United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Richmond, VA, Employer 

__________________________________________ 

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Docket No. 16-0877 

Issued: March 17, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 March 23, 2016 appellant, through counsel, filed a timely appeal from a January 29, 

2016 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 has 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

FACTUAL HISTORY 

On December 28, 2014 appellant, then a 49-year-old tractor trailer driver, filed an 

occupational disease claim (Form CA-2) alleging that he was assaulted on the job by another 

employee which caused his post-traumatic stress disorder (PTSD). He first realized his condition 

was caused or aggravated by his employment on October 21, 2014 and received medical care on 

October 22, 2014. Appellant stopped work on December 15, 2014. On the reverse side of the 

form, appellant’s supervisor indicated that appellant was last exposed to the conditions alleged to 

have caused his condition on November 18, 2014 when he was placed on a modified-duty 

assignment. 

In an accompanying statement dated December 23, 2014, appellant reported that on 

October 21, 2014 he was performing his duties as a tractor trailer driver and was assaulted by 

M.T., another driver for the employing establishment, who punched him in the right shoulder. 

As a result, he had been under his physician’s care for shoulder damage and PTSD. Appellant 

reported that he was exposed to stressful conditions because he had to face his attacker almost 

every day at work, for eight hours a day, five days per week. He further noted that he had never 

suffered from a similar stress disorder as a result of being assaulted. 

In an October 21, 2014 medical report, Dr. James Rose, a Board-certified diagnostic 

radiologist, reported that appellant had originally sustained a right shoulder injury on October 21, 

2014 when he was punched in the right shoulder by a coworker. He was evaluated in the 

emergency department on October 22, 2014. Dr. Rose described appellant’s course of treatment 

and provided findings on examination. He diagnosed right infraspinatus tear and acute stress 

reaction. Dr. Rose opined that both conditions were work related as the right shoulder 

infraspinatus tear was due to direct injury from an on-the-job assault, and the acute stress 

reaction was a normal emotional response to a traumatic event. 

In a December 22, 2014 report, Dr. Richard C. Bowers Jr., a licensed clinical 

psychologist, reported that he had evaluated appellant on December 18, 2014 after being 

assaulted by a coworker and suffering a right shoulder injury and acute stress disorder. He 

reported that appellant was unable to perform his current work duties and was to remain out of 

work, especially if there was any possibility that the alleged perpetrator would be seen. 

Dr. Bowers noted that given appellant’s continued symptoms more than one month after the 

incident, the more appropriate diagnosis was PTSD. 

By letter dated January 8, 2015, OWCP informed appellant that the evidence of record 

was insufficient to support his claim. Appellant was advised of the medical and factual evidence 

necessary to establish his claim. He was afforded 30 days to submit the additional evidence. By 

letter of the same date OWCP requested additional information from the employing 

establishment. 

An October 21, 2014 employing establishment assault and threat report documented that 

on that same date, appellant was punched in the right shoulder by M.T. while appellant’s back 

was turned to him. The incident was witnessed by Supervisor H. Supervisor H. described the 

incident as “horseplay” on the floor that apparently “offended” appellant. Appellant reported 

that he had been experiencing “bullying” from M.T. for a period of time which began verbally 
3

and escalated to grabbing. He feared that the behavior would continue to escalate and was 

concerned for his safety. M.T. reported that he was merely joking with appellant, there was no 

malice behind his actions, and he never intended to offend or injure him. He believed that he had 

a rapport with appellant that allowed for horseplay. Supervisor H. held a meeting where M.T. 

apologized to appellant and reviewed policy regarding workplace conduct. The report concluded 

that, based upon the facts and circumstances surrounding the incident, there was no sufficient 

reason to believe that M.T. committed a willful criminal assault with malicious intent against 

appellant. It determined however, that M.T.’s conduct was inappropriate in the workplace which 

was appropriately addressed by Supervisor H., and that further action regarding this matter was 

declined. 

In an October 25, 2014 narrative statement, M.T. reported that on October 21, 2014 he 

was involved in a horseplay incident on the dock. He reported that while he was walking to his 

truck, he noticed appellant and with a joking gesture, struck appellant on his right arm between 

his shoulder and elbow. M.T. explained that the strike was not malicious and he did not intend 

to hurt appellant, describing the incident as horseplay. He further noted that there was no 

extreme energy or power behind the strike as it was done in a playful manner. 

