A.S. and Department of Homeland Security, Transportation Safety Administration (Board decision, March 21, 2024)

ECAB remand decision. The Board set aside OWCP's denial because the fall occurred in the performance of duty, then remanded for review of the medical evidence. Whether the worker has a compensable injury and disability remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

An airport compliance specialist fell in an employee parking lot shortly before his shift and injured his left arm. OWCP denied the claim because it viewed the lot as outside the employer's premises and the fall as occurring before work. The Board found that the employer arranged and subsidized parking in an employee-only area, making it part of the workplace for this purpose. The worker also arrived within a reasonable time before his shift. The Board set aside the denial and directed OWCP to consider the medical evidence and any resulting disability.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: OWCP denial set aside; medical issues remanded.
• Key point: A subsidized employee parking area counted as workplace premises for the pre-shift fall.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.S., Appellant
)
)
and ) Docket No. 21-1143
) Issued: March 21, 2024
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SAFETY
)
ADMINISTRATION, San Jose, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Christina Faliero, 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 July 22, 2021 appellant, through counsel, filed a timely appeal from a June 2, 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.3

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.
3
The Board notes that, following the June 2, 2021 decision, OWCP received additional evidence. The Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. ISSUE

The issue is whether appellant has met his burden of proof to establish an injury on August 31, 2020 in the performance of duty.

FACTUAL HISTORY

On September 4, 2020 appellant, then a 59-year-old compliance, inspection, and support specialist, filed a traumatic injury claim (Form CA-1) alleging that on August 31, 2020 at approximately 12:35 p.m., he fractured his left arm while in the performance of duty. He explained that he tripped and fell on the second floor of the Terminal A employee parking lot at the San Jose International Airport (Airport). On the reverse side of the claim form, the employing establishment controverted the claim, asserting that appellant was not on duty at the time of the injury, and that he was injured before his shift began. Appellant stopped work on August 31, 2020.

In a development letter dated September 17, 2020, OWCP advised appellant of the factual and medical evidence necessary to establish his claim and attached a questionnaire for his completion. In a separate development letter of even date, it posed a series of questions to the employing establishment relative to parking, including whether the parking lot was owned, controlled, or managed by the employing establishment, whether appellant was required to use/park in the lot, and whether other parking was available. OWCP afforded both parties 30 days to respond to its request.

Thereafter, OWCP received a doctor’s first report of occupational injury or illness dated August 31, 2020 from Dr. Kory Michael Gebhardt, a Board-certified emergency medicine specialist, who indicated that appellant related complaints of left upper arm pain which he attributed to tripping and falling into a concrete wall. Dr. Gebhardt reviewed x-rays of the left elbow, humerus, and shoulder, which he noted revealed a comminuted fracture of the proximal and mid left humeral diaphysis with a fracture line extending into the proximal left humeral metaphysis. He diagnosed a left upper arm injury and checked a box marked “Yes” that his findings and diagnosis were consistent with the patient’s account of the injury.

In a September 2, 2020 medical note, Dr. Howard Lin, an internal medicine specialist, noted that appellant related a history of tripping and falling in a parking lot at work on August 31, 2020. He diagnosed a left humerus fracture and recommended ongoing bracing and a surgical consultation.

In a report of even date, Dr. Liliana C. Sackett, an occupational medicine specialist, discussed appellant’s ongoing complaints of pain in the left shoulder which he attributed to a trip and fall accident in a parking lot at work on August 31, 2020. On examination she found tenderness and swelling. Dr. Sackett diagnosed a left humerus fracture and recommended appellant remain out of work until September 17, 2020. She checked a box marked “Yes” that her findings and diagnosis were consistent with the patient’s account of the injury.

In an October 5, 2020 response to OWCP’s questionnaire, the employing establishment provided photographs of the employee parking area and a statement indicating that appellant’s injury occurred in the employee parking area of the Terminal A parking lot at 12:35 p.m. on August 31, 2020. It advised that his shift began at 1:00 p.m., and that therefore he was not on duty at the time of the incident. The employing establishment asserted that the City of San Jose owned

2 the parking lot and required an application to be completed by airport employees for its use. It maintained that it did not own, lease, control or manage the parking area. The employing establishment advised that Terminal A contained both public and employee parking and that appellant was not required to park in the lot. The parking spaces were not assigned, but the area was monitored for unauthorized vehicles. Appellant was responsible for the parking media use and display. The employing establishment paid the monthly parking fee for employees enrolled in its parking assistance program. Appellant was not entitled to reimbursement for travel to and from the parking lot.

