United States Department of Labor

Employees’ Compensation Appeals Board

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A.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Northport, NY, Employer

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Docket No. 18-0630

Issued: December 10, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 January 30, 2018 appellant filed a timely appeal from a December 21, 2017 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 met her burden of proof to establish an emotional 

condition in the performance of duty.

FACTUAL HISTORY

On November 3, 2017 appellant, then a 38-year-old human resources assistant, filed a 

traumatic injury claim (Form CA-1) alleging that at 3:00 p.m. on October 23, 2017 she sustained 

 

1 5 U.S.C. § 8101 et seq.
2

an injury as a result of being sexually assaulted at work. She stopped work on October 24, 2017 

and returned to work on October 30, 2017. Appellant did not submit additional evidence.

On the reverse side of the claim form, the employing establishment indicated that

appellant’s regular tour of duty was 8:00 a.m. to 4:30 p.m., Monday through Friday. It 

controverted her claim, noting that she had not submitted medical evidence to support a workrelated injury.

By development letter dated November 9, 2017, OWCP informed appellant of the 

deficiencies in her claim and afforded her 30 days to submit medical evidence and respond to its 

inquiries. It also requested that the employing establishment respond to her allegations and provide 

medical evidence, if she had been treated at its medical facility. 

Appellant submitted a November 24, 2017 factual statement in response to OWCP’s 

development letter. She indicated that on October 23, 2017 she was standing at the front desk 

speaking to S.F., a coworker, when another employee approached them at the front desk. Within 

seconds he was within appellant’s personal space and whispered in her ear while he was conversing 

with S.F. Then, as he was standing behind appellant, she felt his genitals on her buttocks. The

alleged assailant still continued a conversation with S.F. as he slowly walked to an elevator. When 

his telephone rang, he stated “I thought there was a fire,” “I thought it was appellant, but it was 

my phone.” He then got on the elevator and, as appellant walked away from the desk, S.F. asked 

her if she was okay. Appellant walked back to the front desk, midway through the hallway, and 

asked S.F. for the alleged assailant’s name. After she gathered herself she began to cry 

hysterically. Appellant notified her supervisor, who then called the police. A police officer arrived

and appellant reported what happened. He took her telephone number and name, but told appellant

that the incident was not a true crime because such things happened to subway riders during the 

many years he was a police officer with the New York City Police Department (NYPD). She cried 

as N.R., a coworker, left to notify their supervisor about the police officer’s comments. Appellant

referenced a police statement that was taken on October 23, 2017 and included witness statements. 

She indicated that she left work early during the afternoon on October 24, 2017 because she did 

not feel safe at work. Appellant could not sleep and constantly got up to look out her bedroom 

windows. She did not leave home and her family had to help out with her children because she 

did not feel that they were safe at their bus stops. Also, appellant constantly cried and felt afraid. 

She maintained that she was on employing establishment premises working her regular tour during 

the claimed October 23, 2017 incident. Appellant further maintained that she did not know the

alleged assailant, although she had seen him around the facility and had said hello to him. She 

related that the incident was being investigated by the employing establishment police.

An unsigned letter dated November 28, 2017 indicated that appellant was seen and treated 

for anxiety at the Life Center Counseling and Health Services on November 24 and 26, 2017 by 

Karen Kieser, a licensed mental health counselor. 

By decision dated December 21, 2017, OWCP denied appellant’s emotional condition 

claim, finding that the weight of the evidence had not established that the October 23, 2017 

employment incident occurred as alleged. It further found that she had not submitted rationalized 

medical evidence to establish a medical diagnosis in connection with the claimed employment 
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incident. OWCP noted that a mental health counselor was not a qualified physician as defined 

under FECA.

