United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

CENTRAL ARKANSAS HEALTH CARE 

SYSTEM, North Little Rock, AR, Employer 

__________________________________________ 

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Docket No. 15-1454 

Issued: December 15, 2015 

Appearances: Case Submitted on the Record

James W. Stanley, Jr., Esq., for the appellant 

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 June 25, 2015 appellant, through counsel, filed a timely appeal from a June 2, 2015 

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 her burden of proof to establish an emotional 

condition in the performance of duty causally related to factors of her federal employment. 

On appeal, counsel asserts that the medical evidence of record establishes that appellant’s 

emotional condition was related to a hostile work environment and further asserts that a hearing 

representative did not make credibility findings regarding appellant’s testimony. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 11, 2013 appellant, then a 48-year-old diagnostic radiologic technologist, 

filed an occupational disease claim (Form CA-2) alleging that factors of her federal employment 

caused depression. She stopped work on December 3, 2013 and has not returned. 

In letters dated December 18, 2013, OWCP informed appellant of the evidence needed to 

support her claim and also requested that the employing establishment respond. 

Appellant provided an undated statement in which she noted that she began working in 

the cardiac catheterization laboratory (cath lab) of the employing establishment in March 2011. 

She stated that, when she began working there, she had no cath lab experience and was 

constantly being compared to others with more experience and felt that she was being “watched 

like a hawk.” Appellant related that she was immediately aware that there were “aggressive 

attitudes” there, and each person had a certain way of getting things done. She specifically 

described events in February 2012 and June 2013, the first when she disagreed with instructions 

from a registered nurse and felt that she was being picked on, and the second when she found 

that a coworker left her name off reports. Appellant stated that she reported numerous incidents 

to her supervisor, e.g. that her locker was broken into, that employees were moving catheters 

around, placing new stickers on cable boxes to confuse her, and that others were promoted to 

positions for which she felt she was qualified. She concluded that since September 2013 she had 

worked in a very hostile environment where everyone had turned against her. 

Appellant submitted copious evidence in support of her claim including documentation of 

an Equal Employment Opportunity (EEO) complaint, portions of performance appraisals, 

laboratory results, and an article regarding workplace bullying. In e-mails dated February 15, 

2012 and June 10, 2013, Brad Massey, cardiovascular manager, discussed workplace bullying 

and a monthly meeting agenda. In an August 5, 2013 e-mail, he mentioned that box stickers had 

been inadvertently changed, and reminded the staff to be aware of the change and fix the error. 

In reports dated December 17, 2013, Dr. Richard Owings, a Board-certified psychiatrist, 

diagnosed depression, anxiety, and paranoia related to work stress. He checked a form box 

marked “yes,” indicating that the diagnoses were work related, stating, “[appellant] reports 

harassment by coworkers and supervisors.” Dr. Owings advised that appellant was totally 

disabled, but could resume regular duty on February 1, 2014. 

On January 30, 2014 Dr. Donna Brown, a psychiatrist, asked that appellant be 

accommodated with an alternate work environment that did not involve patient care, clinical 

decision making, or exposure to the prior hostile environment. She noted that appellant 

continued to have concentration difficulties that could promote errors and the hostility in the 

prior work environment could exacerbate or worsen her condition. 

On February 7, 2014 OWCP forwarded appellant’s statement and the e-mails to the 

employing establishment and asked for a response. 

