United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

HUNTER/HOLMES/MCGUIRE VETERANS 

ADMINISRATION MEDICAL CENTER, 

Richmond, VA, Employer 

__________________________________________ 

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Docket No. 14-945 

Issued: October 22, 2014 

Appearances: Case Submitted on the Record

Toby Rubenstein, Esq., for the appellant 

Office of the Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On March 20, 2014 appellant, through her representative, filed a timely appeal from a 

November 20, 2013 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 the case. 

ISSUE 

The issue is whether appellant met her burden of proof to establish that she sustained an 

emotional condition causally related to factors of her federal employment. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In a November 22, 2010 decision, the 

Board affirmed OWCP’s November 18, 2009 decision denying appellant’s emotional condition 

claim. The Board found that she failed to establish a compensable employment factor as the 

evidence did not substantiate her claim of a sexual assault occurring on October 10, 2008; she 

did not substantiate her allegations of harassment and there was no evidence that the employing 

establishment failed to provide proper assistance or protective action following her complaint of 

a sexual assault.2

 Following this decision, appellant requested reconsideration, which OWCP 

denied on August 17, 2011 as untimely filed and without clear evidence of error. In a May 9, 

2012 order remanding case, the Board found that her February 16, 2011 reconsideration request, 

which was received on May 19, 2011, was filed within one year of the Board’s November 22, 

2010 merit decision and was timely filed. The Board remanded the case to OWCP for 

application of the standard for reviewing a timely request for reconsideration under 20 C.F.R. 

§ 10.606(b)(2).3

 The facts of the case as set forth in the Board’s prior decisions are incorporated 

herein by reference.4

In her May 13, 2011 reconsideration request, appellant submitted new evidence, which 

included a February 9, 2011 letter from the Office of Personnel Management which found that 

she was disabled from her position as a nursing assistant due to post-traumatic stress disorder. In 

a January 25, 2011 report, David A. Israel, Ph.D., a licensed clinical psychologist, stated that he 

believed that appellant was involved in an unprovoked physical attack by a peer, who attempted 

to turn the event into a sexual experience. He stated that the incident caused a great deal of stress 

for her as well as other on-the-job stress and events of major significance. Dr. Israel stated that 

the actual event has not been disputed and that appellant continued to experience symptoms 

 2

 Docket No. 10-505 (issued November 22, 2010). 

3

 Docket No. 11-2096 (issued May 9, 2012). 

4

 On December 30, 2008 appellant, then a 52-year-old nursing assistant, filed an occupational disease claim 

(Form CA-2) for an emotional injury following an alleged sexual assault on October 10, 2008. She alleged that a 

coworker grinded himself against her while kissing her against her will. Appellant tried to get away, but he would 

not let her go. She reported the incident to the employing establishment police but contended that no action was 

taken to protect her from the individual who assaulted her. Appellant also alleged that the employing establishment 

failed to inform her of her right to file a workers’ compensation claim for an exacerbation of her preexisting anxiety 

and depression. She stopped work on December 9, 2008 and sought medical treatment on December 10, 2008. The 

employing establishment noted that appellant was last exposed to the alleged work conditions on October 23, 2008 

and reported the condition to her supervisor on December 30, 2008. In a February 25, 2009 statement, appellant 

stated that she was assigned to work the 3:30 p.m. to 12:00 midnight shift on October 10, 2008. She took her break 

at approximately around 11:15 p.m. and, at approximately 11:30 p.m., Don Gardner, a coworker, assaulted her by 

grinding into her and holding her against her will. Appellant stated that he kissed her all over and down her neck. 

She was shaken and embarrassed and did not know how to handle the situation. Appellant reported the incident to 

management on October 22, 2008 and filed a report with the employing establishment police on October 23, 2008, 

but no action was taken. She was told that it would be her word against his. Appellant tried to work but was in 

constant fear of Mr. Gardner as there were few people available, including police, on the second shift. She provided 

a copy of an Equal Employment Opportunity (EEO) complaint she filed on January 27, 2009 against the employing 

establishment and the police chief for sexual harassment and failure to provide a harassment-free work environment. 

The complaint noted that appellant had been harassed by the accused since 2004 and management failed to provide a 

harassment-free work environment. 
3

including gastrointestinal dysfunction, loss of sleep, disturbed appetite, irritability, depressed 

mood, depression, anxiety, rumination and on-going fear and startle response. He opined that 

her depression and ruminations were of a significant nature which precluded her from working. 

In a letter of June 20, 2012, OWCP requested additional evidence, including copies of the 

employing establishment’s police report and investigation as well as reports and records from the 

local city magistrate and local city police department relating to her sexual harassment and 

assault charges. 

