United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.H., Appellant

and

DEPARTMENT OF COMMERCE, U.S. 

CENSUS BUREAU, AREA CENSUS OFFICE, 

Woodland Hills, CA, Employer

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Docket No. 20-0804

Issued: March 18, 2021

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, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 2, 2020 appellant filed a timely appeal from a February 26, 2020 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to 

consider the merits of this case.

ISSUE

The issue is whether appellant has met her burden of proof to establish an injury in the

performance of duty on January 6, 2020, as alleged.

FACTUAL HISTORY

On January 9, 2020 appellant, then a 63-year-old miscellaneous clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on January 6, 2020 at 7:45 a.m. she injured her hip and 

 

1 5 U.S.C. § 8101 et seq. 
2

buttock when she was startled by a stray dog and fell while walking from a retail store parking lot 

to the employing establishment’s area census office (ACO) in the performance of duty. On the 

reverse side of the claim form, the employing establishment controverted appellant’s claim noting 

that she had not started work at the time of the injury. Appellant’s regular work hours were 8:00 

a.m. to 4:30 p.m. On the reverse side of the claim form, Supervisor S.S. controverted the claim, 

contending that there was no written agreement between the employing establishment and the retail 

store where appellant fell. Rather, “an employee talked to the manager [of retail store] and got 

approval.”

In reports dated January 9, 2020, Dr. Barbara Ellen Scott, a Board-certified internist, 

opined that appellant’s January 6, 2020 fall, caused low back and left hip contusions. She noted 

work restrictions.

In a January 17, 2020 development letter, OWCP notified appellant of the deficiencies in 

her claim. It requested additional factual and medical evidence in support of her claim and 

provided a questionnaire for her completion. In a separate development letter dated January 17, 

2020, OWCP requested that the employing establishment provide additional information regarding 

appellant’s traumatic injury claim, including information about the parking lot where she fell and 

policies regarding the use of same. OWCP afforded both parties 30 days to respond. 

Appellant subsequently submitted a January 25, 2020 statement, asserting that she was 

injured “on the sidewalk just north of the [retail store] parking lot.” She asserted that the 

employing establishment had “required” her and other employees to park in the lot, which was not 

owned, controlled, or managed by the employing establishment. There was “no limit on the 

parking at this lot” and no assigned spaces.

In a January 22, 2020 letter of controversion, F.M., an employing establishment manager, 

contended that employees were not instructed to park in a specific location and that the employing 

establishment offered paid parking in its building. Employees could also choose to park on the 

street, at a nearby fitness facility, or at the retail store.

In a letter dated January 23, 2020, S.S. further controverted the claim. She contended that 

appellant stated on January 8, 2020 that she was injured at 7:30 a.m. on January 6, 2020, but 

changed the time of injury to 7:45 a.m. on her claim form. Appellant alleged that she was walking 

through a retail store’s parking lot and a dog startled her, causing her to fall and land on her left 

side. S.S. asserted that the parking lot where appellant fell was not an approved employee parking 

lot, and that employees could choose to park in several paid lots and garages. She noted that “due 

to the high cost of parking at the ACO and surrounding area,” an employee had asked the retail 

store’s manager if employing establishment personnel could park there and the request was 

granted.

In a January 24, 2020 letter, S.S. noted that according to the employing establishment’s 

space and leasing office, the parking facility was neither owned, controlled, nor managed by the 

employing establishment, and there was “no assigned parking [at the retail store]. There was just 

an agreement between [an employing establishment] employee and [retail store’s] manager.” 

Parking at the ACO came with a cost, whereas employees could park at the retail store without 

charge. 
3

In a letter dated February 24, 2020, J.P., an employing establishment compensation 

specialist, contended that appellant was not on the employing establishment’s premises or in the 

performance of duty at the time of the claimed injury.

Appellant also submitted medical evidence. In a January 22, 2020 report, Dr. Scott noted 

work restrictions. In a January 28, 2020 report, she returned appellant to modified duty from 

January 28 to February 25, 2020. Dr. Scott diagnosed a low back contusion and left sacroiliac 

joint pain.

By decision dated February 26, 2020, OWCP denied appellant’s traumatic injury claim, 

finding that she had not established that the January 6, 2020 traumatic injury occurred in the 

performance of duty, as alleged. 

LEGAL PRECEDENT

An employee seeking benefits under FECA2has 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 

time limitation period of FECA,3that 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.4 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.5

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.”

