United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.T., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

HOUSTON VETERANS ADMINISTRATION 

MEDICAL CENTER, Houston, TX, Employer 

__________________________________________ 

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Docket No. 14-2011 

Issued: February 5, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 18, 2014 appellant filed a timely appeal from the Office of Workers’ 

Compensation Programs’ (OWCP) decision dated August 26, 2014. 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 the case. 

ISSUE 

The issue is whether appellant has met her burden of proof to establish an emotional 

condition in the performance of duty. 

FACTUAL HISTORY 

On January 16, 2014 appellant, then a 39-year-old food service worker, filed an 

occupational disease claim alleging that she developed stress, anxiety, and loss of appetite after a 

 1

 5 U.S.C. § 8101 et seq. 
2

coworker sexually harassed her, asked her for sexual favors, offered her money for sex, and 

made inappropriate sexual comments. She became aware of her condition on January 12, 2013 

and realized it was causally related to her employment on January 7, 2014. Appellant did not 

stop work. 

On January 28, 2014 OWCP asked appellant to submit additional evidence, including a 

detailed description of the employment incidents that contributed to her claimed illness. 

The employing establishment submitted records, including a position description for a 

food service worker and appellant’s work schedule from November 4, 2012 to January 11, 2014. 

An SF-50, notification of personnel action, dated August 11, 2013, noted that appellant had a 

change in work schedule from full-time duty to part-time duty effective August 11, 2013. 

The employing establishment submitted a January 24, 2014 letter of controversion. In 

two undated statements, Willie Turner, a workers’ compensation program manager, noted that on 

January 16, 2014 appellant filed a Form CA-2 asserting that she was sexually harassed by the 

coworker on January 12, 2013. He noted that the employing establishment did not concur with 

appellant’s claim noting there was no evidence from a psychiatrist or clinical psychologist to 

support that her alleged occupational disease claim was caused by employment activities or 

event(s). 

In a February 7, 2014 letter to Dr. Carolyn Clansy Miller, a licensed psychologist, 

Mr. Turner requested a complete medical narrative report of the history of appellant’s condition, 

social and family history, the employees work situation, mental status examination, personality 

testing, diagnoses, clinical course, and an opinion which identifies which factors of employment 

caused or aggravated her condition and an assessment of her current condition. 

Appellant submitted reports from Dr. Miller dated March 1 and April 3, 2014. Dr. Miller 

opined that appellant’s mental health improved and she was able to work with the general public 

in a job setting on April 1, 2014. In a work capacity evaluation dated March 5, 2014, she noted 

that appellant experienced severe anxiety and possible psychotic symptoms, and depression 

which impaired her ability to perform her job assignment. Dr. Miller noted that appellant was 

not competent to perform her usual job of interaction with the general public and coworkers, and 

opined that an appropriate job would be minimal involvement with people, minimal stress, and a 

job which did not require average to high cognitive capacity. 

The employing establishment conducted a fact-finding investigation on February 5, 2014 

to determine the circumstances surrounding the sexual harassment allegations from appellant and 

a coworker. The fact-finding investigation was conducted by three team members, Jeremiah 

Jackson, supervisory health system specialist, Beena Kurian, supervisory health system 

specialist, and Sheri Kuhlenschmidt, program support assistant. In a February 7, 2014 

memorandum, the employing establishment concluded that it was clear to the investigative team 

that a consensual relationship existed between the coworker and appellant for a period of time. 

Based on the statements from the parties involved, it was apparent that sexual harassment did not 

take place. The investigative team noted that from the recording provided by the accuser it could 

not be confirmed that the coworker initiated the inappropriate conversation regarding sexual 

favors in exchange for money. The investigative team recommended that appellant and the 
3

coworker retake a sexual harassment training course and continue working in their assigned 

areas. 

