United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.A., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Houston, TX, Employer 

__________________________________________ 

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Docket No. 17-0315 

Issued: July 11, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 25, 2016 appellant filed a timely appeal from an October 5, 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 established an emotional condition in the performance 

of duty. 

FACTUAL HISTORY 

On October 23, 2015 appellant, then a 57-year-old nurse, filed an occupational disease 

claim (Form CA-2) alleging that she was subject to “harassment and personal attacks” from her 

 1

 5 U.S.C. § 8101 et seq. 
2

current supervisor. She alleged that she developed headaches, gastrointestinal problems, and 

loss of sleep. The claim form does not indicate that appellant stopped work. 

Appellant submitted an October 26, 2015 narrative statement further explaining her 

claim. She noted a group meeting held on July 13, 2015 where her supervisor allegedly 

“attacked her” on several issues. According to appellant, the supervisor inquired about 

documents that needed to be completed, and a “sharps fair” that appellant was coordinating with 

safety staff. Appellant noted that she was later told that the supervisor had instructed staff not to 

help her with the fair. There was a July 22, 2015 meeting in which appellant indicated that the 

supervisor requested daily surveillance of all hospital-associated infections, and appellant was 

told there would be no excuse for late reporting. At an August 10, 2015 meeting, appellant 

alleged that she and another employee rose to leave at the end of the meeting, but appellant was 

singled out and told to sit down as the meeting was not over. She identified an August 28, 2015 

meeting during which appellant asked for clarification of her assignment, but the supervisor 

responded in a condescending manner. With respect to a September 10, 2015 meeting, appellant 

alleged that the supervisor continually changed expectations regarding a presentation to be given 

by her. She also alleged that on September 11, 2015 she was given a written counseling letter for 

failure to follow directions, and on September 22, 2015 she received only a “satisfactory” 

performance appraisal, as opposed to her usual outstanding rating. Appellant also referenced a 

leave request dated August 21, 2015 that was not approved by the supervisor. 

The employing establishment submitted an October 8, 2015 report of a fact-finding 

investigation regarding allegations by appellant of a hostile work environment. With respect to a 

July 22, 2015 training meeting, the supervisor alleged that it was appellant whose behavior was 

disruptive, as appellant did not understand the software and kept repeating herself. She reported 

that she interrupted appellant to keep the meeting on track. With respect to telling appellant to 

sit down at the end of a meeting, the supervisor indicated this was to conclude the meeting with 

peer recognition, which had become standard practice. The report indicated that two witnesses at 

the meeting agreed the supervisor’s actions were not demeaning in nature. As to the August 28, 

2015 meeting, appellant was offered the Employee Assistance Program to help with stress. The 

report concluded that there was no evidence that the supervisor had created a hostile work 

environment with respect to appellant. It recommended that the supervisor provide detailed 

instructions to all staff to avoid confusion and ensure fair treatment. 

By letter dated December 3, 2015, OWCP requested that appellant submit additional 

evidence regarding her claim. In a December 10, 2015 response, appellant indicated that she had 

filed a complaint on October 9, 2015 with the Office of Resolution Management, and the 

employing establishment had offered to settle the claim. According to appellant, the employing 

establishment had offered to change the performance appraisal to “highly successful” and to 

remove the letter of counseling. An October 15, 2015 letter indicated that an EEO (Equal 

Employment Opportunity) counselor had been selected regarding appellant’s complaint. 

In a decision dated April 22, 2016, OWCP denied appellant’s claim for compensation. It 

found that appellant had not established any compensable work factors with respect to 

allegations of harassment by the supervisor or error by the employing establishment. 
3

Appellant requested reconsideration on July 11, 2016. She submitted a statement from a 

coworker, who reported that it was clear that there was some tension between appellant and the 

supervisor. The coworker wrote that there were a lot of closed-door meetings, and that appellant 

has indicated she was having stomach problems and did not want to come to work. According to 

the coworker, the supervisor would stop meetings to find out what appellant was telling others in 

the department. Appellant also submitted a February 10, 2016 report from Dr. Ramal Rafique, a 

psychiatrist. 

By decision dated October 5, 2016, OWCP reviewed the merits of the claim, but denied 

modification of its prior decision. 

LEGAL PRECEDENT 

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 factors of her federal employment.2

 This burden includes the submission of detailed 

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

affected the condition or conditions for which compensation is claimed.3 To establish an 

emotional condition in the performance of duty, appellant must submit the following: (1) medical 

evidence establishing that she has an emotional or psychiatric disorder; (2) factual evidence 

identifying employment factors or incidents alleged to have caused or contributed to the condition; 

and (3) rationalized medical opinion evidence establishing that the identified compensable 

employment factors are causally related to the emotional condition.4 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.5

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 illness has 

some connection with the employment, but nevertheless does not come within the coverage of 

workers’ compensation. These injuries occur in the course of the employment and have some kind 

of causal connection with it, but nevertheless are not covered because they are found not to have 

arisen out of the employment. Disability is not covered where it results from an employee’s 

frustration over not being permitted to work in a particular environment or to hold a particular 

position, or to secure a promotion. On the other hand, where disability results from an employee’s 

emotional reaction to his or her regular or specially assigned work duties or to a requirement 

imposed by the employment, the disability comes within the coverage of FECA.6

 2 Pamela R. Rice, 38 ECAB 838 (1987). 

3 Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996). 

