United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.D., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Tuscaloosa, AL, Employer 

__________________________________________ 

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Docket No. 17-0466 

Issued: June 6, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se

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 December 28, 2016 appellant filed a timely appeal from a December 7, 2016 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). 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 has met her burden of proof to establish an emotional 

condition in the performance of duty. 

FACTUAL HISTORY 

On February 16, 2016 appellant, then a 48-year-old medical support assistant, filed an 

occupational disease claim (Form CA-2) alleging that a pattern of harassment by managers and 

 1

 5 U.S.C. § 8101 et seq. 
2

coworkers on or before August 5, 2015 aggravated preexisting post-traumatic stress disorder 

(PTSD) related to her military service.2

 The employing establishment noted that appellant 

stopped work on or before January 22, 2016 and thereafter used Family and Medical Leave Act 

(FMLA) leave. 

In a letter dated February 23, 2016, OWCP described the type of evidence needed to 

establish appellant’s claim, including a detailed account of the incidents alleged to have caused 

the claimed condition, and an opinion from her attending physician explaining why those events 

would be competent to cause an aggravation of PTSD. It afforded appellant 30 days to submit 

such evidence. 

In response, appellant provided a series of notes, e-mails, and statements alleging that 

from July 31 through November 3, 2015, her coworkers in the radiology department brought 

personal projects to work, spent hours in the breakroom while patients waited, used rude or 

obscene language in conversations among themselves, discussed current events involving 

politics and racism, used leave irregularly, arrived late, and left early. She asserted that before 

she would arrive at work coworkers would use her computer to log in patients, would move her 

chair, and would rearrange items on her desk. Appellant argued that her coworkers were hostile 

to her, discarded her food from the break room refrigerator on August 25, 2015, and did not 

invite her to a birthday party in the break room on October 22, 2015. She alleged that on 

August 31, 2015, a manager came to her workstation to introduce himself to her and to meet with 

other employees in the unit. Appellant noted that on October 28, 2015, she asked her supervisor 

to reassign her to another unit. She alleged that on November 2, 2015, a coworker yelled at her 

when she moved a desk chair, and that on November 3, 2015, coworker, T.M. confronted and 

yelled at her. Appellant became afraid and called the police. Although she was assigned to a 

new office, she contended that on November 16 and 20, 2015, a coworker opened her door and 

apologized for doing so. Appellant further contended that on December 3, 2015, her supervisor 

asked her to remove her belongings from her office so she could be assigned a new work space. 

She refused, and the supervisor yelled at her. 

In a December 3, 2015 e-mail, appellant’s supervisor instructed appellant to return to the 

radiology department, noting the supervisor’s commitment to “the safety and maintenance of a 

nonhostile work environment for all employees.” Appellant signed her name indicating her 

refusal to return to radiology. 

The employing establishment provided a statement on March 4, 2016, asserting that 

appellant was inappropriately concerned about her coworkers’ behavior and had a limited 

knowledge of how the radiology department worked. 

By decision dated September 28, 2016, OWCP denied the claim, finding that appellant 

had failed to establish any compensable factors of employment. Thus, appellant did not establish 

an injury in the performance of duty. OWCP accepted as factual, but noncompensable, the 

 2

 Appellant received mental healthcare from October 2012 to March 2013 and in October 2015 for PTSD as the 

result of a traumatic event while in military service. Dr. Jonathan Skonicki, an attending Board-certified 

psychiatrist, noted on December 12, 2014 that appellant had a history of PTSD and general anxiety disorder (GAD). 

He opined that appellant’s PTSD symptoms were ongoing, and possibly permanently disabling. 
3

August 31 and October 28, 2015 conversations with managers, but found that these were 

administrative matters not within the performance of duty. OWCP further found that appellant’s 

monitoring of her coworkers’ behavior was not within the performance of duty. Additionally, it 

found that appellant had not established any of the other alleged incidents as factual. 

Appellant requested reconsideration on October 18, 2016. She submitted additional 

evidence. 

Appellant provided documents dated June 30, 2014 to November 4, 2015 requesting to 

transfer to another unit as a reasonable accommodation for stress. She alleged patterns of 

hostility and unprofessionalism within various work locations. The employing establishment 

authorized a transfer to the radiology department on July 23, 2015. On November 4, 2015 

appellant’s supervisor granted her request to transfer out of the radiology unit due to the alleged 

November 2, 2015 verbal altercation with coworker, T.M. Appellant had an active case with the 

employing establishment’s office of resolution management, with no final decision as of 

June 24, 2016. She again requested to transfer in August and September 2016. 

