United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.P., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION, CUSTOMS &

ENFORCEMENT, Farmers Branch, TX, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 17-1031

Issued: January 5, 2018

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 April 10, 2017 appellant filed a timely appeal from a December 19, 2016 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 to consider the merits of this case.

2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the December 19, 2016 decision, OWCP received additional evidence. 

However, as the Board may only review evidence that was in the record at the time OWCP issued its final decision, 

it is precluded from reviewing this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); M.B., Docket 

No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. 

Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a traumatic injury 

in the performance of duty on March 1, 2016.

FACTUAL HISTORY

On May 12, 2016 appellant, then a 62-year-old supervisory accountant, filed a traumatic 

injury claim (Form CA-1) alleging that, at 6:10 a.m. on March 1, 2016, she injured her left leg, 

back, and stomach when she slipped and fell after exiting her car on an oil spill in the parking 

garage. On the reverse side of the claim form, the employing establishment noted that 

appellant’s regular tour of duty was from 6:30 a.m. to 3:00 p.m. Appellant’s supervisor wrote 

that appellant did not notify him of the incident on the day it occurred. 

By development letter dated June 1, 2016, OWCP informed appellant that the evidence of 

record was insufficient to establish her claim. It advised her as to the medical and factual 

evidence required. Appellant was afforded 30 days to submit the necessary information. OWCP 

did not request that the employing establishment provide any factual information relevant to her

claim. It limited the request for information regarding any medical treatment that appellant may 

have received in its medical facility.

In response to OWCP’s development letter, appellant submitted an April 28, 2016 

progress report from Dr. Thomas R. Dempsey,3a Board-certified orthopedic surgeon. 

Dr. Dempsey noted that appellant injured herself on March 1, 2016 when she slipped and fell in 

the parking lot on her way to work. Review of appellant’s x-ray revealed narrowing of the L5-

S1 disc space. Appellant’s physical examination revealed normal cervical and thoracic lumbar 

range of motion, full hip, knees, and ankles range of motion, moderate tenderness over the 

lumbar spine, and moderate resting lumbar spasm. Dr. Dempsey diagnosed low back pain and 

lumbar disc disease with radiculopathy.

By decision dated July 5, 2016, OWCP denied appellant’s claim finding that she had not 

established that she was in the performance of duty at the time of the alleged employment injury. 

It noted that the record contained no evidence that the incident occurred due to appellant’s

employment duties.

In a form dated July 13, 2016, appellant timely requested a review of the written record 

by an OWCP hearing representative.

OWCP received appellant’s June 28, 2016 statement responding to questions it had posed

in its initial development letter. Appellant related that she had reported the injury to her Branch 

Chief D.Y. and to J.G., the safety and health point of contact. She pointed out that she was 

“required by the employing agency to park in this parking lot, that on the date of the alleged 

employment injury she parked on the first level of the parking garage, that part of the parking is 

free and the “other parking is paid,” and that she parked in a free space. Appellant provided the 

 

3 This report was electronically signed by the physician on June 1, 2016. 
3

names of witnesses, noted her tour of duty was from 6:30 a.m. to 3:00 p.m., and that the incident 

occurred at 6:15 a.m. 

Dr. Dempsey, in progress notes dated July 5, 2016, noted that appellant had a slip and fall 

injury on March 1, 2016 and was seen for a follow-up visit regarding ongoing back problems.

Physical examination findings were provided. Diagnoses included lumbosacral spondylosis and 

low back pain.

On November 14, 2016 L.B., appellant’s supervisor, stated that appellant did not notify 

him about the incident on March 1, 2016. He further stated that “per sticky note” the employing 

establishment did not own or control the parking garage where the incident occurred. L.B. noted 

that the employing establishment leased space from the parking garage, but the owners of the 

building were responsible for the parking garage.

In a November 21, 2016 report, Dr. Dempsey noted that appellant was seen for low back

pain complaints due to a March 1, 2016 work injury. He performed a physical examination, 

reviewed x-ray interpretations, and diagnosed low back pain, lumbosacral osteoarthritis, lumbar 

paraspinal muscle spasm, and lumbosacral intervertebral disc disorder with radiculopathy. 

