United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.B., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Olathe, KS, Employer 

__________________________________________ 

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Docket No. 14-911 

Issued: September 3, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 12, 2014 appellant filed a timely appeal from a September 16, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying her emotional 

condition claim. 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 sustained an emotional condition in the performance of 

duty causally related to factors of her federal employment. 

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated June 25, 2013, the 

Board set aside a January 25, 2012 nonmerit decision denying appellant’s request for 

 1

 5 U.S.C. § 8101 et seq. 
2

reconsideration under section 8128.2

 The Board noted that an OWCP hearing representative, in a 

February 7, 2011 decision, determined that appellant had established as a compensable work 

factor that she experienced stress on April 29, 2010 while performing her assigned duties as a 

training instructor. The hearing representative found, however, that the medical evidence was 

insufficient to meet appellant’s burden of proof as it attributed her stress-related condition to her 

belief that a coworker accused her of an operational error on April 29, 2010 in retaliation for her 

accusing him of harassment. Appellant submitted statements on reconsideration from coworkers 

supporting her contention that the coworker retaliated against her when he accused her of an 

operational error on April 29, 2010. The Board found that this evidence was sufficient to 

warrant reopening her case under section 8128 and remanded the case for OWCP to conduct a 

merit review. The facts and circumstances as set forth in the prior decision are hereby 

incorporated by reference. 

On May 6, 2010 Dr. Daniel K. Berry, an osteopath with the employing establishment, 

opined that appellant was unable to perform her safety duties due to medical incapacity. 

In a report dated May 13, 2010, Dr. Michael I. Gruenebaum, a Board-certified internist, 

noted that appellant had experienced stress at work for months. He diagnosed sinus tachycardia 

and acute anxiety disorder. On May 28, 2010 Dr. Gruenebaum stated, “A revised diagnosis for 

[appellant] is post-traumatic stress disorder. We have arrived at this diagnosis due to the direct 

association between the reported workplace intimidation and [her] symptoms of anxiety and 

gastrointestinal symptoms.”3

On June 24, 2010 Dr. Gruenebaum diagnosed “post-traumatic stress disorder due to a 

direct association between the reported workplace intimidation and [her] symptoms of anxiety 

and gastrointestinal symptoms.” 

In a report dated October 21, 2010, Dr. Gruenebaum noted that appellant related that she 

had experienced harassment and intimidation by four men at work. She filed a complaint against 

the men on April 27, 2010. Dr. Gruenebaum stated: 

“[Appellant] explained that two days following her formal report to management, 

the workplace intimidation escalated to include a specific incident, manipulated 

by one of the accused men, designed to make it appear as though she had 

performed her job incorrectly. This man reported to management that she had 

deviated [into] his work sector with an aircraft. Immediately following the 

individual reporting the incident, [appellant] suffered an acute anxiety attack, her 

 2

 Docket No. 12-1617 (issued June 25, 2013). On May 5, 2010 appellant, then a 46-year-old air traffic control 

specialist, filed a traumatic injury claim alleging that on April 29, 2010 she experienced post-traumatic stress 

disorder due to harassment in the performance of duty. She maintained that on April 29, 2010 a coworker falsely 

accused her of an operational error in retaliation for her accusing him of harassment. OWCP adjudicated the claim 

as an occupational disease claim. 

3

 In a progress report dated June 3, 2010, Dr. Gruenebaum diagnosed acute anxiety disorder, palpitations, 

diarrhea, abdominal pain, sinus tachycardia and borderline hypertension. On June 10, 2010 he noted that appellant 

wanted a note regarding her disability after “an alleged sexual harassment at work” and to contact him with 

questions. 
3

emotional distress was severe and evidence and she was dismissed by 

management to leave the facility on medical leave. During her appointment on 

May 4th, [she] repeatedly stressed her fear that her accusers had crossed the line 

from intimidation to a dangerous activity, that of using actual aircraft with live 

persons on board to prove a point to her. She noted that her fear is directly related 

to the safety of flying passengers.” 

