United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer

__________________________________________

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Docket No. 19-0434

Issued: November 22, 2019

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 18, 2018 appellant, through counsel, filed a timely appeal from an

August 10, 2018 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.

 

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. § 8101 et seq.
2

ISSUE

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

condition in the performance of duty, as alleged.

FACTUAL HISTORY

On June 15, 2017 appellant, then a 33-year-old supervisor of customer service, filed an 

occupational disease claim (Form CA-2) alleging that he sustained post-traumatic stress disorder 

(PTSD) due to a toxic/hostile work environment. He alleged that on December 2, 2012 one of his 

subordinate employees, T.C., threatened him and on the following day she came to work with a 

loaded handgun and was arrested by the employing establishment’s Office of Inspector General.3 

Appellant also alleged that on June 9, 2017 another employee, W.B., approached him “violently”

and threatened him with physical harm using vulgar language. He indicated that he first became 

aware of his claimed condition on February 4, 2014 and first realized its relation to his federal 

employment on August 8, 2017. He stopped work on June 15, 2017. On the reverse side of the 

claim form, appellant’s immediate supervisor, L.C., indicated that she did not hear a threat being 

made against appellant.4

In a June 22, 2017 development letter, OWCP requested that appellant submit additional 

evidence in support of his emotional condition claim, including a physician’s opinion supported 

by a medical explanation as to how the alleged employment incidents caused or aggravated a 

medical condition. It provided a questionnaire for his completion which posed a series of questions 

regarding the alleged employment incidents. OWCP afforded appellant 30 days to respond. In a 

separate development letter of even date, it also requested additional information from the 

employing establishment which was to be submitted within 30 days.

In response, appellant submitted an undated document entitled, “unusual occurrence 

incident report,” in which he reported that at approximately 11:30 a.m. on June 9, 2017 he was at 

his usual workstation (Bowling Green Station) with L.C. and B.H., a union shop steward, when 

W.B., an employee from another workstation (Church Street Station), jumped in front of him and 

screamed threats at him using vulgar language. He maintained that W.B. was about to punch him 

and noted that W.B. was pulled back by other employees in the area.

Appellant also submitted medical evidence, including June 15 and July 11, 2017 notes

from Moses Weksler, PhD, a clinical psychologist, who diagnosed PTSD (chronic, acute) and 

advised that appellant should remain off work from June 16 to September 16, 2017 due to his 

distressed and traumatized state.

 

3 On the Form CA-2, appellant inadvertently indicated that these claimed events occurred on December 2 

and 3, 2013. The record, however, indicates that they instead occurred on December 2 and 3, 2012.

4 The case record reflects that appellant filed two prior emotional condition claims, assigned OWCP File Nos. 

xxxxxx194 and xxxxxx018, related to claimed incidents/conditions in 2010 and 2012, respectively, which were denied 

by OWCP.
3

In a June 26, 2017 letter, L.C. advised that the employing establishment was challenging 

appellant’s present emotional condition claim.5 She questioned how appellant was able to work 

until 3:00 p.m. on June 9, 2017 if he had, in fact, been threatened at approximately 11:30 a.m. on 

that date. L.C. also questioned how he was able to work eight hours on June 15, 2017 if he had, 

in fact, suffered an employment-related emotional condition due to the events of June 9, 2017.

By decision dated July 25, 2017, OWCP found that appellant had not submitted evidence 

sufficient to establish that the claimed events occurred as described. Therefore, it denied his claim 

for failure to establish the factual component of fact of injury. OWCP concluded that appellant 

therefore had not met the requirements to establish that he sustained an injury as defined by FECA. 

On May 18, 2018 appellant, through counsel, requested reconsideration of the July 25, 

2017 decision. Counsel argued that the factual evidence of record was sufficient to establish that 

appellant was exposed to threats at work as alleged. 