In treatment notes dated April 17 to October 9, 2012, Dr. Owings described appellant’s 

emotional condition and prescribed medication. Dr. Brown also continued to submit reports in 

which she reiterated her diagnoses and conclusions. 
3

On February 11, 2014 the employing establishment controverted the claim. In a 

February 14, 2014 statement, Mr. Massey specifically addressed appellant’s allegations. He 

maintained that leaving appellant’s name off a procedure report was not intentional, and that 

there was nothing to be gained by leaving a name off because job performance was not measured 

by cases completed. As to appellant’s allegation that equipment was moved, Mr. Massey stated 

that he could not remember this and that appellant would need to be more specific. He admitted 

that the cardiac cath lab could be stressful if a patient’s life was in danger, and indicated that 

monthly team-building meetings were held, that there was a monthly party to celebrate birthdays, 

and that appellant was always welcome to talk with him. Mr. Massey advised that all employees 

were treated in the same manner, and appellant was always free to express her concerns or 

opinions at monthly meetings, but never did so. He concluded that she had no conduct problems, 

that any performance problems were very minor and fixed on the spot or with additional training, 

and that she received the highest rating on her most recent performance evaluation. 

On February 19, 2014 appellant additionally alleged that her supervisor did not properly 

follow procedure in filing a (Form CA-2) claim. She attached e-mails in which she described 

problems she had accessing a work computer after she stopped work, including that on 

January 23, 2014 she logged onto someone else’s computer and discovered that one of her 

computer drives had been tampered with, that a firewall had been turned off her personal 

computer, and that her password was changed. Appellant reported this to information systems 

specialists and requested an investigation. She further alleged that her supervisor changed her 

leave request for sick leave and leave-without-pay to annual leave, and that she requested an 

audit of earning and leave statements for the years 2009 through 2013, stating that the earning 

and leave statements did not match her pay stubs. Appellant submitted e-mails in which she 

contacted employing establishment personnel about these concerns, and questioned why her 

2013 performance appraisal was not in her electronic personnel file. She also submitted e-mails 

describing difficulties she had at the employing establishment on February 6, 2014 regarding 

leave forms. Appellant submitted a number of earnings and leave statements. 

In statements dated February 11, 2014 appellant described events that occurred from 

November 26, 2013 to February 11, 2014. She described computer issues, problems with leave, 

filing her claim, filing medical reports, obtaining earnings and leave statements and pay stubs, 

and with her reasonable accommodation request. Appellant stated that she was offered a 

position in the gastroenterology laboratory and this upset her because it was not within the 

recommendations of her physician. She further indicated that two personal telephones and her 

home computer had been accessed illegally, that her telephone camera was turned on to 

streaming, and that apps were inappropriately placed on her telephones. Appellant stated that the 

only computer she had been able to consistently use at the employing establishment since she 

stopped work on December 3, 2013 was in the nursing education room which she had been using 

to file leave requests, etc. She related that in 2008 and 2009 she reported radiology management 

to the Office of Inspector General in Washington, DC, but nothing was done about it, and that 

when the opportunity arose for her to leave radiology, she moved to the cath lab. She indicated 

that she had contacted the Federal Bureau of Investigation, the Office of Special Counsel, and 

the Secret Service regarding her concerns, to no avail. 

Additional evidence submitted included leave-without-pay policy, memoranda regarding 

agency whistleblowing and workplace harassment, the 2013 and 2014 performance plans for a 

diagnostic radiology technician, appellant’s SF-50 forms dated December 15, 2011 to March 10, 
4

2013, her performance appraisals from 2011 and 2013, leave analysis forms, a number of e-mails 

voicing her concerns, and photographs of computer screens which she claimed documented her 

allegations. 

On March 5, 2014 someone from Dr. Brown’s office with an illegible signature indicated 

that appellant could resume work in a different department without direct patient care. On 

March 12, 2014 Dr. Richard C. Flanigin, a psychiatrist, indicated that she had no physical 

restrictions and could return to work in a different facility or department without direct patient 

care and minimal contact with coworkers. 

On April 3, 2014 appellant forwarded leave requests, and a February 25, 2014 report in 

which Dr. Brown diagnosed major depressive disorder and anxiety disorder, both severe, caused 

by appellant’s work environment. She also forwarded a list of noncompetitive positions, her 

résumé, and a referral request for noncompetitive hire. Appellant included a March 31, 2014 

offer of reassignment to a medical support position in primary care. Dr. Flanigin indicated that 

she was not able to perform patient care, interact with physicians or case managers, and was 

unable to travel to distant clinics. Appellant did not accept the position. 