In a separate statement of even date, the employing establishment advised that the City of San Jose owned the parking lot, and required applications from employees for its use. It asserted that it did not own, lease, or manage any parking area. The parking lot was across the street from Terminal A.

The employing establishment submitted a photograph of the gate of the Terminal A garage showing employee parking to the left. It indicated that public parking was to the right inside the garage.

In an October 7, 2020 report, Dr. Sackett noted that appellant had undergone updated x-rays and had seen Dr. Lin for a follow-up appointment. In a work status report of even date, she recommended that he remain off from work through October 22, 2020 due to incapacitating pain from a left humerus fracture.

By decision dated October 20, 2020, OWCP denied appellant’s traumatic injury claim, finding that he had not established that the August 31, 2020 traumatic injury occurred in the performance of duty.

In an October 22, 2020 report, Dr. Sackett noted that appellant had seen Dr. Lin on October 21, 2020 and that Dr. Lin had recommended ongoing fracture bracing for an additional four weeks. She reviewed the results of x-rays taken on October 21, 2020, and noted re- demonstration of comminuted displaced humeral diaphyseal fracture with apex lateral angulation and mild callus formation at the superolateral and inferomedial aspect with persistent lucent fracture lines. Dr. Sackett diagnosed left humerus fracture and compensatory left wrist joint pain and recommended appellant remain off from work through November 19, 2020.

Dr. Lin, in a November 18, 2020 progress report, found mild discomfort with resisted shoulder abduction and elbow flexion. X-rays obtained at the visit documented stable angulated comminuted left mid humerus fracture with mild callusing. Dr. Lin diagnosed a left humerus fracture and recommended continued bracing, a bone stimulator trial for 10 to 12 weeks, and instructed that appellant should avoid stress on the left upper arm such as lifting and aggressively swinging the arm.

In a November 19, 2020 report, Dr. Sackett reviewed updated x-rays dated November 18, 2020, which revealed stable angulated comminuted left mid humerus fracture with mild callusing. She diagnosed a left humerus fracture and compensatory left wrist joint pain and recommended appellant remain off from work through December 10, 2020.

On March 8, 2021 appellant, through counsel, requested reconsideration of the October 20, 2020 decision. Counsel contended that the employing establishment exclusively contracted for its employees to use the parking lot, and that it was one of only two parking areas designated for use 3 by its employees. She asserted that ownership was not the only consideration in determining premises, noting that the City of San Jose was the owner of the entire airport. Counsel advised that appellant had to display authorization to park in the lot, that the authorization was also used for entry, and that the lot was checked for unauthorized vehicles. He noted that the employing establishment paid the monthly parking fee. Counsel asserted that the public was not allowed to park in the specific lot in Terminal A used by appellant, noting that it was monitored for entry. He advised that appellant would have to pay to park in another lot.

Counsel submitted a March 5, 2021 statement from appellant, who asserted that he fractured his left humerus on August 31, 2020 when he fell in an employer-subsidized employee parking area at 12:35 p.m., immediately prior to his shift. The location of the fall was “Terminal A, Lot 2, Employee Lot, Second Floor.” Appellant explained that the employing establishment contracted with the Airport for its employees to park in two subsidized lots, the employee parking areas of Terminal A, Lot 2, where he fell, and Terminal B, Lot 4, which had been recently added. He noted that other airport employees can park in these lots; however, the employing establishment specially contracted for its employees to use only these two lots. Appellant indicated that Terminal A, Lot 2 was divided into multiple sections, and that he fell in an area reserved exclusively for employees who worked at the Airport. The public did not have access to the employee parking area of Terminal A, Lot 2, and the lot was monitored for parking compliance. Appellant further noted that the employing establishment paid $45.00 per month for its employees to park in the two identified lots, and that they were the only lots that it had contracted for its employees to use. He indicated that he does not have an assigned space in the lot, but that the employing establishment contracted for the use of one available parking spot for each of its employees enrolled in its parking subsidy program. Appellant further explained that if he parked in any other lot closer to his workstation, he would be responsible for paying the daily parking fee. He related that he had requested that the employing establishment provide subsidized parking closer to his work location, but that it had refused because it contracted for its employees to only park in the employee parking areas of Terminal A, Lot 2 and Terminal B, Lot 4.

