United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.B., claiming as widow of G.B., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Adelanto, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-2000 

Issued: July 9, 2015 

Appearances: Case Submitted on the Record

Brett E. Blumstein, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 17, 2014 appellant, through counsel, filed a timely appeal from an 

August 26, 2014 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 over the merits of this case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s claim for survivor benefits as the 

employee’s death on March 8, 2012 did not occur in the performance of duty. 

FACTUAL HISTORY 

On March 14, 2012 appellant filed a claim for survivor’s benefits (Form CA-5) in 

connection with the March 8, 2012 death of the employee. She indicated that on March 8, 2012 

 1

 5 U.S.C. §§ 8101-8193. 
2

the employee, then a 32-year-old correctional officer, was “murdered [by] gunshot.”2

 The 

employing establishment submitted an official superior’s report of the employee’s death (Form 

CA-6) which listed the date and time of the employee’s death as March 8, 2012 at approximately 

9:45 p.m. and indicated that the death occurred at the Embassy Suites Hotel in Lompoc, CA. 

The immediate cause of death was listed as “gunshot wound” and, fellow correctional officer, 

Timothy McNally, was listed as the third party who caused the employee’s death.3 

The record contains a Travel Authorization/Advance Form showing that on March 8, 

2012 the employee was on travel-duty status for the purpose of attending training. The travel 

duty started on February 27, 2012 and was intended to last until March 9, 2012.4

 OWCP received a Santa Barbara County death certificate, issued on March 20, 2012, 

which indicated that the employee died on March 8, 2012 in a “hotel room” in Lompoc, CA, that 

the cause of death was “pending investigation,” and that the employee had not been embalmed.5

 In an October 18, 2012 letter, OWCP requested that appellant submit additional factual 

and medical evidence in support of her claim for survivor’s benefits. 

 Appellant submitted an amended version of the Santa Barbara County death certificate, 

issued on May 31, 2012, which now listed the cause of death as “gunshot wound of neck.” This 

amended death certificate is not entirely legible. 

In a March 12, 2012 autopsy report, the physician who performed the autopsy indicated 

that there was a gunshot wound to the employee’s left anterolateral neck and that the injury was 

the immediate cause of death. The gunshot wound was described as a distant-range gunshot 

wound with secondary damage to the vasculature of the left side of the neck, anterior cervical 

spine, and right jugular vein. The wound track through the body was noted to be right to left, 

somewhat downward at a 30-degree angle without significant deviation in an anterior-posterior 

plane. 

OWCP received a toxicology report dated April 18, 2012 which indicated that the 

employee had Methylenedioxypyrovalerone (commonly known as a main component of “bath 

salts”) in his system at the level of 180 nanograms per milliliter. The toxicology report noted 

that this was a synthetic stimulant reported to have affects similar to Methylphenidate at low 

doses and cocaine at higher doses. It was indicated that the adverse effects of this drug were 

insomnia, severe agitation/anxiety, panic attacks, kidney pain, stomach cramps, tachycardia, 

 

 2 Appellant submitted various documents, including a marriage certificate memorializing her marriage to the 

employee on January 23, 2003, birth certificates for her dependents, and a statement of funeral expenses for the 

employee. On the Form CA-5 she indicated that she was not living at the same address as the employee at the time 

of his death. In a statement signed on December 16, 2013, appellant attested to the fact that she was not legally 

separated or divorced from the employee at the time of his death on March 8, 2012. 

3

 It appears that Mr. McNally was a prison guard for the employing establishment, but was not on travel-duty 

status on March 8, 2012. 

4

 The employee’s regular duty station was in Adelanto, CA. 

5

 The document lists appellant as the employee’s spouse at the time of his death on March 8, 2012. 
3

hypertension, dilated pupils, tinnitus, peripheral neuropathies, and dizziness. The employee also 

had Methylone at the level of 8.2 nanograms per milliliter in his blood. Methylone is the main 

ingredient in a designer drug called “Explosion” which can cause euphoria, agitation, sweating, 

nausea, vomiting, dilated pupils, seizures, hyponatremia, and confusion when the drug is used in 

bath salts. The presence of a designer psychedelic tryptamine, 5-MeO DALT, was also noted. 

This drug is an unscheduled pharmacological agent in the United States. The employee also 

tested positive for Lidocaine, an anesthetic often used as a “cutting” agent for drugs of abuse. 

