, or engaged in something incidental thereto.6

The Board has recognized a general principle, called the premises doctrine, that offpremises 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, subject to certain exceptions.7

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,8

 or which are in the nature of 

necessary personal comfort or ministration.9

 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.10 This exception has 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.11 The main consideration in applying this rule is whether the conditions giving rise 

to the injury are causally connected to the employment.12 

ANALYSIS 

Appellant alleged that she injured her right knee and right wrist when she fell on a 

sidewalk in front of the employing establishment’s building, while walking from public 

transportation to work. OWCP denied her claim, finding that she was not in the performance of 

duty at the time of her fall. 

The facts considered in determining whether an employee arriving at work is in the 

performance of duty are whether the injury occurred on the premises of the employing 

establishment, the time interval before the work shift, and the activity at the time of injury.13 The 

 6 B.P., Docket No. 14-0411 (issued July 17, 2014); David P. Sawchuck, 57 ECAB 316 (2006). 

7 V.P., Docket No. 13-74 (issued July 1, 2013); M.L., Docket No. 12-286 (issued June 4, 2012); John M. Byrd, 53 

ECAB 684 (2002). 

8 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). 

9 See J.L., Docket No. 14-368 (issued August 22, 2014). 

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

11 See C.B., Docket No. 15-1881 (issued October 7, 2016). 

12 See Shirley Borgos, 31 ECAB 222 (1979). 

13 See E.V., Docket No. 16-1356 (issued December 6, 2016); George E. Franks, 52 ECAB 474 (2001). 
5

Board finds that appellant was not in the performance of duty as she was not on the employing 

establishment’s premises at the time of the claimed fall on February 21, 2014. 

Appellant related that she tripped on an uneven sidewalk at 5:55 a.m. five to seven steps 

from the front of the employing establishment’s building. The employing establishment 

provided that her duty shift began between 6:00 a.m. and 6:30 a.m. The employing 

establishment indicated that it did not own, operate, or control the sidewalk on which appellant 

fell. It advised that the State of Missouri owned the property. 

In Idalaine L. Hollins-Williamson,

14 the employee fell and injured her left side while 

walking from a parking lot to the employing establishment building on a snow-covered public 

sidewalk. The Board found that the employee had not shown that the sidewalk on which she fell 

was used exclusively or principally by employees of the employing establishment for the 

convenience of the employer. The evidence of record supported that the sidewalk where the 

incident occurred was not owned, operated or maintained by the employing establishment and 

was open to the public. The Board found that the employee’s injury was not in the performance 

of duty. In M.L.,

15 the employee fell while walking across the street from a train station to work. 

The Board found that the employee fell while commuting to work on a public sidewalk and was 

not in the performance of duty. 

Even if a public sidewalk is the customary means of access to the employing 

establishment for its employees, this does not alter the public nature of the sidewalk or render it a 

part of the employing establishment’s premises.16 There is no evidence that the sidewalk on 

which appellant fell was restricted to the employees of the employing establishment or that it 

owned, operated, or maintained the area where the incident occurred. The area was open to the 

general public. Appellant, consequently, was not on the premises of the employing 

establishment at the time of her fall. 

As noted above, off-premises injuries that occur while an employee is going to or coming 

from work or during a lunch period, are generally not compensable.17 The Board finds that the 

exceptions to the rule are not applicable in this case. Appellant was not engaged on any special 

errand when she left her home to commute to her place of employment and was not exposed to a 

special hazard that became a hazard of employment. Rather, her travel on that date conformed to 

her regular work schedule and her normal morning commute in going to work. While appellant 

maintained that the sidewalk on which she fell was uneven, this was not a special hazard of the 

route but a hazard shared by all commuters.18 The Board finds that she was not in the 

 14 55 ECAB 655 (2004). 

15 Docket No. 12-0286 (issued June 4, 2012). 

16 Supra note 10. 

17 See J.K., Docket No. 15-0198 (issued March 10, 2015); J.E., Docket No. 59 ECAB 119 (2007). 

18 See M.L., supra note 15; R.O., supra note 10. In M.L., the Board found that a rock on a sidewalk where the 

employee fell was a hazard commonly faced by pedestrians and thus not a special hazard at the off-premises point. 

In R.O., the Board found that the employee’s off-premises slip and fall on an icy public sidewalk did not arise in the 

performance of duty as it was not a special hazard of the route but a hazard shared by all commuters. 
6

performance of duty on February 21, 2014 as the injury occurred while she was exposed to an 

ordinary, off-premises nonemployment hazard of the journey shared by all travelers.19

While appellant’s employment gave rise to her journey between home and the employing 

establishment, workers’ compensation was not intended to protect her from all the perils of such 

journey.20 The Board finds that the established exceptions mentioned above do not apply to her 

case. Appellant was not reasonably fulfilling the duties of her employment or doing something 

incidental to the fulfillment of her job duties. She had not yet begun her tour of duty and was 

walking on a public sidewalk going to her building. As appellant was not in the course of 

employment at the time of the February 21, 2014 incident, she has failed to meet her burden of 

proof. 

On appeal counsel contends that there is conflicting evidence regarding who owns the 

property. The employing establishment, however, provided that the sidewalk was owned by the 

State of Missouri and that it did not own, operate, or control the area. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not established that she sustained an injury in the 

performance of duty on February 21, 2014, as alleged. 

 19 See supra note 7. 

20 See Asia Lynn Doster, 50 ECAB 351 (1999). 
7

ORDER 

IT IS HEREBY ORDERED THAT the December 7, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 6, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board