United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.L., Appellant

and

DEPARTMENT OF LABOR, OCCUPATIONAL 

SAFETY & HEALTH ADMINISTRATION, 

Atlanta, GA, Employer

__________________________________________

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Docket No. 18-0812

Issued: February 22, 2019

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 March 7, 2018 appellant, through counsel, filed a timely appeal from a January 31, 

2018 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 that she sustained 

a traumatic injury in the performance of duty on April 5, 2017, as alleged.

FACTUAL HISTORY

On April 10, 2017 appellant, then a 56-year-old safety and health clerk, filed a traumatic 

injury claim (Form CA-1) alleging that, while leaving work at 4:33 p.m. on April 5, 2017, she 

sustained injuries to her lower back, groin, right leg, ankle, knee, and buttocks when she slipped 

and fell on wet concrete in the parking garage. She stopped work on April 7, 2017. Appellant’s 

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

On the reverse side of the claim form, the employing establishment checked a box marked 

“No” indicating that appellant was not injured in the performance of duty as the parking lot was 

not government property. It explained that the parking lot was “not agency owned, maintained, or 

controlled.”

Appellant was initially treated by Dr. Jim D. Pruitt, a Board-certified family practitioner, 

who related in an April 7, 2017 report that appellant had a history of a fall and sustained a lumbar 

muscle strain.3

By development letter dated April 21, 2017, OWCP acknowledged receipt of appellant’s 

claim and informed her that additional evidence was needed to establish her claim. It specifically 

noted that the evidence indicated that appellant was injured off the premises of her employing 

establishment and requested that appellant respond to the attached factual questionnaire in order 

to determine whether the alleged injury occurred in the performance of duty. OWCP also 

requested medical evidence in support of her claim. It afforded appellant 30 days to submit the 

requested information. OWCP sent a similar letter of even date to the employing establishment

requesting that it answer a series of questions including whether the alleged injury occurred on 

employing establishment premises and whether the parking facilities were owned, controlled, or 

managed by the employing establishment. 

OWCP received a May 2, 2017 report from Dr. Louise Sheffield, Board-certified in 

preventive and occupational medicine, who provided examination findings and diagnosed lumbar 

strain and right Achilles tendon strain.

On May 8, 2017 OWCP received the employing establishment’s response to its April 21, 

2017 development letter. It explained that the parking lot was a commercial lot and was not owned, 

controlled, or managed by the employing establishment. The employing establishment further 

indicated that appellant was not required to park in this lot, was not assigned a specific parking 

space, was not required to pay for parking as the parking lot was free, and was not reimbursed for 

travel to and from the parking lot. It further indicated that the public was permitted to use this lot. 

 

3 The record only contains the first page of the report.
3

The employing establishment also noted that it did not know whether the parking lot was 

monitored to prevent unauthorized cars from parking in the lot.

In a May 15, 2017 completed factual questionnaire, appellant related that the April 5, 2017 

injury occurred in the parking facility of the building in which the employing establishment leased 

space. She indicated that it was “an extension of the premises” and was designated as where to 

park. Appellant explained that the parking lot was a benefit to the tenants who occupied or leased 

space in the building and was adjoined to the building. She noted that the parking structure was 

owned by CMK Property Services, LLC and managed by a third party.

OWCP also received a picture of the commercial building with the parking structure and 

the area surrounding it. 

Appellant continued to receive medical treatment and submitted additional reports, 

including April 12, May 8, and 11, 2017 reports by Dr. Savitha Elam-Kootil, a Board-certified 

internist. Dr. Elam-Kootil related appellant’s complaints of low back pain, provided examination 

findings, and diagnosed low back strain and small external hemorrhoid.

By decision dated May 26, 2017, OWCP denied appellant’s claim. It accepted that the 

April 5, 2017 incident occurred as alleged and that appellant sustained diagnosed medical 

conditions, but denied her claim, finding that the claimed April 5, 2017 incident did not occur in 

the performance of duty, as alleged. OWCP noted that the evidence of record confirmed that the 

parking facility where appellant fell was not owned, controlled, or managed by the employing 

establishment, and accordingly, appellant was not injured on the employing establishment’s

premises.

Appellant, through counsel, timely requested a telephonic hearing before a representative 

of OWCP’s Branch of Hearings and Review, which was held on November 17, 2017. OWCP 

received additional medical evidence, including reports from Dr. Sheffield dated May 16, 23, 

and 30, 2017. 

By decision dated January 31, 2018, an OWCP hearing representative affirmed the May 26, 

2017 decision. She determined that the evidence of record established that the alleged April 5, 

2017 injury did not occur in the performance of duty as the parking lot where the incident occurred 

was not owned, controlled, or managed by the employing establishment.

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, namely, arising out of and in the course of employment.5

 

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

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

he or she may reasonably be expected to be in connection with his or her employment; and 

(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in 

doing something incidental thereto.6

It is well established as a 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.7 The Board has previously found that the term “premises” as it is 

generally used in workers’ compensation law, is not synonymous with “property” because it does 

not depend solely on ownership. The term “premises” may include all the property owned by the 

employing establishment. In other instances, even if the employer does not have ownership and 

control of the place of injury, the place may nevertheless still be considered part of the “premises.”

8

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 employer 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 authorized 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 not 

sufficient 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.9

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 

 

6 T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); 

Eugene G. Chin, 39 ECAB 598 (1988).

7 Narbik A. Karamian, 40 ECAB 617, 618 (1989); Eileen R. Gibbons, 52 ECAB 209 (2001).

8 Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

9 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

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

evidence.”

