United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.K., Appellant 

and 

DEPARTMENT OF THE NAVY, U.S. MARINE 

CORPS, Camp Pendleton, CA, Employer 

__________________________________________ 

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Docket No. 16-0698 

Issued: September 6, 2016 

Appearances: Case Submitted on the Record

Sally F. LaMacchia, 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 February 26, 2016 appellant, through counsel, filed a timely appeal from a 

September 9, 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. 

ISSUE 

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

condition in the performance of duty. 

 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

On appeal counsel asserts that the evidence establishes that appellant was secretly 

monitored while in the performance of duty and that the medical evidence supports that 

appellant’s diagnosed condition was caused by this event. She maintains that the doctrines of 

personal comfort and friction and strain and the case Leonard Dureseau were applicable.3

 

FACTUAL HISTORY 

This case has previously been before the Board. The facts in this case indicate that on 

July 22, 2005 appellant, then a 41-year-old firefighter, filed an occupational disease claim (Form 

CA-2), alleging that factors of his employment caused an emotional condition.4

 In a letter dated 

September 23, 2010, OWCP asked the employing establishment to respond to his allegation that 

on December 4, 2003 he was secretly microphoned and baited into a confrontation with 

firefighter T.G., a coworker. The employing establishment thereafter forwarded Equal 

Employment Opportunity (EEO) documentation including decisions dated June 2, 2006, 

February 12, 2007, and January 14, 2008, none of which were favorable to appellant. 

By decision dated May 13, 2011, OWCP found that he had not established any factors of 

employment and denied his claim. It noted that appellant’s allegation that he was improperly 

monitored by microphone on December 4, 2003 had been properly and thoroughly adjudicated 

under another claim, File No. xxxxxx758.5

 On July 26, 2013 appellant, through counsel, 

requested reconsideration. He alleged that OWCP had committed clear evidence of error 

because, contrary to the assertion in its May 13, 2011 decision in this claim under File No. 

xxxxxx880, OWCP had not adjudicated the claimed December 4, 2003 microphoning incident in 

File No. xxxxxx758. In an October 17, 2013 decision, OWCP denied appellant’s reconsideration 

request as his request was untimely filed and had failed to demonstrate clear evidence of error on 

the part of OWCP. Appellant then filed an appeal with the Board. 

In an October 8, 2014 decision the Board found, under the specific facts and 

circumstances of the case, that the claimed monitoring event had not been fully and appropriately 

adjudicated by OWCP and therefore he had established clear evidence of OWCP error. The 

Board remanded the case to OWCP for an appropriate decision on his claimed factor that he was 

secretly monitored.6

 The findings of facts and conclusions of the previous Board decision are 

incorporated herein by reference. 

 3

 39 ECAB 1062 (1988). 

4

 OWCP initially designated this claim as a duplicate of File No. xxxxxx758, but on July 14, 2009 determined 

that it was a new claim. See discussion infra regarding File No. xxxxxx758. 

5 Id. 

6

 Docket No. 14-277 (issued October 8, 2014). 
3

Appellant has a second occupational disease claim, adjudicated by OWCP under File No. 

xxxxxx758, accepted for prolonged depressive adjustment reaction, caused by seven accepted 

employment factors. That claim file remains open for medical treatment.7 

Evidence of record relevant to the claimed monitoring incident includes correspondence 

dated December 4, 2003, in which appellant alleged that he was told by another firefighter that 

T.G. had a monitor in her room that was five feet away, placed facing his room, and that a 

receiver was in the office of their supervisor Captain D.K. Appellant described the sleeping 

quarters as divided by seven-foot tall partitions and submitted copies of photographs of a 

monitor, taken on December 5, 2003. On June 23, 2004 appellant reiterated that he was secretly 

monitored by a hidden microphone. 

A single page of undated testimony initialed by T.G. was submitted. She indicated that 

she placed a baby monitor in her room on her own and that she did not turn it on. T.G. related 

that she had slept in her car one night because she was afraid to be alone with appellant. A 

second submission, that appears to be by D.K., noted that T.G. felt that she was being harassed 

by appellant. He related that he called a meeting of all crewmembers to establish a standard for 

bunkroom behavior, including that the door should be left open at all times. D.K. continued that 

T.G. informed him that she would like to resign because she felt harassed and could not continue 

to work under current conditions, and that she had brought in a baby monitor which she put in 

her room and his. He concluded that the monitor was used only once and no conversation or 

sounds were heard that night. 

