United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.H., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, U.S. PRISON BIG SANDY, Inez, KY, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 17-1529

Issued: February 14, 2018

Appearances: Case Submitted on the Record

Kenneth C. Smith, III., Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 3, 2017 appellant, through counsel, filed a timely appeal from February 15 and 

June 14, 2017 merit decisions 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 established an emotional condition in the performance of 

duty.

FACTUAL HISTORY

On October 10, 2016 appellant, then a 33-year-old corrections officer, filed an 

occupational disease claim (Form CA-2) alleging a stress-related condition. He indicated that on 

October 7, 2016 he became dizzy and went to the medical department at work where a nurse 

found elevated blood pressure and noted that appellant had difficulty talking. Appellant was 

then transported to a hospital. He did not return.3

In support of his claim, appellant submitted an emergency department report dated 

October 7, 2016 which noted that he was admitted at 11:46 a.m. and discharged at 4:48 p.m. that 

day. The report did not contain a diagnosis. Dr. John Garner, appellant’s attending family 

physician, submitted treatment notes dated October 4 to 24, 2016. He noted a history of extreme 

stress at work and diagnosed hypertension and an anxiety state. Dr. Garner advised that 

appellant could not work.

By letter dated October 27, 2016, OWCP informed appellant of the evidence needed to 

establish his claim. By separate letter of the same date, it requested that the employing 

establishment respond to appellant’s claim and provide comments from a knowledgeable 

supervisor regarding the claim’s accuracy.

In undated statements, appellant indicated that after being assigned to a Special 

Operations Response Team (SORT) in 2011 he was subjected to hazing and was physically and 

sexually abused by team members. He related that this continued until October 2014, when he 

was no longer allowed inside the prison itself, and was assigned to its business office. Appellant 

indicated that he reported the events and an investigation was done by the Office of Inspector 

General (OIG) who recommended termination of individuals implicated in extreme hazing of 

appellant. He related that he was placed on administrative leave in 2015, and beginning in 

October that year was assigned near another officer who, appellant alleged, had been convicted 

of assaulting him, and constantly harassed him. Appellant reported that his allegations had been 

substantiated, but that the harassment continued to present. He also noted that he had filed an 

Equal Employment Opportunity (EEO) claim, but that its findings were confidential. 

In a fitness-for-duty evaluation dated October 16, 2014, Brandon R. Olive, Ph.D., a 

licensed clinical psychologist, diagnosed post-traumatic stress disorder and advised that it was 

caused by severe hazing and bullying by coworkers. 

 

3 The record indicates that appellant files other claims before OWCP, including two accepted traumatic injury 

claims, adjudicated under OWCP File Nos. xxxxxx673 and xxxxxx759, a traumatic injury claim that has not been 

accepted, adjudicated under File No. xxxxxx511, and an extended occupational disease claim that has not been 

accepted, adjudicated under File No. xxxxxx649. These other claims are not presently before the Board. The 

instant claim was adjudicated by OWCP under File No. xxxxxx157.
3

Appellant submitted a personal affidavit dated May 7, 2015 in which he alleged that 

S.W., a coworker, threw a large piece of concrete onto his car. A June 12, 2015 Kentucky State 

Police uniform citation cited B.W., a coworker, for criminal mischief.4 An August 2, 2016 

memorandum from appellant to Captain F.G. outlined appellant’s concerns regarding ongoing 

investigations and past practices. He explained that stress at work kept him from completing an 

assigned duty. 

Appellant also forwarded additional treatment notes from Dr. Garner dated October 3, 

2014 to June 9, 2015. On November 18, 2016 Dr. Garner related that he had been following 

appellant for over three years, noting that his blood pressure was dangerously high and his 

anxiety levels were out of control. He opined that appellant should not work at his present 

environment.

Dr. Kevin B. Johnson, an osteopath, provided a November 14, 2016 treatment note. He 

reported a history of sexual, mental, and physical abuse by fellow officers. Dr. Johnson

diagnosed anxiety and advised that appellant be permanently removed from his current work 

environment.

