United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.G., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Oakdale, LA, Employer 

__________________________________________ 

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Docket No. 16-1066 

Issued: September 21, 2017 

Appearances: Oral Argument April 25, 2017 

Katherine Smith, 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 April 26, 2016 appellant, through counsel,2 filed a timely appeal from a February 4, 

2016 decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider 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

 At the time appellant filed her appeal she was represented by Toby Rubenstein. By letter dated May 2, 2016, 

Ms. Rubenstein informed the Board that she no longer represented appellant as she had retired. By facsimile dated 

June 15, 2016, counsel advised that she was now representing appellant and requested oral argument before the 

Board. 

3

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish an emotional 

condition in the performance of duty. 

FACTUAL HISTORY 

On February 8, 2013 appellant, then a 39-year-old senior correctional officer, filed an 

occupational disease claim (Form CA-2) alleging that she experienced mental stress on the job 

due to constant harassment from various management officials, which exacerbated her existing 

mental condition and also caused a new diagnosis of bipolar disorder coupled with dementia. 

She noted that she first became aware that her postconcussive syndrome, bipolar disorder, 

dementia, and high blood pressure were aggravated by her work stress and harassment on 

July 20, 2012. Appellant stopped work on that same date. 

In a February 7, 2013 narrative statement, appellant alleged employment-related mental 

stress from December 2009 to July 2012. Specifically, she attributed her mental stress to sexual 

harassment by management and inmates. Appellant explained that she was diagnosed on 

July 21, 1999 with postconcussive syndrome and initially began experiencing mental stress due 

to her job from December 2009 to July 19, 2012. On July 20, 2012 she was diagnosed with 

bipolar disorder coupled with dementia. Appellant alleged that her conditions worsened due to 

stressors that she was experiencing on the job, including being assigned to monitor male inmates 

while they were showering. She also alleged a hostile work environment due to the harassment, 

intimidation, and bullying. Appellant related that she was improperly removed from her post and 

was passed over for promotion. She alleged reprisal for a prior Equal Employment Opportunity 

(EEO) complaint. Appellant alleged that she was unfairly investigated, had her performance 

evaluations lowered, was written up, was denied leave to attend funerals for family members, 

was denied requests for leave without pay (LWOP), and was called derogatory names. 

In a letter dated February 22, 2013, OWCP informed appellant that the evidence of record 

was insufficient to establish her claim. It advised her regarding the type of medical and factual 

evidence required and afforded her 30 days to submit this information. 

OWCP subsequently received medical and factual evidence responding to OWCP’s 

February 22, 2013 development letter. 

In a May 11, 2010 report, Dr. David C. Daniel, Jr., Ph.D., a treating clinical psychologist, 

wrote that he began treating appellant on February 8, 2010 for depression and anxiety. He went 

on to detail her symptoms and current treatment. Dr. Daniel opined that appellant was capable of 

performing her usual job duties except for monitoring male inmates while they were showering. 

He explained that she felt sexually harassed by the inmates during their showers and felt 

demeaned by their sexual actions which she had to witness. 

Appellant submitted evidence regarding her EEO complaint, affidavits, interrogatories, 

and correspondence regarding her allegations of harassment and discrimination. She submitted a 

December 29, 2011 EEO letter, which accepted 3 of her 10 allegations for consideration and 

dismissed the remaining 7 allegations as untimely filed. The accepted allegations included that, 
3

from January 2010 to October 7, 2011, appellant was subjected to harassment, intimidation, and 

bullying; that appellant was reassigned from her post; and that appellant was not selected for the 

position of correctional treatment specialist. 

The record contains correspondence from appellant and the employing establishment 

concerning leave requests, disciplinary actions, as well as medical evidence. 

In a July 2, 2012 treatment note, Dr. Adrien J. Nelson, a treating physician specializing in 

psychiatry, wrote that appellant had been hospitalized on June 16, 2012 and was being 

discharged that day. He released her to return to her regular work duties except for the 

monitoring of showering inmates. 

