United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.D., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

EMERGENCY PREPAREDNESS & 

RESPONSE, Denton, TX, Employer 

__________________________________________ 

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Docket No. 15-1796 

Issued: September 7, 2016 

Appearances: Case Submitted on the Record

Debra Hauser, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 31, 2015 appellant, through counsel, filed a timely appeal from a May 28, 

2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case. 

                                                             1 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish that she sustained an 

emotional condition in the performance of duty. 

FACTUAL HISTORY 

On May 29, 2013 appellant, then a 58-year-old natural hazards programs assistant, filed 

an occupational disease claim (Form CA-2) alleging an emotional condition due to overwork and 

harassment at work.3

 She first became aware of her claimed condition on January 28, 2013 and 

on April 1, 2013 realized that it was caused or aggravated by her employment. Appellant did not 

stop work around the time she filed her Form CA-2.4

In a May 29, 2013 statement, appellant provided further details of the incidents and 

conditions which she believed caused her to develop stress-related conditions. She reported that 

she had worked for the employing establishment for 22 years and asserted that her current 

position involved many duties and responsibilities that were not specifically outlined in her 

position description. Appellant further asserted that she was required to perform overtime work 

between November 2012 and February 2013 and that she was on-call 24 hours per day. She 

indicated that she served as a team leader/manager and that overwork from her position had 

taken a toll on her physical and mental health. Appellant asserted that, over the past year, she 

had been sexually harassed, threatened, and bullied by coworkers. She advised that she had a 

pending Equal Employment Opportunity (EEO) complaint regarding these matters. Appellant 

noted that an attached document described additional claimed employment factors. 

In an attached, unsigned, and undated document with the heading, “EEO Chain of 

Events,” appellant reported that, beginning in November 2012, she was deployed to work for the 

employing establishment in New York City. She listed incidents in January and February 2013 

that she believed constituted sexual harassment by coworkers. Appellant asserted that, during an 

employee party held on January 7, 2013, a coworker asked why she did not move to a hotel that 

was closer to a coworker and suggested that she “do something” with the coworker. On 

January 12, 2013 two coworkers encouraged appellant to have an affair with another coworker. 

Appellant indicated that on January 13, 2013 a coworker asked her when she was going to do 

laundry for the coworker with whom she was encouraged to have an affair. She claimed that, at 

an employee party held on January 26, 2013, a coworker touched her inappropriately and made 

an unwanted sexual comment to her. Appellant asserted that on three occasions (on February 8, 

11, and 13, 2013) a coworker made derogatory comments to another coworker in her presence 

which she believed were directed at her.5

                                                             3

 Appellant alleged that she suffered from nightmares, lack of sleep, headaches, migraines, chronic body pains, 

anxiety, mood swings, psychological distress, and palpitations. 

4

 On the same form, appellant’s supervisor indicated that appellant’s regular work hours were 8:00 a.m. to 5:00 

p.m., Monday through Friday. 

5

 Appellant indicated that the coworker used Spanish words which would be translated into English as “bitch,” 

“liar,” and “uglier than the devil.” 
3

Appellant submitted an April 1, 2013 report in which Dr. Mahe T. Nadeem, an attending 

Board-certified physical medicine and rehabilitation physician, diagnosed post-traumatic stress 

disorder reaction. 

In a June 17, 2013 letter, OWCP requested that appellant submit additional factual and 

medical evidence in support of her claim. On June 17, 2013 it also requested additional 

information from the employing establishment.6

In a July 10, 2013 letter, counsel argued that the factual and medical evidence of record 

established the existence of work-related emotional conditions. In a response to OWCP’s 

development letter, appellant answered various questions posed in that letter. She provided 

additional details about each of the instances of sexual harassment she claimed in her prior 

statements. 

Appellant submitted copies of e-mails dated between January 30 and February 13, 2013. 

In some of these e-mails, she discussed the incidents of harassment that she alleged in connection 

with the present emotional condition claim. Appellant submitted additional medical evidence in 

support of her claim, including an April 4, 2013 report of Dr. Sat K. Khalsa, an attending clinical 

psychologist. 