In November 18, 2016 correspondence, L.M., one of appellant’s supervisors, advised that 

appellant had suffered physical and mental damage at work, noting specific events of harassment 

by SORT team members. These included that he reported to a threat assessment committee that 

another staff member threatened to knife appellant for reporting wrongdoing against the SORT 

team. L.M. indicated that appellant had been placed directly into a hostile work environment in 

the business office where he was expected to work daily in close proximity to the same people 

who had physically and sexually assaulted him. He indicated that appellant continued to be 

harassed daily by coworkers. L.M. noted that he had witnessed appellant’s condition worsen 

over 2.5 years. He concluded that each thing appellant reported had been confirmed as true by 

the OIG and the Federal Bureau of Investigation (FBI).

In January 3, 2017 correspondence, an employing establishment human resources 

manager indicated that appellant had been part of an intense investigation involving many 

coworkers and was temporarily assigned to the administration building where he listened to 

inmate telephone calls and reviewed inmate e-mails. She attached a position description for a 

correctional officer position. 

By letter dated January 8, 2017, OWCP asked the employing establishment to furnish a 

copy of the OIG investigation report. A telephone memorandum dated January 13, 2017,

indicated that the employing establishment would forward a redacted copy of this investigation.5

By decision dated February 15, 2017, OWCP denied the claim. It found that the evidence 

of record was insufficient to establish that the events occurred as alleged, noting that appellant 

had not submitted any evidence proving his allegations.

 

4

It is unclear from the record if S.W. and B.W., who share the same last name, are the same individual.

5 The record includes complaints in opposition to the employing establishment’s motion for findings and 

conclusions without a hearing, filed with the EEO Commission’s Indianapolis district office. 
4

On February 16, 2017 the employing establishment forwarded a March 12, 2015 OIG 

report which indicated charges brought by appellant against a lieutenant for failure to report a 

violation of rules and regulations were sustained and that charges brought by appellant against a 

correction officer for unprofessional conduct were also sustained. These charges were in relation 

to threats made to appellant and for a rock thrown on his vehicle.

On April 4, 2017 counsel requested reconsideration. In a March 29, 2017 letter, he

asserted that appellant had been the victim of repeated retaliation for reporting unprofessional 

behavior, including physical violence. Counsel maintained that this was substantiated by sworn 

affidavits and sworn deposition testimony, copies of which were said to be attached. The only 

items attached to the March 29, 2017 letter, however, were copies of two photographs. No 

affidavits or deposition transcripts are found in the case record.

Appellant retired on disability in the spring of 2017. 

In a June 14, 2017 decision, OWCP denied modification of its February 16, 2017 

decision. It noted that, while appellant claimed that working in a front lobby post, which 

included screening staff and answering telephones, caused his emotional condition and anxiety 

attack on October 7, 2016, he failed to submit any evidence proving these allegations. OWCP 

further noted that appellant had a previous claim that had been denied, filed on October 23, 2014 

and adjudicated under File No. xxxxxx649, in which appellant claimed the same physical and 

sexual abuse. It advised him to follow his appeal rights in that case. OWCP further noted that 

counsel’s reconsideration request did not differentiate current events from events claimed under 

File No. xxxxxx649. It concluded that the evidence submitted was insufficient to alter its prior 

decision in this case, adjudicated under the present claim, File No. xxxxxx157. 

LEGAL PRECEDENT

To establish a claim for a stress-related condition in the performance of duty, the 

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

caused or contributed the claimed condition; and (3) rationalized medical opinion evidence 

establishing that the identified compensable employment factors are causally related to her 

stress-related condition.6 If a claimant does implicate a factor of employment, OWCP should 

then determine whether the evidence of record substantiates that factor.7 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.8

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,

9

the Board 

 

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

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

8

Id.

9 28 ECAB 125 (1976).
5

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.10 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 requirements imposed 

by the employing establishment or by the nature of the work.

