United States Department of Labor

Employees’ Compensation Appeals Board

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J.K., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Washington, DC, Employer

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Docket No. 19-0720

Issued: November 21, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 February 15, 2019 appellant filed a timely appeal from an August 30, 2018 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 has met his burden of proof to establish an emotional 

condition in the performance of duty, as alleged.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On April 21, 2010 appellant, then a 49-year-old air traffic control specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on March 21, 2010 he developed severe 

emotional anxiety due to a fear of death for the flying public while in the performance of duty. He 

further alleged that the emotional anxiety prevented him from working. Appellant attributed his 

emotional condition to watching an employing establishment-directed video, “Heads UP -- Safety 

Depends on You” (Heads UP), which involved graphic violence and death.

In a May 13, 2010 development letter, OWCP requested that appellant provide additional 

factual and medical evidence in support of his emotional condition claim. By separate letter of 

even date, it also requested additional information from the employing establishment concerning 

appellant’s allegations. Both parties were afforded 30 days to respond.

In a May 28, 2010 letter, the employing establishment noted that appellant had advised 

management that subsequent to viewing a mandatory training video on aircraft accidents he began 

to experience difficulty performing his duties. Appellant requested that a supervisor monitor him 

after watching the video to ensure that he was not compromising safety. Due to his emotional 

condition he was restricted from performing air traffic control duties and the regional flight 

surgeon determined that he was medically incapacitated and could not perform air traffic control 

duties.

In a June 8, 2010 statement, appellant noted that, after May 21, 2010, he felt continually 

nervous and eventually experienced anxiety attacks. He noted that he could not get the quivering 

voice he heard on the Heads UP video out of his mind.

Dr. Thomas Keapu, a licensed clinical psychologist, examined appellant and diagnosed 

acute stress disorder. He noted that appellant was attending a mandatory training meeting at which 

he saw a video of two airplanes colliding. Dr. Keapu reported that appellant experienced the 

graphic reality of the controller “quivering their voice in fear.” He opined that this experience 

triggered an anxiety reaction to the general work environment. Dr. Keapu diagnosed 

occupational/career stress in reaction to the traumatic training experience and subsequent loss of 

full duties at work.

The employing establishment provided additional information. It explained that appellant 

stopped performing safety-related duties beginning on April 10, 2010 and stopped work entirely 

on April 11, 2010. Appellant returned to work on June 7, 2010 performing administrative duties. 

The employing establishment described the video which appellant viewed on March 3, 2010 as 

depicting specific air traffic events. In one event, a small aircraft almost collided with a departing 

jet. The audio indicated a very high level of stress in the controller’s voice when he recognized 

what he had done. In another event was a small aircraft that flew into a weather system and 

 

2 Docket No. 17-1215 (issued January 10, 2018).
3

crashed, killing the pilot. Another event involved two aircrafts that collided, killing five people. 

One of the airplanes barely missed a high rise building, but did hit a house. Finally, the video also 

included a helicopter and airplane colliding as well as aerial footage of aircraft crash sites. The 

conclusion of the video was the phrase “Stay out of court, stay out of the headlines.”

The employing establishment further explained that the Heads UP video was mandatory at 

the time it was viewed by appellant on March 3, 2010. It further noted that sometime after 

March 3, 2010 the video was revised. Controllers were not required to see the revised video if 

they had seen the original. Appellant was advised that the video was about safety issues and that 

it had originally been shown to managers. The employing establishment noted that appellant had 

not previously seen the video and that he had been employed since 1984. It reported showing 

other videos about safety and aircraft accidents from time to time, but noted that determining how 

similar the prior videos were to the Heads UP video was difficult to assess.

By decision dated August 13, 2010, OWCP denied appellant’s traumatic injury claim 

finding that the evidence of record was insufficient to establish that the March 21, 2010 event

occurred, as alleged.

On June 21, 2011 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. By decision dated July 14, 2011, the hearing representative

denied appellant’s request for a hearing, finding that it was untimely filed. It exercised its 

discretion, and determined that the issue in the case could be addressed through the reconsideration 

process.

On August 8, 2011 appellant requested reconsideration of the August 13, 2010 decision. 

In a July 8, 2011 report Dr. C. Alec Pollard, a licensed clinical psychologist, diagnosed

post-traumatic stress disorder (PTSD) as a result of watching the Heads UP video at work on 

March 3, 2010. A July 15, 2011 note from Dr. Geeta K. Aatre-Prashar, a licensed clinical 

psychologist, diagnosed PTSD as a result of viewing a video at work on March 3, 2010. 

By decision dated October 6, 2011, OWCP reviewed the merits of appellant’s claim and 

determined that he had established that the claimed event of viewing the Heads UP video had 

occurred. However, it denied his claim finding that viewing the video was not considered a 

compensable factor of employment. OWCP found that directing appellant to watch the video was 

an administrative function of the employing establishment and he had not met his burden of proof 

to establish error or abuse by the employing establishment.

Appellant provided additional information to OWCP on October 12, 2011. He alleged that 

he received no warning regarding the content of the Heads UP video. Appellant further noted that 

he was previously involved in a fatal aviation accident when, on October 13, 1987, a plane that he

was controlling developed smoke in the cockpit and crashed.

