United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.H., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Brooklyn, NY, Employer

__________________________________________

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Docket No. 18-0104

Issued: June 21, 2018

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 17, 2017 appellant, through counsel, filed a timely appeal from an April 28, 

2017 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 the claim.

 

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 has met his burden of proof to establish an emotional 

condition in the performance of duty on June 9, 2015, as alleged.

FACTUAL HISTORY

On June 17, 2015 appellant, then a 27-year-old corrections officer, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained an emotional condition on June 9, 2015 when an 

inmate, S.R., number xxxxx-053, threatened him while in the performance of duty. He explained 

that on June 9, 2015 at 8:50 p.m., he was conducting a cell search and had ordered the inmate to 

leave from in front of the cell. Appellant alleged that the inmate reentered the cell, closed the door 

behind him, advanced towards him and threatened his life. The claim form did not indicate 

whether appellant stopped work.

In a June 15, 2015 note, William R. Yelen, a registered licensed social worker, noted that 

appellant was referred to him by his employing establishment’s Employee Assistance Program 

(EAP) for psychological evaluation and treatment following a June 9, 2015 employment incident. 

He indicated that appellant had acute stress disorder. 

In a June 26, 2015 development letter, OWCP requested additional factual and medical 

information from appellant. Appellant was afforded 30 days to provide the requested information. 

OWCP also requested additional information from the employing establishment on that same date.

On July 5 and 7, 2015 OWCP received appellant’s responses to its questionnaire. 

Appellant indicated that on June 9, 2015 at approximately 8:50 p.m., he was conducting a cell 

search of the inmate’s cell, when the inmate reentered the cell, closed the cell door, and 

aggressively ran towards him with a closed fist. He alleged that the inmate looked him in the eye 

and told him that he was going to kill him. Appellant alleged that the inmate also said that he 

would break his neck and that he would not get out of the cell alive. He noted that the inmate had 

blocked the only exit out of the cell. Appellant alleged that he had feared for his life as he was 

alone in the cell with the hostile inmate and believed that the inmate’s threats were genuine. He 

stated that he pressed his body alarm before the inmate could threaten him further. 

Appellant described his symptoms after the incident and related that he had several EAP 

sessions to help with his anxiety. He noted that he would obtain a copy of an incident report he 

submitted to the employing establishment on June 17, 2015. Appellant explained that the earliest 

date he was able to schedule a therapist through the EAP was June 15, 2017. Prior to his first 

meeting with the therapist he was not clear what the nature of his issues were. Appellant denied 

stress outside of work or any incidents with that inmate prior to the June 9, 2015 incident. He also 

denied having an emotional condition or being under the care of a psychiatrist/psychologist prior 

to the alleged June 9, 2015 work incident. 

In a July 20, 2015 report, Carmine Thomas Capone, Ph.D., a clinical psychologist, 

indicated that he had been seeing appellant weekly since July 14, 2015 following a June 9, 2015 

employment incident. He diagnosed acute stress disorder. Dr. Capone also opined that appellant 

was unable to return to work. 
3

By decision dated July 29, 2015, OWCP denied appellant’s emotional condition claim. It 

found that appellant had not established a factual basis to support his claim. Specifically, appellant 

did not provide any corroborating evidence to support that he actually experienced the employment 

incident alleged to have occurred. OWCP further noted that appellant did not submit any medical 

evidence which diagnosed a medical condition causally related to the alleged employment 

incident. 

Evidence received subsequent to OWCP’s July 29, 2015 decision included reports from

Dr. Capone dated July 20 and August 5, 2015.

In a September 25, 2015 response to OWCP’s questionnaire, an Administrative Lieutenant

at the employing establishment, contested that the alleged June 9, 2015 event occurred as alleged. 

He advised that appellant did not file a Form BP-A0288 as per protocol to report the incident 

regarding the inmate. Appellant did not call for help or deploy O.C. due to a combative or life 

threatening situation with the inmate. He also did not document that a shakedown had occurred 

or that a verbal encounter had taken place. The Administrative Lieutenant advised that the inmate 

appellant referenced in the incident, S.R. number xxxxx-061, did not arrive at the prison until 

June 23, 2015, after the alleged incident of June 9, 2015. He also stated that appellant’s 

supervisors received no documentation regarding this or any other incident involving an inmate. 

The administrator indicated that appellant had no reports of conduct or performance issues and did 

not demonstrate being stressed or deferred from performing his duties. A copy of appellant’s job 

description was provided. 

On July 21 and 27, 2016 OWCP received a July 21, 2016 request for reconsideration from 

counsel. In his July 21, 2016 brief, counsel alleged that appellant’s statement was probative 

without any corroborative evidence or witness statements. Furthermore the medical evidence 

supported that appellant had sustained a disabling emotional condition as a result of the claimed 

June 9, 2015 incident when the inmate threatened appellant in the cell. Counsel also stated that 

the employing establishment had referenced the wrong inmate number. 