11

 Allegations alone by a claimant 

are insufficient to establish a factual basis for an emotional condition claim.12 Where a claimant 

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

probative and reliable evidence.13 Personal perceptions alone are insufficient to establish an 

employment-related emotional condition.14

ANALYSIS

The Board finds that this case is not in posture for decision. When disability results from 

an emotional reaction to regular or specially assigned work duties, or a requirement imposed by 

the employment, the disability is deemed compensable.15 

In this instance, appellant alleged that from 2011 to October 7, 2016 he had been 

subjected to harassment at the employing establishment. He maintained that this began with 

severe hazing, and sexual and physical abuse. Appellant noted that, beginning in October 2015,

he was placed near coworkers who had been implicated in investigations of these past events, 

and this made his daily work of answering the telephone and screening e-mails more difficult 

such that he had a panic attack on October 7, 2016 and stopped work. He referenced an OIG 

investigation and an EEO claim.

In reaching its June 14, 2017 decision in the present claim, File No. xxxxxx157, OWCP 

referenced a decision in appellant’s October 2014 claim under File No. xxxxxx649. 

Pursuant to 20 C.F.R. § 501.2(c)(1), the Board’s review of a case is limited to the 

evidence in the case record that was before OWCP at the time of its final decision. Decisions on 

claims are based on the written record, which may include forms, reports, letters, and other 

evidence of various types such as photographs, videotapes, or drawings.16 Evidence may not be 

 

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

11 Supra note 9.

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

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

14 Roger Williams, 52 ECAB 468 (2001).

15 Penelope C. Owens, 54 ECAB 684 (2003); see supra note 9.

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a 

(June 2011). 
6

incorporated by reference, nor may evidence from another claimant’s case file be used.17 

Evidence contained in another of the claimant’s case files may be used, but a copy of that 

evidence should be placed into the case file being adjudicated.18 All evidence that forms the 

basis of a decision must be in that claimant’s case record.19 As OWCP referenced a decision in 

File No. xxxxxx649, a copy of that decision and evidence upon which it relied should be placed 

in this case record, File No. xxxxxx157.

The Board also notes that OWCP did not address whether the incidents cited by appellant 

constituted compensable employment factors or were administrative or personnel matters. 

OWCP procedures provide that, when denying an emotional condition claim, the claims 

examiner must first determine whether the situations alleged actually existed or occurred. The 

claims examiner should then distinguish between those workplace activities and circumstances 

which are factors of employment and those which are outside the scope of employment for 

purposes of compensation by outlining work-related and nonwork-related elements into three 

parts. These should be labeled as accepted events that are factors of employment, accepted 

events that are not factors of employment, and incidents alleged which OWCP finds did not 

occur.20 

Moreover, L.M.’s statement supports some of appellant’s allegations, as does the OIG 

report. He noted on November 18, 2016 that another staff member threatened to knife appellant 

for reporting wrongdoing against the SORT team, and that appellant had been placed directly 

into a hostile work environment in the business office where he was expected to work daily in 

close proximity to the same people who physically and sexually assaulted him, and that appellant 

continued to be harassed daily by coworkers. L.M. concluded that each thing appellant reported 

had been confirmed as true by the OIG and the FBI. The March 12, 2015 OIG report indicated 

that charges were sustained in relation to threats made to appellant and for a rock thrown on his 

vehicle.

The Board further notes that counsel indicated that he had forwarded affidavits and 

deposition testimony with his April 4, 2017 reconsideration. These were not found in the case 

record of OWCP File No. xxxxxx157 at issue here. Upon remand OWCP should ascertain if 

these were misfiled and should ask appellant, counsel, and the employing establishment to 

furnish any evidence relating to his EEO claims, or other investigatory proceedings, if relevant to 

establishing error and abuse on the part of the employing establishment.

Since the record lacks sufficient evidence for the Board to render an informed decision, 

the case shall be remanded to OWCP for further development. As noted, all evidence that forms 

the basis of a decision must be included in the case record.21 After OWCP has developed the 

 

17 Id.

18 Id.

19 Id.

20 Id. at Chapter 2.1401.6 (November 2012).

21 Supra note 16.
7

record consistent with the above-noted directive, it shall issue a de novo decision regarding 

appellant’s claim for an employment-related emotional condition.22

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the June 14 and February 15, 2017 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded to OWCP for 

further proceedings consistent with this opinion of the Board.

Issued: February 14, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

22 See J.B., Docket No. 17-1356 (issued October 4, 2017).