United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.W., Appellant

and

DEPARTMENT OF THE ARMY, 

EXPEDITIONARY CONTRACTING 

COMMAND, Camp Arifjan, Kuwait, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 18-0183

Issued: January 4, 2019

Appearances: Case Submitted on the Record

Wayne Johnson, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 2, 2017 appellant, through counsel, filed a timely appeal from an August 3, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

 

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 Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R. § 501.5(b). 

By order dated June 18, 2018, the Board exercised its discretion and denied the request, finding that the arguments on 

appeal could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket 

No. 18-0183 (issued June 18, 2018). 

3 5 U.S.C. § 8101 et seq.
2

ISSUE

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

performance of duty on June 29, 2015.

FACTUAL HISTORY

On July 15, 2015 appellant, then a 48-year-old quality assurance specialist, filed a 

traumatic injury claim (Form CA-1) alleging that he sustained a head injury when he was assaulted 

by Staff Sergeant (SSG) E.D. while he was sitting at his desk eating lunch on June 29, 2015. In a 

separate statement, he described an altercation, stating that SSG E.D. came into his office and 

accused him of talking about him. Appellant indicated that he denied the assertion, they then had 

words, and SSG E.D. walked toward him and, as appellant stood up, hit him and they began 

fighting. He maintained that SSG E.D. slammed him into a filing cabinet, causing injury to the 

back of his head. A coworker thereafter drove him to the emergency department. Appellant

indicated that he was later diagnosed with postconcussive syndrome. 

By development letter dated July 24, 2015, OWCP informed appellant of the deficiencies 

of his claim and advised him of the type of medical and factual evidence necessary to establish the 

claim. It also provided him a questionnaire for completion regarding the factual aspects of his 

claim. OWCP afforded appellant 30 days to submit the necessary evidence. 

The employing establishment controverted the claim maintaining that appellant was not in 

the performance of duty at the time of injury. It asserted that his injuries were caused by his own 

deliberate misconduct and the claim was therefore not compensable. 

In a statement dated June 29, 2015, SSG E.D. related that he confronted appellant at about 

12:30 p.m. that day because he had heard that appellant had been spreading rumors about him.

When he confronted appellant, he denied this, cursed at him, hopped out of his chair, slammed 

him into a wall and into a refrigerator, and attempted to punch him. SSG E.D. indicated that he 

tried to defend himself and punched back. When he saw that appellant was bleeding he stopped 

fighting and ran out of the office. SSG E.D. indicated that he then went to an office to turn himself 

in. He reiterated that appellant pushed him first. When questioned about a broken coffee pot, SSG 

E.D. stated that when appellant slammed him into the wall and refrigerator, he heard something 

shatter.

In a statement dated June 29, 2015, appellant indicated that when SSG E.D. came into his 

office that day and began accusing him of spreading rumors, he denied the accusation and asked 

him to leave. When he did not leave, appellant stood up at his desk and SSG E.D. hit him several 

times and they began fighting and continued until SSG E.D. hit him on the back of the head with 

an object causing appellant to fall to the ground. He related that SSG E.D. then pushed him into 

the filing cabinet and continued his assault. Appellant indicated that he was able to get past SSG 

E.D. and leave. He went to battalion headquarters where he was assisted and taken to the 

emergency department. When questioned, appellant indicated that he had previously discussed 

SSG E.D.’s mental state with several superiors. 

In additional statements dated June 29, 2015, several military personnel indicated that they 

witnessed the aftermath of the fight. 
3

In correspondence dated July 21, 2015, appellant’s military commander advised that, after 

the June 29, 2015 incident, a no contact directive was given to both parties. On July 23, 2015 he 

indicated that he had appointed an investigating officer to conduct an inquiry in addition to the 

military police (MP) investigation. 

An MP desk blotter report, opened on July 22, 2015, described an incident that had 

occurred on June 29, 2015, had been investigated, and was closed. It indicated that a physical 

altercation occurred that day between SSG E.D. and appellant. The report noted that both were 

apprehended and transported to MP headquarters and thereafter released. Following an 

investigation and consultation with a judge advocate, it was determined that there was probable 

cause to believe SSG E.D. committed the offense of aggravated assault and that there was probable 

cause to believe appellant committed the offense of assault. 