In a July 10, 2012 letter, the employing establishment noted that they could only 

authorize a copy of the police report if OWCP had investigative authority. 

Appellant submitted new statements to the record dated December 7, 2009, September 8, 

2011 and June 25, 2012. She maintained that she was sexually harassed on October 7 or 8, 2008 

by Mr. Gardner. Appellant alleged that Mr. Gardner whispered “Hi Foxy” in her ear on 

October 7, 2008 and wanted to buy lunch for her in celebration of each of their birthdays, which 

were on the same date. She had already eaten lunch and agreed to dine with him on 

October 9, 2008. Appellant concluded that she could trust Mr. Gardner, who gave her an index 

card, asking her to come to the 4 Exercise Room. When she arrived, he had changed his clothes 

and grabbed her. Mr. Gardner started kissing her neck and in her mouth. Appellant alleged that 

he grinded up on her, breathed hard and held her tight. She tried to push Mr. Gardner away but 

he would not let go. Mr. Gardner wanted appellant to tell him if her husband ever tried to hurt 

her. Appellant became embarrassed. She acknowledged that the employing establishment had 

conducted an investigation, but it was not enough for her protection. Mr. Gardner was removed 

from appellant’s work area but continued to park in the same area as she did and worked the 

same hours. Appellant maintained that he should have been fired. She stated that the local 

police department did not investigate her claim as the employing establishment police were 

involved.5

 

Appellant stated that the incident took place on October 9, 2008. The employing 

establishment investigation concluded there was insufficient evidence to support her claim. 

Appellant stated that Mr. Gardner did not deny that he was in the exercise room and 

acknowledged kissing her; however, he maintained that it was a consensual act and that he only 

kissed her on the cheek. She stated that she never gave him permission to kiss her. Appellant 

maintained that she was physically attacked and fondled. 

The employing establishment’s May 12, 2009 Police Service Summary memorandum, 

which the Board previously reviewed, stated that appellant’s case was reviewed by two 

independent law enforcement agencies and three separate legal entities. Each agency came to 

the conclusion that there was a lack of sufficient evidence to prosecute Mr. Gardner for the 

charge of assault. 

The April 8, 2009 employing establishment investigative report now of record concluded 

that appellant trusted Mr. Gardner and had agreed to meet him in the exercise room as they were 

 5

 A copy of the December 10, 2008 incident/investigation report of the city police department noted now of 

record, the allegations as “a known individual forced himself upon victim” and that Mr. Gardner was a suspect. 
4

comfortable with and trusted each other. Touching and kissing occurred between appellant and 

Mr. Gardner, but the parties differed on the nature of the touching and kissing and whether it was 

consensual. There were no witnesses and the 14-day gap between the alleged incident and when 

appellant reported that it undermined the potential for gathering evidence and no physical 

evidence had been collected. The investigative board concluded that touching and feeling did 

occur in the patient exercise room on October 9, 2008; however, there was insufficient evidence 

to determine whose version of the incident was accurate. Mr. Gardner stated that it was mutual 

and appellant stated that it was not mutual. Furthermore, appellant provided two statements with 

different portrayals of the touching and kissing, with her second statement more devastating in 

nature. She first portrayed Mr. Gardner as being an individual she trusted and then portrayed 

him as being someone who stalked her. This led the investigative board to question the accuracy 

of appellant’s statements. The investigation noted that she was referred to the Employee 

Assistance Program (EAP) by her Nurse Manager when she called in sick on October 21, 2008 

and was crying. At that time, the Nurse Manager was not aware of the incident with 

Mr. Gardner and was not made aware of appellant’s allegations until October 23, 2008, 14 days 

after the incident. Once aware, management immediately separated him from her work area. 

By decision dated August 30, 2012, OWCP denied modification of its November 18, 

2009 decision. It found that the following occurred but were not factors of employment: 

appellant became upset with the way the employing establishment assisted her in filing the 

workers’ compensation claim for the alleged workplace harassment; was upset with the results of 

the employing establishment’s investigation and that Mr. Gardner was not fired. OWCP found 

that the following incidents did not occur: appellant was not sexually harassed or assaulted in 

the workplace by Mr. Gardner; the employing establishment did not fail to protect her from 

sexual harassment in the workplace or fail to advise appellant of her right to file a workers’ 

compensation injury claim for the alleged workplace harassment. 

On August 30, 2012 appellant requested reconsideration. She submitted a September 18, 

2012 report from Dr. Israel, who opined that she had an array of symptoms, including 

depression, anxiety and fear as a result of being sexually assaulted by a peer and would be a 

liability if she were to return to work. A 

By decision dated February 6, 2013, OWCP denied modification of its prior decisions. It 

found that the medical evidence was based on allegations which appellant had not proved to have 

occurred as alleged. 

