United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.S., Appellant 

and 

DEPARTMENT OF THE NAVY, STRATEGIC 

SYSTEMS PROGRAM, Mitchell Field, NY, 

Employer 

__________________________________________ 

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Docket No. 14-1079 

Issued: June 29, 2015 

Appearances: Case Submitted on the Record

Roy C. Orlando, M.D., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 8, 2014 appellant, through her representative, filed a timely appeal of the 

October 18, 2013 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.2

ISSUE 

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

performance of duty on August 21, 2009. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 Appellant’s representative submitted additional medical evidence directly to the Board. However, the Board is 

precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision on 

October 18, 2013. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

This case was previously before the Board.3 The relevant facts are as follows. At 10:20 

a.m. on August 21, 2009, a coworker discovered appellant in an office cubicle unconscious and 

not breathing.4 Another coworker administered basic first aid and cardiopulmonary resuscitation 

(CPR) until emergency medical services (EMS) arrived at 10:45 a.m. Appellant was 

subsequently transported to Winthrop University Hospital. Earlier that morning, she worked on 

her supervisor’s computer. When appellant arrived in Martin Tai’s office at 9:45 a.m., she 

advised him she was not feeling well and that she had an afternoon appointment with her 

physician. She then proceeded to work on Mr. Tai’s computer for the next 25 minutes, 

completing the task at 10:10 a.m. Mr. Tai stated that when she left his office, she was alert, 

talking, and did not appear to be in distress. 

Appellant’s husband would later advise Mr. Tai that she passed out at home the previous 

evening (August 20, 2009), and while he offered to take her to the hospital, she declined. Her 

husband also indicated that earlier that morning (August 21, 2009) while still at home, appellant 

complained of feeling dizzy and lightheaded. Appellant’s husband again suggested that she go 

to the hospital, which she declined. Instead, appellant went to work and scheduled a physician’s 

appointment for later that afternoon. 

As noted, a coworker discovered appellant at 10:20 a.m. A 911 call went out and another 

coworker performed CPR. The August 21, 2009 EMS report indicated that paramedics found 

appellant lying on the floor facing upward (supine).5

 Appellant was unconscious and had not 

been breathing (apneic) for approximately 10 minutes, according to coworkers. Her coworkers 

also advised the paramedic that she earlier complained of malaise and weakness and had 

scheduled a physician’s appointment for later that afternoon. The EMS report noted that 

appellant’s coworkers performed CPR and applied an automated external defibrillator (AED), 

but the AED did not produce a shock. The paramedic intubated appellant, provided oxygen and 

intravenous fluids, and monitored her vital signs, including heart rate and rhythm. While in route 

to the hospital, appellant began to have agonal respirations. 

Upon arrival at Winthrop University Hospital, appellant’s initial diagnosis was 

respiratory arrest, aspiration. Treatment records indicated that “food containing particles” were 

discovered in her mouth. While in the emergency room, appellant had several episodes of 

ventricular tachycardia and multiple seizures. Due to loss of oxygen, she suffered anoxic brain 

injury. Appellant was hospitalized for a month prior to being transferred to an extended care 

nursing facility. She has been comatose since August 21, 2009. 

 3

 Docket No. 12-461 (issued October 4, 2012). 

4

 Appellant, then a 57-year-old information technology specialist, was discovered kneeling on the floor with her 

head and torso resting on the seat of an office chair. 

5

 The report noted that the 911 call was received at 10:38 a.m. The EMS crew arrived on the scene at 10:43 a.m., 

and encountered appellant at 10:45 a.m. They departed the scene at 11:00 a.m., and arrived at the hospital at 

11:08 a.m. 
3

OWCP initially denied appellant’s claim by decision dated November 17, 2009. 