An EEO counselor’s report dated March 16, 2005 indicates that D.K. authorized the use 

of a baby monitor for one night because T.G. had complained that appellant made sarcastic and 

intimidating remarks to her, which he denied. D.K. indicated that he was advised to remove the 

monitor by management, and that it had only been there one night. A final EEO decision dated 

January 14, 2008 upheld the employing establishment’s finding of no discrimination. It 

specifically found that placing the monitor on one occasion did not prove discriminatory/ 

retaliatory animus. 

A January 8, 2006 Merit Systems Protection Board decision upheld the employing 

establishment’s removal of appellant, effective May 17, 2006. 

In a September 7, 2010 report, Suzanne L. Martin, Ph.D., a clinical psychologist, advised 

that she had provided psychotherapy services to appellant from February 28, 2006 to 

March 27, 2010. She noted that he had described a series of actions by the employing 

establishment that occurred in the fall/winter 2003, particularly when an attempt was made to 

gather evidence against him via a secret microphone, which was planted in his cubicle. 

Dr. Martin opined that appellant’s debilitating symptoms were directly precipitated by the events 

in 2003, which escalated to an incapacitating level when he learned that he was recorded. 

 7

 Under File No. xxxxxx758, in a January 29, 2008 decision, Docket No. 07-1437, the Board affirmed a 

February 6, 2007 OWCP decision that found that appellant had not met his burden of proof to establish that his 

claimed disability on or after July 15, 2005 was causally related to the accepted employment injury. On October 20, 

2008 the Board denied his petition for reconsideration. See Docket No. 07-1437 (issued February 6, 2007, petition 

for recon. denied (issued October 20, 2008). File No. xxxxxx758 is not presently before the Board. 
4

Following the Board’s remand on October 8, 2014,8

 on October 21, 2014 appellant 

forwarded reports from Dennis Patrick Wood, Ph.D., a clinical psychologist, dated 

September 23, 2010 and July 7, 2014. In the former report, Dr. Wood noted that he had 

examined appellant in October and November 2005 and August and September 2010. He 

provided an extensive history, described evidence provided by appellant, and noted appellant’s 

report that he was secretly recorded in his sleeping quarters at work in an attempt by 

management to bait him into a confrontation. Dr. Wood opined that this event aggravated 

appellant’s diagnoses of generalized anxiety disorder, adjustment disorder with depressed mood, 

post-traumatic stress disorder, and rule-out dysthymic disorder vs. major depressive disorder, 

which were caused by a campaign of reprisal waged against appellant by the employing 

establishment. On July 7, 2014 he advised that appellant asked that his report be added to File 

No. xxxxxx880. 

In a February 5, 2015 merit decision, OWCP found that the fact that T.G. set up a baby 

monitor in firehouse sleeping area was not a compensable employment factor. It noted that she 

placed the monitor in her room, but did not turn it on, and had it to protect herself because she 

was fearful. OWCP found that the monitor had not been used for the purpose appellant alleged 

and did not rise to the level of harassment required for compensability. 

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

representative.9

 In a pleading, submitted on August 20, 2015, counsel maintained that the 

December 2003 incident where T.G. monitored appellant was a compensable factor of 

employment, arguing that, but for employment, he would not be required to occupy limited 

work/sleep space with T.G., and that the friction and strain doctrine was applicable because their 

workplace created situations leading to conflicts. She further asserted that the personal comfort 

doctrine was applicable because it was usual for appellant to sleep in the workplace, and any 

injury sustained during his sleep period would occur in the performance of duty. 

In a decision dated September 9, 2015, an OWCP hearing representative outlined 

appellant’s previous claim, adjudicated under File No. xxxxxx758, including the accepted 

incidents. He found the personal comfort and friction and strain doctrines were not applicable, 

and that appellant’s reaction to T.G. placing a monitor in her sleeping area was self-generated. 

The hearing representative affirmed the February 5, 2015 decision.10

LEGAL PRECEDENT 

To establish his claim for an emotional condition in the performance of duty, appellant 

must submit the following: (1) medical evidence establishing that he has an emotional or stressrelated disorder; (2) factual evidence identifying employment factors or incidents alleged to have 

caused or contributed to his condition; and (3) rationalized medical opinion evidence establishing 

that the identified compensable employment factors are causally related to the stress-related 

 8 Supra note 5. 

9

 The request was later changed to a review of the written record. 

10 The hearing representative also noted that OWCP could consider doubling the claims. 
5

condition.11 If a claimant does implicate a factor of employment, OWCP should then determine 

whether the evidence of record substantiates that factor.12 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.13

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,

14 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.15 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.16 Allegations alone by a claimant 

are insufficient to establish a factual basis for an emotional condition claim.17 Where the 

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

allegations with probative and reliable evidence.18 Personal perceptions alone are insufficient to 

establish an employment-related emotional condition.19

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.20 

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, 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 

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

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

13 Id.

14 28 ECAB 125 (1976). 