In a January 10, 2014 decision, OWCP denied appellant’s claim for a work-related 

emotional condition because she had not established any compensable employment factors. It 

found that she had not submitted probative evidence supporting her claims of harassment and 

overwork. 

Appellant submitted additional medical evidence including a May 9, 2014 report of 

Dr. Nadeem. 

In a January 6, 2015 letter, appellant, through counsel, requested reconsideration of her 

claim. She submitted several witness statements in support of her claim. In a January 27, 2014 

statement, a coworker asserted that she and appellant had been subjected to a pervasive hostile 

work environment including sexual harassment by men against women. She indicated that 

appellant was punished for reporting this harassment. In a February 2, 2014 statement, a friend 

of appellant noted that appellant informed her that a coworker inappropriately touched her in late 

2012 or early 2013. In a July 8, 2014 statement, a coworker described an incident on or about 

December 3, 2012 when appellant fell to the ground while visiting an inspection site. 

Appellant also submitted time and attendance sheets, certified by the employing 

establishment, dated between November 2012 and February 2013 which showed that she worked 

overtime for much of this period.7

 She submitted additional medical evidence in support of her 

claim, including a December 29, 2014 report of Dr. Anthony Moore, an attending Boardcertified psychiatrist. 

                                                             6

 OWCP received a July 8, 2013 letter advising that the employing establishment could not respond to the 

development letter because appellant’s EEO claim was being considered at that time. 

7

 The records show that appellant routinely worked more than 40 hours per week during this period, including 

working six-day workweeks of approximately 60 to 70 hours on several occasions. 
4

By decision dated May 28, 2015, OWCP denied modification of its January 10, 2014 

decision denying appellant’s emotional condition claim. It again found that she had not 

established any compensable employment factors with respect to the claimed harassment and 

overwork. 

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.8

 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.9

 To the extent that disputes and incidents alleged as constituting harassment and 

discrimination by supervisors and coworkers are established as occurring and arising from 

appellant’s performance of her regular duties, these could constitute employment factors.10 

However, for harassment or discrimination to give rise to a compensable disability under FECA, 

there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of 

harassment or discrimination are not compensable under FECA.11

 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 appellant has 

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

incidents alleged to have caused or contributed to appellant’s condition; and (3) rationalized 

medical opinion evidence establishing that the identified compensable employment factors are 

causally related to appellant’s stress-related condition.12

 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.13 If a claimant does implicate a factor of 

                                                             8 Lillian Cutler, 28 ECAB 125 (1976). 

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

10 David W. Shirey, 42 ECAB 783, 795-96 (1991). 

11 Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). 

12 See Leslie C. Moore, 52 ECAB 132, 134 (2000). 

13 See Norma L. Blank, 43 ECAB 384, 389-90 (1992). 
5

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.14

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

establish causal relationship is rationalized medical opinion evidence. Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is a causal relationship between the claimant’s diagnosed condition and the 

compensable employment factors. The opinion of the physician must be based on a complete 

and accurate factual and medical background of the claimant, must be one of reasonable medical 

certainty, and must be supported by medical rationale explaining the nature of the relationship 

between the diagnosed condition and the specific employment factors identified by the 

claimant.15

ANALYSIS 

Appellant alleged that she sustained an emotional condition as a result of a number of 

employment incidents and conditions. OWCP denied her emotional condition claim as she had 

not established any compensable employment factors. The Board must initially review whether 

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

terms of FECA. The Board notes that some of appellant’s allegations pertain to her regular or 

specially assigned duties, as under Cutler.

16 She has also alleged harassment on the part of her 

coworkers. 

Appellant asserted that she was required to perform overtime work between 

November 2012 and February 2013 and that she was on-call 24 hours per day. She indicated that 

she served as a team leader/manager and that overwork from her position had taken a toll on her 

physical and mental health. The Board finds that appellant submitted timesheets covering the 

period between November 2012 and February 2013 which show that she worked overtime for 

much of this period. The records show that appellant routinely worked more than 40 hours per 

week during this period, including working six-day workweeks of approximately 60 to 70 hours 

on several occasions. The employing establishment has not disputed this allegation. Therefore, 

the Board finds that appellant has established a compensable factor of employment with respect to 

working overtime between November 2012 and February 2013.17

                                                             14 Id.

15 Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990). 

