United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WEST LOS ANGELES VETERANS AFFAIRS 

MEDICAL CENTER, Los Angeles, CA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 19-0378

Issued: July 10, 2019

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

JANICE B. ASKIN, Judge

JURISDICTION

On December 10, 2018 appellant filed a timely appeal from a November 9, 2018 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The record contains a March 7, 2019 OWCP decision in which OWCP denied appellant’s request for review of 

the merits of the denial of her emotional condition claim. Appellant filed her appeal with the Board on December 10, 

2018 and under the principles discussed in Douglas E. Billings, 41 ECAB 880 (1990), OWCP’s March 7, 2019 

decision, issued while the Board had jurisdiction over the matter in dispute, is null and void. See J.R., Docket No. 

18-1079 (issued January 15, 2019) (finding an OWCP nonmerit decision null and void because it was issued while 

the Board had jurisdiction over the matter in dispute).
2

ISSUE

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

an emotional condition in the performance of duty.

FACTUAL HISTORY

On May 29, 2018 appellant, then a 69-year-old registered nurse, filed an occupational 

disease claim (Form CA-2) alleging that she sustained several emotional/stress-related conditions 

in the performance of duty, including depression, anxiety, increased blood pressure, and sleep 

deprivation. She asserted that she worked in a hostile work environment that exposed her to 

intimidation, hostility, and abuse. Appellant claimed that management gave her unreasonable 

work assignments, mishandled her leave requests, and wrongly denied her computer access to sick 

leave records. She asserted that she first became aware of her claimed condition on December 1, 

2015 and first realized it was related to her federal employment on June 15, 2017. Appellant did 

not stop work.

By development letter dated June 14, 2018, OWCP requested that appellant submit 

additional evidence in support of her claim, including a physician’s opinion supported by a medical 

explanation regarding the cause of her claimed emotional condition. It provided an attached 

questionnaire for her completion, which posed various questions regarding the employmentrelated incidents and conditions which she believed caused her claimed illness. OWCP afforded 

appellant 30 days to respond.3

In response, appellant submitted a September 28, 2018 statement in which she further 

discussed that incidents and conditions at work which she believed caused her emotional condition. 

She asserted that her prior attempt to file a workers’ compensation claim in 2017 was improperly 

delayed by management. Appellant indicated that, after reporting symptoms of stress and 

depression to her immediate supervisor, S.R., she was referred to the Employee Assistance 

Program. She asserted that it was improper for S.R. to make the referral because the reported 

stress was employment related and not personal. Appellant asserted that she was the subject of an 

investigation by the employing establishment, but she was not informed of the allegations until 

she received instructions to appear at a meeting of the employing establishment’s Administrative 

Investigation Board. She felt that management failed to present clear and compelling evidence 

during the meeting. 

Appellant further claimed that on June 15, 2017 a management official, J.D., improperly 

removed her from office, took back facility keys, and informed her that her access to agency 

computers would be restricted. She maintained that S.R. wrongly directed a coworker to write a 

report of contact that was subsequently used in an administrative action relating to her 

performance. Appellant asserted that she was improperly suspended for one week without pay for 

refusing to open an employee gymnasium due to her concerns that the gymnasium contained 

 

3 On June 14, 2018 OWCP also requested additional information from the employing establishment which was to 

be submitted within 30 days. There is no indication that the employing establishment responded to the request within 

the allotted time.
3

health/safety violations.4 She claimed that management subjected her to retaliation and 

discriminated against her by threatening to eliminate her position due to her refusal to open an 

employee gymnasium. Appellant claimed that management failed to adequately respond to her 

health/safety concerns due to the fact that the coworker next to her kept dirty clothes in his work 

space. 

Appellant submitted several e-mails and memoranda detailing communications she had 

with management and union officials in 2016 and 2017. In these documents, she expressed her 

concerns about such matters as her request for mediation with a management official regarding an 

administrative action and a perceived delay in management’s handling of her prior workers’

compensation claim.5 Appellant also submitted numerous low-quality black and white 

photocopies of photographs depicting her work area. 

Appellant submitted several medical reports in support of her claim, including a June 28, 

2018 report of Dr. Mina W. Ma, an attending Board-certified internist, and August 2, 2017 and 

May 22, 2018 reports of Dr. Jeffrey R. Spina, another attending Board-certified internist. 

By decision dated November 9, 2018, OWCP denied appellant’s emotional condition 

claim, finding that she had not established a compensable employment factors.

6

LEGAL PRECEDENT

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.7 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.8

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 

 

4 Appellant asserted that management threatened her with discipline after she refused to open another employee 

gymnasium.

5 Appellant also submitted a July 2016 memorandum in which a coworker detailed his concerns about the 

cleanliness of her work space.

6

In a portion of the decision, OWCP indicated that appellant established employment factors and advised that her 

claim was denied for failure to establish injury in the performance of duty. However, appellant’s claim was actually 

denied due to her failure to establish any compensable employment factors as OWCP provided a detailed discussion 

of why she failed to establish such factors.