On August 6, 2013 appellant, through her representative, requested reconsideration. She 

argued that the case has not been reviewed under current case law and reasoning that workers’ 

compensation law should be construed liberally in favor of the employee. Appellant argued that 

the employing establishment admitted that she had been subjected to something troublesome 

when it reassigned Mr. Gardner to another location and considered reassigning appellant to a 

third location. She submitted a June 19, 2013 statement from her husband, who opined that she 

was telling the truth with regard to being assaulted on the job. In a June 20, 2013 statement, 

appellant’s brother attested to her character. Appellant submitted additional medical reports 

from Dr. Israel dated March 19, July 9 and October 17, 2013. 
5

By decision dated November 20, 2013, OWCP denied modification of its prior decisions. 

It determined that appellant did not substantiate a compensable factor of employment. 

LEGAL PRECEDENT 

Workers’ compensation 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 employing establishment 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 reduction-in-force or his or her frustration from not being permitted to work 

in a particular environment or to hold a particular position.7

It is well established that administrative or personnel matters, although generally related 

to employment, are primarily administrative functions of the employing establishment and not 

duties of the employee.8 Investigations are considered to be an administrative function of the 

employing establishment unrelated to the employee’s day-to-day duties or specially-assigned job 

requirements.9 

For harassment or discrimination to give rise to a compensable disability under FECA, 

there must be evidence that the incidents alleged or implicated by the employee did, in fact, 

occur.10 Grievances or EEO complaints by themselves are not determinative of whether 

harassment or discrimination took place.11 Where a claimant alleges harassment, the issue is 

whether he or she has submitted sufficient evidence to establish a factual basis for the claim by 

the submission of probative and reliable evidence to support such allegations.12 

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 See supra note 1; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976). 

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

8 See Pamela D. Casey, 57 ECAB 260 (2005); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’ d on recon.,

42 ECAB 566 (1991). 

9 See Jeral R. Gray, 57 ECAB 611 (2006). 

10 T.G., 58 ECAB 189 (2006). 

11 C.S., 58 ECAB 137 (2006). 

12 Id. See Robert Breeden, 57 ECAB 622 (2006). 
6

factors of employment and may not be considered.13 If a claimant does implicate a factor of 

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

factor. 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.14

A claimant has the burden of establishing by the weight of the reliable, probative and 

substantial evidence that an emotional condition was caused or adversely affected by his or her 

employment.15 Neither the fact that a disease or condition manifests itself during a period of 

employment, nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish a causal relationship.16

ANALYSIS 

On prior appeal, in a November 22, 2010 decision, the Board affirmed OWCP’s 

November 18, 2009 denial of appellant’s emotional condition claim as she failed to establish a 

compensable employment factor. There was insufficient evidence to substantiate appellant’s 

claim of a sexual assault occurring on October 10, 2008, she did not substantiate her allegations 

of harassment and that the employing establishment did not fail to provide proper assistance or 

take protective action following her complaint of a sexual assault.17 In a May 9, 2012 order, the 

Board subsequently remanded the case to OWCP to review her February 16, 2011 

reconsideration request on the merits as she filed a timely request for reconsideration.18 On 

remand, OWCP reviewed appellant’s case on the merits and in decisions dated August 30, 2012, 

February 6 and November 20, 2013 denied modification of its November 18, 2009 decision 

finding that the evidence failed to provide a compensable factor to establish a work-related 

injury. 

In statements dated December 7, 2009, September 8, 2011 and June 25, 2012, appellant 

reiterated her allegation of a sexual assault by a coworker on October 10, 2008. She alleged 

sexual harassment by the same individual since 2004 and alleged error on the part of her 

employer in investigating the matter and in failing to properly advise her about filing her claim. 

The Board notes that appellant did not attribute her emotional condition to her regular or 

specially-assigned job duties as a nursing assistant under Cutler. 

Appellant alleged that on October 10, 2008 she was sexually assaulted by a coworker. 

