United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Hampton, GA, Employer 

__________________________________________ 

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Docket No. 14-1651 

Issued: September 22, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 22, 2014 appellant filed a timely appeal from a March 25, 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 appellant met his burden of proof to establish an emotional 

condition in the performance of duty. 

FACTUAL HISTORY 

On April 1, 2013 appellant, then a 52-year-old air traffic control specialist, filed a 

traumatic injury claim (Form CA-1) alleging that he sustained injury in the form of “mental and 

 

 1 5 U.S.C. §§ 8101-8193. 
2

emotional trauma” at work on Tuesday, March 19, 2013.2

 Regarding the cause of the injury, he 

noted, “My brother ... suffered a fatal heart attack. I watched as all attempts to revive him were 

unsuccessful.” Appellant indicated that the injury occurred in Transition Building 530 at 10:00 

a.m. He stopped work on March 19, 2013.3

 On the same form, appellant’s immediate supervisor 

stated, “[Appellant’s] brother suffered a heart attack on March 19, 2013 in the transition area. 

[He] witnessed resuscitation attempts. Appellant’s brother was transported to hospital but was 

unable to be resuscitated.” 

In an April 4, 2013 letter, OWCP requested that appellant submit additional factual and 

medical evidence in support of his claim and provided him with a questionnaire form to be 

completed.4

 It indicated that the evidence was not sufficient to support that he was injured while 

performing any duty of his employment. 

In an April 1, 2013 statement, appellant related that on March 19, 2013 at approximately 

10:00 a.m. he was conducting a training session when he was notified by his supervisor of an 

emergency involving his brother. He indicated that he ran to his brother’s office, but did not find 

him there and that he was notified that he was in an adjacent building. When he went outside, 

appellant saw a fire truck and ambulance outside the transition building with a dozen people 

standing around. He stated that he ran into the building and into the office where he saw his 

brother lying on the floor, unconscious, with his shirt ripped open. Emergency medical 

technicians were performing chest compressions, giving him oxygen, and pumping him full of 

stimulants to try to restart his heart. Appellant noted, “I watched helplessly as their efforts to 

revive him failed, and as they frantically loaded him into the ambulance and sped away. I 

became physically sick.” He indicated that he returned to work on March 31, 2013, but was 

unable to finish conducting a training session due to experiencing anxiety, fear, concentration 

difficulties, and physical symptoms. 

Appellant sought treatment on April 4, 2013 from Dr. David W. Aycock, an attending 

clinical psychologist, and reported that he developed symptoms, including anxiety, sleep 

disturbance, and cognitive deficits, after witnessing his brother’s heart failure at work on 

March 19, 2013. Dr. Aycock diagnosed anxiety disorder and indicated that it was a “direct result 

of the workplace trauma.” 

In the questionnaire he completed on May 4, 2013, appellant asserted that he was in the 

performance of duty at the time of his claimed injury because he was performing a training 

session at the time he was informed of his brother’s medical emergency. He posited that he was 

in the performance of duty for the additional reason that, when advised of his brother’s medical 

emergency, he “immediately went to assist.” Appellant indicated that, due to the March 19, 

 2

 On the same form appellant’s immediate supervisor indicated that appellant’s duty station was the Atlanta Air 

Route Traffic Control Center on 299 Woolsey Road, Hampton, GA, and that his regular schedule was 6:00 a.m. to 

4:00 p.m., Sunday through Wednesday. 

3

 Appellant received continuation of pay from March 19 to May 3, 2013. He filed a claim for compensation 

(Form CA-7) for work stoppage starting May 4, 2013 and continuing. 

4

 The questionnaire included the question, “What duties of your employment as an [air traffic control specialist] 

were you performing which you believe caused the claimed condition?” 
3

2013 incident, he repeatedly relived the event and suffered from such conditions and symptoms 

as anxiety, depression, sleep disturbance, and concentration and memory deficits. 

In a May 16, 2013 decision, OWCP found that appellant had not shown that he sustained 

an emotional condition in the performance of duty on March 19, 2013. Appellant’s case was 

denied because the evidence did not show that the claimed injury and/or medical condition arose 

during the course of employment and within the scope of compensable work factors. OWCP 

noted that, although appellant was at work on March 19, 2013, his witnessing of his brother’s 

heart attack did not occur while he was performing duties of his employment or acts incidental to 

those duties. 