Medical evidence submitted included an emergency department report dated June 29, 2015 

that described a history that appellant had an altercation with a coworker who pushed him into a 

filing cabinet, causing a forehead laceration. His wound was treated and discharge diagnoses 

included open wound of the forehead and a right neck strain. Appellant was discharged with no 

limitations. Additional medical evidence indicated that he had been seen on July 1, 2015 for a 

headache. In reports dated July 7 and 15, 2015, Dr. Wilbur Allen, a Board-certified internist, 

diagnosed postconcussion syndrome and advised that appellant could not work. 

Subsequently, appellant returned to the continental United States. In an August 10, 2015 

report, Dr. Gary M. Weiss, a Board-certified neurologist, noted a history that appellant was 

attacked by a coworker while deployed in Kuwait and that he had been hit in the back of the head 

with a glass coffee pot and his head was smashed into a metal filing cabinet causing a laceration 

that required four stitches. Appellant reported that since that time he had constant daily headaches, 

positional dizziness, light sensitivity, memory loss, decreased concentration, and depression.

4

 

Following a neurological examination, Dr. Weiss indicated that memory and other cortical 

functions were reduced. He diagnosed concussion due to assault. 

By decision dated September 4, 2015, OWCP denied the claim. It found that, although an 

altercation occurred between appellant and SSG E.D. on June 29, 2015, appellant was not in the 

performance of duty because the injury arose out of a personal matter having no connection to 

employment. 

On October 5, 2015 appellant requested a hearing with OWCP’s Branch of Hearings and 

Review. 

Thereafter appellant submitted a July 17, 2015 report by Dr. Allen who indicated that 

appellant continued to be symptomatic and should be transferred state-side for further evaluation 

and treatment by a neurologist for his mild traumatic brain injury (TBI) and postconcussive 

syndrome. 

 

4 Dr. Weiss also reported that a computerized tomography (CT) scan was negative. A report of a CT scan is not 

contained in the record before the Board.
4

In an October 8, 2015 note, Dr. Weiss indicated that appellant continued to have moderateto-severe neurological injuries due to the June 29, 2015 incident. He estimated that appellant could 

perhaps return to work in 1.5 years. 

An October 16, 2015 electroencephalogram was positive for head trauma. An October 16, 

2015 magnetic resonance imaging (MRI) scan of the brain was mildly abnormal, consistent with 

trauma, ischemia, or demyelinating disease. Brainstem auditory evoked potentials testing on 

October 16, 2015 was within normal limits. Visual evoked potentials that day were abnormal. A 

magnetic resonance angiogram (MRA) scan of the brain on October 25, 2015 was abnormal with 

a small possible aneurysm present. An MRA scan of the carotids that day demonstrated stenosis 

of the right and left carotid arteries. 

In a December 22, 2015 physician’s report, Dr. Weiss indicated that appellant was 

temporarily totally disabled due to head trauma with severe headaches, memory loss, and 

depression.5 

In a statement dated February 21, 2016, appellant again described the altercation on 

June 29, 2015, maintaining that it was unprovoked and caused a TBI and postconcussive 

syndrome. He indicated that on many occasions SSG E.D. had told him that other military 

personnel could not be trusted and were spreading rumors about him, divulging his personal 

affairs, and were out to get him. SSG E.D. also informed appellant that he wanted to fight the 

other personnel, that his performance appraisal was embellished, and that he did not care about the

Army because he knew that it was trying to kick him out. Appellant maintained that SSG E.D.

was showing signs of extreme paranoia, delusion, and aggression and noted that on numerous 

occasions SSG E.D. accused him of spreading rumors about him and divulging his personal affairs. 

He noted that he would then apologize for the baseless allegations and that one morning he started 

crying uncontrollably. Appellant related that he had spoken to senior military personnel about 

SSG E.D.’s behavior, but nonetheless became a victim of an unprovoked assault on June 29, 2015. 

