United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.G., Appellant 

and 

U.S. POSTAL SERVICE, GENERAL MAIL 

FACILITY, Boston, MA, Employer 

__________________________________________ 

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Docket No. 17-0160 

Issued: May 1, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 1, 2016 appellant, through counsel, filed a timely appeal from an 

August 23, 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. 

ISSUE 

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

condition in the performance of duty on July 11, 2015. 

 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. § et seq. 
2

On appeal counsel asserts that the August 23, 2016 decision is contrary to law and fact. 

FACTUAL HISTORY 

On August 10, 2015 appellant, then a 65-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on July 11, 2015 she witnessed a verbal altercation 

between coworkers while working, and that this frightened her. She stopped work on 

July 13, 2015. M.S., a supervisor of distribution operations at the employing establishment, 

indicated on the claim form that no fist fight or altercation occurred on the workroom floor 

during any tour when appellant was working. 

In a formal controversion of the claim, M.D., an employing establishment health and 

resource management (HRM) specialist, noted that appellant did not report any incident on 

July 11, 2015, and that on the claim form the supervisor noted that no fight or altercation 

occurred. The HRM specialist advised that appellant had an additional claim for carpal tunnel 

syndrome and myofascial pain syndrome, adjudicated by OWCP under File No. xxxxxx012, and 

had returned to full duty under that claim on July 9, 2009.3

In correspondence dated July 16, 2015, addressed to the employing establishment, 

Dr. Susan Biener Bergman, a Board-certified physiatrist, advised on July 16, 2015 that appellant 

was under her care for carpal tunnel syndrome and myofascial pain syndrome, with additional 

symptoms of headaches, dizziness, nausea, visual changes, and a number of unexplained falls. 

She noted that appellant had been on a six-week medical leave of absence earlier that year and 

upon her return, reported that coworkers were creating an unsafe environment. Dr. Bergman 

described appellant’s report that the previous week she witnessed a violent fist fight, including a 

very aggressive coworker who made threats and this caused appellant to fear that he would bring 

a weapon to work. 

By letter dated September 2, 2015, OWCP informed appellant of the evidence needed to 

support her emotional condition claim. It asked that she respond to a questionnaire detailing how 

the claimed work incident occurred as well as her description of how her emotional condition 

developed. 

In an August 10, 2015 report, Dr. John P. Hennessy, a psychologist, indicated that 

appellant had been under his care for several years for anxiety, depression, and stress. He related 

that on July 11, 2015 she was confronted by two employees who shouted loudly with a very real 

potential of a violent episode. Dr. Hennessey advised that the traumatic event of July 11, 2015 

resulted in an acute stress disorder caused by intense fear, helplessness, and horror such that 

appellant now had difficulty sleeping, poor concentration, and an exaggerated startle response. 

He concluded that appellant continued under intensive cognitive/behavioral psychotherapy as the 

result of the symptoms caused by this incident. 

Dr. Bergman provided a duty status report (Form CA-17) on July 27, 2015 with physical 

restrictions. She also noted that appellant could not be around loud noises or anyone coming up 

 3

 OWCP adjudicated the instant claim under File No. xxxxxx938. File No. xxxxxx012 is not presently before the 

Board. 
3

behind her. Dr. Bergman advised that appellant had post-traumatic stress disorder (PTSD) 

symptoms, triggered by loud noises and threatening gestures, noting that appellant was 

frightened by a threatening gesture from a coworker. She diagnosed severe depression, 

fibromyalgia with muscle pain, and headaches. Dr. Bergman indicated that appellant could 

return to work on August 27, 2015. 

By decision dated October 14, 2015, OWCP denied the claim. It noted that appellant had 

not responded to the development questionnaire and found that the evidence submitted was 

insufficient to support that the claimed event occurred. 

Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings 

and Review. In an August 27, 2015 report, Dr. Bergman reported that appellant had been under 

her care for eight years for episodic myofascial pain, upper extremity overuse, fibromyalgia, and 

severe depression. She advised that appellant could return to part-time work on August 28, 2015 

on a trial basis provided that she was protected from loud noises, sudden approaches, or 

aggressive gestures.4

 On October 13, 2015 Dr. Bergman noted that appellant had been on 

medical leave and had requested medical retirement. She advised that appellant had chronic 

myofascial pain and PTSD and again advised that appellant could return to part-time modified 

duty on a trial basis. On October 6, 2015 Dr. Hennessy reported that appellant was fit for light 

duty with the restrictions he provided on March 24, 2015.5

At the hearing, held on June 13, 2016, the hearing representative noted that appellant did 

not respond to OWCP’s development questionnaire. Appellant testified that she had retired in 

December 2015. She described the July 11, 2015 incident, stating that she heard someone say, 

“don’t push me,” looked up and saw two men physically fighting. Appellant indicated that when 

she told her supervisor, M.S., she replied that everything was fine, so that appellant herself 

reported it to security, who came to investigate and, again, M.S. indicated that everything was 

fine. Appellant noted that no coworker would provide a witness statement and that she stopped 

work because she became fearful of the workplace, noting that the workers argued and talked 

loudly and made fighting motions, and that nothing was done by management. She felt it was an 

unsafe environment. Appellant noted that she had been treated by Dr. Hennessy since 2003 for 

anxiety, depression, and PTSD. The hearing representative asked that she provide records from 

Dr. Hennessy and obtain the security report. The record was left open 30 days. 