On April 1, 2014 Dr. Flanigin advised that appellant had a psychiatric disability and 

could be considered for employment under 5 C.F.R. § 213.3102(u), Noncompetitive 

Appointment for Persons with Disability. Dr. Flanigin noted that appellant was likely to perform 

well in a quiet office environment with little to no patient contact or care and minimal coworker 

interaction within an office. On April 3, 2014 he advised that she could not return to work. 

On May 5, 2014 the employing establishment denied appellant’s request for 

accommodation, stating that, based on the parameters and limitations listed on the application, 

there were no funded, vacant positions for which she qualified. 

On May 29, 2014 OWCP again requested that the employing establishment respond to 

appellant’s allegations. 

In correspondence to the employing establishment dated April 29, 2014, appellant voiced 

her disagreement with the job offer. She also noted that she requested an investigation into 

hacking and other computer issues, and requested a return of access of her employing 

establishment computer. Appellant resubmitted e-mails regarding computer issues. 

In a June 24, 2014 statement, Mr. Massey provided a comprehensive list of appellant’s 

time and leave. He explained her leave requests predating and postdating December 3, 2013, 

when she stopped work, and furnished supporting documentation. Mr. Massey specifically 

explained many computer leave requests appellant made and indicated that he had no access to 

her pay stubs. Regarding her telephone and computer issues, he advised that there was no way to 

illegally access the facility’s telephones. Mr. Massey reported that he had information system’s 

personnel check appellant’s computer access, and he found nothing wrong, but felt it best to turn 

off her access to her computer until she was able to return to work. He advised that she did not 

file an EEO complaint. 

In a July 10, 2014 report, Dr. Flanigin advised that he began treating appellant in 

March 2014 for major depressive disorder and generalized anxiety disorder. He reported that, 

after reviewing her psychiatric record, there had been a pattern of work stressors since 2010 that 
5

aggravated her condition, and that she had had problems with mood instability and depression 

dating back to the early 2000’s. Dr. Flanigin noted appellant’s description of incidents at work 

when she felt bullied, and believed that her telephone had been tapped. He opined that her 

diagnoses only continued to escalate, noting that she experienced extreme paranoia, stating 

“although some of it is warranted, I am beginning to believe [that appellant] could suffer from an 

underlying delusional disorder, aggravated by stress at work.” Dr. Flanigin concluded that 

appellant should not work at the present. 

By decision dated August 7, 2014, OWCP found that appellant had no compensable 

factors of employment and denied her claim. 

Appellant, through counsel, timely requested a hearing before an OWCP hearing 

representative. In a November 24, 2014 report, Dr. Leigh Anne Bennett, a Board-certified 

psychiatrist and associate of Dr. Flanigin, advised that she began treating appellant on 

August 28, 2014 because appellant preferred a female physician. She noted her review of 

appellant’s records and diagnosed major depressive disorder, recurrent, severe, with psychotic 

features; anxiety disorder not otherwise specified; and rule-out mood disorder, not otherwise 

specified. Dr. Bennett related appellant’s description of a hostile work environment where she 

was harassed, and opined that, based on the information she had, it was her opinion that the 

circumstances at work were the major contributor to appellant’s emotional condition. She 

concluded that appellant was unable to work in any capacity. 

