United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.P., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, East Elmhurst, NY, 

Employer

__________________________________________

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Docket No. 23-0378

Issued: September 25, 2023

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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 13, 2023appellant, through counsel, filed a timely appeal from a December 14, 

2022 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 a traumatic injury 

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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

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, T.P., appellant’s supervisor, indicated 

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

a.m. to 12:45 p.m., Monday through Friday. Appellant also submitted medical evidence in support 

of her claim. 

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 she 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. 

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

deficiencies of her claim. It advised her of the type of 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 questionnaire on March 22, 2021. She reported that the 

alleged incident occurred between the airport terminal and the Auto Plane Auto Transport building 

right outside the airport terminal. Appellant explained that employees were required to park in the 

parking lot, were not required to pay for parking, and that the town owned and operated the parking 

premises. 

3 Docket No. 21-1079 (issued February 2, 2022).
3

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 she was on 

premises which were not owned, operated, or controlled by the employing establishment. 

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 the 

locations of the parking lot and the area where appellant had fallen. 

By decision dated April 23, 2021, OWCP denied appellant’s traumatic injury claim, 

finding that she had not established that the January 18, 2021 traumatic injury occurred in the 

performance of duty. 

On July 1, 2021 appellant, through counsel, appealed to the Board. By decision dated 

February 2, 2022, the Board set aside the April 23, 2021 OWCP decision, finding that OWCP 

failed to properly develop the factual evidence with respect to whether appellant’s January 18, 

2021 employment incident occurred while in the performance of duty.4 It remanded the case for 

OWCP to obtain clarifying information from the employing establishment and determine whether 

the parking lot was part of the employing establishment’s premises, whether the sidewalk on which 

she fell was owned or maintained by the employing establishment, and whether she was approved 

to leave work early. 

In a development letter dated March 9, 2022, OWCP requested additional information from 

the employing establishment. It provided a series of questions about the employing 

establishment’s premises, the parking lot where appellant was walking to, the location where she

fell, and her duty status at the time of the alleged injury. OWCP afforded the employing 

establishment 30 days to respond. 

In an April 6, 2022 response, 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 the 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 explained that the parking lot was managed by Long 

Island MacArthur Airport and that the airport provided parking for all employees without cost. It

also indicated that the general public was not allowed to use the parking lot, employees were not 

required to park in this lot, and that other parking options were available to employees if they 

wished to pay for parking. The employing establishment also responded “No” to the question 

about whether the employing establishment contracted for the exclusive use of the parking area by 

its employees. It further indicated that the sidewalk where appellant fell was not owned or 

4

Id. 
4

maintained by the employing establishment and was the point of ingress or egress for the parking 

lot. Regarding herwork status, the employing establishment noted that she was authorized to leave 

work at 10:00 a.m. on January 18, 2021. 

The employing establishment provided an email dated March 18, 2021 from T.P. who 

indicated that appellant was scheduled to work until 12:45 p.m., but had requested, and had been 

approved to leave early utilizing holiday leave. T.P. noted that she went off duty at 10:00 a.m. He

provided a request for leave or an approved absence form dated January 18, 2021. 

By decision dated December 14, 2022, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish that she was in the performance of 

duty at the time of the alleged January 18, 2021 employment injury. 

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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,6that 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.7 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.8

FECA provides compensation for disability of an employee resulting from personal injury 

sustained while in the performance of duty.9 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.”

10

 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 where he or she 

may reasonably be expected to be in connection with his or her employment; and (3) while he or 

5

Supra note 2.

6

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

153 (1989). 

7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

8 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); Delores C. Ellyett, 41 ECAB 992 (1990).

9

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

10 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).
5

she was reasonably fulfilling the duties of his or her employment or engaged in doing something 

incidental thereto.11 

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 only occurs off the premises, it is not compensable, subject 

to certain exceptions.12 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 employer does not have ownership and control of 

the place of injury, the place may nevertheless still be considered part of the “premises.”

13

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 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

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish an injury in the 

performance of duty on January 18, 2021 as alleged.

In its previous decision, the Board remanded the case for further factual development 

regarding appellant’s work status at the time of the January 18, 2021 employment incident. On 

remand OWCP issued a development letter. In response, appellant’s supervisor confirmed that 

appellant was approved to leave work early at 10:00 a.m. on January 18, 2021 and appellant 

indicated on her Form CA-1 that her fall occurred at 10:00 a.m. The evidence of record establishes, 

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

Keszler, 38 ECAB 735, 739 (1987).