OWCP received a narrative report that was produced by Officer Corey Cox of the 

Lompoc Police Department on March 10, 2012. Officer Cox noted that he was dispatched to 

investigate suspicious text messages in which Mr. McNally had indicated that he had shot his 

friend in the neck.6

 Officer Cox contacted a coworker of Mr. McNally’s who indicated that he 

had been invited to “hang out” with Mr. McNally and the employee in the employee’s hotel 

room at the Embassy Suites Hotel, in Lompoc, CA, but noted that he declined the invitation 

because he had recently had an argument with Mr. McNally. Officer Cox and a Sergeant Stetz 

then traveled to the Embassy Suites Hotel and hotel staff directed them to Room 113. Through 

an opening in a curtain they observed several beer cans as well as several energy drink cans. 

Officer Cox gained entry through a sliding door and discovered the employee’s body. 

Paramedics arrived shortly thereafter and confirmed that the employee was deceased. Several 

officers then traveled to Mr. McNally’s residence in Lompoc, CA, and he was taken into custody 

without incident. 

A supplemental report was completed on March 10, 2012 by Officer Agustin Arias, who 

discussed the investigation that was carried out in Room 113 of the Embassy Suites Hotel by a 

team of officers. A coworker of the employee informed the officers that, at approximately 7:00 

p.m. on March 8, 2012, he had drunk a couple beers with the employee at the hospitality hour 

provided by the Embassy Suites Hotel. Another individual stated that he had seen the employee 

in Room 113 before dinner and indicated that he saw a person there he knew by the name 

“Scrappy” who was supposed to give the employee a tattoo. Officer Arias indicated that the 

individual explained that the employee was sitting on the couch and Scrappy was in a chair next 

to the couch and that both seemed to be in good spirits. A pistol was observed in a holster on the 

table and nothing was noted to be out of the ordinary. 

Officer Arias then traveled to the Lompoc Police Department and interviewed 

Mr. McNally after reading his Miranda rights. Mr. McNally stated that he was in the hotel room 

with the employee on March 8, 2012 and indicated that they had been drinking for most of the 

day and were “messing around.” The employee was sitting on the bathtub near the toilet as if he 

was going to throw up. Mr. McNally stated that he started to make fun of the employee by 

calling him a “sissy.” He indicated that his handgun was in his hand while he was standing 

approximately 14 feet from the employee, and that the employee stated “what the [...]” or “[...] 

off.”7

 Mr. McNally indicated that the gun then discharged and the employee was struck in the 

 6

 The messages from Mr. McNally included, “I just shot my friend in the damn neck he’s [...] dead” and “Why 

the [...] was I [...] around with that damn loaded [...] gun.” 

7

 An investigator indicated that the forensic evidence suggested that Mr. McNally was standing much closer to the 

employee when the gun discharged as a shell casing was found in the bathtub. 
4

neck. He characterized the gun discharge as an accident and stated that he knew he should not 

have had it out because he had been drinking. 

An investigator indicated that he did not believe that the shooting was accidental due to 

the extensive gun training Mr. McNally had received as a prison guard and that the crime scene 

evidence was not supportive of the position from which the shooting was alleged to have 

occurred. He further noted that Mr. McNally had not called the police or attempted to provide 

first aid to the employee. 

OWCP requested assistance from an OWCP medical adviser to understand the toxicology 

report and the extent to which the worker was impaired based on the record. It prepared a 

statement of accepted facts, drafted specific questions, and submitted these to Dr. Ellen Pichey, a 

Board-certified occupational medicine specialist. On March 19, 2014 Dr. Pichey stated that the 

toxicology report revealed significant levels of Methylenedioxypyrovalerone and Methylone, 

two designer compounds found in bath salts that would produce a severe amphetamine-like 

response. She stated that, from the levels recorded in the toxicology report, it was unlikely that 

there was a great time lag (i.e., days) from consumption, but noted that it is difficult to assess or 

quantify the effect and metabolic breakdown of the drug as these vary by individual. Dr. Pichey 

indicated that it was likely that the drug was ingested and present in such a concentration that the 

employee would have been impaired at the time of his death. 

In a March 20, 2014 decision, OWCP denied appellant’s claim for survivor benefits 

because it had not been established that the employee’s death on March 8, 2012 occurred in the 

performance of duty. It found that, at the time of his death, the employee had deviated from his 

employment through his actions, including ingesting drugs. 

Appellant, through counsel, requested reconsideration. In a May 25, 2014 brief, counsel 

argued that the employee’s death on March 8, 2012 occurred while he was in the performance of 

duty. He stated that injuries arising out of the necessity of sleeping in hotels or eating in 

restaurants are usually compensable and that travel status resumes after a personal errand is 

completed. Counsel argued that intoxication was not the proximate cause of the employee’s 

death and that Mr. McNally killed the employee by his own will. He noted that the employee 

was in his hotel room when he was murdered and asserted that being in his hotel room was 

incidental to his travel-duty status and kept him in the performance of duty. Counsel stated that, 

at the time of his death, the employee was not ingesting bath salts as he had done so many hours 

beforehand. He argued that OWCP had no actual evidence that the employee was intoxicated at 

the time of his death, or that the then-legal bath salts had any effect on the employee at the time 

he was murdered. Counsel submitted an article showing that in December 2013 Mr. McNally 

was convicted of second-degree murder in the death of the employee and sentenced to 25 years 

to life in prison. 

