United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.A., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS AFFAIRS MEDICAL CENTER, 

Phoenix, AZ, Employer 

__________________________________________ 

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Docket No. 13-2150 

Issued: May 2, 2014 

Appearances: Case Submitted on the Record

Toby Rubenstein, for the appellant 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

On September 30, 2013 appellant, through her representative, filed a timely appeal from a 

July 29, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) that 

denied her claim that she sustained an emotional condition in the performance of duty. The 

appeal was docketed as No. 13-2150. 

The Board has duly considered the matter and finds that this case is not in posture for 

decision. Upon review of the case record submitted by OWCP, the Board finds that the record 

before it is incomplete. On appeal, appellant’s representative asserts that audio evidence in the 

form of a recording of voicemail was not considered by OWCP in rendering its decisions, 

maintaining that the transcript of the recording, relied upon by OWCP, is missing words and 

does not allow consideration that a listener would have to hear the tone, inflection and accent of 

the caller. Appellant, a psychiatrist, filed a traumatic injury claim alleging an acute stress 

disorder due to a threatening message left on her office telephone on August 16, 2012 by one of 

her patients. A staff assistant, Sharron Gibson, indicated that the message was received on 

July 20, 2012 but that she did not listen to it for two weeks and then called appellant to report the 

contents of the telephone voicemail. At that time, appellant was on Family Medical Leave Act 

for a nonemployment-related illness.1

 The employing establishment police investigated the 

 1

 The record indicates that appellant was on leave for trigeminal neuralgia. 
2

recorded threat and forwarded a recording to appellant to try and identify the caller. In an 

October 20, 2012 statement and in hearing testimony, appellant indicated that she identified the 

caller after listening to the voicemail that was forwarded to her by employing establishment 

police. She stated that, since she knew of the caller’s criminal past, she declined to press charges 

because she was fearful of retaliation by him and had since felt unsafe and was unable to return 

to work. Dr. Clint W. Anthony, a Board-certified psychiatrist and appellant’s supervisor, 

reviewed a transcript of the message and disagreed with her assertion that she was in danger. 

On January 9, 2013 OWCP denied the claim on the grounds that appellant did not 

establish a compensable factor of employment. Following a hearing, held on May 14, 2013, in a 

July 29, 2013 decision, OWCP’s hearing representative affirmed the January 9, 2013 decision. 

Both decisions indicated that only a transcript of the recorded message was reviewed and that 

neither the claims examiner nor the hearing representative listened to the recording itself before 

rendering their decisions. Copies of the transcript are in the record before the Board. A copy of 

the recording itself, however, is not.2

The Board agrees with appellant that listening to the recording itself would be beneficial 

in rendering an informed opinion in this case. Hence, the Board finds this case is not in posture 

for decision as the record before the Board is incomplete and would not permit an informed 

adjudication of the case by the Board. The case must therefore be remanded to OWCP to obtain 

the aforementioned physical recording of the voicemail message and for further reconstruction 

and assemblage deemed necessary, to be followed by a de novo decision on the merits of 

appellant’s claim. 

 

 2

 The record indicates that a compact disc was forwarded to OWCP by appellant’s representative and is kept in 

the video storage area in San Diego, California. 
3

IT IS HEREBY ORDERED THAT the July 29, 2013 decision of the Office of 

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

proceedings consistent with this order of the Board. 

Issued: May 2, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board