United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.G., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

El Paso, TX, Employer 

__________________________________________ 

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Docket No. 14-1141 

Issued: February 27, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 11, 2014 appellant, through counsel, filed a timely appeal from an October 28, 

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. 

ISSUE 

The issue is whether appellant established that she sustained an emotional condition in 

the performance of duty. 

On appeal, appellant contended that the employing establishment violated her privacy 

and Health Insurance Portability and Accountability Act (HIPAA) rights, engaged in negative 

treatment toward her, and approached her with angry and intimidating remarks when no 

witnesses were present. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 22, 2011 appellant, then a 49-year-old human resources specialist, filed a 

traumatic injury claim alleging that on June 22, 2011 the human resources (HR) chief went to 

appellant’s office and, in an intimidating manner, stood over her and advised that there were two 

more openings for the HR conference but that she was sending the HR assistant, not appellant. 

She also alleged that the HR chief personally invited coworkers to a staff meeting but ignored 

her. Appellant stated that, on that date, she had feelings of frustration, severe anxiety, 

embarrassment with distress, a racing heartbeat, and a feeling of fear. She also noted feelings of 

nausea and vomiting, muscle tension, anxiety, and uncontrollable nervousness. The employing 

establishment controverted the claim. 

In multiple statements and documents, appellant listed factors that she alleged caused her 

emotional condition. She alleged that the HR chief engaged in disparate treatment of her and 

created a hostile work environment. Appellant contended that the HR chief approved an 

extended lunch for other women in the office to attend a farewell luncheon for an HR assistant, 

but appellant was not invited and the HR chief approved of this behavior. She alleged that she 

was not allowed to attend a training conference that was important to the conduct of her job. 

Appellant stated that when the HR chief informed her that she was not going to the conference, 

she stood over her in an intimidating manner. She alleged that she was excluded from a staff 

meeting until a coworker asked about why she was excluded. Appellant also noted that her name 

was omitted on a routing slip that was sent to all other HR specialists and assistants. She alleged 

that she had to endure bullying and harassment, such as comments as, “Who’s turn is it to watch 

[appellant]?” Appellant contended that others with less seniority were assigned a private office 

before her, which made it difficult for her to conduct confidential interviews. She alleged that on 

one date she was called into the HR chief’s office three times in 30 minutes to discuss a leave 

request. Appellant further alleged that the employing establishment violated her privacy and 

HIPAA rights. She alleged that the HR chief recalled her disability retirement application after 

her immediate supervisor approved and signed it, thereby maliciously and purposely delaying the 

process. Appellant also alleged that the HR chief found her documentation insufficient to 

provide support for her May 16, 2011 absence and request for continuation of pay. She noted a 

severe lack of communication between the HR chief and herself. Appellant contended that, on 

that date, she suffered a severe anxiety attack. She had uncontrollable crying spells, problems 

breathing, was extremely nervous, and was shaking. Appellant also felt dizzy and faint. She 

noted that she was afraid to go back to work and could not deal with the harassing, disparate, and 

intimidating treatment from the HR chief. 

In a March 25, 2011 statement, Alicia Williams, chief HR officer, stated that, while 

copying appellant’s application package for disability retirement, her desk copier was out of ink, 

so she printed the completed form on the main copy machine. When she went to the copier to 

retrieve the documents, the form was not there. Ms. Williams discovered that another employee 

had retrieved them and given them to appellant. She denied that she was looking to review 

appellant’s medical documents, but stated that she was only trying to ensure that the forms were 

completed correctly and appropriate attachments submitted. Ms. Williams also noted that she 

had counseled appellant to not scan her medical documents in e-mails or have them sent by 

facsimile (fax), but that on February 23, 2011, she picked up medical documentation off the floor 

near the fax machine with regard to appellant. 
3

In an August 8, 2011 letter, Sam Robertson, assistant HR officer for the employing 

establishment, controverted the claim. He alleged that he was present at the June 13, 2011 

meeting between appellant and Ms. Williams, and at no time did Ms. Williams stand over 

appellant in an intimidating manner. Mr. Robertson did note that Ms. Williams informed 

appellant about who was authorized to attend the HR conference in Orlando, and explained that 

she authorized appellant to attend the Dallas conference in July 2011. He also attached a 

summary of complaints made by appellant from July 2009 to June 2011 regarding administrative 

matters. Mr. Robertson noted that with regard to the farewell luncheon, although Ms. Williams 

did approve a request for certain employees to take an extended lunch, Ms. Williams did not 

know who was invited, or not invited, to the luncheon, and the employees attending the luncheon 

invited each other without input from her. 