He asserted that he did not have an after-work relationship with SSG E.D., noting that he lived off 

base and would only encounter military members at work. Appellant provided a time line of events 

beginning June 29, 2015, noting that he left Kuwait on July 25, 2015. He asserted that his 

command did not follow violence in the federal workplace protocol, ignored his concerns 

regarding an unstable soldier, and ostracized him after he became a victim of workplace violence 

that caused a TBI. 

During the hearing, held on April 13, 2016, appellant testified that he only had a working 

relationship with SSG E.D., and that they discussed his distrust of the military. He described the 

June 29, 2015 fight, indicated that it had medically disqualified him from his position, and noted

that he had been on leave-without-pay (LWOP) since September 1, 2015. 

On May 18, 2016 J.C., an injury compensation specialist with the employing 

establishment, commented on appellant’s hearing testimony. She asserted that the June 29, 2015 

altercation did not occur in the performance of duty, and indicated that an investigation had been 

 

5 Monica Wise, a nurse practitioner and associate of Dr. Weiss provided a treatment note on October 27, 2015. She 

diagnosed concussion due to assault on June 29, 2015 with dizziness, blurred vision, and memory/concentration loss, 

depression, post-traumatic stress disorder (PTSD), possible seizure disorder, and abnormal MRI scan of the brain. 

Ms. Wise saw appellant in follow-up on February 16, 2016 and reiterated her findings and conclusions.
5

undertaken. J.C. asserted that appellant was not required to “reach out” to SSG E.D. as part of his 

work duties and that appellant’s actions and discussions with SSG E.D., leading up to the 

altercation, confirmed a personal relationship outside the scope of employment. She concluded 

that there was no evidence that verified who the victim was and who was the assailant.

The commander of the civilian personnel advisory center at the employing establishment

provided a second letter dated May 18, 2016. He too indicated that violence in the workplace 

protocol had been followed, noting that the MP had investigative authority for assault crimes, had 

investigated the June 29, 2015 altercation, had concluded that the incident amounted to a mutual

affray, and that the local military prosecutor opined that there was probable cause to charge both 

individuals with assault. The commander noted that, although the MP investigation did not

preclude further inquiry, there were no witnesses to the event and any additional investigation was 

unlikely to yield additional evidence. He advised that the employing establishment did not have 

jurisdiction to criminally prosecute appellant because the Uniform Code of Military Justice only 

applied to civilians during a time of declared war, and maintained that management addressed

concerns raised by appellant and others about SSG E.D.’s behavior.

The commander attached a July 17, 2015 memorandum in which Dr. Allen indicated that 

appellant was diagnosed with a mild TBI and postconcussive syndrome with symptoms of 

headaches, dizziness, light sensitivity, memory loss, and brain fog and opined that appellant was 

unable to return to work until medically cleared and should be transferred stateside for evaluation 

and treatment. 

In e-mail correspondence dated February 12, 2016, T.M., the command judge advocate, 

noted that, because the MP investigation revealed two sides to the June 29, 2015 fight with no 

witnesses and, because their investigation showed mutual affray, management could not support 

appellant’s claim. He acknowledged that members of the unit had concerns about SSG E.D.’s

mental health and welfare in May, but no one felt that he was a threat to anyone. 

An investigation was conducted by the military in July 2015. A number of sworn 

statements dated July 24, 2015 from both military and civilian personnel were submitted. 

Although several military personnel noted that concerns had been raised about SSG E.D.’s concern 

that people were talking about him, no one witnessed the altercation.

By decision dated July 6, 2016, an OWCP hearing representative found that the June 29, 

2015 altercation arose out of personal matters not related to appellant’s employment. She therefore 

affirmed the September 4, 2015 decision. 

On March 28, 2017 appellant, through counsel, requested reconsideration.6 Counsel

asserted that it was work that brought appellant and SSG E.D. together. In a sworn affidavit dated 

March 21, 2017, appellant described his employment and training, the events of the June 29, 2015

incident, subsequent investigations and events, and his medical treatment. He alleged that the 

employing establishment acted improperly regarding his claim. 

 

6 Wayne Johnson, Esq. began representing appellant on July 22, 2016. 
6

A July 22, 2015 final MP report regarding the June 29, 2015 altercation was submitted. 

This indicated that the investigation was continuing. Several MP statements regarding the June 29, 

2015 incident and subsequent events were attached. 

