United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.E., Appellant

and

DEPARTMENT OF THE NAVY, MARINE 

CORPS, Indianapolis, IN, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0515

Issued: February 18, 2020

Appearances: Case Submitted on the Record

Andrew Douglas, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 16, 2018 appellant, through counsel, filed a timely appeal from an August 10, 

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 his burden of proof to establish an injury in the 

performance of duty on August 26, 2015, as alleged.

FACTUAL HISTORY

On August 27, 2015 appellant, then a 53-year-old information technology specialist, filed 

a traumatic injury claim (Form CA-1) alleging that he sustained a fractured right pelvis and 

fractured left shoulder joint on August 26, 2015 when struck by a car while in the performance of 

duty. He stated that he was injured at 6:30 a.m. as a result of a hit and run, which occurred in the 

crosswalk of Pennsylvania and Market Streets while walking from a parking garage to work. 

Appellant’s work schedule was Monday through Friday from 6:30 a.m. to 4:30 p.m.

In a September 15, 2015 development letter, OWCP advised appellant of the deficiencies 

in his claim and instructed him as to the evidence necessary to support his claim. It afforded him

30 days to respond.

In response appellant submitted a September 21, 2015 work capacity evaluation (Form 

OWCP-5c) from Dr. Greg Gaski, a Board-certified orthopedic surgeon, who diagnosed a left-sided

four-part proximal humerus fracture and advised that appellant was disabled from work until 

November 2, 2015 with restrictions on sitting, walking with an assistive device for the bilateral 

lower extremities, and no weight-bearing or reaching above the shoulder with the left upper 

extremity.

3

Appellant also submitted an August 26, 2015 emergency medical services report indicating 

that he had been struck by a vehicle at an unknown rate of speed and transported to the hospital 

for left shoulder and right hip pain. 

In a September 22, 2015 narrative statement, appellant indicated that the parking facility 

he was walking from was not owned, controlled, or managed by the employing establishment, but 

it issued him a parking pass, assigned him a parking spot, and paid for his parking.

By decision dated October 19, 2015, OWCP accepted that the August 26, 2015 

employment incident occurred as alleged, resulted in a diagnosed condition, and occurred in the 

performance of duty, but denied the claim finding that the medical evidence of record failed to 

establish a causal relationship between appellant’s diagnosed conditions and the August 26, 2015 

employment incident.

On April 4, 2016 appellant, through counsel, requested reconsideration.

In August 26 and September 14, 2015 reports, Dr. Jared L. Gayken, a Board-certified 

radiologist, noted his review of x-ray and computerized tomography (CT) scans and noted findings 

provided to Dr. Gaski. In a March 15, 2016 report, Dr. Gaski diagnosed multiple pelvic fractures 

 

3 On September 16, 2015 Dr. Gaski had released appellant to limited-duty work on September 21, 2015 starting 

with half-a-day at home at a desk job for one month.
3

and a four-part left proximal humerus fracture of appellant’s shoulder. He opined that appellant’s

fractures were a direct result of the vehicle hitting him and he recommended nonoperative 

management of his pelvis and operative treatment of his left arm. Counsel also submitted an 

operative report from Dr. Gaski who performed an open reduction and internal fixation of 

appellant’s left proximate humerus fracture on August 27, 2015. 

Appellant submitted Dr. Gaski’s progress reports dated September 14, October 30, and 

December 4, 2015 regarding appellant’s postoperative visits and his recommendation for physical 

therapy. He also submitted physical therapy reports dated November 2 and 30, 2015 and 

diagnostic testing reports dated August 26, September 14, and October 30, 2015 in support of his 

claim. 

In an August 5, 2016 letter, the employing establishment controverted appellant’s claim 

asserting that the injury occurred on the “crosswalk of Pennsylvania and Market Street’ which was 

an intersection located in downtown Indianapolis and was not controlled or owned by the 

employing establishment. It noted that the injury had not occurred in the parking area, but did 

acknowledge that it leases the parking area and assigns spaces to its employees. The employing 

establishment further submitted an accident report, which included a map of the location where 

the injury occurred, and bolded two crosswalk options at the same intersection.

By decision dated October 21, 2016, OWCP modified its prior decision finding that the 

injury had not occurred in the performance of duty as his injury occurred off-premises in an area 

with hazards common to all travelers. 

On March 31, 2017 appellant, through counsel, requested reconsideration. Counsel 

contended that appellant’s injury was sustained in the performance of duty and submitted a map 

of the location, arguing that it established an exception to the premises rule as appellant was taking 

the necessary route from his parking garage to his assigned work building when he was injured. 

In an accompanying narrative statement, appellant indicated that he was injured walking from the 

parking garage provided to him by the employing establishment to his place of work, which was 

approximately 1.5 blocks away from his duty station. He stated that he and another person were 

struck by a hit and run driver in the crosswalk on the west side of the interaction of East Market 

Street and North Pennsylvania Street. 

