United States Department of Labor

Employees’ Compensation Appeals Board

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L.P., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, LONG ISLAND ISLIPMacARTHUR AIRPORT, East Elmhurst, NY, 

Employer

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Docket No. 21-1079

Issued: February 2, 2022

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 1, 2021 appellant, through counsel, filed a timely appeal from an April 23, 2021 

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 an injury in the 

performance of duty on January 18, 2021, as alleged.

FACTUAL HISTORY

On March 5, 2021 appellant, then a 47-year-old security guard, filed a traumatic injury 

claim (Form CA-1) alleging that on January 18, 2021 at 10:00 a.m. she sustained a tibia stress 

fracture, torn ankle tendon, and right arm injury while in the performance of duty. She reported 

that she was leaving work en route to the employee parking lot when she “tripped and fell on the 

sidewalk between the terminal and [A]uto[P]lane building.” Appellant stopped work on 

January 19, 2021. On the reverse side of the claim form the employing establishment indicated 

that appellant was not injured in the performance of duty. It listed her regular work hours as 4:15 

a.m. to 12:45 p.m., Monday through Friday. 

An employing establishment field report dated March 1, 2021 indicated that on January 18, 

2021 appellant claimed to have fallen between the terminal and sidewalk next to the AutoPlane 

building.

Appellant submitted a January 27, 2021 report by Dr. John Feder, a Board-certified 

orthopedic surgeon, who recounted that on January 18, 2021 appellant fell and braced with her 

hands and hit her knees and left ankle. Dr. Feder provided examination findings, reviewed 

diagnostic testing, and diagnosed tear of the right peroneal tendon and ligament laxity. He also 

signed a medical form, report which indicated that appellant was unable to work from January 18 

through April 18, 2021.

In a March 15, 2021 letter, P.M., a human resources analyst for the employing 

establishment, asserted that on January 18, 2021 appellant was not on property owned or 

maintained by the employing establishment. He also asserted that appellant was off work at the 

time of the incident because she had left work early to attend an appointment.

A time and attendance summary indicated that on January 18, 2021 appellant worked 5.15 

hours on that day and used 8 hours of leave for “Paid Holiday Time Off.”

In a development letter dated March 16, 2021, OWCP notified appellant of the deficiencies

of her claim. It advised her of the factual and medical evidence necessary to establish the claim 

and attached a questionnaire for her completion. By separate development letter to the employing 

establishment of even date, OWCP requested additional information, including details about the 

parking lot where appellant was injured. It afforded both parties 30 days to respond.

Appellant completed the OWCP development questionnaire on March 22, 2021. She 

explained that she was “en route to the employing parking lot when the injury occurred.” 

Appellant reported that the location was between the airport terminal and the AutoPlane Auto 

Transport building right outside the airport terminal. She indicated that employees were required 

to park in the parking lot and that the parking lot was on the airport’s parking premises. Appellant 

noted that the town owned and operated the airport, including the airport parking premises. She 
3

claimed that employing establishment employees were required to park in the airport lot and were 

not required to pay for parking. 

In a March 31, 2021 letter, the employing establishment controverted appellant’s claim

alleging that the reported incident did not occur in the performance of duty because appellant was 

on premises that were not owned, operated, or controlled by the employing establishment. It also 

noted that there was no inclement weather on January 18, 2021. 

The employing establishment submitted a March 18, 2021 report by Dr. James Caviness, 

a Board-certified preventive medicine physician, who performed a records review and opined that 

appellant’s diagnosed medical conditions predated the reported incident and were not causally 

related to the claimed January 18, 2021 employment incident. 

On March 31, 2021 OWCP also received the employing establishment’s response to its 

development letter. The employing establishment responded, “No” to the question about whether, 

at the time of the alleged injury, appellant was on premises which were owned, operated, or 

controlled by this employing establishment. It also responded, “No” to the question regarding 

whether the parking lot was owned, controlled, or managed by the employing establishment. The 

employing establishment also indicated that employees were not required to park in this lot and 

that other options were available if an employee wished to pay for parking. It further reported that 

employees were not charged for parking as long as they parked in the lot authorized by the airport 

operator. The employing establishment provided two aerial photographs, which showed where 

the parking lot was located and the area where appellant was injured.

By decision dated April 23, 2021, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that appellant’s alleged injury “arose during the 

course of employment and within the scope of compensable work factors” as defined by FECA. 

Specifically, it found that the parking lot where she was injured was not part of the employing 

establishment’s premises and the parking lot was not owned, controlled or managed by the 

employing establishment. OWCP, therefore, concluded that the requirements had not been met to 

establish an injury as defined by FECA.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including that the individual is an employee of the United 

States within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation 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 

3

Id.

4

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

153 (1989). 
4

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

The phrase “sustained while in the performance of duty” has been interpreted by the Board 

to be the equivalent of the commonly found prerequisite in workers’ compensation law of “arising 

out of and in the course of employment.”