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

16 Supra note 14. 

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

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

19 Roger Williams, 52 ECAB 468 (2001). 

20 James E. Norris, 52 ECAB 93 (2000). 
6

“harassment” is synonymous, as generally defined, with a persistent disturbance, torment or 

persecution, i.e., mistreatment by coemployees or coworkers. Mere perceptions and feelings of 

harassment will not support an award of compensation.21

ANALYSIS 

Appellant has not attributed his emotional condition to the performance of his regular 

duties as a firefighter or to any special work requirement arising from his employment duties 

under Cutler. Rather, this case is solely based on his allegation that he was secretly monitored in 

December 2003 as part of a campaign of harassment waged against him by the employing 

establishment. In its October 8, 2014 decision, the Board remanded the case to OWCP to 

address the issue of secret monitoring, which had not been previously adjudicated by OWCP.22 

The Board finds that this one incident does not rise to the level of harassment as 

contemplated under FECA. While the evidence establishes that T.G. placed a baby monitor in 

her cubicle on one occasion, she testified that she did not turn it on and D.K. testified that on that 

occasion he heard no conversation or sounds. As noted above, 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 coworkers. 

Mere perceptions and feelings of harassment will not support an award of compensation.23 

Moreover, a January 14, 2008 EEO decision found that placing the monitor on one 

occasion did not establish discrimination or retaliatory animus. As to counsel’s reliance on the 

Dureseau case,

24 the instant case is based on only one incident of claimed harassment, not on a 

period of persecution and harassment that occurred over a period of years as described in 

Dureseau. 

Counsel also maintained that the doctrines of friction and strain and personal comfort 

were applicable here. The friction and strain doctrine recognizes that workplaces can cause 

employees under strains and fatigue from human and mechanical impacts creating frictions to 

explode in myriads of ways, only some of which are immediately relevant to their tasks. 

Personal animosities are created by working together on the assembly line or in traffic. Others 

initiated outside the job are magnified to the breaking point by its compelled contacts. No 

worker is immune to these pressures and impacts upon temperament. They accumulate and 

explode over incidents trivial and important, personal, and official. The explosion point is 

merely the culmination of antecedent pressures. That it is not relevant to the immediate task, 

involves a lapse from duty, or contains an element of violation or illegality does not disconnect it 

from them nor nullify their causal effect in producing its injurious consequences.25 The Board 

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

22 Supra note 6. 

23 Supra note 21. 

24 Supra note 3. 

25 A. Larson, The Law of Workers’ Compensation § 8.00 (May 2004); see M.A., Docket No. 08-2510 (issued 

July 16, 2009), Shirley I. Griffin, 43 ECAB 573 (1992). 
7

has recognized the friction and strain doctrine in cases involving altercations and clashes 

between employees.26 In the case at hand, there was no altercation or clash. Rather, the issue is 

based on one incident of placing a baby monitor in sleeping quarters. The Board finds that this 

does not rise to the level contemplated by the friction and strain doctrine. 

As to the personal comfort doctrine, this doctrine has evolved to provide coverage to 

employees who are injured on the employing establishment premises when ministering to their 

personal comfort.27 Appellant, a firefighter, is required to sleep at work. This would be 

considered a Cutler factor. However, he has not alleged that the monitoring incident interfered 

with his sleep on the day in question. It is not a compensable factor of employment under Cutler

or under the personal comfort doctrine. 

A claimant must substantiate allegations of harassment or discrimination with probative 

and reliable evidence.28 Appellant did not do so in this case. His perception of harassment by 

the placement of the baby monitor, which was not turned on, was self-generated and would not 

constitute a compensable factor of employment.29 For the foregoing reasons, appellant has not 

met his burden of proof to establish that the placement of the monitor caused an emotional 

condition in the performance of duty.30

As appellant failed to establish a compensable employment factor, the Board need not 

address the medical evidence of record.31 

Appellant 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 appellant did not meet his burden of proof to establish an emotional 

condition in the performance of duty. 

 26 C.O., Docket No. 09-217 (issued October 21, 2009); Shirley I. Griffin, id. 

27 V.O., 59 ECAB 500 (2008). 

28 Robert Breeden, 57 ECAB 622 (2006). 

29 See supra note 17. 

30 Supra note 28. 

31 Katherine A. Berg, 54 ECAB 262 (2002). 
8

ORDER 

IT IS HEREBY ORDERED THAT the September 9, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 6, 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