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.2 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.3

FECA provides for the payment of compensation for the disability or death of an employee 

resulting from a personal injury sustained while in the performance of duty.4 The phrase “sustained 

while in the performance of duty” has been interpreted by the Board to be the equivalent of the 

commonly found requisite in workers’ compensation law of arising out of and in the course of 

employment. In the course of employment deals with the work setting, locale, and time of injury 

whereas, arising out of the employment encompasses not only the work setting, but also the 

requirement that an employment factor caused the injury.5

In the compensation field, to occur in the course of employment, an injury must occur: 

(1) at a time when the employee may be reasonably said to be engaged in the master’s business; 

(2) at a place where he or she may reasonably be expected to be in connection with the 

employment; and (3) while he or she was reasonably fulfilling the duties of the employment or 

engaged in doing something incidental thereto.6

Assaults arise out of the employment either if the risk of assault is increased because of the 

nature or setting of the work or if the reason for the assault was a quarrel having its origin in the 

work. Assaults for private reasons do not arise out of the employment unless, by facilitating an 

assault that would not otherwise be made, the employment becomes a contributing factor.7

 

2 See E.K., Docket No. 17-0246 (issued April 23, 2018). 

3 See Donna Faye Cardwell, 41 ECAB 730 (1990).

4 5 U.S.C. § 8102(a). See also P.S., Docket No. 08-2216 (issued September 25, 2009).

5 A.K., Docket No. 09-2032 (issued August 3, 2010); C.O., Docket No. 09-0217 (issued October 21, 2009).

6 See R.A., 59 ECAB 581 (2008).

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Id.
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In assault cases, to determine whether the assault arose from the employment OWCP 

procedures provide:

“Where the injury or death is caused by the assault of another person, it is necessary 

to establish to the extent possible whether the assault was accidental, arose out of 

an activity directly related to the work or work environment, or arose out of a 

personal matter having no connection with the employment. In the case of a 

personal matter, the evidence must show whether it was materially and substantially 

aggravated by the work association. 

a. It is the responsibility of the claims examiner (CE) to obtain copies of any 

police reports which may have been made. Statements should also be 

obtained from the official superior and coworkers or other witnesses 

showing:

(1) Whether there was any animosity between the injured or 

deceased employee and the assailant by reason of a personal 

association away from work and, if so, this should be explained 

fully; and

(2) A full description of the events and circumstances which 

immediately preceded, led up to, and resulted in the assault.

b. A similar statement should be obtained from the assailant, if possible, and 

in disability cases, from the injured employee.”

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(Emphasis in the original.)

ANALYSIS

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

Appellant filed a traumatic injury claim alleging that she sustained an emotional condition 

when she was sexually assaulted by another employee at work on October 23, 2017. She 

maintained that, while she was talking to her coworker, S.F., at the front desk, the alleged assailant

whispered in her ear. He then stood behind her and she felt his genitals on her buttocks. The 

alleged assailant also made an unwanted sexual comment about appellant to S.F. as he walked 

away towards an elevator. After he left the area, appellant cried hysterically and notified her 

supervisor about the claimed employment incident. Appellant’s supervisor called the employing 

establishment police. A police officer arrived and appellant told him about the claimed 

employment incident. She contended that he dismissed the incident as not a true crime when he 

related to her that subway riders were subjected to such incidents during the many years he worked 

as a NYPD police officer. Appellant referenced a police statement that was taken on October 23, 

2017 and included witness statements. In addition, she noted that the claimed employment 

incident was currently being investigated by the employing establishment police.

 

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.10(a)(August 1992).
5

The Board finds that OWCP did not sufficiently develop the evidence regarding whether 

appellant was sexually assaulted at work in the performance of duty on October 23, 2017. It did 

not obtain a copy of the police report regarding the claimed October 23, 2017 incident, which 

included witness statements. Further, OWCP did not request statements from appellant’s 

supervisor and the alleged assailant. As discussed, OWCP’s procedures provide that the claims 

examiner should obtain copies of any police reports which may have been made and statements 

from the official superior, coworkers, other witnesses, and assailant regarding the details of the 

matter.9

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 

While appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence, particularly when such evidence is of the 

character normally obtained from the employing establishment or other governmental source.10 

Accordingly, the Board will remand the case for OWCP to obtain the necessary

information from the employing establishment regarding the claimed October 23, 2017 

employment incident. Following such further development as deemed necessary, OWCP shall 

issue a de novo decision.

CONCLUSION

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

 

9

Id.

10 See L.L., Docket No. 12-0194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008).
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ORDER

IT IS HEREBY ORDERED THAT the December 21, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision.

Issued: December 10, 2018

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