7

 The phrase “in the course of employment” is recognized 

as related to the work situation, and more particularly, relating to elements of time, place , and 

circumstance. 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 where 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.8 

It is well established as a general rule of workers’ compensation law that, under the 

premises doctrine, off-premises injuries sustained by employees having fixed hours and places of 

work while going to or from work or during a lunch period, are not compensable, as they do not 

arise out of and 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.9 

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,10 or which are in the nature of necessary 

personal comfort or ministration.11 One of these exceptions 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.12 The Board has determined that underlying the proximity principle 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.13 This exception has two 

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 R.R., Docket No. 19-0048 (issued April25, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., 

Docket No. 13-1402 (issued February 7, 2014); DeloresC.Ellyett, 41 ECAB 992 (1990).

7 C.L., Docket No. 19-1985 (issued May 12, 2020); S.F., Docket No. 09-2172 (issued August 23, 2010); Valerie C. 

Boward, 50 ECAB 126 (1998).

8 A.S., Docket No. 18-1381 (issued April8, 2019); RomaA. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary 

Keszler, 38 ECAB 735, 739 (1987).

9 V.P., Docket No. 13-0074 (issuedJuly 1, 2013); M.L., Docket No. 12-0286 (issued June 4, 2012); JohnM. Byrd, 

53 ECAB 684 (2002).

10 M.T., Docket No. 17-1695 (issued May 15, 2018).

11 J.L., Docket No. 14-368 (issued August22, 2014).

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

13 J.K., Docket No. 17-0756 (issued July 11, 2018); Eugene G. Chin, 39 ECAB 598 (1988).
5

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 

is concerned.14 

ANALYSIS

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

Whether an injury occurs in the performance of duty is a preliminary issue to be addressed 

before the remaining merits of the claim or adjudicated.15 On her Form CA-1 appellant has alleged 

that on January 18, 2021 she tripped and fell down on the sidewalk between the terminal and 

AutoPlane building on her way to the employee parking lot after work. The employing 

establishment has contended that appellant was not injured in the performance of duty because she 

was off duty at the time of the injury and was not on the employing establishment’s premises. 

In determining whether appellant’s injury on the sidewalk between the terminal and 

AutoPlane building occurred while in the performance of duty, the Board must first consider the 

factors necessary to determine whether the parking area that appellant was en route to should be 

considered part of the employing establishment’s premises.16 The Board has 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 employing establishment contracted for 

the exclusive use by its employees of the parking area, whether parking spaces in the garage were 

assigned by the employing establishment to its employees, whether the parking areas were checked 

to see that no unauthorized cars were parked in the garage, whether parking was provided without 

cost to the employees, whether the public was permitted to use the garage, and whether other 

parking was available to the employees. 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.17

In a March 16, 2021 development letter, OWCP requested additional factual information 

from the employing establishment with regard to whether appellant was in the performance of duty 

14 B.H., Docket No. 14-0829 (issued July 8, 2015).

15 T.H., Docket No. 17-0747 (issued May 14, 2018); P.L.,Docket No. 16-0631 (issued August 9, 2016);see also 

M.D., Docket No. 17-0086 (issued August3, 2017).

16 See R.E., Docket No. 18-0515 (issued February 18, 2020) (the Board first considered whether the parking area 

that appellant was walking from was considered part of the employing establishment’s premises before it considered 

whether the crosswalk between the parking area and the workplace should be considered part of the employing 

establishment’s premises); see also S.V., Docket No. 18-1299 (issued November 5, 2019) (the Board first considered 

whether a satellite parking lot was considered on the employing establishment’s premises before it considered whether 

an injury that occurred while the employee stepped off a transport bus had occurred on the employing establishment 

premises).

17 C.D., Docket No. 20-1174 (issued June 11, 2021);see also R.M., Docket No. 07-1066 (issued February 6, 2009); 

Diane Bensmiller, 48 ECAB 675 (1997); RosaM. Thomas-Hunter, 42 ECAB 500 (1991); Edythe Erdman, 36 ECAB 

597 (1985); KarenA. Patton, 33 ECAB 487 (1982).
6

when injured on January 18, 2021, including specific questions about the parking lot that appellant 

was on her way to after work. While the employing establishment responded to OWCP’s 

development letter, it provided only brief answers to OWCP’s questions without sufficient 

explanation. For example, it simply responded “No” to the question of whether the parking lot 

was owned, controlled, or managed by the employing establishment. The employing 

establishment provided no further explanation regarding who owned or maintained the parking lot 

or whether it contracted for the exclusive use of the parking lot. It also indicated that employees 

were not required to park in this parking lot and that “other options” were available if an employee 

wished to pay for parking. However, the employing establishment did not elaborate on the 

location, usage, and access of the other parking lots. Appellant alleged that employees were in 

fact required to park in the assigned parking lot in question. Despite receiving a response from the 

employing establishment, which did not fully answer the posed questions, OWCP did not conduct 

any further development of the evidence before it issued its decision.