Appellant also submitted medical reports by Dr. Raul Jimenez, a Board-certified 

psychiatrist, dated from June 6 to 24, 2011. After noting her prior treatment and problems with 

her supervisor, Dr. Jimenez diagnosed severe major depressive disorder recurrent type and 

generalized anxiety disorder. 

By decision dated February 1, 2012, OWCP denied appellant’s claim as it found that she 

had not established a compensable factor of employment. 

On February 17, 2012 appellant requested an oral hearing before an OWCP hearing 

representative. At the hearing held on June 5, 2012, she testified that she was intimidated by the 

HR chief, Ms. Williams; that Ms. Williams violated HIPAA and her privacy; that Ms. Williams 

did not put her on a routing slip, denied her training, delayed her return to work and would not 

grant her request for a reasonable accommodation. 

In support of her allegation that her medical records were accessed without her 

authorization, appellant submitted a March 31, 2011 letter to her from Joan M. Ricard, a director 

at the employing establishment, wherein she indicated that, after conducting a fact-finding 

investigation, it was determined that appellant’s occupational health record was accessed without 

her authorization on February 22 and 25, 2011, that the employing establishment implemented 

appropriate measures to prevent this from happening again, and that it made apologies for any 

inconvenience concerning this situation. 

Following the hearing, the employing establishment responded to the hearing transcript 

with comments. Mr. Robertson stated that appellant’s supervisor, Ms. Williams, had not 

accessed appellant’s medical records, but had merely requested the dates of appellant medical 

appointments to verify times when appellant was off work. 

By decision dated August 23, 2012, an OWCP hearing representative noted that 

appellant’s statements submitted prior to the hearing and her testimony during the hearing 

demonstrated that her claim was for an occupational disease as the events occurred over more 

than one day or work shift. The hearing representative found that appellant had established two 

compensable factors of employment: (1) her medical records were reviewed without her 

permission; and (2) the HR chief left appellant’s retirement papers exposed when they were sent 

to the copy machine. However, she also found that appellant’s claim remained denied as the 
4

medical evidence did not connect appellant’s emotional condition to the established compensable 

factors of employment. 

By letter dated July 17, 2013, appellant requested reconsideration. She alleged that she 

never received the denial notice from OWCP or the written record. Appellant reiterated her prior 

arguments about factors that led to her emotional condition. She alleged that she was in constant 

fear of losing her job. Appellant also noted that on July 17, 2012 she was escorted out of the 

office despite having invoked Family and Medical Leave Act rights to care for her elderly 

mother who had passed on July 1, 2012. She alleged that, upon returning to work, she had to 

meet with the harassing official on July 17, 2012 and was handed termination papers. Appellant 

also noted that she had a prior stress claim for a prior employer, and that her supervisor made 

numerous comments about her prior claim. 

Mr. Robertson responded for the employing establishment in a September 10, 2013 letter, 

noting that appellant must have received the denial notice because she filed a request for an oral 

hearing. He also alleged that no one at the employing establishment knew about appellant’s 

prior claim for an emotional condition. The employing establishment noted that appellant 

attended training in May 2011, and was approved for training in July 2011 but did not attend 

because she was not at work from June 14, 2011 to February 2012. It contended that the 

comment “it’s not my day to watch him/her” was made by one person to and about all staff in the 

office, and not just appellant. Mr. Robertson noted that once appellant objected, these remarks 

ceased. A fact-finding investigation found that the HR chief had nothing to do with these 

remarks and that it was not a hostile work environment. The employing establishment noted that 

appellant was not released to return to work from June 13, 2011 (the date of her alleged injury) 

until February 2012. On January 25, 2012 the employing establishment received a fax from 

Dr. Jimenez advising that appellant could return to work, and appellant returned to work on 

February 27, 2012. On June 11, 2012 appellant was given a notice of proposed removal for 

excessive absences, and was given until July 27, 2012 to submit a response. Dr. Jimenez noted 

that appellant was separated from employment for the reason of disability retirement effective 

August 10, 2012. 