On May 17, 2017 an employing establishment judge advocate responded to the 

reconsideration request. He asserted that the claim was not compensable because the trigger for 

the mutual affray was clearly a personal dispute imported into the work environment. The 

employing establishment judge advocate noted that appellant had no supervisor or management 

duties yet described at the hearing that he had reached out to SSG E.D. on numerous occasions to 

provide him with information regarding his career and advice on how to deal with others in the 

organization, which was clearly outside of appellant’s scope of work. 

In correspondence dated June 30, 2017, counsel asserted that the altercation was not purely 

personal and was thus compensable, maintaining that SSG E.D.’s attack on appellant was 

unprovoked and that work brought the two men together. Citing Defense Base Act7cases, he

further asserted the claim was compensable because the employing establishment was in a zone of 

special danger. 

By decision dated August 3, 2017, OWCP denied modification of the prior decisions. It 

found appellant’s assignment at the employing establishment did not fall into FECA’s definition 

for war-risk hazards and that provisions of the Defense Base Act were separate from FECA. 

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 filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 

employment injury. These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8

The phrase sustained while in the performance of duty is regarded as the equivalent of the 

coverage formula commonly found in workers’ compensation laws, namely, arising out of and in 

the course of employment.9 In the course of employment relates to the elements of time, place, 

and work activity.10 To arise in the course of employment, an injury must occur at a time when 

the employee may reasonably be said to be engaged in his or her master’s business, at a place when 

he or she may reasonably be expected to be in connection with his or her employment, and while 

he or she was reasonably fulfilling the duties of the employment, or engaged in doing something 

 

7 The Defense Base Act, codified at 42 U.S.C. §§ 1651-1654 is an extension of the Longshore and Harbor Workers’ 

Compensation Act, 33 U.S.C. §§ 901-950. 

8 L.R., Docket No. 17-0031 (issued July 11, 2017).

9 This construction makes the statute effective in those situations generally recognized as properly within the scope 

of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).

10 J.G., Docket No. 17-0747 (issued May 14, 2018).
7

incidental thereto.11 As to the phrase in the course of employment, the Board has accepted the 

general rule of workers’ compensation law that, as to employees having fixed hours and places of 

work, injuries occurring on the premises of the employing establishment, while the employees are 

going to and from work, before or after work hours or at lunch time, are compensable.12

Assaults arise out of the employment either if the risk of assault is increased because of the 

nature or setting of the work or if the reason for the assault was a quarrel having its origin in the 

work. Assaults for private reasons do not arise out of the employment unless, by facilitating an 

assault that would not otherwise be made, the employment becomes a contributing factor.13 The 

Board has held that this principle applies to mental or emotional injuries as well as to assaults.14

ANALYSIS

The Board finds that appellant was in the performance of duty when the assault occurred 

on June 29, 2015. 

There is no dispute that on June 29, 2015 SSG E.D. entered appellant’s work space,

confronted him accusing him of spreading rumors, and they began to fight. At that time appellant 

was at his desk eating lunch. OWCP denied the claim finding that the subject matter of the dispute 

concerned a nonemployment-related matter. The Board, however, finds that the altercation arose 

in the performance of duty.

The Board has recognized that friction and strain among employees may arise as an 

inherent part of the conditions of employment. Even if the subject of a dispute is unrelated to 

work, an altercation is compensable if the work of the participants brought them together and 

created the relations and conditions that created the clash.15 

Larson states that assaults arise “out of the employment” either if the risk of assault is 

increased because of the nature or setting of the work, or if the reason for the assault was a quarrel 

having its origin in the work. Assaults for private reasons do not arise out of the employment 

unless, by facilitating an assault that would not otherwise be made, the employment becomes a 

 

