United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.K., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

NEW BEDFORD VETERANS CENTER, 

New Bedford, MA, Employer

__________________________________________

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Docket No. 17-0756

Issued: July 11, 2018

Appearances: Case Submitted on the Record

Robyn G. March, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 17, 2017 appellant, through counsel, filed a timely appeal from an August 23, 

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 that she sustained an 

employment-related injury in the performance of duty on January 30, 2014.

On appeal counsel asserts that OWCP erred in its application of the proximity rule in 

determining that the January 30, 2014 injury did not occur on the employing establishment 

premises. He maintains that the injury occurred on employing establishment premises and, 

therefore, occurred in the performance of duty. 

FACTUAL HISTORY

On February 18, 2014 appellant, then a 58-year-old psychologist, filed a traumatic injury 

claim (Form CA-1) alleging that at 4:30 p.m. on January 30, 2014 she sustained a head injury with

concussion, cuts on her hand and right ear, and painful left knee and right hip, when she slipped 

on ice in front of the employing establishment’s door. The claim form indicated that appellant’s 

regular work hours were 8:00 a.m. to 4:30 p.m. 

The employing establishment controverted the claim. I.M., an employing establishment 

benefits specialist, indicated that the employing establishment center was in leased space and 

asserted that the sidewalk where appellant fell was not maintained by the employing establishment. 

D.S., an employing establishment supervisor, provided an incident report dated February 21, 2014. 

He related that at about 5:00 p.m. on Thursday, January 30, 2014, as appellant walked out the door 

leaving work, she turned right, walked about four steps, and slipped on ice, falling to the ground. 

Appellant was found by another employee who was also leaving work and saw her sitting on the 

ground. The employee then informed D.S. who walked out and found appellant still sitting. 

Appellant remained there for several minutes before being helped up. D.S. commented that 

appellant still seemed a little dazed, went back into work to clean up and discovered she was 

bleeding from her right ear. Appellant informed him she was going to a walk-in clinic on the way 

home and called him around 7:00 p.m., indicating that the clinic believed she had some head 

trauma and she was taking the next day off. D.S. indicated that the building gutters and drain were 

not fixed and caused ice to form, and that he called the employing establishment landlord who had 

workers sand the area. 

An authorization for examination and/or treatment form (Form CA-16), signed by I.M. was 

also submitted. In a statement on the form, apparently written by appellant, indicated that a drain 

pipe from the roof was cracked and spilling water in front of the door, and this created a five foot 

ice sheet outside the door which caused her to slip and fall, hitting her head. 

In correspondence dated April 2, 2014, OWCP requested that the employing establishment 

provide information regarding the circumstances of the January 30, 2014 fall. It specifically asked 

whether the injury occurred on a public sidewalk or whether it was a sidewalk on property 

belonging to the employing establishment or used exclusively or principally by employees or 

clients of the employing establishment. It asked that the employing establishment provide a 

diagram showing the boundaries of the center, the exact location of the injury site, and whether it 

had contracted for exclusive use of the area. OWCP also asked whether appellant was in a paid 

work status and engaged in official duties just prior to having departed the premises on January 30, 
3

2014, and was asked to provide the name and address of the building owner as third-party liability 

could exist.

By development letter dated April 2, 2014, OWCP informed appellant that when her claim 

was received, because it appeared to be a minor injury that resulted in minimal or no lost time from 

work, a limited amount of medical expenses were administratively approved, but the merits of her 

claim were not formally considered. It noted that the employing establishment had now challenged 

the claim, and asked her to submit further information regarding the location of the January 30, 

2014 fall, and further information regarding her claimed injuries, noting that the employing 

establishment maintained that she was not in the performance of duty when injured. Appellant

was afforded 30 days to respond.3

On April 3, 2014 the employing establishment informed OWCP that the building where 

appellant fell on January 30, 2014 was owned by a private entity. On April 11, 2014 it forwarded 

information regarding the location of appellant’s fall. The employing establishment explained that 

the center property was leased, and the lessor provided snow removal and was responsible for 

maintenance of the area. It continued that appellant’s January 30, 2014 fall occurred in an area 

was a normal route which employees and clients must travel to gain access to the employing 

establishment, but that the sidewalk was not exclusively used by the employing establishment. 