By decision dated October 28, 2013, OWCP denied modification of the prior decision. 

LEGAL PRECEDENT 

To establish a claim that she sustained an emotional condition in the performance of duty, 

an employee must submit the following: (1) medical evidence establishing that he or she has an 

emotional or psychiatric disorder; (2) factual evidence identifying employment factors or 

incidents alleged to have caused or contributed to his or her condition; and (3) rationalized 

medical opinion evidence establishing that the identified compensable employment factors are 

causally related to his or her emotional condition. 

An occupational disease or illness means a condition produced by the work environment 

over a period longer than a single workday or shift.2

 Workers’ compensation law does not apply 

 2

 20 C.F.R. § 10.5(q). 
5

to each and every injury or illness that is somehow related to an employee’s employment.3 

There are situations where an injury or an illness has some connection with the employment but 

nevertheless does not come within the concept or coverage of workers’ compensation.4

 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.5

 

Administrative and personnel matters, although generally related to the employee’s 

employment, are administrative functions of the employer rather than the regular or specially 

assigned work duties of the employee and are not covered under FECA.6 However, the Board 

has held that where the evidence establishes error or abuse on the part of the employing 

establishment in what would otherwise be an administrative matter, coverage will be afforded.7

 

In determining whether the employing establishment has erred or acted abusively, the Board will 

examine the factual evidence of record to determine whether the employing establishment acted 

reasonably.8

For harassment or discrimination to give rise to a compensable disability, there must be 

evidence which establishes that the facts alleged or implicated by the employee did, in fact, 

occur.9 Mere perceptions of harassment or discrimination are not compensable under FECA.10 

A claimant must substantiate allegations of harassment or discrimination with probative and 

reliable evidence.11 Unsubstantiated allegations of harassment or discrimination are not 

determinative of whether such harassment or discrimination occurred.12 Perceptions and feelings 

alone are not compensable. To establish entitlement for benefits, a claimant must establish a 

basis in fact for the claim by supporting his or her allegations with probative and reliable 

evidence.13 

 3 L.D., 58 ECAB 344 (2007). 

4 A.K., 58 ECAB 119 (2006). 

5

 5 U.S.C. §§ 8101-8193. Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976). 

6 See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 

ECAB 556 (1991). 

7 See William H. Fortner, 49 ECAB 324 (1998). 

8 Ruth S. Johnson, 46 ECAB 237 (1994). 

9 K.W., 59 ECAB 271 (2007). 

10 M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006). 

11 J.F., 59 ECAB 331 (2008). 

12 G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005). 

13 L.M., Docket No. 13-267 (issued November 15, 2013). 
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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 and which working conditions are not deemed 

factors of employment and may not be considered.14 If a claimant does implicate a factor of 

employment, OWCP should then determine whether the evidence of record substantiates that 

factor.15 When the matter asserted is a compensable factor of employment and the evidence of 

record establishes the truth of the matter asserted, it must base its decision on an analysis of the 

medical evidence.16 

ANALYSIS 

In the present case, appellant filed a claim for an emotional condition related to her 

federal employment. She provided allegations of harassment, a hostile work environment, 

improper actions by her supervisor, and improper exposure of personal documents. The initial 

question presented is whether there are compensable work factors established by the evidence. 

Appellant made allegations with regard to harassment and hostile work environment. 

Mere perceptions of harassment, however, are not compensable under FECA.17 The Board finds 

that appellant’s allegations of harassment are not supported by the record. There is no evidence 

that appellant was discriminated against in being intentionally excluded from meetings or routing 

slips or that the HR chief stood over her in an intimidating manner. Appellant alleged that the 

HR chief allowed her colleagues to not invite her to a luncheon, but this was totally outside of 

the HR’s chief’s knowledge, or for that matter, responsibilities. The fact that appellant may have 

felt excluded from a farewell luncheon was not relevant to appellant’s employment. Although 

there may have been a comment made with regard to “Whose turn is it to watch [appellant],” the 

evidence indicates that the comment was made about many others and was not repeated after 

appellant complained. There is no evidence that anyone at the employing establishment knew 

about appellant’s prior claim for an emotional condition filed with regard to a prior employer. 