4 D.C., Docket No. 16-1870 (issued May 17, 2017); George H. Clark, 56 ECAB 162 (2004). 

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

6 Lillian Cutler, 28 ECAB 125 (1976). 
4

A reaction to an administrative or personnel matter is generally not covered as it is not 

related to the performance of regular or specially assigned duties.7 Nevertheless, if the evidence 

demonstrates that the employing establishment erred, acted abusively or unreasonably in the 

administration of a personnel matter, any physical or emotional condition arising in reaction to 

such error or abuse may be covered.8

ANALYSIS 

Appellant alleged that she sustained an emotional condition as a result of a number of 

alleged employment incidents. OWCP denied appellant’s emotional condition claim because she 

had failed to establish any compensable employment factors. The Board must initially review 

whether these alleged incidents of employment are covered employment factors under the terms 

of FECA. The Board notes that appellant’s allegations do not pertain to her regular or specially 

assigned duties under Cutler.

9

 Rather, appellant has alleged harassment and discrimination on 

the part of her supervisor and error and abuse in administrative matters. 

The initial question presented is whether appellant has established a compensable work 

factor. For an allegation of harassment to give rise to a compensable disability, there must be 

evidence which establishes that the acts alleged or implicated by the employee did, in fact, 

occur.10 In this case, the Board finds that appellant has not submitted probative and reliable 

evidence in support of her claim. 

Appellant has described staff meetings that occurred in 2015, but her allegations indicate 

only that she perceived her supervisor was at times singling her out or speaking to her in a 

condescending tone. Perceptions of harassment or verbal abuse are not compensable work 

factors.11 Appellant provided no probative evidence of harassment or abusive actions of a 

supervisor. The witness statement provided only general observations of perceived tension 

between appellant and the supervisor. While appellant indicated that she had filed an EEO 

complaint in October 2015, no additional evidence or findings with respect to this complaint are 

of record.12 Moreover, the employing establishment provided a fact-finding report that did not 

support her allegations of harassment. The report found that the supervisor treated appellant no 

different from other employees or establish incidents where appellant was treated in a demeaning 

manner. 

In her claim, appellant has also referred to a disciplinary letter, a performance appraisal, 

and a leave request. All of these are administrative or personnel matters and can only be 

 7 See Brian H. Derrick, 51 ECAB 417, 421 (2000). 

8 Margreate Lublin, 44 ECAB 945, 956 (1993). 

9 Supra note 5. See also J.T., Docket No. 16-1424 (issued March 7, 2017). 

10 See T.C., Docket No. 16-0755 (issued December 13, 2016); Robert Breeden, 57 ECAB 622 (2006). 

11 See M.D., 57 ECAB 211 (2007). 

12 Findings with respect to EEO claims are probative evidence, although not dispositive with respect to 

compensable factors under FECA. See J.S., Docket No. 08-2072 (issued April 20, 2009); see also James A. 

Hildenbrand, Docket No. 05-1638 (issued November 1, 2005). 
5

considered compensable work factors if there is probative evidence of error or abuse.13 No such 

evidence was presented in this case. Appellant referred to an offer from the employing 

establishment to remove the disciplinary letter and change the performance appraisal. Even if 

the evidence of record were to document a change in a disciplinary matter or a performance 

appraisal, this does not itself establish error or abuse. The mere fact that an administrative 

action is later modified or rescinded does not, in and of itself, establish error or abuse.14 

The Board accordingly finds that the evidence of record fails to substantiate a 

compensable work factor. Since appellant has not established a compensable work factor, the 

Board will not address the medical evidence.15

On appeal appellant writes that she has suffered an emotional and physical injury, and 

feels that she has been wronged. As discussed above, a claimant must allege and substantiate 

compensable work factors with respect to her claim for compensation. If compensable work 

factors are established, then the medical evidence is reviewed to determine if a diagnosed 

condition causally related to a compensable work factor has been established.16 For the reasons 

discussed, appellant has not established a compensable work factor in this case. 

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 failed to establish an emotional condition in the 

performance of duty. 

 13 Donney T. Drennon-Gala, 56 ECAB 469 (2005); Beverly R. Jones, 55 ECAB 411 (2004); Charles D. Edwards,

55 ECAB 258 (2004). 

14 See Michael Thomas Plante, 44 ECAB 510 (1993); Richard J. Dube, 42 ECAB 916 (1991) (reduction of a 

disciplinary letter to an official discussion did not constitute abusive or erroneous action by the employing 

establishment). 

15 See Margaret S. Krzycki, 43 ECAB 496 (1992). 

16 See I.D., Docket No. 16-0581 (issued December 12, 2016). 
6

ORDER 

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

Compensation Programs dated October 5, 2016 is affirmed. 

Issued: July 11, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board