United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.D., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SAFETY 

ADMINISTRATION, Tulsa, OK, Employer

__________________________________________

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Docket No. 18-0617

Issued: February 13, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 30, 2018 appellant, through counsel, filed a timely appeal from a December 18, 

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 to over the merits of the 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 a traumatic injury 

in the performance of duty on March 10, 2017, as alleged.

FACTUAL HISTORY

On March 10, 2017 appellant, then a 60-year-old transportation security officer, filed a 

traumatic injury claim (Form CA-1) alleging that, at approximately 12:00 p.m. on that date, she 

tripped on uneven pavement when going to work. She noted that she “flew” across the sidewalk 

and landed on her knees and wrists, resulting in scratched and swollen knees and wrists. A 

coworker, S.G., provided a statement noting that while walking to work on March 10, 2017 she 

heard something and looked up and saw appellant lying on the ground under the covered sidewalk 

on B side parking. Appellant told S.G. that she tripped on the sidewalk.

Appellant’s supervisor, J.C., contended that appellant was not injured in the performance 

of duty. He noted that appellant’s injury occurred before the start of her work shift as her regular 

work hours were from 12:00 p.m. to 8:30 p.m., although he did not note the specific time of the 

fall, J.C. further noted that the injury occurred off of the employing establishment’s premises and 

that appellant was not involved in official off-premises duties.

By March 20, 2017 development letters, OWCP requested information from appellant and 

the employing establishment regarding the location and time of her injury. It also requested that 

she provide medical evidence in support of her claim. OWCP afforded 30 days for responses.3

Appellant provided treatment notes dated March 13, 2017 from Dr. Homer Hardy, an 

osteopath, diagnosing contusions of both knees.

On March 23, 2017 the employing establishment controverted appellant’s claim, asserting

that appellant’s injury occurred at 11:56 a.m. on March 10, 2017 when her work shift began at 

12:00 p.m. It noted that she had not clocked in for duty and was not in a work location when the 

injury occurred. The employing establishment reported that it did not own, lease, or maintain the 

area where appellant’s injury occurred. It further noted that it did not direct appellant to park her 

car in any of the various public parking lots that surrounded her duty station. 

 

3 Appellant submitted numerous reports to the record dating from March 10, 2017. On April 7 and 25, and June 26,

2017 Dr. Robert Coye, a Board-certified internist, diagnosed right medial knee pain. On May 9 and 30, June 1 and 6,

and July 18, 2017 Dr. James D. Cash, a Board-certified orthopedic surgeon, diagnosed bilateral knee contusions. On 

June 2, 2017 Dr. Kelly Lindauer, a Board-certified diagnostic radiologist, reviewed appellant’s magnetic resonance 

imaging (MRI) scan and found tear of the medial meniscus, chondromalacia, and effusion. Dr. Thomas Kern, a Boardcertified internist, examined appellant on July 31, 2017 and diagnosed derangement of medial meniscus of both knees.

Dr. Seth Migdalski, a psychiatrist, examined appellant on October 30, 2017 for emotional conditions. Appellant also 

submitted numerous reports from Timothy Marlow, Chad Perkins, Dianne Briscoe, and Eve Fitzpatrick, physician 

assistants, as well as notes from Whitney Ellsworth, a physical therapist. See K.J., Docket No. 16-1805 (issued 

February 23, 2018); M.M., Docket No. 17-1641 (issued February 15, 2018).
3

J.M., an AirServ supervisor, witnessed appellant’s fall and described the location as the 

sidewalk coming up from the B side parking.

By decision dated April 25, 2017, OWCP denied appellant’s traumatic injury claim finding 

that the evidence submitted was insufficient to establish that she was injured in the performance 

of duty. It found that she was not reasonably fulfilling the duties of her employment or doing 

something incidental thereto at the time of her injury. Appellant had not begun her tour of duty 

and was walking on a public road toward the employing establishment. OWCP noted that under 

FECA, an employee going to work who was injured off premises is not in the course of 

employment.

On May 4, 2017 counsel requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

In an e-mail dated July 16, 2017, appellant reported that she fell on the sidewalk between 

the employee parking lot and the employing establishment office. She noted that the parking was 

paid for by using the Green Option Commuter Card (For Federal Government Transit Subsidy Use

Only). Appellant’s card, provided by the employing establishment, allotted $240.00 and she paid 

parking costs of $135.00 every six months. She noted that she would fax a copy of the employerpaid parking receipt from July 14, 2017. 

In a letter dated July 31, 2017, counsel wrote that he was providing OWCP with medical 

records, physical therapy notes, and a “copy of the receipt and the subsidized public transportation 

pass paid for by the employing agency.”

Appellant testified during the oral hearing on October 6, 2017 before an OWCP hearing 

representative. She noted that she was required to wear a uniform for her position, including that 

she was required to wear her uniform while driving to work, but that the employing establishment 

regulated the activities she could perform in uniform. Appellant testified that the employing 

establishment rented a portion of the airport parking lot for its officers for security reasons and 

assigned them a place to park. The employing establishment required employees to go straight 

from the parking lot to the employing establishment without diversion. Appellant asserted that her 

parking was completely paid for by the employing establishment and that she had to park in an 

assigned area otherwise her car would be booted. She noted that the employing establishment 

provided her with a commuter payment card and a placard for her car. Appellant testified that 

there was only one sidewalk from the parking lot to her duty station and that no other route was 

available. She noted that her parking area was encircled by a six-foot fence and that she had a 

badge for that parking area. Appellant again alleged that she could not enter the employing 

establishment from another parking location. She noted that other airport employees parked in the 

fenced-off area including pilots and stewardesses. Counsel contended that it was not plausible that 

the employing establishment was not in control of the area as they paid for parking and that there 

was only one entrance that appellant could utilize to get to her duty station.

