United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.F., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

NORTH FLORIDA/SOUTH GEORGIA 

VETERANS HEALTH SYSTEM, VETERANS 

AFFAIRS OUTPATIENT CLINIC, 

The Villages, FL, Employer

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Docket No. 18-1607

Issued: March 12, 2019

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 20, 2018 appellant, through counsel, filed a timely appeal from an April 27, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

 

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

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider the merits of this case.3

ISSUE

The issue is whether appellant has met her burden of proof to establish an emotional 

condition in the performance of duty, as alleged.

FACTUAL HISTORY

On August 23, 2017 appellant, then a 56-year-old supervisory audiologist, filed an 

occupational disease claim (Form CA-2) alleging that on December 13, 2016 there was an active 

shooter in the employing establishment and she immediately began having difficulty sleeping, 

concentrating, and remembering.

4

 She also reported experiencing constant negative thoughts and 

indicated that she did not want to leave her house. Appellant noted an episode of tactile 

hypersensitivity and facial numbness in January 2017 and, after she sought care on January 8, 

2017, she was diagnosed with post-traumatic stress disorder (PTSD). She first attributed her 

condition to her federal employment on August 15, 2017.

In an August 29, 2017 development letter, OWCP requested that the employing 

establishment address the accuracy of appellant’s statements, whether it agreed with her 

allegations, and any points of disagreement. In a separate development letter of the same date, it

also requested additional factual and medical evidence from appellant regarding her emotional 

condition claim. OWCP afforded both appellant and the employing establishment 30 days to 

respond. 

On September 6, 2017 the employing establishment noted that, as a supervisor, appellant 

had more stress than a regular employee, that she notified it of her condition on August 15, 2017,

and that she performed her duties competently. 

Appellant provided a September 5, 2017 duty status report (Form CA-17) from Keith 

Hester, a physician assistant, which noted that she had developed a post-traumatic stress condition 

following an active shooter incident.

By decision dated October 3, 2017, OWCP denied appellant’s occupational disease claim,

finding that she had not submitted medical evidence establishing causal relationship between her 

PTSD and the “accepted work event.”

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the April 27, 2018 decision OWCP received additional evidence. However, 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.

4 On October 1, 2017 appellant, through counsel, also filed a traumatic injury claim (Form CA-1) for the events of 

December 13, 2016.
3

On October 16, 2017 appellant provided a narrative statement indicating that, in the 

morning on December 13, 2016, there was an active shooter at the outpatient clinic. Shots were 

fired, but the police apprehended the shooter before anyone was injured. Appellant was at work 

at the time and could not hear the initial announcement in her office. She moved to the front of 

the audiology section and was able to hear the second announcement. Appellant ensured that the 

door to the audiology section was closed and locked. She explained that the shooting took place 

in the mental health clinic area where she taught a weekly class. Approximately one hour after the 

shooter was caught, police instructed employees to leave the building, so that they could check the 

employing establishment for explosive devices. 

On January 29, 2018 appellant requested reconsideration of the October 3, 2017 decision. 

She provided a January 11, 2018 report from Dr. Joseph Risko, an osteopath. Dr. Risko noted that 

appellant was present during the December 13, 2016 shooting at the employing establishment. He

opined that the shooting at work aggravated appellant’s underlying mild depression and anxiety to 

the point of causing major depressive disorder with anxiety, PTSD, and insomnia.

By decision dated April 27, 2018, OWCP modified the October 3, 2017 decision to reflect 

that the December 13, 2016 active shooter event was not a compensable employment factor and 

that appellant’s alleged injury had not occurred in the performance of duty. It found that appellant

had no direct contact with the active shooter nor did the incident occur in her work area on 

December 13, 2016.