Appellant’s husband, and court-appointed guardian, requested reconsideration on the basis that 

appellant consumed food at an August 21, 2009 work-related meeting, which she later aspirated 

causing her injury. The employing establishment denied there was a work-related meeting and 

also denied having provided appellant any food on August 21, 2009. Moreover, it argued there 

was no evidence indicating that she consumed any food on-premises that morning. In response, 

appellant’s husband stated that appellant did not have breakfast before leaving for work on 

August 21, 2009, and therefore, she must have eaten while at work. However, he did not address 

the possibility that she may have stopped during her commute to the office and perhaps 

purchased and consumed food prior to her arrival at work. 

Additional evidence included an April 9, 2010 report from appellant’s primary care 

physician, Dr. Harish C. Sood, a Board-certified internist, who indicated that appellant suffered 

pulmonary arrest on August 21, 2009 after aspirating food while at work. 

In a September 29, 2010 report, Dr. Paul K. Wein, a Board-certified cardiologist and 

OWCP referral physician, found there was no clear cause for appellant’s cardiac respiratory 

arrest and subsequent brain damage. He also stated that it was unclear whether appellant 

aspirated food as a cause or result of cardiac arrest. 

Relying on Dr. Wein’s opinion, OWCP denied modification of its November 17, 2009 

findings by decision dated October 15, 2010. 

On June 27, 2011 appellant’s husband requested reconsideration on her behalf. 

Dr. David C. Henke, a Board-certified internist with a subspecialty in pulmonary disease, 

provided a June 2, 2011 report. He identified several possible causes for appellant’s August 21, 

2009 collapse, which included aspiration, cardiac arrhythmia, pulmonary embolus, and seizure. 

However, because of appellant’s current comatose state and the lack of witnesses, Dr. Henke 

stated that he could not determine the “primary or most proximate insult producing ... 

hypoxia....” He further noted that “aspiration at the time of [appellant’s] collapse ... would have 

contributed to her hypoxia and anoxic brain injury.” 

In a report dated August 11, 2011, Dr. Nicholas J. Shaheen, a Board-certified internist 

with a subspecialty in gastroenterology, surmised that the food appellant aspirated at 10:20 a.m. 

on August 21, 2009 was in all “likelihood eaten while she was at work.” He explained that 

normal gastric emptying would be expected to be essentially complete by two hours following a 

meal consisting of solids or solids and liquids. Dr. Shaheen concluded that given appellant’s 

presence at work from 7:00 a.m. until the time of her collapse at 10:20 a.m. -- a 3 hour, 20 

minute timespan -- the presence of food in her mouth at the time of her collapse was “in all 

likelihood eaten while she was at work.”6

 

OWCP again denied modification by decision dated October 4, 2011, which appellant’s 

husband appealed to the Board. Oral argument was held on May 15, 2012. 

 6

 Appellant’s husband advised Dr. Shaheen that she went to work at 7:00 a.m. However, the September 30, 2009 

Form CA-1 indicates that appellant’s regular work hours were 7:15 a.m. to 3:45 p.m., Monday through Friday. 
4

In an October 4, 2012 decision, the Board affirmed OWCP’s October 4, 2011 decision 

denying modification.7 Appellant’s representative argued that her August 21, 2009 anoxic brain 

injury should be covered under the “personal comfort” rule because she had consumed food 

on-premises, which she either choked on causing respiratory arrest or subsequently threw-up and 

aspirated when she collapsed due to an unspecified medical condition. In either instance, the 

food appellant allegedly consumed on-premises compromised her breathing, which in turn led to 

her anoxic brain injury. The then-current record was at best speculative with respect to whether 

she consumed food at work on the morning of August 21, 2009. Accordingly, the Board found 

that appellant failed to establish that her August 21, 2009 collapse and subsequent brain injury 

was associated with her consumption of an on-premises meal or snack, such that her injury 

would be covered under the “personal comfort” rule. 

The Board also rejected an alternative theory of liability under the “human instincts” 

doctrine. Appellant’s representative argued that having been informed that appellant was not 

feeling well, Mr. Tai and/or the employing establishment should have closely monitored her in 

advance of her scheduled medical appointment. Had the employing establishment done so, the 

extent of appellant’s brain injury could have perhaps been minimized. The Board found that 

under the circumstances, the employing establishment acted appropriately both before and after 

discovering appellant unconscious on August 21, 2009. 