The employing establishment submitted a February 5, 2014 fact-finding questionnaire 

from appellant in which she indicated that the incident occurred on January 7, 2014 at noon 

while at work. Appellant noted recording the conversation with the coworker on her cell phone 

that was in her pocket. She advised that he did not state his name on the recording but she knew 

it was him. Appellant reported that the incidents with the coworker began in January 2013, two 

months after she started working at the employing establishment in November 2012, and that the 

last incident was on January 7, 2014. She indicated that she told him to stop more than twice and 

informed him that nothing would happen between them. Appellant described the relationship 

noting that the coworker worked with the robots and she worked in the staging area and he 

would come to her work area and ask for her. She indicated that she did not tell anyone of the 

incidents and tried to handle it herself, but was scared. Appellant stated that the last incident 

took place on January 7, 2014 and she reported it to the union on January 12, 2014. 

In a fact-finding interview dated February 5, 2014, the coworker indicated that he knew 

appellant and that she worked in the kitchen area. He indicated that she had asked him for gas 

money and he was very giving. The coworker noted being surprised by appellant’s allegations 

and indicated that on many occasions she approached him in the control room complaining about 

her home life and lack of money for her kids at Christmas. He indicated that on December 20, 

2013 he gave her $300.00, which was $50.00 for each of her kids and $100.00 for herself, and 

told her she did not owe him anything in return. The coworker indicated that appellant came to 

his office and reported problems with her husband and that she did not have a car. He reported 

that she requested a $2,000.00 car down payment and he told her she could get a car without a 

down payment. The coworker noted that he did not know much about appellant but he could not 

give her $2,000.00 because his money went into his wife’s account and he was a “working man.” 

He noted that he never promised her $2,000.00 to get a car and would not pay that amount for 

sex. The coworker indicated that he was 68 years old and it was sad someone would step on him 

to get ahead but he did not sexually harass or assault women. He liked his job and hoped to 

retire the next year. 

In an undated employing establishment statement received on April 21, 2014, Mr. Turner 

noted that the employing establishment did not concur with appellant’s claim and noted that 

there was no factual or medical evidence to support the employees alleged occupational disease 

claim was caused by employment activities. He noted that appellant had not submitted any 

evidence to establish the alleged incidents as factual. Mr. Turner indicated that an employing 

establishment fact-finding investigation was conducted on February 5 and 7, 2014 the resulting 

memorandum concluded that a consensual relationship existed between the coworker and 

appellant for a period of time based on the statements of the parties and that sexual harassment 

did not take place. The investigative team recommended that appellant and the coworker retake 

a sexual harassment training course. 

In an August 26, 2014 decision, OWCP denied appellant’s claim for an emotional 

condition as the evidence did not support that the events occurred as alleged. 
4

LEGAL PRECEDENT 

To establish an emotional condition in the performance of duty, a claimant 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 the condition; and (3) rationalized medical opinion evidence establishing that 

the identified compensable employment factors are causally related to the emotional condition.2

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,

3

 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.4 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.5 Allegations alone by a claimant 

are insufficient to establish a factual basis for an emotional condition claim.6

 Where the claimant 

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

probative and reliable evidence.7

 Personal perceptions alone are insufficient to establish an 

employment-related emotional condition.8

 On the other hand the disability is not covered where 

it results from such factors as an employee’s fear of a reduction-in-force or his or her frustration 

from not being permitted to work in a particular environment or to hold a particular position.9

ANALYSIS 

Appellant alleges that she developed stress, anxiety, and loss of appetite after the 

coworker sexually harassed her, asked her for sexual favors, offered her money for sex, and 

made inappropriate sexual comments to her. The Board must thus, initially review whether these 

alleged incidents and conditions of employment are covered employment factors under the terms 

of FECA. Appellant has not attributed her emotional condition to performing her regular or 

 2 George H. Clark, 56 ECAB 162 (2004). 

3

 28 ECAB 125 (1976). 

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

5 Supra note 3. 

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

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

8 Roger Williams, 52 ECAB 468 (2001). 

9 See supra note 3. 
5

specially assigned duties of her position as a food service worker. Instead, as noted below, she 

has characterized the incident as harassment. Therefore, appellant has not alleged a compensable 

factor under Cutler.