Appellant requested reconsideration of OWCP’s May 16, 2013 decision. In a May 28, 

2013 statement, he asserted that he sustained an injury in the performance of duty on March 19, 

2013 because he was conducting a training session when he was directed by his immediate 

supervisor to respond to a medical emergency concerning his brother. Appellant argued that, 

since the emergency occurred on the employing establishment premises, he never left the sphere 

of employment. He posited that when a manager assigns a task to an employee that takes him 

away from his normal duties, the performance of the task is still considered a requirement of 

employment. Appellant argued that he was not merely an observer of his brother’s medical 

emergency in that he assisted the emergency medical technicians by gathering information from 

family members and providing medical history and other critical information needed for proper 

treatment of his brother. He stated that he “actively coordinated between the [emergency 

medical technicians] and the hospital” while he still was present in the workplace, and that he 

also secured his brother’s federal identification and personal effects. Appellant felt that it was 

not necessary for him to actually perform the cardiopulmonary resuscitation in order to provide 

assistance in an emergency. He indicated that two other air traffic control specialists responded 

to the same emergency on March 19, 2013 and had their compensation claims accepted for 

injuries occurring in the performance of duty. Appellant stated that he was certified in 

cardiopulmonary resuscitation and use of automated external defibrillators and indicated that the 

employing establishment had a volunteer program to encourage employees to gain these skills. 

In a June 8, 2013 statement, an operations supervisor5

 stated that on March 19, 2013 he 

was on duty in Area 3 at the Atlanta Air Route Traffic Control Center when he received a 

telephone call message that appellant’s brother might be having a heart attack and that he needed 

to get appellant over to the ambulance pick-up area. He indicated that he went to the route 

simulation training laboratory where appellant was conducting job instruction with a coworker 

and told him that he needed to get to the pick-up area as soon as possible because his brother 

might be having a heart attack. The operations supervisor accompanied appellant first to the 

front of the building and then to a transfer training building where the ambulance was found. He 

stated that appellant went into the building and that the supervisor left appellant at that time. 

By decision dated August 13, 2013, OWCP denied appellant’s request for further review 

of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the newly submitted 

 5

 The operations supervisor was not the same person who identified himself as appellant’s immediate supervisor 

on the Form CA-1 completed on April 1, 2013. 
4

evidence and argument did not require reopening of appellant’s claim for merit review because it 

was repetitious or immaterial to the issue of the case. 

Appellant again requested reconsideration of his claim. In a February 13, 2014 

statement, he asserted that he remained in the course of his employment when he witnessed his 

brother having a heart attack at work on March 19, 2013 because he was directed to the site of 

the emergency by his supervisor and rendered assistance in addressing the emergency. Appellant 

argued that his reaction to witnessing his brother’s heart attack on March 19, 2013 was not selfgenerated, but rather was related to matters incidental to his employment. He also indicated that 

OWCP failed to acknowledge that he also sustained stress when he attempted to return to work 

on March 31, 2013. Appellant alleged that his claimed injury was covered under the positional 

risk doctrine because his employment placed him in the position where he sustained injury. 

In a February 7, 2014 statement, a coworker stated that on March 19, 2013 at 

approximately 10:00 a.m. he and appellant were training in the laboratory. During that time 

appellant was approached by the operations supervisor who instructed appellant to come with 

him because there had been an emergency. Appellant immediately accompanied the operations 

supervisor out of the laboratory. The coworker stated that he understood that the instructions 

given by the operations supervisor constituted an order. He assumed at that time that the 

instructions were air-traffic related and he did not find out until later that the emergency involved 

appellant’s brother. 

In an undated statement, another coworker stated that on March 19, 2013 he performed 

cardiopulmonary resuscitation on appellant’s brother who was suffering from a major heart 

attack. While performing cardiopulmonary resuscitation, appellant’s brother “died twice in [his] 

hands” and an automated external defibrillator was used to apply a shock in order to bring him 

back to life. The coworker stated that appellant’s brother was kept alive until the paramedics 

arrived and were able to take over life support. Appellant’s brother later died in the hospital on 

March 22, 2013. 

In an undated statement, a front-line manager described the duties of air traffic control 

specialists and noted that, as part of a national program, the employing establishment offered 

training in cardiopulmonary resuscitation and use of automated external defibrillators. The 

front-line manager indicated that, although participation in this training was voluntary, the 

employing establishment recognized the value of this skill in responding to an employee in need 

of assistance and an employee who received this training would be expected to respond to an 

emergency situation. 