In a July 23, 2012 letter, the employing establishment noted documentation from 

Dr. Daniel and Dr. Nelson providing work restrictions. Specifically, Dr. Daniel and Dr. Nelson 

indicated that appellant was capable of performing her usual work duties except for monitoring 

naked inmates while they were showering. The employing establishment advised her that it was 

unable to continue to indefinitely accommodate her and requested further medical documentation 

regarding her work restrictions, medical diagnoses, and anticipated return to full-duty date. 

The record contains several pages from an affidavit completed by C.P., a coworker,4

describing the area where the inmates showered and noting that appellant felt sexually harassed 

by the inmates who were showering. She further related that there were some inmates who liked 

to display themselves and commit lewd acts while showering to harass the staff monitoring them. 

C.P. related that there were no consequences for inmates for this behavior even when it was 

reported. 

On March 30, 2013 OWCP received appellant’s May 10, 2010 amendment to her EEO 

complaint to include sexual harassment and retaliation due to being forced to monitor inmates 

showering during the period April 29 to May 8, 2010. Appellant related that the burglar bars in 

front of the shower revealed their nudity. As part of her duties she was required to distribute 

soap and razors, even while the inmates behaved lewdly inside the shower area. Appellant 

related that she was placed on sick leave because she had a medical restriction regarding 

monitoring showering male inmates. 

In a February 22, 2013 report, based upon a review of appellant’s Form CA-2, 

statements, medical history, medical records, and examination, Dr. Daniel diagnosed 

postconcussion syndrome and bipolar disorder with paranoid ideation. He opined that 

appellant’s work stress aggravated her bipolar disorder resulting in distrust and anxiety. 

On May 12, 2013 OWCP received a May 11, 2010 report from Dr. Daniel noting that 

appellant had recently been disabled from work as a result of her depression and anxiety. 

Appellant was reevaluated on April 23, 2010 and, at that time, Dr. Daniel opined that she was 

capable of returning to work provided that she was not required to monitor any inmates while 

they showered. Dr. Daniel explained that the restriction was to prevent the inmates from 

sexually harassing her as she felt sexually demeaned by the inmates’ actions in the showers. 

 4

 C.P. signed the affidavit on August 2, 2010 while the investigator signed it on August 16, 2010. 
4

By decision dated May 23, 2013, OWCP denied appellant’s claim as it found that she 

failed to establish any compensable factors of employment. It determined that she submitted 

insufficient evidence to establish any of her allegations. 

Appellant subsequently submitted an April 23, 2010 report, wherein Dr. Daniel noted that 

he had previously recommended that she be excused from work due to work difficulties. 

Dr. Daniel concluded that she was capable of returning to work on April 23, 2010 with the 

restriction that she be relieved of monitoring male inmates while they showered. 

Dr. Daniel, in a February 22, 2013 report, reviewed appellant’s CA-2 statements, noted 

that he had treated her since 2007, and provided a complete medical treatment history. He 

opined that, based on her perceptions and work stress, her bipolar condition had been aggravated 

by her employment. 

In reports dated December 3, 2013 and January 6, 2014, Dr. Daniel wrote that appellant 

had been his patient since 2007 and was diagnosed with postconcussion and bipolar disorders. In 

both reports, he noted that she discussed her difficulties at work. Dr. Daniel wrote in both 

reports that, in early July 2012, appellant was hospitalized and attributed her deterioration to 

work stress. In the December 3, 2013 report, he noted that he was reluctant to release her to 

return to work. Dr. Daniel, in the January 6, 2014 report, summarized appellant’s treatment 

sessions. Appellant, during a Spring 2010 treatment session, related being upset at being 

required to monitor male inmates while they showered, and that management had refused her 

request for a transfer from this position. 

On April 2, 2014 OWCP received a list of appellant’s daily assignments from August 30, 

2009 to March 20, 2010. The daily assignment list showed that appellant was assigned to the 

special management unit. 

On April 7, 2014 appellant’s representative at the time requested reconsideration. She 

argued that appellant’s work assignment to monitor male inmates while they showered was a 

compensable factor of employment. The representative explained that appellant was required to 

march the male inmates to the showers where shower supplies were distributed, leave them in the 

shower stalls, and withdraw behind a viewing area with bars, while they showered. Because the 

bar provided no privacy, appellant could see the inmates’ entire nude bodies. The inmates 

frequently displayed their bodies to her, made lewd gestures, obscene remarks, and inappropriate 

sexual advances. The representative also argued that the employing establishment committed 

administrative error by not adhering to a statute pertaining to cross-gender searches, 28 C.F.R. 