Dr. Gruenebaum described appellant’s work duties and indicated that communication 

between the team members was essential to the position. He stated, “When [she] took action to 

separate aircraft and a member of her assigned team took action against her, she suffered her first 

medically defined anxiety attack.” Dr. Gruenebaum diagnosed post-traumatic stress disorder and 

noted that he had treated appellant for years. He related, “Given her lack of previous symptoms, 

it is our reasoned medical opinion that the acute anxiety that she suffered as a result of the 

incident on April 29, 2010 was the mechanism that produced this disorder.” 

In a report dated December 20, 2010, Dr. Debra F. Johnson, a clinical psychologist, 

related that appellant’s December 15, 2010 statement about the events on April 29, 2010 

correlated with her description of the incident in her initial evaluation in January 2010. She 

stated: 

“As described in [appellant’s] statement, the onset of the symptoms occurred 

immediately following the incident in which a coworker allowed aircraft to aim at 

each other in order to give the impression that she had made a performance error. 

Two days prior to the incident, an investigation of this man and three other 

coworkers had resulted from a formal complaint filed by [appellant]. The 

complaint addressed increasingly provocative workplace harassment by the four 

men.” 

“I believe the life-threatening dangerousness of the behavior in the incident on 

April 29, 2010 pushed [appellant] from irritation and indignation into a 

psychiatric diagnosis.” 

Dr. Johnson diagnosed post-traumatic stress disorder. She noted that appellant had greatly 

improved and returned to work in September 2010. Dr. Johnson opined that she could resume 

her regular employment without restrictions. 

By letter dated July 17, 2013, OWCP requested that the employing establishment review 

the statements by Neal Thigpen and Scott Barnes.4

 It noted that their statements supported that 

Brad Schwartz, a manager, found that Greg Stephen’s action toward appellant on April 29, 2010 

appeared retaliatory in nature. OWCP asked that Mr. Schwartz or another individual with the 

employing establishment address the accuracy of the statements. 

In a decision dated September 16, 2013, OWCP denied modification of its February 7, 

2011 decision. It noted that the employing establishment had not responded to its request to 

comment on whether Mr. Schwartz told Mr. Thigpen and Mr. Barnes that Mr. Stephens acted in 

 4 See supra note 2. 
4

a retaliatory way on April 29, 2010. OWCP accepted appellant’s allegation as factual and found 

that she established as a compensable work factor that Mr. Stephens harassed and retaliated 

against her by publically alleging that she was involved in an operational error. It determined, 

however, that the medical evidence was insufficient to establish a causal relationship between the 

April 29, 2010 work factor and a diagnosed emotional condition. 

On appeal appellant relates that she experienced a panic attack immediately after being 

informed that she had committed an operational error. She noted that the finding that there was 

no operational error does not mean that the incident did not occur but instead that she did not 

commit an error. Appellant asserts that Mr. Stephens did not properly feed aircraft into her 

sector but rather allowed aircraft to aim at each other and then accused her of an operational 

error. She noted that Mr. Schwartz confirmed her version of the events at the December 15, 

2010 hearing. 

LEGAL PRECEDENT 

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

somehow related to an employee’s employment. 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. 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 On the other hand, the 

disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or 

to hold a particular position.6

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.7

 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.8

 

Causal relationship is a medical issue, and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.9 The opinion of the 

 5

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

6 Gregorio E. Conde, 52 ECAB 410 (2001). 

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

8 Id.

9 John J. Montoya, 54 ECAB 306 (2003). 
5

physician must be based on a complete factual and medical background of the claimant,10 must 

be one of reasonable medical certainty11 explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the claimant.12

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

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

shares responsibility to see that justice is done.13 The nonadversarial policy of proceedings 

under FECA is reflected in OWCP’s regulations at section 10.121.14

OWCP procedure manual provides as follows: 

“In psychological/emotional stress claims, the SOAF [statement of accepted facts] 

is particularly important since the physician’s opinion on causal relationship must 

be based on accurate identification of the implicated work factors. The SOAF is 

required in these claims even if the CE [claims examiner] decides not to send the 

claimant for a second opinion medical examination at the time of adjudication. 