The employing establishment concluded that appellant’s tour of duty ended at 4:30 p.m. and noted 

that the fall occurred at approximately 5:02 p.m. OWCP attached documentation from the General 

Services Administration (GSA) in which L.M., a leasing contracting officer, indicated that the 

leased property was a full service lease which required the lessor to provide all snow removal from 

the premises. She continued that the employing establishment was in no way responsible for 

shoveling or removing ice. A copy of the lease agreement was attached. It indicated that the lessor 

provided snow removal and was responsible for maintenance. Attached photographs indicated 

that the sidewalk was shared by an adjacent business, a restaurant. 

By decision dated May 7, 2014, OWCP denied appellant’s claim. It found that the claimed 

January 30, 2014 incident did not occur in the performance of duty because appellant was not 

 

3 Appellant submitted numerous medical reports to the record dating from January 30, 2014. Dr. Olivier Gherardi, 

a Board-certified osteopath specializing in family practitioner, diagnosed head injury and ear laceration. Dr. David B. 

Burns, a Board-certified osteopath specializing in orthopedic surgery, diagnosed left meniscus tear and primary 

osteoarthritis in a report dated February 7, 2014. He performed left knee arthroscopic surgery with partial medial and 

lateral meniscectomies, synovectomy, and plica excision on July 10, 2014. Dr. Keith R. Brecher, a Board-certified 

neurologist, examined appellant on February 21, 2014 and diagnosed postconcussion syndrome. Appellant continued 

to be seen by Dr. Brecher, Dr. Burns, Dr. Gherardi, and Dr. Carolyn McGrath, a primary care physician. In reports 

dated June 5 to July 31, 2014, Dr. Richard P. Millman, Board-certified in internal medicine, pulmonary disease, and 

sleep medicine, diagnosed concussion with loss of consciousness of unspecified duration, obstructive sleep apnea, 

insomnia, and vertigo. On August 7, 2014 Dr. Michelle Mellion, Board-certified in neurology and neurophysiology, 

diagnosed postconcussion syndrome. Dr. Mark P. Andreozzi, an osteopath specializing in allergy and otolaryngology, 

noted treating appellant since February 12, 2014. He noted a history of head trauma with concussive symptomatology 

and bilateral symmetrical high frequency sensorineural hearing loss. In a May 24, 2016 report, Dr. Albert J. Marano, 

a Board-certified neurologist, noted seeing appellant on March 31 and May 25, 2016. He diagnosed postconcussive 

syndrome and advised that this was a direct result of the January 30, 2014 injury, based on a detailed history, clinical 

examination, and diagnostic workup. Dr. Marano noted that appellant had recently been terminated at work due to 

her inability to perform work duties. 
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injured on employing establishment property, and the fall did not occur during regular work hours. 

OWCP also noted that she had not responded to the April 2, 2014 development letter. 

In an undated statement, received by OWCP on June 10, 2014, appellant indicated that on 

January 30, 2014 her last counseling session concluded at about 4:30 p.m. and, as was her practice, 

she then spent 15 to 30 minutes completing her work for the day including finalizing notes, 

checking e-mails, etc., and likely left her office between 4:45 and 5:00 p.m. She related that, as 

she walked out the front door of the employing establishment and walked one or two steps, she 

fell on a large patch of ice that had accumulated beside the doorway, noting that a drain pipe had 

broken allowing water to spill directly onto the walkway, which then iced over. Appellant 

indicated that she did not remember the fall or the landing and believed she could have been 

unconscious for a few minutes, first becoming aware of lying on her back turned towards the right. 

She did not know how long she was there and recognized D.N. standing over her, then D.S. 