On December 5, 2017 the employing establishment terminated appellant’s employment. It 

noted that her appointment was subject to completion of a two-year trial period. The termination 

was noted to promote the efficiency of the service and was primarily based on her extensive use 

of leave.
4

By decision dated December 18, 2017, OWCP’s hearing representative found that 

appellant was injured on the walkway between the off-premises parking lot and the worksite. She 

noted that there was no evidence that the employing establishment controlled or maintained the

area where appellant’s fall occurred. OWCP’s hearing representative determined that the facts did 

not establish an exception to the premises rule and that appellant’s injury did not arise out of and 

in the course of her federal employment.

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’

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 stated to be 

engaged in the employing’s 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.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. 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.7 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.8 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.9 This exception contains two components. The first is the presence 

 

4 5 U.S.C. § 8102(a); J.K., Docket No. 17-0756 (issued July 11, 2018).

5 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).

6 See J.K., supra note 4; Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. 

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

7 D.K., Docket No. 11-1029 (issued February 1, 2012).

8 See J.K., supra note 4; Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).

9 1 Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3) (2006). See also J.K, supra note 4; R.O.,

Docket No. 08-2088 (issued May 18, 2009).
5

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

ANALYSIS

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

At the time of appellant’s injury she had fixed hours and place of work and she was 

walking, minutes prior to her scheduled start time, on a covered sidewalk between a secure parking 

facility and her duty station. She was in uniform per employing establishment policy at the time 

she fell. As she was walking between two locations, barring an exception to the general going and 

coming rule, appellant’s injury would be an ordinary, nonemployment hazard of the journey shared 

by all travelers.11 The issue, therefore, is whether the secure parking facility and/or the covered 

sidewalk should be considered a part of the employing establishment premises.

The premises of the employing establishment are generally extended when an employee 

must travel a public thoroughfare to traverse between two premises of the employing 

establishment.12 Appellant consequently may be covered under an exception to the general rule if 

the employing establishment exercised sufficient control over the parking facility or the covered 

sidewalk such that may be considered a part of the premises at the time of the injury.

13

The Board finds that this case is not in posture for decision as the record is insufficient to 

determine whether appellant was on the premises of the employing establishment at the time of 

the March 10, 2017 injury. As noted, in determining whether a secure parking facility 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 

spaces were assigned by the employing establishment, whether the area was 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.14 In the employing establishment’s contentions it noted that “the 

agency did not direct the claimant to park her car in any of the various public parking lots that 

surround her duty station.” That statement is contradicted by appellant’s testimony. Furthermore, 

that contention does not address the primary questions of whether appellant was required to park 

in Employee Parking Lot B, whether she was permitted to park in another lot at the airport, whether 

Employee Parking Lot B was a secure parking facility or open to the general traveling public, 

whether appellant’s parking was paid in whole or in part by the employing establishment, whether 

appellant had been assigned to park in Employee Parking Lot B, and whether the employing 

establishment had any responsibility for monitoring or inspecting the lot for security purposes or 

 

10 Id. at § 13.01(3)(b).

11 See R.B., Docket No. 11-1320 (issued September 5, 2012); Denise A. Curry, 51 ECAB 158 (1999).

12 Id.

13 M.P., Docket No. 16-0507 (issued August 11, 2016). 

14 Supra note 11; see also L.P., Docket No. 17-1031 (issued January 5, 2018).
6

paid a third party for such services. The contention also fails to address whether the covered 

sidewalk where appellant’s fall occurred lies on the only route, or at least on the normal route, 

which employing establishment employees must traverse to reach the premises after parking their 

vehicles.

15

 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

The employing establishment, in the development letter of March 20, 2017, was asked to 

provide a diagram showing the boundaries of the employing establishment premises and the 

location of the injury site in relation to the premises. No such diagram is found to be of record. 

As such, the Board finds that the record is incomplete.17

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

On remand OWCP should obtain information from the employing establishment relating 

to the secured parking facility and the covered sidewalk. The deficiencies in the evidence of 

record, as noted herein, should be addressed so that an informed determination can be made 

regarding whether appellant was in the performance of duty and under any control by the 

employing establishment at the time of her injury. If so, OWCP should adjudicate whether the 

factual and medical evidence establishes that she sustained an employment injury as alleged. 

Following such further development as deemed necessary, OWCP shall issue a de novo decision.

 

15 See, Diane Bensmiller, 48 ECAB 675 (1997) (where the claimant was specifically directed to park in an offpremises lot with a hazardous condition resulted in constructed premises).

16 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).

17 Counsel, in a letter dated July 31, 2017, noted that he had provided OWCP with a copy of a receipt and the 

subsidized public transportation pass paid for by the employing establishment. Neither of those items are found to be 

of record. 

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

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the December 18, 2017 decision of the Office of 

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

consistent with this decision of the Board.

Issued: February 13, 2019

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