16 See supra note 8. 

17 See T.S., Docket No. 14-807 (issued June 10, 2015) (the Board found that working overtime is sufficiently 

related to regular or specially assigned duties to constitute a compensable employment factor). The Board also finds 

that appellant has not established her claims that she was on-call 24 hours per day or that she performed many duties 

and responsibilities that were not specifically outlined in her position description. 
6

 Appellant claimed that her coworkers subjected her to harassment on numerous 

occasions. For example, she asserted that on several occasions between January 7 and 13, 2013 

coworkers encouraged her to have an affair with another coworker. Appellant claimed that on 

January 26, 2013 a coworker touched her inappropriately and made an unwanted sexual 

comment to her. She also alleged that on three occasions in February 2013 a coworker made 

derogatory comments to another coworker in her presence which she believed were directed at 

her. The Board finds that appellant has not submitted sufficient evidence to establish that she 

was harassed as alleged.18 Appellant alleged that coworkers made statements and engaged in 

actions which she believed constituted harassment, but she provided no corroborating evidence, 

such as probative witness statements, to establish that the statements actually were made or that 

the actions actually occurred.19 On appeal, counsel argued that appellant’s claims of harassment 

were established by witness statements of record. In a January 27, 2014 statement, a coworker 

asserted that she and appellant had been subjected to a pervasive hostile work environment 

including sexual harassment by men against women. However, this vague statement is of limited 

probative value because the witness did not identify any specific instances when such harassment 

occurred.20 In a February 2, 2014 statement, a friend of appellant indicated that appellant 

informed her that a coworker inappropriately touched her in late 2012 or early 2013. However, 

the friend did not directly witness this claimed instance of harassment and her repeating of 

appellant’s unsupported assertion lacks probative value.21 Appellant indicated that she filed an 

EEO complaint with respect to some of these claimed incidents of harassment, but the record 

does not contain the findings or results of any such claim. Thus, she has not established a 

compensable employment factor under FECA with respect to the claimed harassment. 

 In the present case, appellant has established a compensable factor of employment with 

respect to working overtime between November 2012 and February 2013. However, her burden of 

proof is not discharged by the fact that she has established an employment factor which may give 

rise to a compensable disability under FECA. To establish her occupational disease claim for an 

emotional condition, appellant must also submit rationalized medical evidence establishing that she 

has an emotional or psychiatric disorder and that such disorder is causally related to the accepted 

compensable employment factor.22

                                                             18 See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of 

harassment with probative and reliable evidence). 

19 See William P. George, 43 ECAB 1159, 1167 (1992). 

20 The witness asserted that appellant was punished for reporting harassment, but she did not provide any 

particular instances when such punishment was carried out. 

21 In a July 8, 2014 statement, a coworker described an incident on or about December 3, 2012 when appellant fell 

to the ground while visiting an inspection site. However, appellant has not alleged that she sustained an emotional 

condition due to such an incident. She also submitted e-mails, dated in January and February 2013, in which she 

discussed the incidents of harassment that she alleged in connection with the present emotional condition claim. 

The Board notes that the statements in these e-mails have not been corroborated by any other evidence of record. 

22 See M.D., 59 ECAB 211 (2007); supra note 19. 
7

As OWCP found there were no compensable employment factors, it did not analyze or 

develop the medical evidence. The case will be remanded to OWCP for this purpose.23 After 

carrying out this development, OWCP shall issue a de novo decision regarding appellant’s 

emotional condition claim. 

CONCLUSION 

The Board finds the case is remanded to OWCP for further development. 

ORDER 

IT IS HEREBY ORDERED THAT the May 28, 2015 decision of the Office of 

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

proceedings consistent with this decision of the Board. 

Issued: September 7, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             23 See Lorraine E. Schroeder, 44 ECAB 323, 330 (1992).