In a March 25, 2014 decision, OWCP affirmed its May 16, 2013 decision finding that 

appellant had not established a March 19, 2013 work injury in the performance of duty. It stated 

that appellant’s regular duties did not bring him into contact with the emergency situation on 

March 19, 2013 and that he was informed of the emergency by a supervisor because of his 

familial relationship to the employee in medical distress. 
5

LEGAL PRECEDENT 

An employee seeking compensation 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 he or she is an employee within the meaning of FECA and that he or she 

filed his or her claim within the applicable time limitation.6

 The employee must also establish 

that he sustained an injury in the performance of duty as alleged and that his disability for work, 

if any, was causally related to the employment injury.7

 Where the disability results from an 

employee’s emotional reaction to his or her regular or specially assigned duties or to a 

requirement imposed by the employment, the disability comes within the coverage of FECA.8 

Congress has provided for the payment of compensation for disability or death resulting 

from personal injury sustained while in the performance of duty.9

 The Board has interpreted the 

phrase while in the performance of duty to be the equivalent of the commonly found prerequisite 

in workers compensation law of arising out of and in the course of employment.10 The phrase, in 

the course of employment, deals with the work setting, the locale, and the time of injury. Arising 

out of the employment encompasses not only the work setting, but also a causal concept, the 

requirement being that an employment factor caused the injury.11 In the compensation field, to 

occur in the course of employment, in general, an injury must occur: (1) at a time when the 

employee may reasonably be said to be engaged in his master’s business; (2) at a place where he 

may reasonably be expected to be in connection with the employment; and (3) while he was 

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

thereto.12

The test is similar to the positional risk doctrine discussed by Professor Larson13 in his 

treatise on workers’ compensation law, which provides that an injury arises out of the 

employment if it would not have occurred, but for the fact that the conditions and obligations of 

the employment placed the claimant in the position where he was injured. As further discussed 

by Larson, this theory supports compensation in situations where the only connection of the 

employment with the injury is that the obligations placed the employee in the particular place at 

 6 C.B., Docket No. 14-671 (issued August 24, 2015); Kathryn A. O Donnell, 7 ECAB 227 (1954); see 5 U.S.C. 

§ 8122. 

7 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143 (1989). 

 8 Lillian Cutler, 28 ECAB 125 (1976). When a claimant has not established any compensable employment 

factors, the Board need not consider the medical evidence of record. See Margaret S. Krzycki, 43 ECAB 

496 (1992). 

9

 5 U.S.C. § 8102(a). 

10 See Timothy K. Burns, 44 ECAB 291 (1992); Jerry L. Sweeden, 41 ECAB 721 (1990). 

11 See M.B., Docket No. 15-215 (issued April 24, 2015). 

 12 See id. 

13 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014). 
6

the particular time when he was injured by some neutral force, meaning by “neutral” neither 

personal to the claimant nor distinctly associated with the employment.14

ANALYSIS 

Appellant filed a claim alleging that he sustained injury in the form of mental and 

emotional trauma at work on March 19, 2013 when he witnessed a coworker, his brother, having 

a heart attack. He claimed that he sustained disability due to this injury. Appellant indicated that 

he was performing his work duties during a training session just prior to the time that the 

operations supervisor directed him to go to the scene of the emergency on the employing 

establishment premises. He argued that he remained in the performance of duty at the time he 

witnessed the emergency situation because he was responding to a supervisor’s order and 

rendered useful services in connection with the emergency. OWCP denied appellant’s claim 

because he did not show that he sustained an injury in the performance of duty on 

March 19, 2013. It found that he was not performing work duties or doing something incidental 

thereto when he witnessed his brother having a heart attack. 

The Board finds that appellant did not meet his burden of proof to establish that he 

sustained an injury in the performance of duty on March 19, 2013. 

As noted above, to occur in the course of employment, in general, an injury must occur: 

(1) at a time when the employee may reasonably be said to be engaged in his master’s business; 

(2) at a place where he may reasonably be expected to be in connection with the employment; 

and (3) while he was reasonably fulfilling the duties of his employment or engaged in doing 

something incidental thereto. The test is similar to the positional risk doctrine discussed by 

Larson in his treatise on workers’ compensation law, which provides that an injury arises out of 

the employment if it would not have occurred, but for the fact that the conditions and obligations 

of the employment placed the claimant in the position where he was injured.15

Applying this test, in Larry J. Thomas,

16 wherein a letter carrier came upon the body of a 

suicide victim while delivering mail on his route, the Board found that this incident did occur at a 

time when the claimant was engaged in his employer’s business, at a place where he could 

reasonably be expected to be, and while he was fulfilling the duties of his employment. Thus, 

the Board reasoned that, while claimant’s injury in Thomas may have been caused by a neutral 

force, because his employment placed him in the place of injury, his injury was covered under 

FECA. The Board applied similar reasoning to accept an employment factor in N.M.,17 a case in 

which a letter carrier delivering mail on his route witnessed a child being struck and killed by a 

school bus. 

