United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Decatur, GA, Employer 

__________________________________________ 

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Docket No. 16-1522 

Issued: March 3, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 July 22, 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. 

 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 sustained an emotional condition in the performance of 

duty. 

FACTUAL HISTORY 

On February 17, 2015 appellant, then a 52-year-old vocational rehabilitation specialist, 

filed an occupational disease claim (Form CA-2) alleging that she was emotionally and 

physically injured as a result of sexual harassment by her immediate supervisor. She reported 

that seeing her supervisor in her work environment aggravated a preexisting condition and 

increased her anxiety, depression, and overall mental health stability as a result of the stress 

caused by his sexual harassment. Appellant first became aware of her condition on 

January 7, 2015 and related it to her employment on February 11, 2015. On the reverse side of 

the claim form, her second-line supervisor reported that she had never been notified of any 

harassment and had only received notice after receiving an e-mail from the Equal Employment 

Opportunity (EEO) office on February 13, 2015. 

By letter dated March 16, 2015, OWCP informed appellant that the evidence of record 

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

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

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

establishment. 

In an undated narrative statement, appellant reported that on February 11, 2015 she 

submitted an e-mail to the EEO office to file a sexual harassment charge against her immediate 

supervisor. She was then immediately contacted by employing establishment police officers for 

an interview and written statement detailing the incident. 

The employing establishment police interviewed appellant on February 11, 2015 

pertaining to a possible sexual assault. The police investigative report classified the complaint as 

disorderly conduct and disturbing the peace. The investigation revealed that appellant had been 

in a meeting with her supervisor who was standing next to her. She reported that, during the 

meeting, her supervisor turned with his back to her and sat on her right thigh. The supervisor 

placed his left arm around appellant on her shoulder and cuddled her. He then leaned over and 

put his face on her face and stated something to the effect of “I [a]m going to kiss you or give me 

a kiss.” Appellant told her supervisor to get up from her leg which he did. The report 

documented a February 19, 2015 interview with appellant’s supervisor who admitted to sitting 

on appellant’s leg at the end of the meeting. The investigative report reflected that the 

employing establishment prosecutor declined to prosecute the claim as a sexual assault, but did 

find that the supervisor had committed a simple battery. 

In a February 13, 2015 statement, appellant reported that on or around January 7, 2015 

her supervisor requested a meeting with her and a coworker. During the meeting, her supervisor 

discussed a list of issues. Appellant responded that she dreaded opening his e-mails because he 

was too quick to place blame on her for everything without reading the message correctly. The 

supervisor then stated that he did not want to be that way with her and they should kiss and make 
3

up. He told appellant that he would go back to his office and send her some good e-mails, like a 

blank e-mail stating “hello,” which she reported subsequently receiving. The supervisor then 

spread his legs and sat on her right thigh with his genitals touching her, cuddling, and placing his 

face against hers. Appellant stated that she was in shock and moments later she told him to 

move and get off her, which he did. She reported that her coworker witnessed the incident and 

exchange. Appellant reported that she was afraid to report the incident to her second-line 

supervisor because she was worried that she would not believe her, ridicule her, blame her for 

getting her supervisor in trouble, protect him, and misuse her authority to make her work life 

miserable. She requested a transfer from her current work environment because she was 

extremely uncomfortable in her supervisor’s presence. 

In a February 17, 2015 medical report, Dr. Rudolph V. Tacoronti, Board-certified in 

occupational medicine, reported that appellant complained of anxiety, depression, and sexual 

harassment. On February 11, 2015 appellant filed an EEO complaint for sexual harassment from 

her immediate supervisor and EEO forwarded the complaint to her second-line supervisor. She 

reported that her second-line supervisor immediately sent an e-mail changing her duty 

assignment, but did not apologize or acknowledge the EEO complaint. Appellant reported 

feeling too emotionally unstable to return to the worksite and requested leave following 

evaluation from her physician. Dr. Tacoronti diagnosed situational stress and recommended that 

she be off work to allow for evaluation and treatment from her personal physician. 