On October 1, 2012 appellant, through counsel, requested reconsideration. In support of 

this request, appellant provided his June 3, 2012 application for retirement. Counsel contended 

that watching the Heads UP video occurred while appellant was in the performance of duty as part 

of proficiency training and should be considered a compensable factor of employment. He further 

contended that, in the alternative, even if appellant’s injury occurred as a result of an administrative 
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function of his employing establishment, the employing establishment acted unreasonably and 

negligently in showing the video without warning because appellant had previously witnessed a 

fatal air accident.

By decision dated December 26, 2012, OWCP denied modification of its October 6, 2011 

decision. 

On December 16, 2013 appellant requested reconsideration of the December 26, 2012 

decision and provided additional factual information.

By decision dated November 14, 2014, OWCP denied modification of its prior decision. 

On November 6, 2015 appellant requested reconsideration of the November 14, 2014 decision.

In a report dated October 16, 2015 Dr. Larry Shapiro, a licensed clinical psychologist,

diagnosed PTSD and opined that appellant had developed this condition as a direct response to 

exposure to the work-related training video.

By decision dated November 18, 2016, OWCP denied appellant’s request for 

reconsideration of the merits of his claim. It found that he failed to submit relevant and pertinent 

new evidence or argument in support of his November 3, 2015 request for reconsideration.

On May 12, 2017 appellant appealed OWCP’s November 18, 2016 decision to the Board. 

By decision dated January 10, 2018, the Board remanded the case, ordering OWCP to conduct a 

merit review and issue an appropriate merit decision. 

In a May 18, 2018 development letter, OWCP asked appellant a series of questions 

regarding the Heads UP video and his reaction to the fatality accident on October 13, 1987. It

specifically queried whether he was restricted from watching videos such as Heads UP and 

whether he advised the employing establishment of these restrictions. In a separate letter of even 

date, OWCP requested additional information from the employing establishment regarding the 

Heads UP video.

On July 6, 2018 appellant responded to the May 18, 2018 development letter and denied 

receiving restrictions following the October 13, 1987 employment incident. The employing 

establishment did not respond.

By decision dated August 30, 2018, OWCP denied appellant’s emotional condition claim,

finding that he had not met his burden of proof to establish a compensable employment factor as 

he was contending that the employing establishment required him to watch the video without due 

diligence of a warning given his personal history of involvement in an air traffic fatality in 1987. 

It further found that the showing of the video, without a warning to employees previously involved 

in an air traffic fatality, had not occurred within the performance of duty.

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 

United States within the meaning of FECA, that the claim was timely filed within the applicable 
5

time limitation period of FECA,3that 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.4 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.5 

To establish an emotional condition in the performance of duty, a claimant must submit: 

(1) factual evidence identifying an employment factor or incident alleged to have caused or 

contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or 

she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion 

evidence establishing that the accepted compensable employment factors are causally related to 

the diagnosed emotional condition.6 

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

somehow related to an employee’s employment.7 In the case of Cutler,8the Board explained that 

there are distinctions as to the type of employment situations giving rise to a compensable 

emotional condition under FECA. There are situations where an injury or illness has some 

connection with the employment, but nevertheless does not come within the concept or coverage 

under FECA.9 When an employee experiences emotional stress in carrying out his or her 

employment duties, and the medical evidence establishes that the disability resulted from an 

emotional reaction to such situation, the disability is generally regarded as due to an injury arising 

out of and in the course of employment.10 On the other hand, when an injury or illness results 

from an employee’s feelings of job insecurity per se, fear of a reduction-in-force, his or her 

frustration from not being permitted to work in a particular environment unhappiness with doing 

work, or frustration in not given the work desired or to hold a particular position, such injury or 

illness falls outside FECA’s coverage because they are found not to have arisen out of 

employment.11

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 

 

3 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

6 See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014); 

Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).

7 T.L., Docket No. 18-0100 (issued June 20, 2019): L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 

622 (2006).

8 28 ECAB 125 (1976). 

9 Supra note 6; A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

10 Supra note 8; O.P., Docket No. 19-0445 (issued July 24, 2019) Trudy A. Scott, 52 ECAB 309 (2001).

11 B.S., Docket No. 19-0378 (issued July 10, 2019); William E. Seare, 47 ECAB 663 (1996).
6

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 and which working conditions are not deemed compensable factors of 

employment and may not be considered.12 If an employee does implicate a factor of employment, 

OWCP should then determine whether the evidence of record substantiates that factor. If a 

compensable factor of employment is substantiated, OWCP must base its decision on an analysis 

of the medical evidence which has been submitted.13

ANALYSIS

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

Appellant alleged that he sustained an emotional condition as a result of being required to 

view the Heads UP training video at work on March 3, 2010. The record establishes that he 

completed the mandatory training which included images of graphic violence and death. The 

Board has long held that emotional reactions to situations in which an employee is trying to meet 

his regularly or specially assigned position requirements are compensable. The Board therefore 

finds that appellant has established a compensable employment factor under Cutler.14

As the Board finds that appellant established a compensable employment factor, the case 

must be remanded for consideration of the medical evidence as to whether appellant has met his 

burden of proof to establish that his emotional condition is causally related to the compensable 

employment factor. After such further development as deemed necessary, OWCP shall issue a de 

novo decision.

CONCLUSION

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

 

12 B.S., id.; Dennis J. Balogh, 52 ECAB 232 (2001).

13 S.K., supra note 6; Norma L. Blank, 43 ECAB 384, 389-90 (1992).

14 Supra note 8.
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ORDER

IT IS HEREBY ORDERED THAT the August 30, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision of the Board.

Issued: November 21, 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