 14 Id. 

15 See supra notes 12 through 14. 

16 44 ECAB 291 (1992). 

17 Docket No. 10-2017 (issued August 8, 2011). 
7

In the present case, however, unlike the claimants in Thomas and N.M., appellant left the 

location of his employment duties and did not sustain his injury while engaged in his employer’s 

business, or while fulfilling the duties of his employment. Although appellant had been engaged 

in a training session at work on March 19, 2013, he stopped the work-related training activities 

and went to a different building on the employing establishment premises to tend to his brother 

who was in medical distress. In the present case, it is clear that appellant’s emotional condition 

arose from the knowledge that his brother was in medical distress, rather than from the 

performance of his day-to-day duties, specially-assigned duties, or any other requirement 

imposed by his employment. In other words, the claimed injury occurred due to a circumstance 

that was personal to appellant. On appeal appellant asserts that he was in the performance of 

duty when he witnessed his brother having a heart attack on March 19, 2013 because the 

operations supervisor directed him to leave his work area and go to the scene of the medical 

incident.18 However, the evidence of record does not indicate that the operations supervisor 

directed appellant to go to the scene of his brother’s medical distress as a result of any work duty 

or incident of employment. Rather, the evidence of record, including the witness statement of 

the operations supervisor, reflects that he informed appellant of his brother’s situation due to his 

personal relationship to the employee in medical distress.19 The Board has held that the fact that 

an employee learns of a personal tragedy and sustains an emotional condition during working 

hours does not, in and of itself, provide the necessary nexus to establish that the emotional 

condition occurred while in the performance of duty, as required by FECA.20

On appeal appellant contends that he engaged in an attempt to aid in the rescue of a 

coworker and that coverage should be extended under the emergency situation theory, consistent 

with the principles set forth in Larson. Larson, in his treatise, explains that under familiar 

doctrines in the law relating to emergencies, generally, the scope of an employee’s employment 

is impliedly extended in an emergency to include the performance of any act designed to save 

life or property in which the employer has an interest.21 The evidence of record does not support 

that appellant actually performed any specific acts designed to save a life, resulting in his 

emotional condition. Appellant initially indicated that he “watched helplessly” as emergency 

medical technicians gave medical assistance to his brother on March 19, 2013. He later asserted 

that he assisted the emergency medical technicians by providing his brother’s medical history 

and that he “actively coordinated between the [emergency medical technicians] and the hospital” 

while he still was present at the scene of his brother’s heart attack. However, appellant did not 

describe the information he provided or how it aided in his brother’s treatment; nor did he 

explain the nature of the claimed coordination between the emergency medical technicians and 

the hospital. The evidence of record establishes that appellant’s emotional condition arose from 

 18 The Board notes that the operations supervisor was not appellant’s immediate supervisor. 

19 A coworker indicated that the operations supervisor instructed appellant to come with him because there had 

been an emergency and he indicated that he believed at that time that the instructions given by the operations 

supervisor constituted an order. However, the coworker indicated that he had assumed at that time that the 

instructions were air-traffic related and he did not find out until later that the emergency involved appellant’s 

brother. 

20 See Edye Ann Smith, 49 ECAB 463 (1998); Kathryn S. Graham Wilburn, 49 ECAB 458 (1998). 

21 See supra note 13 at § 28.01. 
8

the knowledge of the medical incident involving his brother. There is no evidence of record that 

appellant actually engaged in a rescue action, of benefit to his employer, that led to his emotional 

condition.22

As appellant’s emotional condition did not occur on March 19, 2013 as the result of the 

performance of his federal employment, OWCP properly denied his claim for workers’ 

compensation benefits.23

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish that he 

sustained an emotional condition injury in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the March 25, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 22, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 22 Appellant also claimed that he sustained a work-related injury when he returned to work on March 31, 2013 

and experienced symptoms including anxiety, fear, concentration difficulties, and physical symptoms. He did not 

establish an employment incident with respect to the events of March 31, 2013 because he did not explain how he 

sustained injury while he fulfilled the duties of his employment or was engaged in doing something incidental 

thereto on that date. 

23 As appellant has not established any compensable employment factors, the Board need not consider the medical 

evidence of record. See supra note 8.