In a March 2, 2015 narrative statement, appellant reported that the January 7, 2015 sexual 

assault by her immediate supervisor caused her to experience abrupt and sudden functional 

impairment, heightened anxiety, agitation, and severe depression. She reported that she suffered 

daily from environmental stressors related to the incident and experienced embarrassment and 

shame out of fear of not being believed. Appellant reported the sexual assault and made a 

statement to the investigating employing establishment police officer on February 11, 2015. 

Having to recall the details of the incident caused her increased mental, emotional, and physical 

stress. Appellant’s overall functional capability was impaired and she had difficulty continuing 

with eight hours of daily exposure to the environmental stressors in her workplace. She stated 

that she no longer felt safe in her work environment, suffered from acute psychological stress, 

and was plagued with severe depression and thoughts of suicide. To date, appellant had lost two 

weeks of work as a result of the incident and was under the care of her primary physician. 

In a March 6, 2015 medical report, Dr. Wezyann Gayle, a Board-certified family 

physician, reported that appellant was seen on February 20, 2015 after she was sexually harassed 

by her first-line supervisor and treated rudely by her second-line supervisor for filing a 

complaint. Appellant reported that being in the same office with her abuser was very stressful 

and caused depression, as well as both suicidal and homicidal ideation towards her abuser and 

second-line supervisor. Dr. Gayle reported that she was very tearful and agitated and agreed 

with Dr. Tacoronti’s assessment that she remain off work until her psychiatrist found it safe to 

return. 

In April 16, 2015 e-mail correspondence, appellant’s second-line supervisor reported that 

she had never been made aware of appellant’s allegations or concerns regarding any 

inappropriate interactions she had with her first-line supervisor until she learned of the event 

from the EEO office. She related that she immediately moved appellant directly under her 
4

supervision. Appellant did not dispute the reassignment, but only asked the effective date of the 

reassignment. Appellant’s second-line supervisor then sent appellant subsequent e-mails to 

verify the immediate change and received no questions or additional information from her 

regarding the incident. 

By decision dated April 20, 2015, OWCP denied appellant’s claim finding that the 

evidence of record did not support that she actually experienced a sexual assault or was being 

sexually harassed by her supervisor. 

On May 11, 2015 appellant requested an oral hearing before an OWCP hearing 

representative. 

In an August 12, 2015 note, Janet P. Williams, a registered nurse, held appellant off work 

from August through November 2015 for continued mental health treatment. 

A hearing was held on December 9, 2015 before an OWCP hearing representative. At 

the hearing, appellant argued that, although the employing establishment police noted the 

incident as disorderly conduct, her supervisor’s conduct amounted to sexual harassment. She 

reported that she had not returned to work and that a hearing was pending pertaining to her EEO 

complaint. Appellant testified that, although her coworker witnessed the incident, appellant 

preferred not to get a statement from her, but that the police took her statement for the 

investigation. She described her current medical treatment and noted prior treatment for 

psychological conditions while on active duty with the U.S. Army. Appellant concluded that she 

felt mistreated and isolated because of the incident and had a hard time dealing with her 

condition. 

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

April 20, 2015 decision, finding that the evidence of record failed to establish any compensable 

factors of employment.3

 

LEGAL PRECEDENT 

A claimant has the burden of proof to establish by the weight of the reliable, probative 

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

or adversely affected by factors of his or her federal employment.4

 To establish that he or she 

sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual 

evidence identifying employment factors or incidents alleged to have caused or contributed to his 

or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric 

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

compensable employment factors are causally related to his or her emotional condition.5

 3

 The hearing representative noted that because the evidence did not establish any compensable factors of 

employment, it was not necessary to review the medical evidence submitted. 

4 See Pamela R. Rice, 38 ECAB 830 (1987). 

5 See S.J., Docket No. 12-1512 (issued February 12, 2013). 
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 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.6

 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.7

For harassment or discrimination 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.8

 Mere perceptions of harassment or discrimination are not compensable under FECA.9 A 

claimant must substantiate allegations of harassment or discrimination with probative and 

reliable evidence.10 Unsubstantiated allegations of harassment or discrimination are not 

determinative of whether such harassment or discrimination occurred.11 A claimant must 

establish a factual basis for his or her allegations of harassment or discrimination with probative 

and reliable evidence.12

Verbal altercations and difficult relationships with supervisors, when sufficiently detailed 

by the claimant and supported by the record, may constitute factors of employment. This does 

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

under FECA.13 Additionally, 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.14 

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 

 6 Supra note 2; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976). 

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

8 K.W., 59 ECAB 271 (2007); Robert Breeden, 57 ECAB 622 (2006). 

9 M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006). 

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

11 G.S., Docket No. 09-0764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005); 

Penelope C. Owens, 54 ECAB 684 (2003). 