§ 115.15(d). 

In a July 2, 2014 narrative statement, appellant provided further details regarding the 

monitoring of male inmates in the shower and their lewd acts. She explained that, during her 

required rounds, she had to observe all inmate activities within her assigned unit. As a result of 

the facility’s architectural design, there were no partitions on the showers and the showering 

male inmates were in plain view. At times inmates would expose themselves or perform lewd 

acts toward her while she was making her rounds. 
5

By decision dated November 20, 2014, OWCP denied modification of its prior decision. 

It found that the evidence submitted failed to establish that the incidents occurred as alleged and, 

thus, no compensable factors of employment were established.5 

In a letter dated October 28, 2015, appellant’s representative again requested 

reconsideration. She argued that appellant’s reaction to monitoring inmates in the shower was a 

compensable factor of employment as it was part of her regular job duties. Counsel further 

argued administrative error on the part of the employing establishment as it failed to follow 

established procedures, regulations, and statutes with respect to requiring appellant to monitor 

inmates. Thus, she argued that appellant had established two compensable factors of 

employment. Counsel noted that documents submitted to Employee’s Compensation Operation 

and Management Portal included a settlement agreement; affidavits from M.M., a landscape 

foreman, C.P., cook supervisor, and G.K., a captain; responses to interrogatories from J.Y., 

warden; a December 16, 2009 letter of counseling regarding appellant’s work attire; reports 

dated July 29 and December 15, 2014 from Dr. Daniel; and an LWOP memorandum. OWCP 

also received letters from the employing establishment dated July 14 and August 15, 2014. 

The July 14, 2010 affidavit of M.M., a landscape foreman, who stated that he was away 

at training on December 15, 2009 when appellant was sent home for wearing inappropriate attire 

and described attire appropriate for dress-down day. He related that he had not heard coworkers 

referring to her by inappropriate terms or names. 

In the October 8, 2010 affidavit, G.K., appellant’s supervisor, stated that around April 23, 

2010 he reviewed a note from appellant’s physician restricting appellant from monitoring or 

working around male inmates while they showered. He related that following receipt of a 

physician’s opinion that she could not monitor inmates while they showered, that he placed her 

on sick leave from April 1 to 10 and April 29 to May 8, 2010. When appellant returned to work 

on April 23, 2010, G.K. provided her a different work assignment that did not include 

monitoring male inmates in the shower. He testified that her five different assignments all 

exposed her to male inmates while they were showering. G.K. noted that it was common 

practice to accommodate an employee’s medical restrictions for a limited period of time and that 

he had been aware of adjustments to appellant’s schedule. He testified that appellant had 

returned to her routine work. 

In a July 29, 2014 report, Dr. Daniel noted that he had treated appellant since February 8, 

2010 and that she had been diagnosed with bipolar disorder with psychosis and postconcussion 

disorder. He noted that she had been unable to work due to depression and anxiety caused by 

work stress and feelings of sexual harassment by male inmates. Dr. Daniel described the 

precipitating cause was appellant’s duty of monitoring male inmates while they showered and 

the inappropriate sexual responses from male inmates. He requested that she be excused from 

performing this employment duty. On December 15, 2014 Dr. Daniel released appellant to 

return to her usual work duties. 

 5

 On March 23, 2015 counsel appealed to the Board. In an order dated August 19, 2015, the Board granted a 

request by counsel to dismiss her appeal. Order Dismissing Appeal, Docket No. 15-0935 (issued August 19, 2015). 
6

On August 15, 2015 the employing establishment, pursuant to a settlement agreement, 

granted appellant LWOP for the period June 27, 2012 to July 18, 2014. 