Accordingly, appellant has not shown a compensable factor of employment with regard to 

harassment or hostile work environment. 

Appellant also contends that she suffered a compensable factor of employment with 

regard to her supervisor’s actions and other administrative matters. The Board notes that a 

supervisor must be allowed to perform their duties and at times employees will disagree with 

their supervisor’s actions.18 The manner in which a supervisor exercises his or her discretion 

 14 D.L. 58 ECAB 217 (2006). 

15 Supra note 9; David C. Lindsey, Jr., 56 ECAB 263 (2005). 

16 Robert Breeden, 57 ECAB 622 (2006). 

17 Supra note 9. 

18 Supra note 13. 
7

falls outside of FECA’s coverage.19 Appellant contends that the administrative decisions as to 

who should be authorized to attend a training conference, handling of leave requests, assignment 

of office space, discussion with regard to appellant’s absences from work, or appellant’s 

termination constitute compensable factors of employment. However, appellant has not shown 

any error or abuse on the part of the employing establishment with regard to these administrative 

matters.20 Mere disagreement or dislike of a supervisory or managerial action will not be 

compensable absent evidence of error or abuse.21 Accordingly, appellant has not shown a 

compensable factor with regard to these administrative matters. 

OWCP found that appellant had established error or abuse by the employing 

establishment with regard to two matters, i.e., that appellant’s medical records were reviewed 

without her permission and that her retirement papers were exposed when they were sent to the 

copy machine, retrieved by a coworker, and returned to her. Such administrative or personnel 

matters, although generally related to the employee’s employment, are administrative functions 

of the employer, not regular or specially assigned work duties of the employee, and are not 

covered under FECA. However, the Board has held that, where the evidence establishes error or 

abuse on the part of the employing establishment in what would otherwise be an administrative 

matter, coverage will be afforded.22 In determining whether the employing establishment erred 

or acted abusively, the Board has examined whether the employing establishment acted 

reasonably.23 The Board finds that, although appellant did establish that these events occurred as 

alleged, the employing establishment was not acting unreasonably when it reviewed appellant’s 

medical records without her permission and when a coworker retrieved appellant’s retirement 

papers from the copy machine and returned them to her. With regard to appellant’s allegation 

that her medical records were accessed without her permission, there is no evidence that 

appellant’s personal information was misused or stolen. The employee’s supervisor had a workrelated purpose for requesting the information because of a need to check the dates of appellant’s 

medical appointments. There is no decision by any administrative body establishing a Privacy 

Act violation. Finally, it was reasonable for the employing establishment to send the March 31, 

2011 letter notifying appellant that her occupational health record had been accessed without her 

authorization and that appropriate measures had been taken to prevent it from happening again. 

With regard to appellant’s claim that her retirement papers were exposed at the copy 

machine, the Board notes that appellant, a HR specialist who was responsible for handling 

retirements, also printed her personal retirement papers on a shared printer where it was 

reasonable for a coworker to pick them up and return them to appellant. Similar situations are 

common and, without evidence of malice or misuse of appellant’s personal information, this 

incident does not constitute error or abuse. 

 19 C.O., Docket No. 14-516 (issued June 5, 2014). 

20 See R.C., Docket No. 13-1636 (issued June 16, 2014). 

21 A.K., Docket No. 14-437 (issued June 9, 2014). 

22 L.B., Docket No. 13-1582 (issued September 25, 2014). 

23 L.Y., Docket No. 13-242 (issued August 20, 2013). 
8

Accordingly, the Board finds that appellant has not established a compensable factor of 

employment. Since appellant has not established a compensable work factor, the Board need not 

address the medical evidence.24

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 to 10.607. 

CONCLUSION 

The Board finds that appellant has not established that she sustained an emotional 

condition in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated October 28, 2013 is affirmed, as modified. 

Issued: February 27, 2015 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 24 See Margaret S. Krzycki, 43 ECAB 496 (1992).