United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.O., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

PRISONS INDUSTRIES, Washington, DC, 

Employer

__________________________________________

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Docket No. 18-0773

Issued: September 11, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ABCHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 28, 2018 appellant, through counsel, filed a timely appeal from a January 19, 

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 right shoulder, right 

hand, and right knee injuries in the performance of duty on April 25, 2017.

FACTUAL HISTORY

On May 19, 2017 appellant, then a 45-year-old contract specialist, filed a traumatic injury 

claim (Form CA-1) alleging that on April 25, 2017 she injured her right shoulder, right hand, and 

right knee when she fell at lunch trying to cross a street. The employing establishment 

controverted the claim, contending that she was “at lunch and off premises when she fell on the 

public sidewalk.” The incident occurred at 12:05 p.m. and appellant’s regular work hours were 

from 6:30 a.m. until 3:00 p.m.

By letter dated May 24, 2017, OWCP requested that the employing establishment address 

whether appellant was on the premises that it owned, operated, or controlled at the time of her fall 

and, if so, to include a diagram showing the premises boundaries and the location of the work 

incident. It further asked whether she was performing work duties or duties reasonably incidental 

to employment at the time of the incident.

OWCP, in a May 24, 2017 development letter, informed appellant that she needed to 

provide additional factual and medical information in support of her claim, including a description 

of where she was at the time of the alleged incident, whether she was on the premises of the 

employing establishment, and whether she was performing her assigned work duties.

L.D., a supervisor, in response to OWCP’s request for information, responded “no” to the 

question of whether appellant was on premises owned, controlled, or operated by the employing 

establishment at the time of injury. She provided a hand-drawn diagram indicating that the injury 

occurred on the northwest corner of D and First Streets, NW, Washington, DC. L.D. also 

submitted an image from a computer mapping service. She further responded “no” to the question 

of whether appellant was performing any assigned duties or activities reasonably incidental to her 

employment at the time of the incident. 

By decision dated June 29, 2017, OWCP denied appellant’s traumatic injury claim. It 

found that she was not in the performance of duty at the time of her alleged fall on April 25, 2017 

as she was at lunch and not on the premises of the employing establishment. 

Counsel, on July 18, 2017, requested a telephone hearing before an OWCP hearing 

representative.

In an October 18, 2017 statement, appellant indicated that around 12:05 p.m. on April 25, 

2017 she exited the front door of her building to pick up lunch. She related: “I turned right onto 

the sidewalk in front of the building; I walked to the corner of the building and began to attempt 

to cross the street toward the Hyatt Hotel located in front of the building. As I stepped off the 

sidewalk onto the street in front of the building, I tripped and fell.” Appellant questioned how 

L.D. knew the location of her fall and advised that the “location of First [Street] and D Street as 

listed by [L.D.] in the denial letter is not accurate. In order for me to be headed in the direction 
3

listed by [L.D.], I would have taken a left onto the sidewalk.” She submitted an image from a 

computerized mapping service showing a picture of a corner at 101 D Street NW.

During the telephone hearing, held on December 18, 2017, appellant related that at the time 

of her fall she had exited her work building located at 400 First Street NW, turned right onto the 

sidewalk, and walked to the corner of the building to cross to D Street NW. She stated that she

fell on 401 First Street NW when she stepped off the sidewalk and onto the street. Appellant

underwent surgery on her shoulder on July 24, 2017. She related that she worked in a federal 

building without a cafeteria. Employees commonly got breakfast and lunch from outside the 

building. Appellant explained that a pedestrian assisted her after she fell. She returned to her 

building and reported her injury to L.D. Subsequently, a workers’ compensation specialist with 

the employing establishment informed appellant that she was off the premises and not working 

and so her accident was not related to her employment. She described her medical treatment 

subsequent to her injury. Appellant noted that the sidewalk where she fell was cracked and that 

she fell forward into the street. Counsel asserted that Board case law provided that the premises 

of the employing establishment could extend beyond the area it owned depending on its 

relationship to the property. He asserted that appellant had to go out of the building to get lunch 

and that the employing establishment did not prohibit employees from getting food at lunch outside 

the building.

By decision dated January 19, 2018, OWCP’s hearing representative affirmed the June 29, 

2017 decision. He found that appellant was not in the performance of duty at the time of her 

April 25, 2017 fall as she was off premises and at lunch. The hearing representative further found 

that she had not shown that the premises should be extended due to special circumstances.

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.3 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.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 his or her master’s 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 something incidental 

thereto.5

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 

 

3 5 U.S.C. § 8102(a).

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

5 B.P., Docket No. 14-0411 (issued July 17, 2014); David P. Sawchuck, 57 ECAB 316 (2006).
4

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.6

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,7 or which are in the nature of necessary 

personal comfort or ministration.8 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.9 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.10 The main 

consideration in applying this rule is whether the conditions giving rise to the injury are causally 

connected to the employment.11 

ANALYSIS

The Board finds that appellant was not in the performance of duty on April 25, 2017 as she 

was at lunch and not on the premises of the employing establishment at the time of the claimed 

fall on April 25, 2017. Appellant fell when stepping off a sidewalk and onto the street. The 

employing establishment indicated that it did not own, operate, or control the sidewalk. While 

appellant maintains that she fell on a different corner than indicated by L.D., noting that she turned 

right out of the building door rather than left, she has not submitted any evidence challenging the 

employing establishment’s assertion that it did not own, operate, or control the sidewalk. 

In Idalaine L. Hollins-Williamson,

12 the employee fell and was injured 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.,

13 the 

employee fell while walking across the street from a train station to work. The Board found that 

 

6 V.P., Docket No. 13-0074 (issued July 1, 2013); M.L., Docket No. 12-0286 (issued June 4, 2012); John M. Byrd,

53 ECAB 684 (2002).

7 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).

8 See J.L., Docket No. 14-0368 (issued August 22, 2014).

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

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

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

12 55 ECAB 655 (2004).

13 M.L., supra note 6.
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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.14 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.15

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.16 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 building to obtain lunch and was not exposed to a special hazard that 

became a hazard of employment. 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 travelers.17 

Appellant’s alleged fall on April 25, 2017 occurred during lunch, not at a time when she 

may reasonably be said to be engaged in her employer’s business, and on a public sidewalk, not at 

a place where she may reasonably be expected to be in connection with her employment. While 

having lunch may be considered incidental to one’s employment under the personal comfort 

doctrine,18 the premises rule explicitly excludes off-premises lunches from course of 

employment.19

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 met her burden of proof to establish right shoulder, 

right hand, and right knee injuries on April 25, 2017 in the performance of duty.

 

14 See supra note 9.

15 Id; see also Sallie B. Wynecoff, 39 ECAB 186 (1987).

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

17 See M.L., supra note 6; R.O., supra note 9. 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.

18 See Nancy E. Barron, 36 ECAB 428 (1985) (where an employee broke a tooth while eating breakfast at her desk).

19 See supra note 9; see also D.S., Docket No. 16-1252 (issued December 1, 2016).
6

ORDER

IT IS HEREBY ORDERED THAT the January 19, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 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