On July 26, 2013 OWCP received appellant’s latest request for reconsideration. 

Appellant’s representative, Dr. Orlando, submitted a copy of the August 21, 2009 EMS report.8 

OWCP also received treatment records from Winthrop University Hospital, including an 

August 21, 2009 admission history and physical examination, an August 22, 2009 cardiac 

consultation report, an October 9, 2009 report identifying various diagnoses, and an October 21, 

2009 discharge summary. All four documents included handwritten annotations where “food” 

and/or “vomitus” was mentioned. Additionally, Dr. Orlando, a Board-certified internist with a 

subspecialty in gastroenterology, prepared a July 16, 2013 report. He reviewed appellant’s “past 

medical history,” and other medical records, including the August 21, 2009 EMS report, 

Dr. Wein’s September 29, 2010 report, and Dr. Shaheen’s August 11, 2011 report. Dr. Orlando 

disagreed with Dr. Wein’s opinion that appellant suffered cardiac arrest. He also found that 

absent evidence that appellant left work between 7:15 a.m. and 10:20 a.m., any food particles 

present in her mouth at the time of her August 21, 2009 collapse had to have been eaten while 

she was at work. Dr. Orlando explained that, based on his clinical experience, normal gastric 

emptying of a meal consisting of solids and liquids would be expected to be complete by two 

hours. According to him, appellant’s medical records exhibited no symptoms or signs of delayed 

gastric emptying in the days preceding her collapse in that she had no history of nausea, 

vomiting, or early satiety. Dr. Orlando further indicated that in the absence of any medical 

evidence to the contrary, it was evident that appellant had normal gastric emptying, which was 

her status on the day she collapsed. 

In an October 18, 2013 decision, OWCP denied modification of its October 4, 2011 

decision. 

 7

 The Board’s October 4, 2012 decision is incorporated herein by reference. 

8

 The two-page EMS report was not part of the record when appellant’s case was previously before the Board. 
5

LEGAL PRECEDENT 

A claimant seeking benefits under FECA has the burden of establishing the essential 

elements of his or her claim by the weight of the reliable, probative, and substantial evidence, 

including that an injury was sustained in the performance of duty as alleged and that any specific 

condition or disability claimed is causally related to the employment injury.9

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact 

of injury consists of two components that must be considered in conjunction with one another. 

The first component is whether the employee actually experienced the employment incident that 

is alleged to have occurred.10 The second component is whether the employment incident caused 

a personal injury.11

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

reasonably incidental to the employment, such as personal acts for the employee’s comfort, 

convenience and relaxation, eating meals and snacks on-premises, or taking authorized coffee 

breaks.12

An employing establishment has the duty to make reasonable efforts to procure medical 

aid or other means of relief to an employee who becomes ill or injured on the job, and as a result 

is helpless to provide for his or her own care.13 A failure to satisfy this duty -- the human 

instincts doctrine -- may be sufficient to establish a causal connection between an employee’s 

condition and the employment if it is shown that the employer’s failure contributed to the 

claimed condition.14

ANALYSIS 

The current issues and arguments are essentially unchanged since the last time this case 

was before the Board. Appellant’s representative, Dr. Orlando, continues to argue that appellant 

consumed food at work on the morning of August 21, 2009, which was reportedly discovered in 

her mouth following her collapse. According to appellant’s representative, the noted “food,” 

 9

 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). 

10 Elaine Pendleton, 40 ECAB 1143 (1989). 

11 John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question, which generally requires 

rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). The fact 

that the etiology of a disease or condition is unknown or obscure does not relieve an employee of the burden of 

establishing a causal relationship by the weight of the medical evidence nor does it shift the burden of proof to 

OWCP to disprove an employment relationship. Judith J. Montage, 48 ECAB 292, 294-95 (1997). 

12 T.L., 59 ECAB 537, 540 (2008); Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, 

Chapter 2.804.4a(2)(August 1992). 