At the hearing, held on March 17, 2015 appellant testified that, after becoming a 

whistleblower in 2008 and 2009, she requested a transfer to the cardiac cath lab, and problems 

began early on. She stated that she was bullied by the nurses and treated in a hateful manner by 

all employees, and that when she complained to Mr. Massey, he sent out an e-mail regarding 

bullying. Appellant also described computer issues, alleged that files were removed from her 

electronic personnel file, and described incidents where her name was left off a report and labels 

were misplaced on boxes of catheters which, she maintained, was done to make her look bad and 

make mistakes. She stated that she requested a transfer and discovered that others were 

promoted, but she was not. Appellant stated that two personal cellular phones were illegally 

accessed, and files deleted, and tracking devices added. She testified that from September to 

December 2013 the work environment was toxic, that she stopped work on December 2, 2013 

and had not returned, and had applied for social security disability. A friend and coworker, 

Mala Waller, testified in support of appellant’s claim.2

 

Following the hearing, counsel argued that, based on appellant’s testimony and that of 

Ms. Waller, a hostile work environment existed in the cath lab, and that the medical evidence 

supported appellant’s claim that her emotional condition was caused by her employment. In a 

March 17, 2015 statement, Ms. Waller reported previous instances of claimed harassment and 

noted appellant’s description of incidents of bullying. She described appellant’s current 

condition. 

In a June 2, 2015 decision, an OWCP hearing representative found that appellant did not 

establish a compensable factor of employment and affirmed the August 7, 2014 decision. 

 2

 Ms. Waller did not work in the cath lab. She is a former physical therapist who had an employment injury and 

at the time of the hearing worked at the employing establishment as a clerk in logistics. 
6

LEGAL PRECEDENT 

To establish her claim that she sustained an emotional condition in the performance of 

duty, appellant must submit the following: (1) medical evidence establishing that she has an 

emotional or stress-related disorder; (2) factual evidence identifying employment factors or 

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

opinion evidence establishing that the identified compensable employment factors are causally 

related to her stress-related condition.3

 If a claimant does implicate a factor of employment, 

OWCP should then determine whether the evidence of record substantiates that factor.4

 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.5

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

somehow related to an employee’s employment. In the case of Lillian Cutler,

6

 the Board 

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

compensable emotional condition arising under FECA. There are situations where an injury or 

illness has some connection with the employment, but nevertheless does not come within 

coverage under FECA.7 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. This is true when the employee’s disability 

results from his or her emotional reaction to a special assignment or other requirement imposed 

by the employing establishment or by the nature of the work.8 Allegations alone by a claimant 

are insufficient to establish a factual basis for an emotional condition claim.9 Where the claimant 

alleges compensable factors of employment, he or she must substantiate such allegations with 

probative and reliable evidence.10 Personal perceptions alone are insufficient to establish an 

employment-related emotional condition.11

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

employment, are administrative functions of the employing establishment rather than the regular 

or specially assigned work duties of the employee and are not covered under FECA.12 Where the 

 3 Leslie C. Moore, 52 ECAB 132 (2000). 

4 Dennis J. Balogh, 52 ECAB 232 (2001). 

5 Id.

6

 28 ECAB 125 (1976). 

7 See Robert W. Johns, 51 ECAB 137 (1999). 

8 Supra note 6. 

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

10 M.D., 59 ECAB 211 (2007). 

11 Roger Williams, 52 ECAB 468 (2001). 

12 Charles D. Edwards, 55 ECAB 258 (2004). 
7

evidence demonstrates that the employing establishment either erred or acted abusively in 

discharging its administrative or personnel responsibilities, such action will be considered a 

compensable employment factor.13 

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

evidence introduced which establishes that the acts alleged or implicated by the employee did, in 

fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of 

whether such harassment or discrimination occurred. A claimant must establish a factual basis 

for his or her allegations that the harassment occurred with probative and reliable evidence.14 

With regard to emotional claims arising under FECA, the term “harassment” as applied by the 

Board is not the equivalent of “harassment” as defined or implemented by other agencies, such 

as the EEO Commission, which is charged with statutory authority to investigate and evaluate 

such matters in the workplace. Rather, in evaluating claims for workers’ compensation under 

FECA, the term “harassment” is synonymous, as generally defined, with a persistent disturbance, 

torment or persecution, i.e., mistreatment by coemployees or workers. Mere perceptions and 

feelings of harassment will not support an award of compensation.15 

ANALYSIS 

Appellant has not alleged that her emotional condition was due to any specific job duties 

under Cutler. Rather, she has alleged that she was harassed and worked in a hostile work 

environment, and that coworkers bullied her and tried to make her look bad and make errors. 