11 See J.B., Docket No. 17-0378 (issued December 22, 2017).

12 T.H., Docket No. 17-0747 (issued May 14, 2018).

13 J.G, supra note 10; see also A. Larson, The Law of Workers’ Compensation § 8.00 (May 2004).

14 See C.O., Docket No. 09-0217 (October 21, 2009). 

15 The friction and strain doctrine recognizes that workplace employees under strains and fatigue from human and 

mechanical impacts creating frictions, which explode in myriads of ways, only some of which are immediately 

relevant to their tasks. Personal animosities are created by working together on the assembly line or in traffic. Others 

initiated outside the job are magnified to the breaking point by its compelled contacts. No worker is immune to these 

pressures and impacts upon temperament. They accumulate and explode over incidents trivial and important, personal 

and official. However, the explosion point is merely the culmination of antecedent pressures. That it is not relevant 

to the immediate task, involves a lapse from duty or contains an element of violation or illegality does not disconnect 

it from them nor nullify their causal effect in producing its injurious consequences. A. Larson, supra note 13 at

§ 801(6)(a). The Board has recognized the friction and strain doctrine. See Shirley Griffin, 43 ECAB 573 (1992). 

See also M.A., Docket No. 08-2510 (issued July 16, 2009). See also Federal (FECA) Procedure Manual, Part 2 --

Claims, Performance of Duty, Chapter 2.804.12(b) (March 1994) (Coworker Harassment or Teasing).
8

contributing factor.16 Larson goes on to explain that the friction and strain of close contact may 

supply the necessary work connection by increasing the probability of quarrels among employees:

“This view recognizes that work places men under strains and fatigue from human 

and mechanical impacts creating frictions which explode in myriads of ways, only 

some of which are immediately relevant to their tasks. Personal animosities are 

created by working together on the assembly line or in traffic. Others initiated 

outside the job are magnified to the breaking point by its compelled contacts. No 

work is immune to these pressures and impacts upon temperament. They 

accumulate and explode over incidents trivial and important, personal and official. 

But the explosion point is merely the culmination of the antecedent pressures. That 

it is not relevant to the immediate task, involves a lapse from duty, or contains an 

element of violation or illegality does not disconnect it from them nor nullify their 

causal effect in producing its injurious consequences.”

17

In the case at hand both appellant and SSG E.D. were deployed to the Middle East Theater 

at a forward operating encampment at Camp Arifjan. The altercation between the two men

occurred on the work premises during regular work hours. Although they may have had some 

discussions concerning their careers, this would not take the June 29, 2015 incident outside of the 

performance of duty.18 Appellant and SSG E.D. had no relationship outside of work as appellant 

lived off base and did not interact with military members outside of work. The Board has 

recognized distinctions between altercation which arise from domestic, private life and an 

altercation wherein the employment setting facilitates the dispute. In L.B., an emotional condition 

case, OWCP had concluded that allegedly harassing remarks made at work were noncompensable 

because they concerned appellant’s personal life and had nothing to do with her assigned duties.

However, the Board explained that the fact that a coworker chose to repeatedly question appellant 

over an issue that was inherently personal did not make the workplace events any less 

compensable.19 In this case, given the environment of being deployed in a foreign country and 

working in a forward operating base were circumstances that were created by the employment. 

The very nature of such employment, that is, being in close contact in a foreign country in a 

potentially hostile setting can give rise to the strains and fatigue where events not confined to the 

work duties can spill over in the form of personal animosities which are not necessarily integral to 

the employment duties. In this unique circumstance, the Board finds the altercation was due to 

such factors and therefore compensable. 

Consequently, the issue is whether the incident at work caused an injury. OWCP did not 

adjudicate this aspect of the case as it found that the altercation did not occur in the performance 

of duty. The case will, therefore, be remanded for OWCP to consider whether the medical 

 

16 1 A. Larson, The Law of Workers’ Compensation, supra note 13. See M.A., Docket No. 08-2510 (issued 

July 16, 2009).

17 Id.

18 Id.

19 See L.B., Docket No. 06-1939 (issued January 30, 2007); see also I.D., Docket No. 16-0581 (issued 

December 12, 2016). 
9

evidence establishes that appellant sustained an injury due to the June 29, 2015 altercation.20 

Following such further development as is deemed necessary, OWCP shall issue a de novo decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the November 28, 2017 decision of the Office of 

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

proceedings consistent with this decision of the Board.

Issued: January 4, 2019

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

 

20 The Board notes that the most recent medical evidence of record submitted by a physician is Dr. Weiss’ 

December 22, 2015 report.