Physical contact by a coworker or supervisor may give rise to a compensable work factor, if the 

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

14 Id. 

15 See Charles D. Edwards, 55 ECAB 258 (2004). 

16 See Ronald K. Jablanski, 56 ECAB 616 (2005); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). 

17 Docket No. 10-505 (issued November 22, 2010). 

18 Docket No. 11-2096 (issued May 9, 2012). 
7

incident occurred as alleged.19 Appellant did not report the claimed assault to her supervisor or 

police for almost two weeks. The April 8, 2009 employing establishment investigative report 

found that she trusted her coworker and had agreed to meet him in the exercise room. Touching 

and kissing occurred between appellant and the coworker, but each party differed on whether 

such contact was consensual. There were no witnesses to the alleged incident and no physical 

evidence was collected due to the 14-day delay between when the alleged incident and when she 

reported it to her supervisor. The investigative board concluded that, while touching and feeling 

occurred in the exercise room on October 9, 2008, there was insufficient to evidence to 

determine whose version was accurate. The coworker stated that it was mutual while appellant 

contended that it was not mutual. Furthermore, the investigative board questioned the accuracy 

of her allegation as she had provided two statements with different portrayals of the touching and 

kissing, with her second statement more devastating in nature. Appellant first portrayed the 

coworker as an individual she trusted and then portrayed him as being someone who had stalked 

her. The employing establishment’s May 12, 2009 Police Service Summary memorandum stated 

that her case was reviewed by two independent law enforcement agencies and three separate 

legal entities. Each agency came to the conclusion that there was a lack of sufficient evidence to 

prosecute the coworker for the charge of assault. The Board finds that appellant has not 

submitted sufficient evidence to establish that she was sexually assaulted by a male coworker at 

the time, place or in the manner alleged. The evidence supports that on October 9, 2008 

appellant met with her coworker in an exercise room. There are differing versions on the 

touching and kissing and whether or not it was consensual. The submission of statements by 

appellant’s brother and husband with regard to her character do not establish that the incident 

occurred as alleged. The Board found that appellant presented insufficient evidence to 

substantiate her claim of a sexual assault occurring on October 9, 2008, she failed to establish a 

compensable employment factor. 

For harassment to give rise to a compensable disability under FECA there must be 

evidence that such harassment did in fact occur. Mere perceptions of harassment are not 

compensable under FECA.20 Appellant failed to submit sufficient evidence to establish that she 

was sexually harassed by her coworker. While she provided a statement to the employing 

establishment’s investigative board that the male coworker had stalked her, she provided no 

evidence to substantiate that she was harassed by the male coworker, as alleged.21 Appellant has 

not established a compensable employment factor. 

Appellant alleged that the employing establishment provided no assistance or protection 

from the accused coworker following her complaint. The Board’s prior decision found that the 

administrative actions by the employing establishment following her complaint were reasonable. 

The employing establishment removed the coworker from appellant’s work area pending the 

outcome of the investigation and advised her of actions to take regarding the alleged October 9, 

2008 incident, including contacting the employing establishment police, filing an EEO complaint 

for sexual harassment and filing a sexual assault charge with the local police and contacting an 

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

20 Jack Hopkins, Jr., 42 ECAB 818 (1991). 

21 See Michael A. Deas, 53 ECAB 208 (2001). 
8

EAP counselor. Appellant stated her frustration that her coworker should have been fired and 

not allowed to park in the same area; but she failed to establish that the employing establishment 

erred or failed or take adequate protective action following her complaint. Furthermore, she 

presented no corroborating evidence to support that the employing establishment erred or acted 

abusively in this matter.22 The Board finds that the employing establishment acted reasonably in 

this administrative matter. Appellant has not established a compensable factor of employment 

with respect to her allegation that the employing establishment failed to take action or act 

reasonably following her complaint. For these reasons, she did not establish that her emotional 

condition arose in the performance of duty.23 

On appeal, appellant’s representative stated that from the outset appellant’s case had been 

treated as a sexual harassment complaint as opposed to a sexual assault and that both the 

employing establishment and city police dismissed her case without a thorough investigation. 

The Board has reviewed the evidence of record performing to the allegation of assault occurring 

on October 9, 2008 and harassment by from her male coworker, prior to the alleged sexual 

assault. Based on the evidence of record, appellant did not establish that the October 9, 2008 

incident occurred as alleged or that she was harassed by her coworker prior to the alleged sexual 

assault. It is noted that the employing establishment’s investigation into the matter found that the 

14-day delay between the alleged incident and when she reported it to her supervisor undermined 

the potential for evidence gathering. While appellant’s representative noted that both appellant 

and the perpetrator remained on the same shift and parked in the same lot, the record is devoid of 

any evidence that the employing establishment erred or acted abusively in the investigation of 

this manner or in the manner in which her supervisors responded to appellant’s complaints or 

offered assistance. 

CONCLUSION 

The Board finds that appellant has not met her burden of proof to establish that she 

sustained an emotional condition in the performance of duty. 

 22 See Richard J. Dube, 42 ECAB 916 (1991). 

23 As appellant has failed to establish a compensable employment factor, the Board need not address the medical 

evidence of record. Marlon Vera, 54 ECAB 834 (2003). 
9

ORDER 

IT IS HEREBY ORDERED THAT the November 20, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 22, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board