In statements dated May 20 and June 13, 2016, four employing establishment privacy 

officers and records clerks affirmed that anyone who accessed appellant’s medical records from 

March 4, 2014 onward did so only in their professional capacity, pursuant to her medical care at 

the employing establishment. 

In an August 9, 2016 e-mail, an employing establishment supervisor requested that the 

radiology staff work together to improve communication. He asked appellant to alert her 

coworkers if a patient was waiting for a technician. 

Appellant also submitted a December 3, 2016 leave request and various incomplete 

documents of an Equal Employment Opportunity pleading. 

By decision dated December 7, 2016, OWCP denied modification of the prior decision, 

finding that the additional evidence failed to establish any compensable factors of employment 

“under the performance of duty.” 

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. 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.3

 3 See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 

28 ECAB 125 (1976). 
4

 Appellant has the burden of proof to establish by the weight of the reliable, probative and 

substantial evidence that the condition for which she claims compensation was caused or 

adversely affected by employment factors.4

 This burden includes the submission of a detailed 

description of the employment factors or conditions which appellant believes caused or adversely 

affected the condition or conditions for which compensation is claimed.5 

 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.6 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.7 

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

there must be probative and reliable evidence that harassment or discrimination did in fact 

occur.8

 Mere perceptions of harassment, retaliation or discrimination are not compensable under 

FECA.9 

ANALYSIS 

Appellant does not attribute her claimed emotional condition to her regular or specially 

assigned duties as a medical assistant under Cutler.

10 Rather, this case is based on appellant’s 

allegations of harassment and unprofessionalism by coworkers and supervisors. On February 23, 

2016 OWCP advised appellant of the type of evidence needed to establish her claim. Appellant 

provided additional statements reiterating her allegations and medical evidence. OWCP 

accepted as factual that a supervisor visited her unit and spoke to her on August 31, 2015, and 

that she requested reassignment on October 28, 2015. However, OWCP denied the claim on 

December 7, 2016, finding that these accepted factors were not compensable and that the 

remainder of her allegations were not established as factual. 

OWCP accepted that on August 31, 2015, an employing establishment manager visited 

appellant’s work unit, introduced himself to her, then met with other employees. It is unclear 

 4 Pamela R. Rice, 38 ECAB 838, 841 (1987). 

5 Effie O. Morris, 44 ECAB 470, 473-74 (1993). 

6 See Charles D. Edwards, 55 ECAB 258 (2004); Norma L. Blank, 43 ECAB 384 (1993). 

7 Lori A. Facey, 55 ECAB 217 (2004); Norma L. Blank, id. 

8 Marlon Vera, 54 ECAB 834 (2003). 

9 Kim Nguyen, 53 ECAB 127 (2001). 

10 See supra note 3. 
5

from the record as to what aspect of this conversation appellant alleged as causative. The Board 

has held, however, that not every statement uttered in the workplace will give rise to coverage 

under FECA.11 There is insufficient evidence to support that this incident rises to the level of a 

compensable factor of employment. 

Regarding appellant’s October 28, 2015 request for transfer due to her frustration over 

perceived unprofessionalism and hostility by coworkers, the Board has held that denials by an 

employing establishment of a request for a different job, promotion, or transfer are not 

compensable factors of employment as they do not involve the employee’s ability to perform her 

regular or specially assigned work duties, but rather constitute her desire to work in a different 

position or environment.12 Therefore, appellant has not established a compensable factor of 

employment in this regard. 

Additionally, appellant has not substantiated any of her allegations of harassment. She 

provided no witness statements or other corroborating evidence. The August 9, 2016 

supervisory e-mail requesting that the radiology staff improve communication and for appellant 

to alert coworkers if a patient was waiting unattended, do not establish any incident of 

harassment or verbal abuse. As these incidents were not established as factual, they do not 

constitute compensable employment factors.13

The Board finds that appellant failed to establish any compensable factor of employment. 

As appellant has not established any compensable factor of employment, the medical evidence 

need not be addressed.14

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 has not met her burden of proof to establish an emotional 

condition in the performance of duty. 

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

12 Donna J. DiBernardo, 47 ECAB 700, 703 (1996). 

13 See supra notes 8, 9. 

14 Margaret S. Krzycki, 43 ECAB 496 (1992). 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated December 7, 2016 is affirmed. 

Issued: June 6, 2017 

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