In a December 2, 2015 report, Dr. Daniel diagnosed appellant with postconcussive 

syndrome and bipolar syndrome, which was currently in remission. A history of postconcussion 

was noted including the symptoms associated with the condition. In Dr. Daniel’s notes from 

March 1 and 30, 2010, he noted that appellant complained of harassment at work. He reported 

that on April 23, 2010 she was seen for stress as a result of being required to monitor male 

inmates while they were showering. A letter was written to the employing establishment 

requesting that appellant be relieved of this duty. Appellant, in the June 9, 2010 meeting, 

expressed frustration with not being promoted and that the person interviewing her for her EEO 

complaint was a former warden. Dr. Daniel discussed other work incidents causing her stress, 

including a three-day suspension, her belief that coworkers were watching her, that she was 

passed over for promotion numerous times, her fear of being fired, a fitness-for-duty request 

from the employing establishment, being placed in a LWOP status, and receiving a proposal to 

fire her. He reported that appellant was treated appropriately and was able to return to work in 

January 2015. Dr. Daniel concluded that her bipolar disorder had been aggravated by her work 

stress. 

In a December 8, 2015 report, Dr. Victor J. Vautrot, a treating Board-certified 

psychiatrist, diagnosed adjustment disorder, bipolar disorder, panic disorder, and nightmare 

disorder. Based on his review of the work allegations and his examination of appellant, he 

opined that the diagnosed preexisting conditions had been aggravated by her work experiences. 

The work experiences contributing to the aggravation included having to monitor nude male 

inmates making lewd gestures, delay in obtaining a work accommodation, and inconsistent 

application of work accommodations. Dr. Vautrot also noted that two managers made appellant 

remove her jacket and then snickered at her unique body shape, sent her home for inappropriate 

dress on a dress-down day, and gave her a letter of counselling. He related that she believed that 

management failed to follow appropriate rules, statutes, and procedures and ignored her requests 

for union representation. Dr. Vautrot explained that due to her work stress appellant’s 

adjustment disorder was aggravated resulting in anxiety, suffering, and panic. He concluded that 

she no longer suffered from the aggravation caused by her work stressors and had returned to 

work at the employing establishment in January 2015. 

By decision dated February 4, 2016, OWCP denied modification of its prior decision as 

no compensable work factors were established. It found that the evidence of record failed to 

establish that the employing establishment acted abusively with respect to administrative matters. 

OWCP also found the evidence of record insufficient to establish harassment or reprisal when 

the employing establishment required appellant to monitor showering male inmates and the lack 

of promotion. 

LEGAL PRECEDENT 

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

must submit: (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 
7

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

condition.6

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

somehow related to an employee’s employment.7

 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.8

 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.9

 

On the other hand, the disability is not covered where it results from such factors as an 

employee’s fear of a reduction-in-force or his or her frustration from not being permitted to work 

in a particular environment or to hold a particular position.10 

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 

factors of employment and may not be considered.11 If a claimant does implicate a factor of 

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

factor.12 When the matter asserted is a compensable factor of employment and the evidence of 

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

medical evidence.13

Administrative and personnel matters, although generally related to employment, are 

administrative functions of the employing establishment rather than the regular or specially 

assigned work duties of the employee and are not covered under FECA.14 However, the Board 

has held that, where the evidence establishes error or abuse on the part of the employing 

establishment in what would otherwise be an administrative matter, coverage will be afforded.15 

 6 V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990). 

7 L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006). 

8 A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005). 

9 Supra note 3; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976). 

10 J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001). 

11 D.L., 58 ECAB 217 (2006); Jerald R. Gray, 57 ECAB 611 (2006). 

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

13 Robert Breeden, supra note 7. 

14 See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 

ECAB 556 (1991). 

15 See William H. Fortner, 49 ECAB 324 (1998). 
8

In determining whether the employing establishment has erred or acted abusively, the Board will 

examine the factual evidence of record to determine whether the employing establishment acted 

reasonably.16

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.17 Mere perceptions of harassment or discrimination are not compensable under FECA.18 

The employee must substantiate allegations of harassment or discrimination with probative and 

reliable evidence.19 Unsubstantiated allegations of harassment or discrimination are not 

determinative of whether such harassment or discrimination occurred.20 An employee must 

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

and reliable evidence.21 

ANALYSIS 

On appeal, counsel contends that appellant’s primary allegations concerned her assigned 

duty of monitoring nude inmates in the shower and harassment by management following her 

request to be relieved of this duty. She alleges that these duties aggravated appellant’s 

preexisting conditions. 