In a January 13, 2015 narrative statement, appellant responded to OWCP’s questionnaire. 

He reported that on October 21, 2014, M.T. punched appellant in his right shoulder. As such, he 

was under the care of Dr. Geoffrey B. Higgs, Board-certified in orthopedic surgery and 

orthopedic sports medicine, who diagnosed bicipital tenosynovitis and rotator cuff tear. 

Appellant reported that on the date of the incident, Supervisor H. had a meeting with them to 

discuss the incident and informed them of policies and procedures regarding workplace violence. 

M.T. offered no explanation for the assault, nor did he provide an apology. Appellant reported 

that he was placed on a limited-duty assignment as a result of his shoulder injury and was forced 

to face his attacker almost every day, creating an uncomfortable work environment. He noted 

that this was not an isolated incident as he had previous run-ins with M.T. beginning in 

March 2010 involving racial comments, explicit language, and unwelcomed body contact. 

Appellant reported that in April 2013, he experienced physical contact from M.T. in the 

form of a bear hug/detainment that was unwelcomed and unwarranted. This incident had also 

been reported to Supervisor H. who addressed the issue by conducting a safety meeting with 

drivers regarding harassment and violence in the workplace. Appellant reported that M.T. would 

temporarily discontinue his behavior after he reported the incidents, but would resume in a more 

aggressive manner shortly thereafter. Since 2010, he had made every effort to avoid M.T., but 

this was not always possible because of his work assignment. Appellant noted that he had not 

filed an Equal Employment Opportunity (EEO) complaint and had experienced no prior 

emotional condition claims or other stressors outside of his employment. He first noticed his 

condition on October 21, 2014, the day of the assault, and experienced flashbacks of the attack, 

anger, fear, paranoia, hopelessness, anxiety, dizziness, feelings of being unsafe, easily startled, 

loss of concentration, feelings of wanting to avoid people and places, and difficulty falling 

asleep. Due to his shoulder injury, appellant was placed on limited duty on October 21, 2014. 

By letter dated January 15, 2015, Dr. Bowers responded to OWCP’s development letter 

regarding the specific information requested. He reported that he was not treating appellant and 

only evaluated him once on December 18, 2014 for an assessment at the request of his counselor. 
4

Dr. Bowers diagnosed PTSD which he opined was caused by the assault from appellant’s 

coworker, noting that appellant feared for his life and did not think he was safe at work. He 

described appellant’s symptoms which had persisted for more than a month and thus, met the 

criteria for PTSD. Dr. Bowers attached an intake report pertaining to appellant’s assessment 

completed on that date. 

In a January 15, 2015 report, Dr. Bowers reported that on October 21, 2014, appellant 

was performing his regular job duties when a coworker walked by and punched him in the 

shoulder causing injuries. Appellant’s supervisor witnessed the event and stopped him from 

retaliating. Appellant had become fearful as the assailant had previously squeezed him and put 

him in choke holds and bear hugs. He had experienced this behavior for years, would not go into 

the break room with the assailant, and tried to avoid him at work. Dr. Bowers reported that 

appellant could not perform the duties of a truck driver and was provided light duty as a result of 

the assault. Stress symptoms reported were hypervigilance, paranoia, fear of retaliation, trouble 

sleeping, trouble keeping food down, withdrawal, decrease of enjoyment of life, daydreams, 

replay of the incident, and nightmares. Appellant reported taking appropriate steps of reporting 

the perpetrator’s behavior well before this incident, for which the perpetrator was reprimanded. 

Appellant’s supervisor witnessed the assault that damaged his shoulder, but he was still required 

to work side-by-side with his attacker on a daily basis. The attacker was roughly twice as big as 

appellant. The attacks started several years ago, and usually involved bear hugs, bucking, and 

choke holds. Appellant feared for his life and the safety of his family. 

Dr. Bowers noted that it had been two months since the incident and he diagnosed PTSD 

and shoulder injury due to anxiety and vocational stress. He restricted appellant from working 

and noted that recovery would be aided if the attacker was fired or transferred, and that the 

incident needed to be recognized by authorities in order for appellant to feel as if some sort of 

justice had occurred. 