6

 To arise in the course of employment, in general, an 

injury must occur: (1) at a time when the employee may reasonably be stated to be engaged in the 

master’s business; (2) at a place when 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.7

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 

 

2 Supra note 1.

3 S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. 

Cameron, 41 ECAB 153 (1989).

4 M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 

312 (1988).

5 S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. 

Ellyett, 41 ECAB 992 (1990).

6 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).

7 S.V., Docket No. 18-1299 (issued November 5, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary 

Keszler, 38 ECAB 735, 739 (1987).
4

establishment, while the employees are going to or from work, before or after working hours or at 

lunch time, are compensable.8 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.”

9

The Board has also 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 authorized 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.10

Injuries arising on the premises may be approved if the employee was engaged in activity 

reasonably incidental to the employment, such as: (a) personal acts for the employee’s comfort, 

convenience, and relaxation; (b) eating meals and snacks on-premises; or (c) taking authorized 

coffee breaks.11

ANALYSIS

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

In a development letter dated January 17, 2020, OWCP notified appellant of the 

deficiencies in her claim. It requested additional factual and medical evidence in support of her 

claim and provided a questionnaire for her completion. The Board notes that the questions inquire 

into the ownership, control, and management of the retail store parking lot, and whether appellant

was required or authorized to park in this lot by the employing establishment. In a separate 

development letter dated January 17, 2020, OWCP also requested that the employing 

establishment provide additional information about the parking lot where appellant fell, and 

 

8 R.K., Docket No. 18-1269 (issued February 15, 2019); Narbik A. Karamian, 40 ECAB 617, 618 (1989); Eileen R. 

Gibbons, 52 ECAB 209 (2001).

9 C.L., Docket No. 18-0812 (issued February 22, 2019); Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

10 T.T., Docket No. 20-0383 (issued August 3, 2020); C.L., id.; R.K., id.; Diane Bensmiller, 48 ECAB 675 (1997); 

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

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

11 C.P., Docket No. 18-1741 (issued July 5, 2019); A.P., Docket No. 18-0886 (issued November 16, 2018); T.L., 

59 ECAB 537 (2008).
5

policies regarding the use of same. In response, the employing establishment provided an official 

position description indicating that appellant’s duties as a miscellaneous clerk included “clerical 

duties associated with office processing, including field operations, recruiting, testing, space and 

leasing, automation, personnel/payroll, and other administration operations, designed to support 

the responsibilities of the office assigned.” In a January 24, 2020 letter, S.S. noted that according 

to the employing establishment’s space and leasing office, the parking facility was neither owned, 

controlled, nor managed by the employing establishment, and there was “no assigned parking [at 

the retail store]. There was just an agreement between [an employing establishment] employee 

and [retail store’s] manager.” Parking at the ACO came with a cost, whereas employees could 

park at the retail store without charge. By decision dated February 26, 2020, OWCP denied 

appellant’s traumatic injury claim, finding that she had not established that the January 6, 2020 

traumatic injury occurred in the performance of duty as it occurred on a property that was not 

controlled, managed, owned, or within the influence of the employing establishment.

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.12 

On January 17, 2020 OWCP requested additional information from the employing establishment 

regarding the parking lot where appellant fell, and its policies regarding its use. The employing 

establishment, however, responded only by providing an official position description for the 

miscellaneous clerk position. In a January 24, 2020 letter, S.S. asserted that the parking facility 

was neither owned, controlled, nor managed by the employing establishment, and there was “no 

assigned parking [at the retail store].” Parking at the ACO came with a cost, whereas employees 

could park at the retail store without charge. Further development of the claim is therefore 

required.13 

On remand OWCP shall obtain additional information from the employing establishment 

including a statement from appellant’s supervisor explaining the policy of the employing 

establishment with regard to parking as it applied to appellant as a miscellaneous clerk. 

Additionally, as the provided position description does not explain the locus of her work duties, 

the employing establishment should provide additional information as to whether she was 

considered an off-premises employee. Following this and other such development as deemed 

necessary, OWCP shall issue a de novo decision regarding appellant’s traumatic injury claim.

CONCLUSION

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

 

12 A.C., Docket No. 16-0081 (issued August 15, 2016); Richard Kendall, 43 ECAB 790 (1992).

13 OWCP’s procedures require that OWCP request specific information from the employing establishment with 

regard to whether an off premises employee was injured in the performance of duty. See Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5 (August 1992).
6

ORDER

IT IS HEREBY ORDERED THAT the February 26, 2020 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: March 18, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board