By decision dated August 10, 2017, OWCP denied modification of its prior decision. It

found that the employee parking area fell within the employing establishment’s premises, but the 

injury had not occurred on the premises because appellant failed to establish that employees had 

to walk across the street at that particular intersection.

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 
4

time limitation period of FECA,4that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

to the employment injury.5 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

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

injury sustained while in the performance of duty.7 The phrase sustained while in the performance 

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

compensation laws, namely, arising out of and in the course of employment.

8

 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 stated to be 

engaged in the employing establishment business, at a place where he or she may reasonably be 

expected to be in connection with his or her employment, and while he or she was reasonably 

fulfilling the duties of his or her employment or engaged in doing something incidental thereto.9

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.10 One of these is the proximity exception to the premises rule, which allows 

constructive extension of the premises to those hazardous conditions which are proximate to the 

premises and may, therefore, be considered as hazards of the employment.11 Underlying the 

proximity exception is the principle that course of employment should extend to an injury that 

occurred at a point where the employee was within the range of dangers associated with the 

employment.12 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 

 

4 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

6 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

7 5 U.S.C. § 8102(a); J.K., Docket No. 17-0756 (issued July 11, 2018).

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

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

9 See J.K., supra note 7; Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. 

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

10 S.V., Docket No. 18-1299 (issued November 5, 2019).

11 K.D., Docket No. 18-0617 (issued February 13, 2019); D.K., Docket No. 11-1029 (issued February 1, 2012).

12 See J.K., supra note 7; Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).
5

hazards of the employment.13 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.14

ANALYSIS

The Board finds that appellant has met his burden of proof to establish fractures of his 

pelvis and left arm while in the performance of duty on August 26, 2015.

In determining whether the crosswalk between the employing establishment parking area 

and the workplace should be considered part of the employing establishment’s premises, the Board 

first considers the factors necessary to determine whether the parking area was under sufficient 

control of the employing establishment. However, OWCP has already found, and it is uncontested,

that the parking area was a part of the employing establishment’s premises, finding that it was 

leased by the employing establishment and provided an assigned space without cost to the 

employee. Therefore, the Board must determine whether the crosswalk in which appellant was 

injured was on the only route, or at least on the normal route, which employees must traverse to 

reach the contiguous part of the premises. The Board finds that the evidence of record establishes 

that the crosswalk was the normal route which appellant and others using the parking area traversed 

to reach their workplace. The maps in evidence show that there were four crosswalks, from which 

an employee would use two in order to cross the intersection. Although there are two options to 

cross the intersection, the routes obviously cross the same intersection. Thus, whether an employee 

crosses Market Street and then Pennsylvania Street, or Pennsylvania Street and then Market Street 

is not determinative. Rather, appellant was required to cross the intersection of these two streets 

to traverse between the two areas of the employing establishment premises. Thus, the Board finds 

that appellant has proven an exception to the premises rule and has therefore established that his 

August 26, 2015 injury occurred in the performance of duty.

OWCP has not previously reviewed the merits of the medical evidence of record to 

determine whether appellant’s diagnosed medical conditions were causally related to the 

August 26, 2015 incident. However, the Board finds that the evidence of record is sufficient to 

determine that appellant’s pelvis and left arm fractures are causally related to the hit and run 

accident in which he was injured. OWCP procedures provide that in cases where there is a serious 

injury from motor vehicle accident, amongst other types of incidents, and the employing 

establishment does not dispute the facts of the incident alleged, that the claim may be accepted for 

conditions even without a medical report with other more serious conditions being developed 

through obtaining medical evidence.15 The accepted incident was a serious motor vehicle-related 

incident which left appellant injured and in need of emergency medical services. Upon obtaining 

emergency medical treatment, and after diagnostic testing, it was confirmed that appellant 

sustained fractures of his pelvis and left arm on that date. The contemporaneous medical reports 

 

13 Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3) (2006). See also J.K., supra note 7; R.O.,

Docket No. 08-2088 (issued May 18, 2009).

14 Id. at § 13.01(3)(b).

15 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6

(June 2011).
6

provide a consistent history of injury and Dr. Gaski, in his March 15, 2016 report, diagnosed 

fractures of the pelvis and left arm directly related to the hit and run incident in which he had been 

involved. The Board finds that this evidence is sufficient to establish that appellant sustained 

fractures to his pelvis and left arm and those conditions are causally related to the accepted 

August 26, 2015 employment incident.

As appellant has established pelvis and left arm fractures as accepted employment-related 

conditions in his claim, the Board will reverse the August 10, 2017 decision and remand the case 

for payment of medical costs and wage-loss compensation, if any. 

CONCLUSION

The Board finds that appellant has met his burden of proof to establish fractures of his 

pelvis and left arm while in the performance of duty on August 26, 2015.

ORDER

IT IS HEREBY ORDERED THAT the August 10, 2017 decision of the Office of 

Workers’ Compensation Programs is reversed and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: February 18, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board