The Board finds that appellant has established compensable factors of employment with 

respect to the monitoring of male inmates in the shower area, and harassment following her 

request to be relieved of this duty. 

Appellant attributed her stress and the aggravation of her preexisting emotional 

conditions to her actual work requirements of monitoring male inmates while they were 

showering. The Board has consistently held that emotional reactions to situations in which an 

employee is attempting to meet his or her position requirements, when supported by sufficient 

evidence, are compensable.22 Appellant attributed her emotional condition to the regular or 

specially assigned duties of monitoring male inmates while they showered. She alleged that 

while performing this duty the inmates made lewd comments and engaged in lewd acts. 

The evidence of record establishes that appellant was required to monitor male inmates 

while they showered between September 15, 2009 and January 1, 2011. An affidavit from her 

 16 Ruth S. Johnson, 46 ECAB 237 (1994). 

17 K.W., 59 ECAB 271 (2007); Robert Breeden, supra note 7. 

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

19 J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 7. 

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

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

21 Robert Breeden, supra note 7; Beverly R. Jones, 55 ECAB 411 (2004). 

22 See Tina D. Francis, 56 ECAB 180 (2004). 
9

supervisor, G.K., acknowledges that part of her duties involved monitoring male inmates in the 

shower area. Similarly, C.P., a coworker, provided testimony confirming that monitoring naked 

male inmates was a part of appellant’s job duties and describing the actions of some inmates 

toward female correctional guards watching them while they showered. 

It is appellant’s emotional reaction to the requirements imposed by the employing 

establishment that triggers coverage under FECA. She attempted to perform the duty of 

monitoring male inmates while they showered and the evidence reflects she did so, but the stress 

of doing so caused or aggravated her emotional condition. Given that this duty was a part of 

appellant’s regular job requirements, the Board finds that she has established a compensable 

employment factor related to assigned tasks which required her to monitor male inmates while 

they were showering.23

Appellant also alleged harassment and retaliation based on failure of the employing 

establishment to honor her work restrictions when it reassigned her to the duty of monitoring 

male inmates while they showered. 

The record contains a May 11, 2010 report from Dr. Daniel informing the employing 

establishment that appellant was disabled from the duty of monitoring inmates who were 

showering. Supervisor G.K., in an October 8, 2010 affidavit noted that an accommodation was 

made for her medical restrictions for a limited period of time. He also stated that following 

receipt of appellant’s work restriction from her physicians, that he placed her on sick leave 

instead of accommodating her work restriction. G.K. in his October 8, 2010 affidavit also 

related that she recently returned to her regular work assignment. The evidence of record 

establishes that the employing establishment erred by further harassing appellant following her 

submission of a medical report restricting her from performing her assignment of monitoring 

male inmates while they showered. Thus, appellant has also established a compensable 

employment factor with respect to her allegation of harassment. 

Appellant further alleged sexual harassment by management; a hostile work environment; 

harassment, intimidation, and bullying by coworkers and management; that she was unfairly 

investigated; that her performance evaluations were lowered and she was written up; that she was 

denied leave to attend funerals for family members; and that she was called derogatory names. 

The Board finds, however, that she has not submitted any witness statements or other evidence 

corroborating these allegations. The Board has held that mere allegations, in the absence of 

factual corroboration, are insufficient to meet a claimant’s burden of proof.24

The Board finds that appellant has established compensable employment factors with 

respect to her established work duties and harassment. Thus, OWCP must base its decision on 

an analysis of the medical opinion evidence. The case will be remanded to OWCP for this 

 23 Supra note 8. 

24 See Pamela D. Casey, 57 ECAB 260 (2005); Bonnie Goodman, 50 ECAB 139 (1998). 
10

purpose.25 After such further development as deemed necessary OWCP shall issue a de novo

decision on this claim. 

CONCLUSION 

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

ORDER 

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

Compensation Programs dated February 4, 2016 is set aside and the case is remanded for further 

proceedings consistent with the above opinion. 

Issued: September 21, 2017 

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 

 25 See T.F., Docket No. 12-0439 (issued August 20, 2012); Robert Bartlett, 51 ECAB 664 (2000).