By decision dated December 19, 2016, the hearing representative affirmed the denial of 

appellant’s claim. She noted that appellant failed to provide evidence that she was required to 

park in the garage and that “she was in an area designated specifically for her employing 

[establishment].” Based on information from the employing establishment, the hearing 

representative found that the evidence of record failed to establish that the parking garage was

controlled, owned, or managed by the employing establishment or that employees were required 

to park in a specific spot in the parking garage. Thus, appellant had failed to establish that she 

sustained an injury in the performance of duty. 

LEGAL PRECEDENT

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

employee resulting from a personal injury sustained while in the performance of duty.4 The 

phrase sustained while in the performance of duty has been interpreted by the Board to be the 

equivalent of the commonly found requisite in workers’ compensation laws, namely, arising out 

of and in the course of employment.5 In the course of employment pertains to the work setting, 

locale and time of injury, whereas arising out of the employment encompasses not only the work 

setting, but also the requirement that an employment factor caused the injury.6

 

4 5 U.S.C. § 8102(a). See also P.S., Docket No. 08-2216 (issued September 25, 2009). 

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

scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947); see also L.T., Docket No. 09-1798 

(issued August 5, 2010); Ricky A. Paylor, 57 ECAB 568 (2006). 

6 A.K., Docket No. 09-2032 (issued August 3, 2010); C.O., Docket No. 09-0217 (issued October 21, 2009); 

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

To arise in the course of employment, in general, an injury must occur: (1) at a time 

when the employee may reasonably be 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 her employment or engaged in doing 

something incidental thereto.7 As to the phrase in the course of employment, the Board has 

accepted the general rule of workers’ compensation law that, as to employees having fixed hours 

and places of work, injuries occurring on the premises of the employing establishment, while the 

employees are going to or from work, before or after working hours or at lunch time, are 

compensable.

8

Regarding what constitutes the premises of an employing establishment, the Board has 

held: 

“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 

the employing establishment does not have ownership and control of the place 

where the injury occurred the place is nevertheless considered part of the 

premises.”

9

The Board has also held that factors which determine whether a parking area used by 

employees may be considered a part of the employing establishment’s premises include whether 

the employing establishment contracted for the exclusive use by its employees of the parking 

area, whether parking spaces on the lot were assigned by the employing establishment to its 

employees, whether the parking areas were checked to see that no unauthorized cars were parked 

in the lot, whether parking was provided without cost to the employees, whether the public was 

permitted to use the lot, and whether other parking was available to the employees. Mere use of 

a parking facility, alone, is insufficient to bring the parking lot within the premises of the 

employing establishment. The premises doctrine is applied to those cases where it is 

affirmatively demonstrated that the employing establishment owned, maintained, or controlled 

the parking facility, used the facility with the owner’s special permission, or provided parking for 

its employees.10

 

7 T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, id.

8 Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general rule of workers’

compensation law in circumstances where the employee was on an authorized break. See Eileen R. Gibbons, 52 

ECAB 209 (2001). 

9 Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971). Another exception to the rule is the proximity rule which 

the Board has defined by as where, under special circumstances, the industrial premises are constructively extended 

to hazardous conditions which are proximately located to the premises and may therefore be considered as hazards 

of the employing establishment. The main consideration in applying the rule is whether the conditions giving rise to 

the injury are causally connected to the employment. See William L. McKenney, 31 ECAB 861 (1980). 

10 See Diane Bensmiller, 48 ECAB 675 (1997); Rosa M. Thomas-Hunter, 42 ECAB 500 (1991); Edythe Erdman, 

36 ECAB 597 (1985); Karen A. Patton, 33 ECAB 487 (1982); R.M., Docket No. 07-1066 (issued February 6, 2009).
5

OWCP’s procedures provide:

“The industrial premises include the parking facilities owned, controlled, or 

managed by the employing establishment. An employee is in the performance of 

duty when injured while on such parking facilities unless engaged in an activity 

sufficient for removal from the scope of employment. In such cases the official 

superior should be requested to state whether the parking facilities are owned, 

controlled, or managed by the employing establishment, and whether the injury did 

in fact occur in the parking area. The [claims examiner] may approve the case 

when the official superior’s response is affirmative and consistent with the other 

evidence.”