Counsel inquired about the claims status on January 26 and April 7, 2017, but no additional 

evidence was received.

By decision dated April 28, 2017, OWCP denied modification of its prior decision. It 

found that appellant had not established a compensable factor of employment as his allegation was 

not supported with probative and reliable evidence. 

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that an injury was sustained in the performance of duty as alleged, 

and that any disability and/or specific condition for which compensation is claimed are causally 

related to the employment injury.3 These are the essential elements of each and every 

 

3

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).
4

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an 

occupational disease.4

To establish a claim for an emotional condition in the performance of duty, an employee 

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 his or her condition; and (3) rationalized medical opinion evidence 

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

emotional condition.5

Workers’ compensation law does not apply to each and every injury or illness that is 

somehow related to an employee’s employment.6 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.7 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

The reaction to assigned work duties is a compensable work factor.9 The Board has held 

that emotional reactions to situations in which an employee is trying to meet his or her position 

requirements are compensable.10

If a claimant implicates a factor of employment, OWCP should then determine whether the 

evidence of record substantiates that factor.11 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.

12

 

4 Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury is defined as a condition of the body caused by a 

specific event or incident, or series of events or incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An 

occupational disease is defined as a condition produced by the work environment over a period longer than a single 

workday or shift. 20 C.F.R. § 10.5(q).

5 See P.H., Docket No. 17-0673 (issued December 19, 2017).

6 L.D., 58 ECAB 344 (2007).

7 A.K., 58 ECAB 119 (2006).

8 Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

9

Id.

10 A.N., Docket No. 15-1220 (issued September 27, 2016); Trudy A. Scott, supra note 8.

11 David C. Lindsey, Jr., 56 ECAB 263 (2005); Ruth S. Johnson, 46 ECAB 237 (1994).

12 Robert Breeden, 57 ECAB 622 (2006).
5

ANALYSIS

The Board finds that appellant has not met his burden to establish that he sustained an 

emotional condition in the performance of duty on June 9, 2015, as alleged.

Appellant attributed his claimed emotional condition to his regular or specially assigned 

duties as a correctional officer under Cutler.

13

 He alleged an emotional condition as a result of 

being threatened by an inmate on June 9, 2015 while conducting a search of the inmate’s cell. 

OWCP denied appellant’s claim because it determined that he had not established a compensable 

factor under FECA substantiated by supporting probative and reliable evidence. 

On appeal and before OWCP counsel argued that appellant’s emotional reaction to the 

June 9, 2015 inmate incident was a compensable work factor and supported by the medical 

evidence. The reaction to assigned work duties is a compensable work factor.14 However, to 

establish entitlement to benefits, a claimant must establish a factual basis for the claim by 

supporting his allegations with probative and reliable evidence.15 Appellant alleged that on June 9, 

2015 an inmate threatened him while he was searching the inmate’s cell. However, he failed to 

substantiate his allegation with probative and reliable evidence.

In his response to OWCP’s questionnaire, appellant indicated that he pressed his body 

alarm before the inmate could advance on him further. He also stated that he wrote an incident 

report directly after the incident. However, there is no record that appellant’s body alarm had been 

pressed on June 9, 2015. Appellant also failed to provide a copy of the incident report, despite his 

assertion that he would do so. The employing establishment controverted the claim. It indicated 

that a Form BP-A0288 had not been filed per its protocol. The employing establishment stated 

that there was no report that on June 9, 2015 appellant had called for help, the incident shakedown 

had occurred, or that a verbal encounter had taken place. While discrepancy exists in the factual 

record as to when the particular inmate involved in the claimed incident was incarcerated at the 

prison, the employing establishment denied having received any documentation regarding the 

alleged June 9, 2015 incident or any other incident involving appellant and an inmate. 

Thus, under these circumstances, appellant has not presented sufficient evidence to 

establish a factual basis to support that the alleged incident on June 9, 2015 occurred. He has

therefore failed to identify a compensable work factor under Cutler.

16

 

13 See Lillian Cutler, supra note 8. In Cutler, the Board noted that when an employee experiences emotional stress 

in carrying out his or her employment duties, or has fear and anxiety regarding his or her ability to carry out his or her 

duties, and the medical evidence establishes that the disability resulted from his or her emotional reaction to such a 

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 resulted from his or her emotional reaction to his or her day-to-day duties, a 

special assignment or requirement imposed by the employing establishment, and/or by the nature of the work. Id. at 

130.

14 See supra note 8. 

15 See Pamela D. Casey, 57 ECAB 260 (2005), Lillian Cutler, supra note 8 at 130. 

16 Supra note 11. 
6

As appellant has not established any compensable work factors, the Board need not 

consider the medical evidence of record.17 

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 on June 9, 2015, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the April 28, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 21, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

17 Garry M. Carlo, 47 ECAB 299, 305 (1996), Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 

496 (1992).