10 

Appellant asserted that the incidents of sexual harassment with the coworker began in 

January 2013, two months after she began working at the employing establishment in 

November 2012. The last incident was on January 7, 2014 which she reported to the union on 

January 12, 2014. Appellant noted recording the conversation with the coworker on her cell 

phone. She advised that he did not state his name on the recording, but she knew it was him. 

Appellant indicated that she told the coworker to stop more than twice and informed him that 

nothing would happen between them. She described the relationship noting that he worked with 

the robots and she worked in the staging area and he would come to her area and ask for her. 

Appellant indicated that she did not tell anyone of the sexual harassment incidents and tried to 

handle it herself but was scared. To the extent that incidents alleged as constituting harassment 

or a hostile environment by the coworker are established as occurring and arising from her 

performance of her regular duties, these could constitute employment factors.11 However, for 

harassment to give rise to a compensable disability under FECA, there must be evidence that 

harassment did in fact occur. Mere perceptions of harassment are not compensable under 

FECA.12 

The factual evidence fails to support appellant’s claim for harassment as a cause for her 

emotional condition. The record does not support her allegation that she was sexually harassed. 

In a February 7, 2014 memorandum, the employing establishment noted conducting a 

fact-finding investigation by a team of three members to determine the circumstances 

surrounding the sexual harassment allegations from appellant about the coworker. The 

investigative team concluded that it was clear that a consensual relationship existed between the 

coworker and appellant for a period of time. Based on the statements gathered from the 

investigator involved, it was apparent that sexual harassment did not take place. The 

investigative team noted that from the recording provided by appellant it could not be confirmed 

that the coworker initiated an inappropriate conversation regarding sexual favors in exchange for 

money. The investigative team recommended that appellant and the coworker retake a sexual 

harassment training course and continue working in their assigned areas. 

Additionally, in a fact-finding interview dated February 5, 2014, the coworker denied 

sexually harassing appellant. He knew she worked in the kitchen and indicated that she had 

asked for gas money and he had given her the money. The coworker indicated that appellant 

would complain about her home life, problems with her husband, and about not having money 

for her kids for Christmas. He indicated that on December 20, 2013 he gave her $300.00, which 

was $50.00 for each of her kids and $100.00 for herself and told her she did not owe him 

anything in return. The coworker alleged that appellant wanted information about a car and 

 10 See id. 

11 David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991). 

12Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a 

claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence). 
6

requested a $2,000.00 car down payment which he declined and asserted that he never promised 

her $2,000.00 to get a car and would not pay for sex. 

The Board notes that there is no evidence of record corroborating appellant’s charges that 

the coworker was harassing her. Thus, appellant has not established a compensable employment 

factor under FECA with respect to the claimed harassment. 

To the extent that appellant alleged that from November 2012 to January 2014 her 

coworker verbally abused her, the Board has recognized the compensability of verbal abuse in 

certain circumstances. This does not imply, however, that every statement uttered in the 

workplace will give rise to coverage under FECA.13 The Board finds that the facts of the case do 

not support any specific incidents of verbal abuse. Appellant provided no corroborating 

evidence, or witness statements to establish her allegations.14 There is no corroborating evidence 

of record to support that any verbal interaction with appellant and her coworker rises to the level 

of a compensable employment factor.15 

Consequently, appellant has failed to establish her claim for an emotional condition as 

she has not attributed her claimed condition to any compensable employment factors.16 She 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 through 

10.607. 

CONCLUSION 

The Board finds that the evidence fails to establish that appellant sustained an emotional 

condition in the performance of duty. 

 13 Charles D. Edwards, 55 ECAB 258 (2004). 

14 See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where 

appellant did not submit evidence substantiating that such incidents actually occurred). 

15 See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by 

itself, support a finding of verbal abuse). 

16 As appellant has failed to establish a compensable employment factor, the Board need not address the medical 

evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992). 
7

ORDER 

IT IS HEREBY ORDERED THAT the August 26, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 5, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board