13 J.W., Docket No. 11-1655 (issued May 18, 2012); Joseph J. Rotelli, 40 ECAB 987, 992 (1989). 

14 J.W., id. 
6

“food containing particles,” and/or “vomitus” made it difficult for appellant to breathe, and thus, 

caused or contributed to her anoxic brain injury. 

The Board notes that the August 21, 2009 EMS report made no mention of food, vomitus, 

or anything food-related having been discovered in appellant’s mouth prior to her being 

intubated. The additional Winthrop University Hospital treatment records submitted on 

reconsideration included references to “history of possible aspiration,” “[patient] found [with] 

food in mouth,” “aspirated ... food,” and “[p]neumonitis due to inhalation of food or vomitus.” 

Assuming arguendo appellant was discovered with food, food containing particles, or vomitus in 

her mouth when she collapsed at work on August 21, 2009, the question remains as to when and 

where she ingested the food. 

The current record lacks direct evidence that appellant consumed a Jamaican meat pie or 

any other type food while at work on the morning of August 21, 2009.15 Appellant’s husband 

indicated that she had not eaten breakfast at home that morning. However, he did not account 

for the possibility that she may have stopped for food prior to her arrival at work that day. 

Additionally, while attempting to bolster Dr. Shaheen’s opinion regarding normal gastric 

emptying, appellant’s representative alluded to the possibility that appellant left work between 

7:15 a.m. and 10:20 a.m. and consumed food off-premises. As the Board noted in its prior 

decision, there are no witness statements attesting to appellant having been observed eating at 

work on the morning of August 21, 2009. Additionally, there is no mention of any food or food 

wrappers present at or near the cubicle where appellant collapsed. 

Absent direct evidence, one is left to deduce that appellant consumed food on-premises 

based on her normal gastric emptying timeframe. Both Dr. Shaheen and appellant’s 

representative, Dr. Orlando, indicated that two hours was the expected timeframe for normal 

gastric emptying following a meal consisting of solids or solids and liquids. Because appellant 

was at work for approximately three hours prior to collapsing, her representative argued that she 

must have eaten during that timeframe based on the food or vomitus discovered in her mouth. 

The Board previously found that Dr. Shaheen’s August 11, 2011 report lacked probative value 

because of its generic nature. Dr. Shaheen had not personally examined appellant and it was 

unclear whether he had even reviewed any of appellant’s medical records. The Board likened his 

ostensibly generic analysis to a medical text or treatise, and concluded that his report lacked 

evidentiary value with respect to appellant’s particular circumstances. 

In his July 16, 2013 report, Dr. Orlando attempted to resuscitate Dr. Shaheen’s opinion 

by incorporating additional information specific to appellant’s habitus. He found it noteworthy 

that appellant’s “past medical history” did not include either digestive or nondigestive disease. 

Dr. Orlando also noted that she did not take any medications that would result in delayed gastric 

emptying. He further explained that appellant’s medical records exhibited no symptoms or signs 

of delayed gastric emptying in the days preceding her collapse. Most notably, there was no 

history of nausea, vomiting, or early satiety. The Board notes that the current medical record 

dates back to August 21, 2009. Thus, it is unclear upon what records Dr. Orlando relied in 

 15 Appellant’s husband previously represented that, while in the emergency department on August 21, 2009, he 

noted that his wife’s clothing was stained with what he believed to be a Jamaican meat pie. M.S., Docket 

No. 12-461 at 5, n.11 (issued October 4, 2012). 
7

describing appellant’s past medical history and her signs and symptoms in the days preceding her 

collapse. Accordingly, the record does not substantiate Dr. Orlando’s representation of 

appellant’s “past medical history.”16 As such, Dr. Orlando’s July 16, 2013 opinion lacks 

probative value regarding appellant’s two-hour normal gastric emptying timeframe 

When the case was previously on appeal, the Board thoroughly reviewed the then-current 

medical record. The relevant findings have been incorporated herein. Accordingly, the Board 

need not reiterate or revisit those earlier findings. The Board’s findings regarding the medical 

reports addressed in the previous Board’s decision are not subject to additional review.17 

The evidence submitted since OWCP’s October 4, 2011 decision similarly fails to 

establish that appellant’s August 21, 2009 collapse and subsequent brain injury was associated 

with her consumption of an on-premises meal or snack, such that her injury would be covered 

under the “personal comfort” rule. 