In a January 18, 2015 report, Supervisor H. reported that on October 21, 2014, M.T. was 

horse playing and punched appellant in the shoulder as M.T. was walking by appellant with his 

back turned. On the date of the assault, Supervisor H. had a meeting with appellant and M.T. 

He offered appellant medical care, but he refused, stating that he was ok. M.T. reported that he 

did not intend to harm appellant, that he was only joking around, and that horseplay was 

acceptable based on their rapport. Supervisor H. reported that appellant appeared to be upset but 

did not seem fearful. He explained that while the assault was unacceptable behavior, it was not 

done with violent aggression towards appellant and was more of a childish act. On October 22, 

2014 appellant reported to work and complained of numbness in his fingers and pain and 

stiffness in his right shoulder, at which time he filed a traumatic injury claim (Form CA-1).3

 

Appellant was provided light duty as he sought medical treatment. 

Supervisor H. stated that appellant had been assigned to a manual sorting unit and was 

also transporting mail by a postal car upon request of management which duties were within his 

restrictions. Appellant reported that he had been exposed to his attacker for eight hours per day, 

five days per week. However, Supervisor H. explained that appellant reported to a completely 

 3

 OWCP File No. xxxxxx338. 
5

different section of the facility. Furthermore, he reported that there had been no interaction with 

M.T. that he could recall since the incident, and appellant had not complained of any fear or 

danger from seeing or being in the presence of M.T. at any time during or prior to his light-duty 

assignment. Supervisor H. stated that he had spoken with appellant on several occasions since 

the incident regarding how he was doing, but he never gave any indication that he was under 

stress or was unable to perform his modified duties. 

By letter dated January 26, 2015, the investigation by the employing establishment 

concluded that the incident where appellant was struck on the shoulder was horseplay, without 

intent to harm or cause injury. The horseplay incident was investigated and it was determined 

that there was no credible threat to appellant. M.T. was disciplined and later apologized to 

appellant. The employing establishment further reported that on the date of the incident, 

appellant had not requested medical attention, nor had he reported feeling threatened, which was 

in direct conflict with what he had eventually reported to his treating physician. The employing 

establishment determined that appellant had expressed most of his aggressive behavior in the 

meeting and, therefore, had negated all inferences of fear or intimidation of the other employee 

or the workplace. The employing establishment further noted that appellant had previously filed 

a traumatic injury claim (Form CA-1) for the same October 21, 2014 employment incident.4

By letter dated February 10, 2015, Supervisor H. reported that he had not been made 

aware that appellant had been assaulted earlier by M.T. in April 2013, in the form of a bear 

hug/detainment. The prior year, appellant had spoken of people “playing games,” but that 

appellant just wanted to do his job. Appellant had not provided any specifics regarding the 

incident or about whom he was talking. Supervisor H. told him he would have a service talk 

with all the drivers to let everyone know that certain types of jokes and horseplay should not 

occur as it may not be acceptable with everyone. Appellant had reported being harassed by M.T. 

since 2010, but Supervisor H. reported no knowledge of this. Appellant had never informed him 

that he felt threatened by M.T. He further stated that the October 21, 2014 incident was clearly 

horseplay and M.T. had apologized to appellant for punching him in the shoulder. 

In disability certificates dated January 23 and February 24, 2015, a licensed clinical 

social worker (LCSW) reported that appellant was under professional care from January 23 

through March 3, 2015 and could not return to work. Appellant also submitted a February 12, 

2015 report from Dr. Bowers. The report was identical to the January 15, 2015 report previously 

submitted. 

By decision dated March 30, 2015, OWCP accepted the employment factor of being hit 

by a coworker, but denied appellant’s claim finding that he had failed to establish that his 

diagnosed medical condition was causally related to the accepted employment factor. On 

April 7, 2015 appellant, through counsel, requested a telephone hearing before an OWCP hearing 

representative. In support of his request, appellant resubmitted medical evidence previously of 

record. 