In further support of his request, appellant submitted an excerpt from Article 10 of the collective bargaining agreement between the union and the employing establishment. It indicated that the employing establishment had determined that providing full parking subsidies for its bargaining unit employees at their airport duty station was necessary to attract and retain qualified security screening personnel, and to avoid significant impairment of its operating efficiency at the nation’s airports. The agreement further indicated that employing establishment management would provide full parking subsidies to bargaining unit employees who park in designated lots, and that to be eligible for the subsidies, bargaining unit employees must comply with the requirements of the program.

By decision dated June 2, 2021, OWCP denied modification of its prior decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has 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

4
Supra note 2.

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United States within the meaning of FECA,5 that the claim was timely filed within the applicable time limitation period of FECA, that 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.6 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.7

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.”8 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.9

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 compensable.10 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.”11

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

5
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). 6 M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
7
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).
8
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).
9
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). 10 E.O., Docket No. 19-0390 (issued January 9, 2020); 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). 11 R.K., Docket No. 20-1638 (issued December 14, 2022); C.L., Docket No. 18-0812 (issued February 22, 2019);
Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

5 use of a parking facility alone is insufficient to bring the parking garage within the definition of 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.12

ANALYSIS

The Board finds that appellant has met his burden of proof to establish that the August 31, 2020 employment incident occurred in the performance of duty.

Appellant alleged that he sustained an injury to his left arm on August 31, 2020 when he slipped and fell in a parking garage. OWCP denied his claim because it found that the parking garage where his fall occurred was not part of the employing establishment premises.

The Board finds that the employee parking lot was the constructive premises of the employing establishment. The employing establishment arranged for use of the lot and provided subsidies for its employees to park in the employee parking areas at Terminal A, Lot 2, where appellant fell, and Terminal B, Lot 4. The parking was restricted to employees and the public did not have access to these lots. Appellant was responsible for displaying the parking media and the area was routinely monitored for compliance. The employing establishment paid a monthly fee for appellant to park at Terminal A, Lot 2, which entitled him to one unreserved space in the lot. In addition, the collective bargaining agreement confirmed that the employing establishment had determined that providing full parking subsidies for its bargaining unit employees at their airport duty station was necessary to attract and retain qualified security screening personnel, and to avoid significant impairment of its operating efficiency at the nation’s airports. Under these circumstances, the Board finds that the location where appellant fell in the employee parking area at Terminal A, Lot 2, was part of the employing establishment premises.13

The Board further finds that appellant was engaged in activities which may be described as incidental to his or her employment.14 Appellant had fixed hours and a fixed place of employment and fell at 12:35 p.m. prior to beginning his 1:00 p.m. shift. The Board finds that this constitutes a reasonable interval of time to arrive on the premises of the employing establishment for reasons related to work.15

The Board, therefore, finds that appellant has met his burden of proof to establish that his fall in the employee parking area of Terminal A, Lot 2 on August 31, 2020 occurred in the performance of duty.

12
S.V., Docket No. 20-1586 (issued February 24, 2022); S.S., Docket No. 20-1349 (issued February 16, 2021); T.T., Docket No. 20-0383 (issued August 3, 2020); C.L., id.; R.K., supra note 10; R.M., Docket No. 07-1066 (issued February 6, 2009); Diane Bensmiller, 48 ECAB 675 (1997). 13 See S.V., id.; G.E., Docket No. 14-843 (issued September 23, 2014); B.I., Docket No. 12-1069 (issued January 11, 2013).
14
G.E., id.; I.F., Docket No. 12-0192 (issued September 26, 2013).
15
See I.F., id.; B.B., Docket No. 13-1730 (issued January 13, 2014).

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 As appellant has established that the August 31, 2020 employment incident occurred in the performance of duty, the question becomes whether this incident caused an injury.16 As OWCP found that he had not established that he was in the performance of duty, it did not analyze or develop the medical evidence.17 Thus, the Board will set aside OWCP’s June 2, 2021 decision and remand the case for consideration of the medical evidence.18 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision addressing whether appellant has met his burden of proof to establish a diagnosed medical condition causally related to the accepted August 31, 2020 employment incident and any attendant disability.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the June 2, 2021 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further action consistent with this decision.

Issued: March 21, 2024
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

16
C.H., Docket No. 19-1781 (issued November 13, 2020); A.C., Docket No. 18-1567 (issued April 9, 2019).
17
S.W., Docket No. 17-0261(issued May 24, 2017); R.W., Docket No. 11-0362 (issued October 24, 2011).
18
W.R., Docket No. 17-0287 (issued June 8, 2018).

7