7 Lillian Cutler, 28 ECAB 125 (1976).

8 A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).
4

adversely affected by employment factors.9 This burden includes the submission of a detailed 

description of the employment factors or conditions which he or she believes caused or adversely 

affected a condition for which compensation is claimed, and a rationalized medical opinion 

relating the claimed condition to compensable employment factors.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. 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.12

ANALYSIS

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.

Appellant alleged that she sustained an emotional condition due to various incidents and 

conditions at work. The Board must initially review whether these incidents and conditions are 

covered employment factors under the terms of FECA. The Board notes that appellant’s claim 

does not directly relate to her regular or specially assigned duties under Lillian Cutler.

13

 Rather, 

appellant primarily claimed that management committed error and abuse with respect to various 

administrative/personnel matters. She also claimed that management subjected her to harassment 

and discrimination.

The Board notes that with respect to administrative or personnel matters, appellant claimed 

that management officials improperly delayed a prior workers’ compensation claim she filed in 

2017 and mishandled an investigation against her which included a meeting with the employing 

establishment’s Administrative Investigation Board. Appellant claimed that the employing 

establishment improperly disciplined her regarding her refusal to open an employee gymnasium, 

ignored her health/safety concerns about her work space, gave her unreasonable work assignments, 

mishandled her leave requests, and wrongly restricted her computer access. She also claimed that 

her immediate supervisor, S.R., mishandled her referral to the Employee Assistance Program and 

 

9 Pamela R. Rice, 38 ECAB 838, 841 (1987).

10 P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

11 See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

12 Id.

13 See supra note 7.
5

improperly directed a coworker to write a report of contact that was subsequently used in an 

administrative action relating to her performance.

The Board has held that administrative and personnel matters, although generally related 

to the employee’s employment, are administrative functions of the employer rather than the regular 

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

the Board has also 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 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

The Board notes that appellant did not submit sufficient evidence to establish the abovenoted claims about administrative/personnel matters. She submitted e-mails and memoranda 

which concerned some of these administrative/personnel matters, but the communications did not 

show that the employing establishment committed error or abuse with respect to these matters.17 

There is no indication that appellant filed a grievance with the employing establishment regarding 

these matters or otherwise obtained a final determination from an administrative body showing 

that the employing establishment committed error or abuse. Although appellant has expressed 

dissatisfaction with the actions of several superiors, the Board has held that mere dislike or 

disagreement with certain supervisory actions will not be compensable absent error or abuse on 

the part of the supervisor.18 She did not substantiate any error or abuse committed by the 

employing establishment in the above-noted matters and therefore she has not established a 

compensable employment factor with respect to administrative or personnel matters.

Appellant asserted that management officials created a hostile work environment that 

exposed her to intimidation, hostility, and abuse. She also claimed that management officials 

subjected her to retaliation and discriminated against her by threatening to eliminate her position 

due to her refusal to open an employee gymnasium. To the extent that disputes and incidents 

alleged as constituting harassment and discrimination by supervisors are established as occurring 

and arising from appellant’s performance of her regular duties, these could constitute employment 

factors.19 The Board has held that unfounded perceptions of harassment do not constitute an 

 

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

556 (1991).

15 S.K., Docket No. 18-1648 (issued March 14, 2019); William H. Fortner, 49 ECAB 324 (1998).

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

17 Appellant also submitted numerous low-quality black and white photocopies of photographs depicting her work 

area. She ostensibly submitted the photocopies to support her claim that the employing establishment ignored her 

health/safety concerns about her work area. However, the submission of these documents would not be sufficient to 

show that the employing establishment committed error or abuse with respect to this matter.

18 T.C., Docket No. 16-0755 (issued December 13, 2016).

19 David W. Shirey, 42 ECAB 783, 795-96 (1991).
6

employment factor.20 Mere perceptions are not compensable under FECA and harassment can 

constitute a factor of employment if it is shown that the incidents constituting the claimed 

harassment actually occurred.21 

Appellant did not submit substantive evidence to establish her claims of harassment or 

discrimination. For example, she did not submit witness statements showing that the claimed 

harassment/discrimination actually occurred. In addition, appellant did not submit the final 

findings of any grievance or complaint she might have filed with respect to these matters, such as 

a grievance filed with the employing establishment or a complaint filed with the Equal 

Employment Opportunity (EEO) Commission.22 Therefore, she has not established a compensable 

employment factor with respect to the claimed harassment and discrimination.

For these reasons, the Board finds that appellant has not established a compensable 

employment factor. Given the Board’s finding on the factual aspect of her case, it is not necessary 

to consider the medical evidence of record.23

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 not met her burden of proof to establish that she 

sustained an emotional condition in the performance of duty.

 

20 See F.K., Docket No. 17-0179 (issued July 11, 2017).

21 See id.

22 Appellant indicated that she had filed a grievance and an EEO matter, but there is no final decision in either 

matter showing that error and abuse actually occurred. See M.R., Docket No. 18-0304 (issued November 13, 2018).

23 See B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical 

evidence of record if a claimant has not established any compensable employment factors). See also Margaret S. 

Krzycki, 43 ECAB 496, 502-03 (1992).
7

ORDER

IT IS HEREBY ORDERED THAT the November 9, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 10, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board