At the November 13, 2015 hearing, appellant testified that he had also filed a traumatic 

injury claim (Form CA-1) with respect to the October 21, 2014 employment incident and 

 4 Id. 
6

indicated that the claim had been accepted for his right shoulder injury.5

 He stopped work on 

December 13, 2014 and had been receiving wage-loss compensation as a result of the traumatic 

injury claim. Appellant then filed an occupational disease claim (Form CA-2) alleging PTSD 

dating back to the October 21, 2014 assault. He described the circumstances surrounding this 

claim and his need for medical treatment. Appellant advised that his claim should be accepted 

for PTSD, noting that the stress began immediately with the assault. He further noted that the 

assault was unprovoked and he did not see it coming. Counsel for appellant noted that this claim 

could also be considered a consequential condition of the traumatic injury.6 

By decision dated January 29, 2016, an OWCP hearing representative affirmed the 

March 30, 2015 decision finding that the evidence of record failed to establish that appellant’s 

emotional condition was causally related to the accepted employment factor. 

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.7

 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.8 Physical contact by a coworker or supervisor may give rise to a 

compensable work factor, if the incident is established factually to have occurred as alleged.9

 

In cases involving occupational disease claims, 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.10 If a claimant does implicate 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 

 5 Id.

6 Id.

7

 5 U.S.C. § 8101 et seq.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976). 

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

9 Denise Y. McCollum, 53 ECAB 647 (2002); Helen Casillas, 46 ECAB 1044 (1995). 

10 D.L., 58 ECAB 217 (2006). 

11 K.W., 59 ECAB 271 (2007); David C. Lindsey, Jr., 56 ECAB 263 (2005). 
7

record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of 

the medical evidence.12 

ANALYSIS 

Appellant alleged that he sustained an emotional condition as a result of being punched in 

his right shoulder by a coworker on October 21, 2014. OWCP accepted as a compensable 

employment factor that he had been hit be a coworker on that date.13 

Appellant’s burden of proof is not discharged by the fact that he has established an 

employment factor which may give rise to a compensable disability under FECA. To establish 

his emotional condition claim, appellant must also submit rationalized medical evidence 

establishing that his claimed condition is causally related to the accepted compensable 

employment factor.14 While it is undisputed that appellant has been diagnosed with PTSD, the 

Board finds that the evidence of record is insufficient to establish that his PTSD is causally 

related to the compensable employment factor. 

In support of his claim, appellant submitted medical reports dated December 22, 2014 

through February 12, 2015 from Dr. Bowers, a licensed clinical psychologist. Dr. Bowers 

evaluated appellant on December 18, 2014 after he was assaulted by a coworker. He diagnosed 

PTSD and opined that the condition was caused by the assault by his fellow coworker at the 

place of his employment. 

The Board finds that the opinion of Dr. Bowers is not well rationalized. Dr. Bowers 

reported that he was not appellant’s treating psychologist and only evaluated him once at the 

request of his treating counselor. His report maintains that appellant suffered stress symptoms of 

hypervigilance, paranoia, fear of retaliation, trouble sleeping, trouble keeping food down, 

withdrawal decrease of enjoyment of life, daydreams, replay of incident, and nightmares for a 

period of more than two months. Dr. Bowers merely repeated the history of injury as reported 

by appellant without providing his own rationalized opinion on the issue of causation based upon 

a full and accurate history of injury. Therefore, Dr. Bowers’ opinion on the cause of appellant’s 

condition is of diminished probative value and insufficient to establish that his PTSD was caused 

by the October 21, 2014 employment incident.15

The Board further notes that the history of injury appellant provided to Dr. Bowers does 

not focus on the horseplay incident itself, but rather assumes that the October 21, 2014 incident 

constituted an assault. However, the record reflects that the employing establishment’s 

investigation, as well as statements from M.T. and Supervisor H., belies the assertion. As noted 

above, statements made by M.T. and Supervisor H. indicate that the incident was horseplay and 

 12 Robert Breeden, 57 ECAB 622 (2006). 

13 Supra note 4. (OWCP also had previously accepted a right shoulder injury as a result of appellant’s traumatic 

injury claim for the same incident). 

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

15 T.M., Docket No. 08-0975 (issued February 6, 2009). 
8

that M.T. apologized to appellant following his complaint to their supervisor. Supervisor H. 

further reported that appellant declined medical treatment on the date of the incident and never 

made any allegations that he was in fear for his safety. The Board notes that appellant alleged 

that he was forced to see his assailant for eight hours per day, five days per week. Dr. Bowers 

also reported that, following the incident, appellant was forced to work side-by-side next to his 

attacker. However, review of the record reveals that appellant was placed on light duty on 

October 22, 2014 due to his shoulder injury and, on November 18, 2014, he was offered a 

modified assignment which he accepted. Supervisor H. reported that appellant had been 

assigned to a new unit in a completely different section of the facility from where he had 

previously worked. He further stated that he could not recall any interaction that appellant had 

with M.T. since the incident, and appellant had not complained of any fear or danger from seeing 

or being in the presence of M.T. at any time during or prior to his light-duty assignment. These 

statements contradict appellant’s assertion that he was exposed to his attacker for eight hours per 

day, five days per week. 