Appellant also alleged that proper procedures were not followed when she filed her 

claim, that her personnel file was inappropriately accessed, that her leave balances were 

incorrect, that she had computer difficulties, and difficulty in filing medical reports. As a general 

rule, a claimant’s reaction to administrative or personnel matters falls outside the scope of 

FECA.16 The Board has long held that disputes regarding leave,17 the inability to obtain a 

transfer,18 and the handling of a workers’ compensation claim,19 are administrative functions of 

the employing establishment and, absent error or abuse, are not compensable.20 Mr. Massey 

thoroughly explained appellant’s various leave requests. Appellant also complained about 

various computer issues such as having difficulty with access after she left work in 

December 2013. Mr. Massey contacted information systems, and her computer was checked 

nothing was found to be wrong. He felt that it would be best to turn off access to her computer 

 13 Kim Nguyen, 53 ECAB 127 (2001). 

14 James E. Norris, 52 ECAB 93 (2000). 

15 Beverly R. Jones, 55 ECAB 411 (2004). 

16 Carolyn S. Philpott, 51 ECAB 175 (1999). 

17 Jose L. Gonzalez-Garced, 46 ECAB 559 (1995). 

18 Alberta Kinloch-Wright, 48 ECAB 459 (1997). 

19 Bettina M. Graf, 47 ECAB 687 (1996). 

20 Supra note 12. 
8

until appellant returned to work. There is also no evidence of record that her electronic 

personnel file was inappropriately accessed. There is nothing in the record to substantiate error 

or abuse in these administrative matters. As such, they are not compensable factors of 

employment. 

As to appellant’s allegations that her locker was broken into and that her private cellular 

telephones and home computer were illegally accessed and tracking devices placed on them, she 

has submitted no probative evidence to substantiate these claims. 

The bulk of appellant’s claim is based on her allegation that there was a hostile work 

environment in the cath lab and that all employees there treated her in a disrespectful, aggressive 

manner, and bullied and harassed her. She described several events that, she maintained, were 

done to discredit her and cause her to make errors. These included leaving appellant’s name off 

reports and changing stickers on boxes of supplies. 

Mere perceptions of harassment or discrimination are not compensable under FECA,21

and unsubstantiated allegations of harassment or discrimination are not determinative of whether 

such harassment or discrimination occurred. A claimant must establish a factual basis for his or 

her allegations with probative and reliable evidence.22 While Ms. Waller testified that she 

believed that appellant was subjected to a hostile environment, she did not witness any specific 

events or provide supportive documentation to show that harassment did, in fact, occur. 

Appellant submitted no additional evidence. She submitted nothing to show a persistent 

disturbance, torment or persecution, i.e., mistreatment by employing establishment 

management.23 Appellant therefore did not establish a factual basis for her claim of harassment 

by probative and reliable evidence.24 

As to counsel’s argument on appeal that OWCP’s hearing representative did not make 

credibility findings regarding appellant’s testimony, in the June 2, 2015 decision, the hearing 

representative specifically stated, “I have carefully evaluated all evidence of record, to include 

the testimony presented at the hearing and the evidence submitted thereafter,” and found it 

insufficient to establish an emotional condition in the performance of duty. 

Finally, as appellant failed to establish a compensable employment factor, the Board need 

not address the medical evidence of record.25 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish an emotional 

condition in the performance of duty causally related to factors of her federal employment. 

 21 Supra note 14. 

22 Id. 

23 Supra note 15. 

24 See Robert Breeden, 57 ECAB 622 (2006). 

25 Katherine A. Berg, 54 ECAB 262 (2002). 
9

ORDER 

IT IS HEREBY ORDERED THAT the June 2, 2015 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: December 15, 2015 

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