As was the case with the prior appeal, Dr. Orlando continues to represent that appellant’s 

anoxic brain injury should be covered under FECA based on the employing establishment’s 

negligence. He contends that a delay of up to 10 minutes in getting help contributed to the 

severity of appellant’s injury.18 Based on the current record, appellant was unaccounted for 

between 10:10 a.m., when she left Mr. Tai’s office, and 10:20 a.m., when a coworker discovered 

her unconscious in an office cubicle. At that time, her coworkers called 911 and provided basic 

first aid and CPR until paramedics arrived at 10:45 a.m. As there is no clear evidence of the time 

appellant collapsed, Dr. Orlando’s argument that a possible 10-minute delay in treatment 

contributed to appellant’s anoxic brain injury is purely speculative. 

Appellant’s representative also reiterated that his belief that the August 21, 2009 injury 

should be covered under the “human instincts” doctrine. Dr. Orlando argued that appellant 

requested “emergency” medical leave from Mr. Tai to attend an afternoon medical appointment. 

Under the circumstances, Mr. Tai should have closely monitored her condition. The available 

facts do not support his characterization of events. When appellant arrived at Mr. Tai’s office at 

9:45 a.m., she informed him that she had not been feeling well and had scheduled a physician’s 

 16 A physician’s opinion must be based on a complete factual and medical background. Victor J. Woodhams, 41 

ECAB 345, 352 (1989). 

17 20 C.F.R. § 501.6(d). 

18 In support of this argument, appellant’s representative cited Rudy C. Sixta, Jr., 44 ECAB 727 (1993). 

However, Dr. Orlando misinterpreted the Board’s decision in that particular case. In Rudy C. Sixta, Jr., the Board 

did not find that a delay in getting initial treatment contributed to the employee’s injury. Instead, the Board noted 

that OWCP had not met its burden to rescind a March 1968 acceptance of the claim because the medical evidence it 

relied upon which it did not address the issue of whether a delay in treatment hastened the progression of the 

employee’s condition, materially affected his condition, or aggravated it in any way. The employee was a Peace 

Corps member stationed in Colombia and there was an approximate two-month delay between the onset of 

symptoms and the time when he was evacuated back to the States for medical evaluation of a brain tumor, which 

OWCP accepted as having been aggravated by federal employment. The Board did not specifically find that the 

delay in treatment caused or contributed to the employee’s October 12, 1967 injury, but merely that OWCP had not 

fully developed the medical record when it rescinded acceptance of the claim more than 20 years later. Rudy C. 

Sixta, Jr., id. at 731-32. 
8

appointment for later that same day. She then proceeded to service his computer for the next 25 

minutes. When she left his office at 10:10 a.m., appellant was alert, talking and in no apparent 

distress. Although soon afterwards she was discovered unconscious, there is nothing in the 

record to support Dr. Orlando’s representation in the record of appellant having expressed a need 

for “emergency” medical treatment while she was in Mr. Tai’s office. When appellant’s 

coworker discovered her at 10:20 a.m., basic first aid and CPR was administered until 

paramedics arrived at 10:45 a.m. The Board finds that the employing establishment acted 

appropriately both before and after appellant was discovered unconscious at 10:20 a.m. on 

August 21, 2009. Accordingly, the employing establishment satisfied its duty under the “human 

instincts” doctrine. 

The record does not establish that appellant was injured in the performance of duty on 

August 21, 2009. Although the exact cause of her August 21, 2009 collapse at work remains 

unclear, this does not shift the burden to OWCP to disprove an employment relationship.19 

CONCLUSION 

Appellant has not established that she sustained an injury in the performance of duty on 

August 21, 2009. 

 19 Judith J. Montage, supra note 11. 
9

ORDER 

IT IS HEREBY ORDERED THAT the October 18, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 29, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board