In an August 26, 2014 decision, OWCP affirmed its March 20, 2014 decision denying 

appellant’s claim for survivor benefits. It again found that the employee’s actions removed him 

from the performance of duty at the time of his death on March 8, 2012. 
5

LEGAL PRECEDENT 

FECA provides for the payment of compensation for the disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.8

 The phrase 

sustained while in the performance of duty in FECA is regarded as the equivalent of the 

commonly found requisite in workers’ compensation law of arising out of and in the course of 

employment.9

 

To arise in the course of employment, an injury must occur at a time when the employee 

may reasonably be stated to be engaged in the master’s business, at a place where he or she may 

reasonably be expected to be in connection with the employment, and while he or she was 

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

incidental thereto.10 In deciding whether an injury is covered by FECA, the test is whether, 

under all the circumstances, a causal relationship exists between the employment itself or the 

conditions under which it is required to be performed and the resultant injury.11

The general rule regarding coverage of employees on travel-duty status or on temporaryduty assignments is set forth in Professor Larson’s The Law of Workers’ Compensation Law: 

“An employee whose work entails travel away from the employer’s premises is 

generally considered to be within the course of his or her employment 

continuously during the trip, except when there is a distinct departure on a 

personal errand. Thus, injuries flowing from sleeping in hotels or eating in 

restaurants away from home are usually compensable.”12 

The Board has similarly recognized that FECA covers an employee 24 hours a day when 

the employee is on travel-duty status and engaged in activities essential or incidental to such 

duties.13 To determine whether an injury occurs in a place where an employee may reasonably 

be or constitutes a deviation from employment, the Board will focus on the nature of the activity 

in which an employee was engaged and whether it is reasonably incidental to an employee’s 

work assignment or represents such a departure from the work assignment that an employee 

becomes engaged in personal activities unrelated to his or her employment. The standard to be 

used in determining that an employee has deviated from his or her employment requires a 

showing that the deviation was aimed at reaching some specific personal objective.14 The Board 

has recognized that there are limitations to coverage or employees in travel status. When an 

 8

 5 U.S.C. § 8102(a). 

9 Valerie C. Boward, 50 ECAB 126 (1998). 

10 R.A., 59 ECAB 581 (2008). 

11 Mark Love, 52 ECAB 490 (2001). 

12 A. Larson, The Law of Workers’ Compensation Law § 25.01 (2015). 

13 M.M., Docket No. 12-298 (issued November 19, 2012). 

14 See S.C., Docket No. 10-1706 (issued May 9, 2011). 
6

employee deviates from the normal incidents of his or her trip and engages in activities, personal 

or otherwise, which are not reasonably incidental to the duties of the temporary assignment 

contemplated by the employer, the employee ceases to be under the protection of FECA and any 

injury occurring during these deviations is not compensable.15

ANALYSIS 

On March 14, 2012 appellant filed a claim for survivor’s benefits in connection with the 

March 8, 2012 death of the employee. She indicated that on March 8, 2012 the employee, who 

was on travel duty status at the time, was murdered by gunshot. OWCP denied appellant’s claim 

because the evidence established that the employee had deviated from the performance of duty 

and therefore was not covered by FECA at the time of his death. 

The Board finds that OWCP properly denied appellant’s claim for survivor benefits as 

the employee’s death on March 8, 2012 did not occur in the performance of duty. 

In the present case, the record shows that on the evening of March 8, 2012 the employee 

had finished his work-related training, consumed alcohol at a hospitality hour at his hotel, and 

returned to his hotel room with Mr. McNally.16 While the precise time that the employee 

ingested bath salts is not clear from the record, a postmortem toxicology report showed that a 

significant amount of the drug was in his system. Dr. Pichey, a Board-certified occupational 

medicine specialist serving as an OWCP medical adviser, reviewed the toxicology report and 

indicated that, from the levels observed in the toxicology report, it was unlikely that there was a 

great time lag from consumption. She provided an opinion that it was likely that the drug was 

ingested and present in such a concentration that the employee would have been impaired at the 

time of his death. 