10

ANALYSIS

Appellant alleged lower back, groin, right leg, ankle, knee, and buttocks injuries when she 

slipped and fell in the parking lot while leaving work on April 5, 2017. OWCP denied her claim,

finding that appellant was not in the performance of duty at the time of the alleged injury because 

the parking lot where she sustained her injuries was not part of the employing establishment’s 

premises. 

The Board initially notes that the April 5, 2017 employment incident occurred while 

appellant was leaving the employing establishment after work. It is well established that within 

the performance of duty includes 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.11 In this case, appellant’s regular work hours were 8:00 

a.m. to 4:30 p.m. On the Form CA-1, appellant noted a time of injury as 4:33 p.m. As appellant’s 

fall occurred three minutes after the end of her regular work shift, the Board finds that it happened 

within a reasonable interval after work and within the course of employment.

12

The Board further finds, however, that appellant’s April 5, 2017 fall while leaving work

did not occur in the performance of duty as the parking lot where the alleged injury occurred was 

not part of the employing establishment’s premises.

The term “premises” as generally used in worker’s compensation law does not depend 

solely on ownership.13 The factors which the Board consider to determine whether a parking 

facility used by employees may be considered a part of the employing establishment’s premises 

include whether the employer 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 authorized 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 not sufficient to bring the parking lot within the premises of the employing 

establishment.14

In this case, OWCP issued a development letter to the employing establishment in 

accordance with its procedures and requested that the employing establishment respond to specific 

questions about the parking lot where the alleged April 5, 2017 injury occurred. The employing 

 

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

11 See James P. Schilling, 54 ECAB 641 (2000); see also Narbik A. Karamian, 40 ECAB 617 (1989).

12 See John F. Castro, Docket No. 03-1653 (issued May 14, 2004).

13 Supra note 8.

14 Supra note 9.
6

establishment responded to OWCP’s letter and related that the parking lot was a commercial lot 

that was not owned, controlled, or managed by the employing establishment. It further indicated 

that its employees were not required to park in this lot, were not assigned a specific parking space, 

did not have to pay for parking, and were not reimbursed for travel to and from the parking lot. 

The facts in the current case are similar to the Board’s decision in J.B. In that case, the 

claimant alleged that she sustained injuries to her left foot, left knee, back, and right hip when she 

stepped into a parking lot pothole, twisted her foot, and fell down. The Board affirmed OWCP’s 

decision denying the employee’s claim, finding that the alleged injury did not occur in the 

performance of duty. It noted that the parking lot where the employee fell was an hourly paid lot 

open to the public that was not owned, controlled, or maintained by the employing establishment. 

Accordingly, the Board found that the parking lot was not part of the employing establishment’s 

premises.15 

Additional evidence in the record also confirms that the parking garage where the alleged 

April 5, 2017 injury occurred was not on employing establishment’s premises. In appellant’s 

response to OWCP’s development letter, she noted that the parking structure was owned by CMK 

Property Services, LLC and managed by a third party. Appellant further explained that the parking 

lot was available as a benefit to the tenants who occupied leased space in the building and to the 

public. The parking lot was not controlled or maintained by the employing establishment for the 

exclusive use of its employees. Accordingly, based on the facts of this case, the Board finds that 

the evidence of record is insufficient to establish that the parking garage where the alleged April 5, 

2017 injury occurred was part of the employing establishment’s premises. 

The Board also finds that the parking garage where appellant’s fall occurred does not 

constitute a special hazard or an access route closely associated with the employing establishment. 

The Board has determined that under special circumstances the “premises rule” is extended to 

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

considered as hazards of the employing establishment. This exception to the premises rule 

contains two components. The first is the presence of a special hazard at the particular offpremises route. The second is the close association of the access route to the employing 

establishment, such that ingress and egress from the employing establishment must be made from 

this route.16 Appellant and counsel have contended that the parking garage was an “extension of 

the premises” and was the only designated area for employees to park. The facts of this case, 

however, show that the parking garage was not exclusively contracted for use by the employing 

establishment and that it was available for public use at no cost. Appellant was not required to 

park in the parking garage and did not have an assigned space. The Board also finds that 

appellant’s injury occurred while she was exposed to an ordinary, off-premises nonemployment 

 

15 See J.B., Docket No. 17-378 (issued December 22, 2017); Cf. M.D. Docket No. 17-0086 (issued August 3, 2017) 

in which the Board determined that a parking garage where appellant tripped and fell was part of the employing 

establishment’s premises when the employing establishment noted that the underground parking area was part of the 

office building leased by the employing establishment, that it contracted with a management firm to maintain the 

parking facility, and that it assigned parking spaces based on seniority and availability 

16 See Jimmie D. Harris, Sr., 44 ECAB 997 (1993).
7

hazard of the journey itself, specifically slipping on water, which is shared by all travelers.17 The 

Board finds, therefore, that the “premises rule” does not extend to the parking lot in which 

appellant fell. 

For these reasons, the Board finds that appellant’s slip and fall on April 5, 2017 did not 

occur on the premises of the employing establishment and no special circumstance existed which 

would require the extension of the premises rule. Appellant, therefore, has not met her burden of 

proof to establish that she sustained an injury in the performance of duty.

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.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish that she 

sustained a traumatic injury in the performance of duty on April 5, 2017, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the January 31, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 22, 2019

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

 

17 The Board has generally held that conditions caused by weather, including snow, ice, and rain, are not special 

hazards. C.P., Docket No. 11-1432 (issued January 23, 2012); Shirley Borgos, 31 ECAB 222 (1979).