Appellant got up, at some point, called her husband, and noted blood on her hand and coming from 

her right ear. She indicated that the doorway was the main entrance to the employing establishment 

and was used by all employees and clients, noting only one other door, an emergency exit at the 

rear of the building. Appellant indicated that, as a result of the fall, she sustained a traumatic brain 

injury and postconcussion syndrome, two meniscal tears of the left knee, and also injured her 

tailbone, right shoulder, and cut her right hand, as noted in medical evidence submitted.

In correspondence dated and received by OWCP on May 7, 2015 appellant, through 

counsel, requested reconsideration. She submitted evidence previously of record including her 

statement, the incident report, and one of the photographs of the walkway where her fall occurred. 

Counsel also submitted additional medical evidence including treatment notes from Dr. Gherardi 

and Dr. Brecher. 

By decision dated July 28, 2015, OWCP modified its prior decision to find that, while it 

was reasonable for appellant to be leaving work a half hour later when she slipped and fell on 

January 30, 2014, however, the fall did not occur in the performance of duty. It explained that the 

fall occurred on a sidewalk not maintained by the employing establishment and which was used 

by the general public in addition to clients and employees of the employing establishment. 

On July 25, 2016 appellant, through counsel, requested reconsideration. Counsel asserted 

that the injury occurred in the performance of duty. 

By decision dated August 23, 2016, OWCP denied modification of its prior decision. It 

explained that, as appellant was leaving work when she fell on a public sidewalk, her injury did 

not occur in the performance of duty. 

LEGAL PRECEDENT

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of duty.4 The phrase sustained while in the performance 

of duty is regarded as the equivalent of the coverage formula commonly found in workers’

 

4 5 U.S.C. § 8102(a).
5

compensation laws, namely, arising out of and in the course of performance.5 In the course of 

employment relates to the elements of time, place, and work activity. To arise in the course of 

employment, an injury must occur at a time when the employee may reasonably be said to be 

engaged in her employer’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.6

As to an employee having fixed hours and a fixed place of work, an injury occurring on 

the premises while the employee is going to and from work before or after working hours or at 

lunch time is compensable, but if the injury occurs off the premises, it is not compensable, subject 

to certain exceptions. Underlying some of these exceptions is the principle that 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.7 The most common ground of extension is 

that the off-premises point at which the injury occurred lies on the only route, or at least on the 

normal route, which employees must traverse to reach the premises, and that therefore the special 

hazards of that route become the hazards of the employment.8 This exception contains 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.9

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish an injury in the 

performance of duty when she slipped and fell on ice on January 30, 2014.

The facts considered in determining whether an employee leaving 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. The 

course of employment for employees having a fixed time and place of work includes a reasonable 

interval before and after official working hours while the employee is on the premises engaged in 

preparatory or incidental acts.10 Appellant had fixed hours of work from 8:00 a.m. to 4:30 p.m. 

and was injured at about 5:00 p.m. on January 30, 2014 as she was leaving work. She explained 

that, after her workday, she spent 15 to 30 minutes completing her work for the day including 

finalizing notes, checking e-mails, etc. Appellant therefore fulfilled the time and place 

 

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

the scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).

6 See Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. Barenkamp 

(Joseph L. Barenkamp), 5 ECAB 228 (1952).

7

Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).

8 1 Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3) (2006). See also R.O., Docket No. 08-

2088 (issued May 18, 2009). 

9

Id. at § 13.01(3)(b).

10 T.L., 59 ECAB 537 (2008).
6

requirement needed to establish fact of injury.11 However, unless her injury occurred on the actual 

or constructive premises of the employing establishment, her injury cannot be considered as 

occurring in the performance of duty.12 

The evidence of record establishes that the sidewalk where appellant fell is not owned by 

the employing establishment which leased the property from a private owner. L.M., a leasing 

contracting officer with GSA, indicated that the leased property was a full-service lease, which 

required the lessor to provide all snow removal on the premises. She continued that the employing 

establishment was in no way responsible for shoveling or removing ice. The record contains a 

copy of the lease, which indicates that the lessor is responsible for maintenance. 