The complex nature of the issues inherent in this type of claim necessitates that 

the facts be established and documented in a SOAF.”15

ANALYSIS 

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

OWCP found that appellant established as compensable work factors that she 

experienced stress on April 29, 2010 while performing her work duties under Cutler. Further, 

Mr. Stephens harassed and retaliated against her on April 29, 2010 when he publically asserted 

that she had committed an operational error. It noted that the employing establishment had not 

responded to its request to review statements by Mr. Thigpen and Mr. Barnes supporting that 

Mr. Schwartz, a manager, found that Mr. Stephens’ actions on April 29, 2010 seemed retaliatory. 

OWCP denied appellant’s claim after finding that the medical evidence was insufficient to show 

a causal relationship between the compensable work factor and a diagnosed emotional condition. 

It found that Dr. Johnson attributed her condition to a coworker aiming aircraft at each other to 

make it look like she had made an error, which it noted was not established by the record. 

OWCP further determined that Dr. Gruenebaum also attributed appellant’s condition to her 

belief that her coworkers were endangering passengers. 

 10 Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001). 

11 John W. Montoya, supra note 9. 

12 Judy C. Rogers, 54 ECAB 693 (2003). 

13 Jimmy A. Hammons, 51 ECAB 219 (1999). 

14 20 C.F.R. § 10.121. 

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.2(d)(3) 

(September 2009). 
6

The Board notes that OWCP failed to prepare a statement of accepted facts describing the 

accepted compensable work factors. Its procedures require a statement of accepted facts be 

prepared in emotional condition claims even if it does not refer a claimant for a second opinion 

examination as a physician’s opinion on causal relationship must accurately identify the 

implicated work factors.16 Consequently, OWCP did not comply with its procedures and prepare 

a statement of accepted facts prior to adjudicating the medical evidence. 

In reports dated May 28 and June 24, 2010, Dr. Gruenebaum diagnosed post-traumatic 

stress disorder which he attributed to intimidation at work. On October 21, 2010 

Dr. Gruenebaum noted that appellant had filed a formal complaint of harassment against four 

men at work. Two days later, one of the men reported that one of her aircraft deviated into his 

work sector. Appellant experienced an acute anxiety attack immediately after the accusation. 

She told Dr. Gruenebaum that she was afraid for the safety of passengers because the men were 

using aircraft to get to her. Dr. Gruenebaum diagnosed post-traumatic stress disorder and opined 

that her acute anxiety attack resulted from the April 29, 2010 employment incident. 

On December 20, 2010 Dr. Johnson indicated that appellant began experiencing 

symptoms immediately after a coworker allowed aircraft to aim at each other to make it look like 

she had committed an operational error. He attributed her post-traumatic stress disorder to the 

dangerous actions taken by the coworker on April 29, 2010. 

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

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

shares responsibility in the development of the evidence to see that justice is done.17

The Board finds that the reports of Dr. Gruenebaum and Dr. Johnson provide support that 

appellant sustained post-traumatic stress disorder due to the events of April 29, 2010 sufficient to 

warrant further development of the medical evidence.18 OWCP has accepted as compensable 

work factors that she experienced stress while performing her regular work duties on April 29, 

2010 when she was accused of an operational error. Mr. Stephens also harassed and retaliated 

against her when he alleged that she committed an operational error on that date. It found that 

appellant had not established that Mr. Stephens’ actions were life threatening to the passengers 

on an aircraft; however, his accusation that she had committed an operational error while she was 

in the midst of performing her work duties and in the presence of other air traffic controllers 

escalated the situation in a manner that involved the passengers on the aircraft being routed 

through the affected airspace. Although Dr. Gruenebaum and Dr. Johnson did not provide 

sufficient medical rationale explaining how the compensable work factors occurring on April 29, 

2010 caused or aggravated an emotional condition, their reports are generally supportive of 

appellant’s claim and raise an uncontroverted inference of causal relationship sufficient to 

require further development by OWCP.19 On remand, OWCP should prepare a statement of 

 16 Id. 

17 See Phillip L. Barnes, 55 ECAB 426 (2004). 

18 Id. 

19 See P.B., Docket No. 13-1092 (issued June 19, 2014); R.H., Docket No. 13-1193 (issued May 29, 2014). 
7

accepted facts and refer appellant for a second opinion examination by an appropriate specialist. 

Following such further development as deemed necessary, it should 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 September 16, 2013 decision of the Office of 

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

consistent with this opinion of the Board. 

Issued: September 3, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board