18

 The Board finds, therefore,

that OWCP did not properly develop the evidence with respect to whether appellant’s slip-and-fall 

injury occurred on the employing establishment’s premises.19

The Board further finds that OWCP did not make adequate findings of fact regarding 

whether the alleged January 18, 2021 injury occurred within a reasonable interval after appellant’s 

work shift. It is well established that within the performance of duty includes a reasonable time 

before and after work to allow for coming and going.20 In this case, appellant’s regular work hours 

were from 4:15 a.m. to 12:45 p.m. and her fall occurred at 10:00 a.m. The employing 

establishment has asserted that appellant was off work at the time of her fall injury because she 

had left work early to attend an appointment. It included a time and attendance summary that 

indicated that appellant worked 5.15 hours on January 18, 2021. The Board finds, however, that 

the evidence of record is unclear regarding when appellant clocked out of work and whether she 

was on approved leave to attend an appointment at the time of the fall injury. OWCP did not 

request any information from the employing establishment regarding the circumstances 

surrounding when appellant’s work shift ended on January 18, 2021 and whether she was 

authorized to leave work at that time.21 Accordingly, the case must be remanded for further factual 

development in order for the Board to determine a “reasonable interval” after appellant’s work 

shift on January 18, 2021.

Proceedings under FECA are not adversarial in nature, and while appellant has the burden 

to establish entitlement to compensation, OWCP shares responsibility in the development of the 

18 See G.R., Docket No. 18-1490 (issued April4, 2019).

19 See S.V., supra note 16 (case was remanded for OWCP to obtain additional information from the employing 

establishment regarding whether a satellite parking lot was considered on the premises of the employing 

establishment). 

20 C.L., Docket No. 18-0812 (issued February 22, 2019); Wilmar Lewis Prescott, 22 ECAB 318 (1971).

21 See S.M., claiming as son of J.M., Docket No. 16-1725 (issued May 11, 2017) (Board remanded the case for 

OWCP to obtain additional information from the employing establishment regarding why appellant remained at work 

after his work shift ended).
7

evidence.22 It has an obligation to see that justice is done.23 OWCP procedures further provide 

that it should obtain relevant information, including relevant diagrams, from an official superior if 

it requires clarification before determining whether the employee was on the premises. 24 As 

OWCP failed to request all the information as required under its procedures, the Board will remand 

the case for OWCP to further develop the question of whether appellant was in the performance 

of duty when injured on January 18, 2021.25

On remand OWCP shall obtain further explanation from the employing establishment 

regarding whether the employing establishment contracted for the exclusive use by its employees 

of the parking area, whether parking spaces in the garage were assigned by the employing 

establishment to its employees, whether the parking areas were checked to see that no unauthorized 

cars were parked in the garage, whether parking was provided without cost to the employees, 

whether the public was permitted to use the garage, and where other parking was available to the 

employees. The employing establishment should also be asked to address whether the sidewalk 

on which appellant fell was owned or maintained by the employing establishment, 26 used 

exclusively or principally by employees of the employing establishment for the convenience of the 

employer,27 and whether the sidewalk was a necessary point of ingress/egress. 28 Lastly, the 

employing establishment should provide additional information regarding when appellant’s work

shift ended on January 18, 2021 and whether she was approved to leave work early. Following 

this and other such development as deemed necessary, OWCP shall issue a de novo decision 

regarding appellant’s traumatic injury claim.

22 See e.g., M.G., Docket No. 18-1310 (issued April16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); 

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); Michael Gallo, 29 ECAB 159, 161 (1978); WilliamN. Saathoff, 8 

ECAB 769, 770-71. 

23 See A.J., Docket No. 18-0905 (issued December 10, 2018); WilliamJ. Cantrell, 34 ECAB 1233, 1237 (1983); 

Gertrude E. Evans, 26 ECAB 195 (1974).

24 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(d), (f), and (g) 

(August 1992); see also L.P., Docket No. 17-1031 (issued January 5, 2018).

25 See R.H., Docket No. 20-1011 (issued February 17, 2021).

26 See J.K., Docket No. 17-0756 (issued July 11, 2018) (the Board found that an employee who slipped on ice on 

the sidewalk in front of the employing establishment’s door was not within the performance of duty because the rental 

lease showed that the employing establishment leased the property from a private owner who was responsible for 

maintaining the property space).

27 See IdalaineL. Hollins-Williamson, 55 ECAB 655 (2004) (the Board found that an employee’s slip-and-fall 

injury on a public sidewalk while walking from a parking lot to the employing establishment did not occur in the 

performance of duty as the employee did not establish that the sidewalk on which she fell was used exclusively or 

principally by the employees of the employing establishment).

28 See J.D., Docket No. 16-0104 (issued April5, 2016) (OWCP had found that an employee who slipped and fell 

on a sidewalk while leaving the parking lot to his duty station was within the performance of duty because the walkway 

between the parking lot and the employee’s duty station was a necessary point of ingress/egress).
8

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 23, 2021 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 2, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board