United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS BENEFITS ADMINISTRATION, 

Lakewood, CO, Employer

__________________________________________

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Docket No. 21-0941

Issued: September 20, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 8, 2021 appellant filed a timely appeal from a February 23, 2021 merit decision 

and an April 7, 2021 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case. 

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish an injury in 

the performance of duty on February 3, 2020, as alleged; and (2) whether OWCP properly denied 

appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On April 13, 2020 appellant, then a 69-year-old realty specialist, filed a traumatic injury 

claim (Form CA-1) alleging that on February 3, 2020 at 6:30 a.m. he injured his left knee and foot 

1

5 U.S.C. § 8101 et seq.
2

when he arrived at work to begin his shift and slipped and fell on ice-covered steps leading down 

to his duty station from a parking lot. On the reverse side of the form, appellant’s supervisor noted 

that appellant’s scheduled tour of duty began at 6:30 a.m. and acknowledged that he was in the 

performance of duty at the time of the injury. Appellant stopped work on the date of the claimed 

injury.

In a development letter dated April 16, 2020, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of evidence required to establish his claim and provided a 

questionnaire for his completion. In a second development letter of even date, it requested that the 

employing establishment indicate whether it concurred with appellant’s statements, and provide 

information regarding whether it owned, controlled, managed, or maintained the steps and parking 

lot where appellant had fallen. If the employing establishment did not control, manage, or maintain 

the steps and parking lot, OWCP requested information as to who owned these areas and who was 

responsible for their maintenance. It afforded both parties 30 days to respond.

In response, appellant submitted February 3, 2020 hospital emergency department 

discharge instructions for a knee sprain, and a February 4, 2020 prescription label from analgesic 

medication.

In a development questionnaire signed on April 28, 2020, appellant asserted that the 

parking lot and the steps where he fell were owned by a private-sector realty company and were 

not controlled or managed by the employing establishment.

In a May 13, 2020 statement, an employing establishment supervisor asserted that a 

private-sector realty company, owned the building where appellant worked, and that the company 

also managed and maintained the steps and parking lot.

By decision dated May 21, 2020, OWCP accepted that the February 3, 2020 incident 

occurred as alleged and that a medical condition had been diagnosed in connection with that event, 

but it denied the claim as the alleged injury did not occur in the performance of duty. It found that 

both appellant and the employing establishment asserted that the steps where he slipped and fell 

were not owned, controlled, managed, or maintained by the employing establishment, but by a 

private-sector realty company.

On January 21, 2021 appellant requested reconsideration. He contended that he was 

injured in the performance of duty as the employing establishment controlled and managed the 

area where he fell under a commercial leasing agreement with the private-sector realty company.

By decision dated February 23, 2021, OWCP denied modification of its prior decision. It 

found that appellant had not submitted a copy of the commercial leasing agreement to support his 

legal argument.

On April 5, 2021 appellant requested reconsideration on an appeal request form. He 

contended that an enclosed lease agreement established that he had been injured in the performance 

of duty as the employing establishment controlled and managed the employee parking lot and the 

steps where he had fallen.
3

OWCP received a copy of a commercial lease agreement between a private-sector realty 

company and the General Services Administration’s Public Buildings Service, executed on 

February 4, 2015, under which the employing establishment leased the building, parking lot, and 

the steps where appellant fell. Section 6.10 of the lease provided that the lessor would provide 

snow removal services of sidewalks, walkways, and other entrances when snow accumulation 

exceeded two inches no later than 5:00 a.m. The lease further provided that the “[l]essor shall 

keep walkways, sidewalks, and parking lots free of ice during the normal hours.” A map at page 

35 of the lease indicates that the steps where appellant fell were within the area leased by the 

employing establishment.

By decision dated April 7, 2021, OWCP denied reconsideration. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA has the burden of 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 time 

limitation period of FECA,2that an injury was sustained in the performance of duty as alleged,

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

to the employment injury.3 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 4

The phrase “sustained while in the performance of duty”

5

 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.”

6

 To arise in the course of employment,7in 

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 

 

2

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

153 (1989).

 

3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); Kathryn Haggerty, 45 ECAB 

383, 388 (1994); James E. Chadden, Sr., 40 ECAB 312 (1988).

 

4

See S.B., supra note 2; Irene St. John, 50 ECAB 521 (1999);Michael E. Smith, 50 ECAB 313 (1999).

 

5

5 U.S.C. § 8102(a); S.S., Docket No. 20-1349 (issued February 16, 2021); J.K., Docket No. 17-0756 (issued 

July 11, 2018).