LEGAL PRECEDENT

To establish an emotional condition causally related to factors of his or her federal 

employment, the claimant must submit: (1) factual evidence identifying and supporting 

employment factors or incidents alleged to have caused or contributed to his or her condition; 

(2) rationalized medical evidence establishing an emotional condition or psychiatric disorder; and 

(3) rationalized medical opinion evidence establishing that the emotional condition is causally 

related to the identified compensable employment factors.5

Workers’ compensation law does not apply to each and every injury or illness that is 

somehow related to one’s employment. There are situations where an injury or illness has some 

connection with the employment, but nevertheless does not come within the purview of workers’

compensation. When disability results from an emotional reaction to regular or specially assigned 

work duties or a requirement imposed by the employment, the disability is deemed compensable.6 

However, disability is not compensable when it results from factors such as an employee’s fear of 

a reduction-in-force, or frustration from not being permitted to work in a particular environment, 

or hold a particular position.7

 

5 C.M., Docket No. 17-1076 (issued November 14, 2018); Kathleen D. Walker, 42 ECAB 603 (1991).

6 A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian 

Cutler, 28 ECAB 125, 129 (1976).

7 Lillian Cutler, id.
4

In cases involving emotional conditions, the Board has held that, when working conditions 

are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory 

function, must make findings of fact regarding which working conditions are deemed compensable 

factors of employment and are to be considered by a physician when providing an opinion on 

causal relationship.8 If a claimant does implicate a factor of employment, OWCP should then 

determine whether the evidence of record substantiates that factor. When the matter asserted is a 

compensable factor of employment and the evidence of record establishes the truth of the matter 

asserted, OWCP must base its decision on an analysis of the medical evidence.9

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility to see that justice is done.10 The nonadversarial policy of proceedings 

under FECA is reflected in OWCP’s regulations at section 10.121.11 Once OWCP undertakes to 

develop the evidence, it has the responsibility to do so in a proper manner.12

ANALYSIS

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

OWCP has not fully developed appellant’s emotional condition claim. Appellant attributed 

her condition to the events surrounding an armed assailant who fired shots in the employing 

establishment on December 13, 2016, as well as the investigation of possible bombs. OWCP’s 

August 29, 2017 development letter requested that the employing establishment address the 

accuracy of appellant’s statements, whether it agreed with her allegations, and any points of 

disagreement. The employing establishment responded on September 6, 2017 and noted that, as a 

supervisor, appellant had more stress than a regular employee, that she provided notification of 

her condition on August 15, 2017 and that she performed her duties competently. 

Although it is appellant’s burden to establish her claim, OWCP is not a disinterested 

arbiter, but rather, shares responsibility in the development of the evidence, particularly when such 

evidence is of the character normally obtained from the employing establishment or other 

government source.13 The employing establishment’s response did not provide the necessary 

details of the events of December 13, 2016, confirm the location and number of shots fired at the 

employing establishment, explain the procedures taken to ensure employees’ safety, provide the 

 

8 K.S., Docket No. 18-0845 (issued October 26, 2018); Dennis J. Balogh, 52 ECAB 232 (2001).

9

Id.

10 K.S., supra note 8; John J. Carlone, 41 ECAB 354 (1989). 

11 20 C.F.R. § 10.121.

12 L.B., Docket No. 15-0905 (issued September 19, 2016).

13 D.M., Docket No. 14-0460 (issued February 11, 2016); C.S., Docket No. 14-1994 (issued January 21, 2015).
5

findings of any police investigation or action, or provide other evidence regarding appellant’s 

involvement in the claimed incident.14

For these reasons, the case will be remanded to OWCP to obtain additional information 

from the employing establishment regarding the alleged work-related incident that occurred on 

December 13, 2016.15 After carrying out such further development, OWCP shall issue a de novo

decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 27, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded to OWCP for further action 

consistent with this decision.

Issued: March 12, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

14 The Board further notes that, in sending the August 29, 2017 development letter to the employing establishment, 

OWCP failed to follow its procedures in emotional condition claims which require waiting until it received appellant’s 

statement before sending a development letter to the employing establishment. Federal (FECA) Procedure Manual, 

Part 2 -- Claims, Development of Claims, Chapter 2.0800.5(c) (June 2011).

15 L.B., Docket No. 17-1671 (issued November 6, 2018).