12 Beverly R. Jones, 55 ECAB 411 (2004). 

13 Marguerite J. Toland, 52 ECAB 294 (2001). 

14 Denise Y. McCollum, 53 ECAB 647 (2002); Helen Casillas, 46 ECAB 1044 (1995). 
6

factors of employment and may not be considered.15 If a claimant does implicate a factor of 

employment, OWCP should then determine whether the evidence of record substantiates that 

factor.16 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.17 

ANALYSIS 

Appellant has not alleged that her emotional condition was due to the performance of her 

regular or specially assigned duties,18 but rather she alleged that she sustained an emotional 

condition as a result of conduct by her immediate supervisor. OWCP denied her claim finding 

that a compensable work factor was not substantiated by the record. 

Appellant alleged that an incident occurred on January 7, 2015 involving an unwanted 

touching by her immediate supervisor. She subsequently filed an EEO complaint on 

February 11, 2015 and an employing establishment police report was filed documenting the 

investigation. 

It is well established that unwanted physical contact may support a claim for 

compensation.19 The record establishes that appellant’s supervisor sat on appellant’s legs at the 

end of a meeting. Appellant’s supervisor has admitted this incident and it is documented in the 

investigative police report. The record establishes that there was unwanted physical contact 

made in the course of employment.20 Accordingly, the Board finds that appellant has established 

a compensable employment factor.21 

Appellant also alleged that her supervisor pressed his face against her face, sent her a 

blank e-mail with “hello,” and told her that he wanted to kiss and make up with her. In the 

present case, she has not submitted sufficient evidence to establish that these additional events 

occurred as alleged. Appellant reported that her coworker witnessed these events, but provided 

no witness statement corroborating them. The record does not establish these allegations. The 

mere fact that appellant filed an EEO complaint and grievance does not factually establish 

them.22 She submitted no evidence corroborating her allegations. The Board has held that mere 

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

16 K.W., supra note 8; David C. Lindsey, Jr., 56 ECAB 263 (2005). 

17 Robert Breeden, supra note 8. 

18 See supra note 6. 

19 See Alton L. White, 42 ECAB 666 (1991); see also Mary J. Summers, 55 ECAB 730 (2004); Alice F. Harrell, 

53 ECAB 713 (2002); Donna J. DiBernardo, 47 ECAB 700 (1996). 

20 M.B., Docket No. 07-1289 (issued September 25, 2007). 

21 K.L., Docket No. issued 10-1331 (January 18, 2011). 

22 Grievances and EEO complaints do not establish that workplace harassment or unfair treatment occurred. 

Charles D. Edwards, 55 ECAB 258, 266 (2004). 
7

allegations, in the absence of factual corroboration, are insufficient to meet a claimant’s burden 

of proof.23 

The only compensable employment factor established is that appellant’s supervisor sat on 

appellant’s legs during the July 7, 2015 meeting. The question for determination, therefore, is 

whether this incident of physical contact caused or aggravated appellant’s diagnosed emotional 

condition.24 As OWCP found that there were no compensable employment factors, it did not 

analyze or develop the medical evidence. Thus, the Board will set aside OWCP’s January 29, 

2016 decision and remand the case for further action.25 After further development as deemed 

necessary, OWCP shall issue a de novo decision on appellant’s emotional condition claim. 

CONCLUSION 

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

 23 Bonnie Goodman, 50 ECAB 139 (1998). 

24 R.W., Docket No. 11-0362 (issued October 24, 2011). 

25 T.F., Docket No. 12-0439 (issued August 20, 2012). 
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ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decision dated January 29, 2016 is set aside and the case is remanded for further development 

consistent with this decision of the Board. 

Issued: March 3, 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