 

6 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).

 

7

See L.P., Docket No. 17-1031 (issued January 5, 2018).
4

in connection with the 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, 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 compensable9 but, if the injury occurs off the premises, it is not compensable, 

subject to certain exceptions. 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 employing establishment does not have 

ownership and control of the place of injury, the place may nevertheless still be considered part of 

the premises.10

The Board has also held that the factors, which determine whether a parking area used by 

employees may be considered 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 area 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 area, 

whether parking was provided without cost to the employees, whether the public was permitted to 

use the area, and whether other parking was available to the employees. Mere use of a parking 

facility alone is insufficient to bring the parking area 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.11

ANALYSIS -- ISSUE 1

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

 

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

 

9 L.P., supra note 7; NarbikA. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general rule 

of workers’ compensation law in circumstances where the employee was on an authorized break. See EileenR. 

Gibbons, 52 ECAB 209 (2001).

 

10 K.M., Docket No. 20-1528 (issued March 23, 2022); C.L., Docket No. 19-1985 (issued May 12, 2020); Wilmar 

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

 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4f. (August1992); 

K.M., id.; C.L.,id.; R.K., Docket No. 18-1269 (issued February 15, 2019); Diane Bensmiller, 48 ECAB 675 (1997);

Rosa M. Thomas-Hunter, 2 ECAB 500 (1991); see also Edythe Erdman, 36 ECAB 597 (1985); KarenA. Patton, 33 

ECAB 487 (1982);R.M., Docket No. 07-1066 (issued February 6, 2009).
5

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

before the remaining merits of the claim are adjudicated.12 On his Form CA-1 appellant has 

alleged that on February 3, 2020 he slipped and fell on icy steps leading down from a parking lot 

to his duty station. In a May 13, 2020 statement, the employing establishment supervisor asserted 

that a private-sector realty company owned the building where appellant worked, and managed 

and maintained the parking lot and the steps where he fell.

In determining whether appellant’s injury on the steps between the parking lot and his duty 

station occurred while in the performance of duty, the Board must first consider the factors 

necessary to determine whether the parking area appellant was en route from should be considered 

part of the employing establishment’s premises.13 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. Mere use of a parking facility alone is insufficient to 

bring the parking garage 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.14

In an April16, 2020 development letter, OWCP requested additional factual information 

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

when injured on February 3, 2020, including specific questions about the ownership, management, 

and control of the parking lot and steps. While the employing establishment responded to OWCP’s 

development letter and explained that the parking lot, steps, and the building where appellant 

worked were owned by a private-sector realty company, it failed to elaborate on the terms of the 

employing establishment’s lease of these premises. Despite receiving a response from the 

employing establishment, which did not fully answer the question of whether appellant was in the 

 

12 T.H., Docket No. 17-0747 (issued May 14, 2018); P.L., Docket No. 16-0631 (issued August9, 2016);see also 

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

 

13 See L.P., Docket No. 21-1079 (issued February 2, 2022) (the Board first considered whether the parking area 

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

remaining merits of the claim); see also 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 sidewalk on which she fellshould 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).

 

14C.D., Docket No. 20-1174 (issued June11, 2021);see also R.M., supranote 11; Diane Bensmiller, 48 ECAB 675 

(1997); RosaM. Thomas-Hunter, 42 ECAB 500 (1991); Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 

ECAB 487 (1982).
6

performance of duty when injured, OWCP did not conduct any further development of the 

evidence before it issued its decision.15 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.16

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 

evidence.17 It has an obligation to see that justice is done.18 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. 19 As 

OWCP failed to request the factual information 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 February 3, 2020.

20

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 lot, whether parking was provided without cost to the employees, whether 

the public was permitted to use the lot, and where other parking was available to the employees. 

The employing establishment should also be asked to address whether the steps on which appellant 

fell were used exclusively or principally by employees of the employing establishment for the 

 

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

 

16 See L.P., supra note 13 (case was remanded for OWCP to obtain additional information from the employing 

establishment regarding whether the parking lot was considered on the premises of the employing establishment); see

also S.V., supra note 13 (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).

 

17 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.

 

18 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).

 

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

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

 

20 See R.H., Docket No. 20-1011 (issued February 17, 2021).
7

convenience of the employer,21 and functioned as a necessary point of ingress/egress.22 After this, 

and other such further development as necessary, OWCP shall issue a de novo decision regarding 

appellant’s traumatic injury claim.

23

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the February 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: September 20, 2022

Washington, DC

Alec J. Koromilas, 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

 

21 See Idalaine L. 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).

 

22 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).

23 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.