11

ANALYSIS

Appellant alleged left leg, back, and stomach injuries when she slipped and fell after 

exiting her car in the parking garage when she arrived at work. OWCP denied the claim by 

decision dated July 5, 2016 as it found she was not in the performance of duty. By decision 

dated December 19, 2016, the hearing representative affirmed the denial of appellant’s claim, 

finding that the parking lot where the alleged injury occurred was not part of the employing 

establishment’s premises. 

The Board finds this case is not in posture for a decision as the evidence of record is 

insufficient to determine whether appellant was on the premises of the employing establishment 

at the time of the alleged March 1, 2016 work injury.

Appellant was in the process of coming to work for her tour of duty beginning at 6:30 

a.m. She sustained an injury at approximately 6:15 a.m., before commencing her employment 

duties. The Board has included within the performance of duty a reasonable time before and 

after work to allow for coming and going, as well as personal ministrations, such as lunch or 

bathroom breaks, engaged in for the benefit of the employing establishment.

12

 If the injury does 

not take place during those periods or on employing establishment premises, the Board will place 

special emphasis on whether the employee was engaged in an activity related to fulfilling the 

 

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

See also Chapter 2.804.4(b); “If the employee has a fixed place of work, the CE 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 

showing the boundaries of the industrial premises and the location of the injury site in relation to the premises”; see 

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

12 See Cemeish E. Williams, 57 ECAB 509 (2006) wherein the Board explained that the fact that the claimant 

arrived for duty 15 or 30 minutes prior to her scheduled shift would reasonably allow her time to sign in, put away 

her belongings, and start her shift on time, thereby providing the employing establishment some substantial benefit 

from the activity involved. 
6

duties of her employment.13 As appellant’s fall occurred 15 to 20 minutes prior to the start of her 

regular work shift, it occurred within a reasonable interval before work.14

As noted above, in determining whether the parking lot should be considered part of the 

employing establishment’s premises, the Board must consider such factors as whether the 

employing establishment contracted for its exclusive use by its employees, whether the 

employing establishment assigned spaces, whether the area was checked to see that no 

unauthorized cars were parked in the lot, whether the public was permitted to use the lot, whether 

parking was provided without cost to the employees, and whether other parking was available for 

use by the employees.15

The record contains no evidence that OWCP requested the employing establishment to 

provide factual information regarding the parking garage, whether parking was subsidized for the 

employees, whether there were other parking options, and whether the employees were assigned 

specific places to park. While appellant’s supervisor stated that the parking garage was not 

owned or controlled by the employing establishment, he did not provide information as to 

whether it managed the parking spaces used by the employees. OWCP’s procedures provide that 

it should obtain relevant information from an official superior if it requires clarification before 

determining whether or not the employee was on the premises.16 Its procedures further provide 

that it should request that an official superior relate whether the parking facilities are owned, 

controlled, or managed by the employing establishment.17 OWCP, however, failed to obtain a 

statement from the employing establishment in accordance with its procedures prior to finding 

that appellant had not shown that she was on the premises of the employing establishment when 

injured.

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.18 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.19

 

13 See A.H., Docket No. 16-888 (issued August 4, 2016). 

14 Supra note 12. 

15 See R.B., Docket No. 11-1320 (issued September 5, 2012).

16 See supra note 11.

17 See id.

18 See L.L., Docket No. 12-0194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008); Richard Kendall, 43 ECAB 

790 (1992).

19 See Rosie P. Colmer, Docket No. 03-0116 (issued May 2, 2003).
7

On remand OWCP should obtain information from the employing establishment and 

determine whether the parking lot was owned, managed, or controlled by the employing 

establishment and thus part of the premises. It should then determine whether appellant was in 

the performance of duty and under any control by the employing establishment at the time of the 

incident and, if so, adjudicate whether the factual and medical evidence establishes that she 

sustained an injury as alleged. Following such further development as deemed necessary, 

OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

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

Compensation Programs dated December 19, 2016 is set aside and the case is remanded for 

further proceedings consistent with this decision of the Board.

Issued: January 5, 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