The Board finds that the employee’s ingestion of mind-altering drugs would not be 

reasonably expected by the employing establishment as a travel-duty activity, and it constituted a 

deviation from the normal incidents of his employment such that he was removed from the 

performance of duty. The employee transitioned from the normal activities of a person in a 

travel status to using recreational drugs with a known fellow traveler. No reasonable person 

could state that this is an activity within the realm of acceptable behavior for a federal worker 

and a correctional officer on travel-duty status. Moreover, it is not reasonable to take such a 

drug when firearms are readily available. At the time of his injury, the employee was not 

engaged in activities reasonably incidental to his temporary-duty assignment, but rather was 

engaged in activities that constituted a deviation from the performance of duty. He engaged in a 

voluntary deviation by taking mind-altering, nonscheduled drugs for recreational use. The 

employee was not engaged in any activity arising out of his employment. While Mr. McNally 

was convicted of the murder of the employee, the employee’s voluntary ingestion of mindaltering drugs placed him in a dangerous situation. The evidence of record reveals that the 

 15 See Evelyn S. Ibarra, 45 ECAB 840 (1994). 

16 Testimony of record also indicates that the employee had been drinking alcohol with Mr. McNally for much of 

that day. 
7

employee had been drinking and that significant substance abuse resulted in significant 

impairment. 

The Board has addressed the types of circumstances that constitute a deviation from the 

performance of duty while on travel-duty status. In Ronelle Smith,

17 the employee drank beer 

with her supervisor at three different establishments prior to being struck by an automobile 

returning to her hotel. The Board found that she was engaged in an identifiable deviation and 

had removed herself from the protection of FECA at the time of her injury. Similarly, in Lydia 

Muse Shields (John Marcellus Shields),18 the deceased employee was on a temporary-duty 

assignment. His whereabouts were unknown from 8:00 p.m. to 3:00 a.m. when he was seen 

leaving a taxicab. The employee began to walk toward his hotel when he fell to the ground and 

hit his head. The Board determined that the employee’s fatal injury was not sustained in the 

performance of duty, as there was no explanation as to why he had returned to the hotel so late 

and no evidence that his death occurred during the course of an ordinary incident of his mission. 

In Conchita A. Elefano (Domingo P. Elefano),

19 the deceased employee was on a 

temporary-duty assignment at a navy base. He left the base at 11:30 p.m. and went to a nearby 

night club, where he remained until 4:00 a.m. The employee was fatally injured by a bullet when 

returning to the base in a taxicab. The Board found that the injury was not sustained in the 

performance of duty as he had deviated from the normal activities incidental to his employment 

for purposes that were personal and diversionary in nature. In Richard Michael Landry,20 the 

Board found that the employee on travel-duty status was not in the performance of duty when he 

was thrown from the bed of a truck while traveling between nightclubs after 1:30 a.m. In 

Kathleen M. Fava (John F. Malley),

21 the Board found that OWCP properly rescinded 

acceptance of the claim where the evidence reflected that the employee, who was in travel status, 

was injured walking to a van after leaving a sports bar. 

The Board finds that, similar to those cases cited, OWCP has met its burden of proof in 

the present case to show that the employee was not engaged in normal, ordinary, and natural 

activities reasonably incidental to his temporary-duty assignment, but rather had undergone a 

temporary, personal diversion. The employee’s actions constitute a personal deviation not 

arising out of the necessity of his employment.22 The employee’s death on March 8, 2012 was 

not reasonably incidental to his temporary-duty status and therefore did not occur in the 

performance of duty within the meaning of FECA. As the employee had removed himself from 

the course of employment at the time of his death, OWCP properly denied appellant’s claim for 

survivor’s benefits. 

 17 47 ECAB 781 (1996). 

18 2 ECAB 162 (1949). 

19 15 ECAB 373 (1964). 

20 39 ECAB 232 (1987). 

21 49 ECAB 519 (1998). 

22 See S.C., supra note 14. 
8

Before OWCP and on appeal, counsel stated that the employee was in his hotel room 

when he was killed and asserted that being in his hotel room was incidental to his travel-duty 

status assignment and kept him in the performance of duty. However, this argument ignores the 

fact that the employee took himself out the performance of duty through his own actions. 

Counsel also argued that the employee was not intoxicated at the time of his death, but the 

evidence of record, including witness testimony and the toxicology report as interpreted by 

Dr. Pichey, provides strong evidence that he was in fact intoxicated.23

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 OWCP properly denied appellant’s claim for survivor benefits as 

the employee’s death on March 8, 2012 did not occur in the performance of duty. 

 23 Counsel also cited a portion of OWCP procedures which indicates that certain evidence must be gathered when 

intoxication may be the proximate cause of the injury or death and argued that OWCP did not follow these 

procedures. See Federal (FECA) Procedure Manual, Chapter 2 -- Claims, Performance of Duty, Chapter 2.804.14c 

(August 1992). However, a review of the evidence of record reveals that OWCP properly followed its procedures in 

this regard. 
9

ORDER 

IT IS HEREBY ORDERED THAT the August 26, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 9, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board