By decision dated August 23, 2016, an OWCP hearing representative found that appellant 

had not established a compensable factor of employment and affirmed the October 14, 2015 

decision. 

LEGAL PRECEDENT 

To establish her claim that she sustained an emotional condition in the performance of 

duty, appellant must submit the following: (1) medical evidence establishing that she has an 

emotional or stress-related disorder; (2) factual evidence identifying employment factors or 

 4

 Only the first page of the report is found in the case record. 

5

 A March 24, 2015 report is not found in the case record. 
4

incidents alleged to have caused or contributed to her condition; and (3) rationalized medical 

opinion evidence establishing that the identified compensable employment factors are causally 

related to her stress-related condition.6 If a claimant does implicate a factor of employment, 

OWCP should then determine whether the evidence of record substantiates that factor.7

 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.8

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

somehow related to an employee’s employment. In the case of Lillian Cutler,

9

 the Board 

explained that there are distinctions as to the type of employment situations giving rise to a 

compensable emotional condition arising under FECA. There are situations where an injury or 

illness has some connection with the employment but nevertheless does not come within 

coverage under FECA.10 When an employee experiences emotional stress in carrying out his or 

her employment duties and the medical evidence establishes that the disability resulted from an 

emotional reaction to such situation, the disability is generally regarded as due to an injury 

arising out of and in the course of employment. This is true when the employee’s disability 

results from her emotional reaction to a special assignment or other requirement imposed by the 

employing establishment or by the nature of the work.11 Allegations alone by a claimant are 

insufficient to establish a factual basis for an emotional condition claim.12 Where the claimant 

alleges compensable factors of employment, she must substantiate such allegations with 

probative and reliable evidence.13 Personal perceptions alone are insufficient to establish an 

employment-related emotional condition.14

ANALYSIS 

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

condition in the performance of duty on July 11, 2015. 

Appellant has not attributed her emotional condition to the performance of her regular 

work duties or to any special work requirement arising from her employment duties under 

 6 Leslie C. Moore, 52 ECAB 132 (2000). 

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

8 Id.

9

 28 ECAB 125 (1976). 

10 See Robert W. Johns, 51 ECAB 137 (1999). 

11 Lillian Cutler, supra note 9. 

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

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

14 Roger Williams, 52 ECAB 468 (2001). 
5

Cutler.

15 Rather, her claim pertains to events that occurred on July 11, 2015 in which she alleges 

that she witnessed a physical and verbal altercation between two male coworkers and that this 

caused an unsafe work environment which led to her PTSD, anxiety, and depression. 

The Board finds that the claimed incident of July 11, 2015 did not occur as alleged. 

Appellant submitted no evidence, such as a statement from a witness, corroborating that the 

incident on July 11, 2015 occurred as claimed. M.S., a supervisor, advised that no fist fight or 

altercation occurred on the workroom floor during any tour when appellant was working. 

OWCP, by letter dated September 2, 2015, informed appellant of the evidence needed to support 

her claim. It asked that she respond to a questionnaire describing how the claimed incident 

occurred and how her emotional condition developed. Appellant did not respond with the 

information requested in the September 2, 2015 development letter, nor did she furnish the 

information requested by the hearing representative at the June 13, 2016 hearing.16

Appellant submitted no evidence to support her allegations regarding the claimed July 11, 

2015 incident. 

For the foregoing reasons, the Board finds that appellant has not established that the 

claimed incident occurred as alleged. Therefore, she has not met her burden of proof to establish 

that she sustained an emotional condition in the performance of duty. As appellant did not 

establish a compensable employment factor, the Board need not consider the medical evidence of 

record.17 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this decision regarding the merits of appellant’s 

claim, 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 an emotional 

condition in the performance of duty on July 11, 2015. 

 15 See James E. Norris, 52 ECAB 93 (2000). 

16 See David S. Lee, 56 ECAB 602 (2005). 

17 See Katherine A. Berg, 54 ECAB 262 (2002). 
6

ORDER 

IT IS HEREBY ORDERED THAT the August 23, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 1, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board