In Idalaine L. Hollins-Williamson,

13 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.,

14 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.

As noted, the employing establishment is located in a strip mall. Photographic evidence 

of record shows that it adjoins a restaurant.15 It is reasonable to assume that the employees and 

customers of the restaurant would share the sidewalk where appellant fell. Thus, appellant has not 

shown that the sidewalk was used exclusively or principally by the employees and clients of the 

employing establishment for the convenience of the employer, either contractually or otherwise. 

Counsel asserted on appeal that OWCP did not properly apply the proximity rule. As 

noted, the proximity exception to the premises rule indicates that, under special 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.16 

This exception contains two components. The first is the presence of a special hazard at the 

 

11 Supra note 6.

12 See Sallie B. Wynecoff, 39 ECAB 186 (1987).

13 55 ECAB 655 (2004).

14 Docket No. 12-1286 (issued June 4, 2012).

15 A photograph of the street view on Google Maps show that there are four small businesses plus the employing 

establishment in the strip mall. Available at https://google.com.maps.

16 Jimmie Brooks, 54 ECAB 248 (2002).
7

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.17

The Board has generally held that conditions caused by weather, including snow, ice and 

rain, are not special hazards. Rather they are dangers inherent to the commuting public.18 As the 

Board noted in the case C.P., a fall on an icy sidewalk used as a customary means of ingress and 

egress to the employing establishment does not establish that the injury occurred in the 

performance of duty.19 The hazard that caused appellant’s injury, ice or snow on a public sidewalk, 

is a hazard commonly faced by all pedestrians in a northeastern city and; therefore, there was no 

special hazard at the off-premises point.20 Therefore, while appellant fell just steps after exiting 

the employing establishment, in her normal route of egress from the employing establishment, the 

proximity rule does not apply in this case. 

The site where the claimed injury occurred was not owned, maintained, or controlled by 

the employing establishment or on the premises of the employing establishment. The area was 

open to and used by the general public.21 No special circumstances exist through the proximity 

rule, under which the industrial premises would be constructively extended to hazardous 

conditions which were proximately located to the premises and, therefore, would be considered as 

hazards of the employing establishment.22 The Board, therefore, finds that appellant’s injury 

constitutes an ordinary, nonemployment hazard of the journey itself, a fall on an icy sidewalk, 

which is shared by all travelers and the proximity rule does not apply.23 

Thus, contrary to counsel’s assertion on appeal, appellant has not met her burden of proof 

to establish that she sustained an injury in the performance of duty because the evidence establishes 

that her injury did not occur on the premises of the employing establishment. Rather, the injury 

was caused by the act of slipping on ice on a public sidewalk, which is an ordinary, 

nonemployment hazard of the journey from work itself that was shared by all travelers.24 

 

17 Supra note 9. 

18 See Denise A. Curry, 51 ECAB 158 (1991); Syed M. Jawaid, 49 ECAB 627 (1998).

19 C.P., Docket No. 11-1432 (issued January 23, 2012).

20 Id.; see also R.O., supra note 8. 

21 See F.L., Docket No. 17-0528 (issued June 6, 2017).

22 See D.B., Docket No. 13-0510 (issued June 10, 2013).

23 D.C., Docket No. 08-1872 (issued January 16, 2009).

24 See D.M., Docket No. 13-0535 (issued June 6, 2013).
8

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(a) and 20 C.F.R. 

§§ 10.605 through 10.607.25

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish an employmentrelated injury in the performance of duty on January 30, 2014.

ORDER

IT IS HEREBY ORDERED THAT the August 23, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 11, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

25 Where, as in this case, an employing establishment properly executes a Form CA-16 which authorizes medical 

treatment as a result of an employee’s claim for an employment-related injury, the CA-16 form creates a contractual 

obligation, which does not involve the employee directly, to pay for the cost of the examination or 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).