12 R.E., Docket No. 18-0515 (issued February 18, 2020); S.V., Docket No. 18-1299 (issued November 5, 2019); 

M.L., Docket No. 12-0286 (issued June 4, 2012); John M. Byrd, 53 ECAB 684 (2002).

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

14 J.C., Docket No. 21-0941 (issued September 20, 2022); 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); Karen A. Patton, 33 ECAB 487 (1982).
6

therefore, that appellant’s alleged injury occurred within a reasonable time after the end of her 

approved work shift on that date.

15

The Board has held that the premises of the employer are generally extended where an 

employee must travel a public thoroughfare to traverse between two premises of the employer. 16 

In order to determine whether the sidewalk between the terminal and Auto Plane building where 

appellant’s January 18, 2021 fall occurred should be considered part of the employing 

establishment’s premises, the Board must first determine whether the parking lot in which she was 

parked is considered to be part of the employing establishment premises. 17

OWCP issued a development letter to the employing establishment on March 9, 2022. In 

response, the employing establishment asserted that the parking lot was not owned, controlled, or 

managed by the employing establishment, but explained that it was managed by Long Island 

MacArthur Airport. It also indicated that it did not contract for the exclusive use of the parking 

lot by its employees, but that the airport provided parking for all employees without cost. The 

employing establishment also indicated that appellant was not required to park in this lot and could 

park elsewhere if she was willing to pay for parking. 

As noted above, in determining whether a parking lot or garage should be considered as 

part of the employing establishment’s premises, the Board must consider such factors as whether 

the employer contracted for its exclusive use by its employees, whether the employing 

establishment assigned parking spaces, whether the parking area was checked to see that no 

unauthorized cars were parked in the lot, whether the public was permitted to use the lot, whether 

parking was provided without cost to the employment establishment employees, and whether other 

parking was available to the employees.18

The Board finds that appellant has not established that the parking lot that she was en route 

to when the January 18, 2021 employment incident occurred was used exclusively by employees 

of the employing establishment. In this case, the evidence of record indicates that the parking area 

was controlled and managed by the local airport and that the employing establishment did not 

contract for the exclusive use of the parking area for its employees. The employing establishment 

has also asserted that appellant was not required to park in this lot and that other parking was 

15 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4a(3)

(August 1992). See also C.L., Docket No. 18-0812 (issued February 22, 2019) (finding that a fall which occurred

three minutes after the end of the work shift happened within a reasonable interval after work); John F. Castro, Docket 

No. 03-1653 (issued May 14, 2004).

16 See R.B., Docket No. 11-1320 (issued September 5, 2012).

17 See K.M., Docket No. 20-1528 (issued March 23, 2022) (the Board first considered whether the parking lot that 

claimant was enroute to should be considered part of the employing establishment’s premises before it considered 

whether the covered sidewalk between the employing establishment and the parking area should be considered part 

of the employing establishment’s premises); see also R.E., supra note 12 (the Board first considered whether the 

parking area that claimant 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). 

18 Supra note 14.
7

available if employees wished to pay for parking. While appellant has alleged that she was 

required to park in the airport parking lot, she has not provided evidence to establish that she was 

required to park in that parking lot or assigned a specific parking space.

The Board finds that, under the circumstances of the case, the parking lot that appellant 

was en route to when she slipped and fell on January 18, 2021 was not part of the premises of the 

employing establishment.19 As the parking area was not part of the employing establishment 

premises, the off-premises point at which the injury occurred (i.e., the sidewalk outside the 

terminal) does not lie on the only route or on the normal route which employees must traverse to 

reach the premises, such that the special hazards of that route become the hazards of the 

employment.20 

As the evidence of record is insufficient to establish an injury in the performance of duty 

on January 18, 2021 as alleged, the Board finds that appellant has not met her burden of proof. 

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(a) 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 an injury in the 

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

19 See R.K., Docket No. 20-1638 (issued December 14, 2022); J.B., Docket No. 17-0378 (issued 

December 22, 2017).

20 See K.M., supra note 17; see also F.S., Docket No. 09-1573 (issued April 6, 2010).
8

ORDER

IT IS HEREBY ORDERED THAT the December 14, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 25, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board