Supervisor H. further noted that he had spoken with appellant on several occasions since 

the incident regarding how he was doing yet appellant never gave any indication that he was 

under stress and was able to perform his modified duties without any problems. 

These inconsistencies, which neither appellant nor his psychologist have adequately 

explained, cast serious doubt on the validity of his allegations.16 Dr. Bowers reported that 

appellant’s recovery would be aided if the attacker was fired or transferred, and that the incident 

needed to be recognized by authorities in order for appellant to feel as if some sort of justice had 

occurred. Given that appellant was on light duty beginning October 22, 2014, placed in a 

different unit beginning November 18, 2014, and stopped working on December 13, 2014, 

Dr. Bowers does not appear to have an accurate history of appellant’s exposure to M.T. 

following the October 21, 2014 employment incident. Furthermore, the employing 

establishment had already taken corrective action and addressed the issue following the 

October 21, 2014 employment incident. Dr. Bowers failed to explain why these corrective 

actions did not aid in appellant’s recovery. It remains unclear why appellant would continue to 

suffer symptoms related to the October 21, 2014 employment incident despite not being exposed 

to his attacker. Medical opinions which are based on an incomplete or inaccurate factual 

background are entitled to little probative value in establishing a claim.17 As appellant has not 

submitted a medical report which supports that he sustained the diagnosed condition due to the 

horseplay incident, appellant has not met his burden of proof regarding this accepted 

employment factor.18

The remaining medical evidence is also insufficient to establish appellant’s claim. In his 

October 21, 2014 report, Dr. Rose diagnosed right infraspinatus tear and an acute stress reaction, 

noting that appellant was punched in the right shoulder by a coworker. He opined that both 

conditions were work related as the right shoulder infraspinatus tear was due to direct injury 

 16 Rema Vescosi, Docket No. 01-1712 (issued June 5, 2003). 

17 See Maribel Dayap, 48 ECAB 248 (1996). 

18 Supra note 12. 
9

from an on-the-job assault and the acute stress reaction was a normal emotional response to a 

traumatic event. The Board notes that Dr. Rose failed to provide a fully-rationalized opinion 

explaining how the emotional condition resulted from the accepted employment factor.19 

Additionally, Dr. Rose appears to be repeating the history of injury as reported by appellant 

without an understanding of the events that transpired regarding the level and severity of assault 

pertaining to horseplay.20 Without an accurate understanding of the circumstances surrounding 

this employment factor, and without an adequate explanation for the conclusion reached, his 

report is insufficient to establish causal relationship.21 

The disability certificates from a licensed clinical social worker are also insufficient to 

establish appellant’s claims as they are not signed by a physician. Registered nurses, physical 

therapists, social workers, and physician assistants, are not physicians as defined under FECA; 

therefore, their opinions are of no probative value.22 Any medical opinion evidence appellant 

may submit to support his claim should reflect a correct history and offer a medically sound 

explanation by the physician of how the specific employment factor caused or aggravated his 

PTSD.23

Thus, the Board finds that appellant has not submitted rationalized medical evidence 

establishing that his PTSD is causally related to the accepted compensable employment factor.24

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 his emotional 

condition in the performance of duty. 

 19 See Michael R. Shaffer, 55 ECAB 339 (2004). 

20 Supra note 13. 

21 Lucrecia M. Nielson, 41 ECAB 583, 594 (1991). 

22 5 U.S.C. § 8102(2) of FECA provides as follows: (2) “physician” includes surgeons, podiatrists, dentists, 

clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as 

defined by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005); C.P., Docket No. 17-0042 (issued 

December 27, 2016) (social workers are not considered physicians as defined under FECA). 

23 M.R., Docket No. 14-11 (issued August 27, 2014). 

24 M.M., Docket No. 06-998 (issued August 28, 2006). 
10

ORDER 

IT IS HEREBY ORDERED THAT the January 29, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 17, 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