Appellant submitted a November 13, 2017 statement in which he provided additional 

details of his assertions regarding T.C.’s actions on December 2 and 3, 2012.6 He asserted that on 

December 2, 2012 T.C. threatened to shoot him. Appellant further maintained that, immediately 

after W.B. threatened him on June 9, 2017, K.E., another employee from the Church Street Station 

worksite, placed W.B. in a chokehold and hauled him off the work floor. He indicated that the 

actions of W.B. “really did me in” because he did not work at the same location as W.B. and he 

never even interacted with him. Appellant maintained that K.G., another employee, witnessed the 

June 6, 2017 incident, and he noted that he had not obtained statements from any of the witnesses 

to the incident.7

Appellant submitted documents from several Equal Employment Opportunity (EEO) 

claims. In a December 10, 2014 settlement agreement, appellant and L.C. agreed to each complete 

an online sensitivity training course. In a September 16, 2016 settlement agreement, management 

agreed to reduce a 14-day suspension action against appellant to a 7-day suspension. The case 

record does not show that either settlement agreement resulted in a finding of wrongdoing by any 

party.8

Appellant also submitted additional medical evidence, including February 4, 2014, July 7, 

and September 13, 2017 narrative reports and progress notes from early 2017 in which Dr. Weksler

 

5 L.C. indicated that appellant had a prior claim for PTSD, assigned OWCP File No. xxxxxx018, which was denied 

by OWCP.

6

In this document, appellant answered questions posed in the development questionnaire that OWCP provided on 

June 22, 2017.

7 With respect to a question regarding “prior emotional conditions,” he asserted that he previously sustained an 

emotional condition because the employing establishment falsely accused him of tampering with the time/attendance 

system in January 2010 and improperly issued him a letter of removal.

8 The September 16, 2016 settlement agreement explicitly provided that the agreement should not be considered an 

admission of wrongdoing/discrimination by an employing establishment official.
4

diagnosed employment-related PTSD, depression, and adjustment disorder with mixed anxiety and 

depressed mood.

In a July 18, 2017 statement, L.C. noted that with respect to the claimed June 9, 2017 

incident, she reported that she was “also [a] witness to the incident” and that she did not hear any 

of what appellant alleged. L.C. further noted that other employees present on June 9, 2017 were 

interviewed, but that each employee indicated that he or she did not hear W.B. threaten appellant. 

She maintained that disciplinary actions issued to appellant were proper given his failure to 

adequately carry out his work duties and responsibilities.

By decision dated August 10, 2018, OWCP again denied appellant’s emotional condition 

claim.

9

 It noted that a number of his assertions with regard to incidents/conditions at work had 

been denied under previously filed claims in OWCP File Nos. xxxxxx194 and xxxxxx108,

including his assertions regarding T.C.’s actions in December 2012. 

LEGAL PRECEDENT

An employee seeking benefits under FECA10 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty, as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 

employment injury.11 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.12

To establish an emotional condition in the performance of duty, a claimant must submit: 

(1) factual evidence identifying an employment factor or incident alleged to have caused or 

contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or 

she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion 

 

9

In its August 10, 2018 decision, OWCP indicated, “Since there is at least one accepted event, this satisfies the 

[f]act of [i]njury -- [f]actual portion of your claim.” It then noted that “the evidence presented is sufficient to modify 

the decision dated [July 25, 2017] from a denial based on one of the 5 basic elements for FECA coverage to a denial 

based on another basic element....” The Board notes, however, that the content of OWCP’s August 10, 2018 decision 

shows that OWCP has not accepted that appellant established a compensable employment factor. Therefore, OWCP 

actually denied appellant’s claim on August 10, 2018 for the same reason it denied it on July 25, 2017, i.e., the failure 

to establish a factual basis for the claim.

10 Supra note 2.

11 A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

12 20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued 

October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
5

evidence establishing that the accepted compensable employment factors are causally related to 

the diagnosed emotional condition.13

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.14 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.15

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 employment factors.16 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.17

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.18 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.

19

 

13 See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014); 

Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).

14 Lillian Cutler, 28 ECAB 125 (1976).

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

16 B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

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

18 See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

19 Id.
6

ANALYSIS

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

condition in the performance of duty, as alleged.

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

conditions at work. OWCP denied appellant’s claim, finding that he had not established 

compensable employment factors. The Board must, thus, initially review whether these incidents 

and conditions are covered employment factors under the terms of FECA. The Board notes that 

appellant’s allegations do not directly relate to his regular or specially assigned duties under Lillian 

Cutler.

20

 Rather, appellant primarily alleged that he was subjected to harassing actions at work.

Appellant alleged that he was harassed by employees at work. Appellant claimed that on 

December 2, 2012 one of his subordinate employees, T.C., threatened him and that on the next day 

she came to work with a loaded handgun. Appellant, however, did not submit corroborative 

evidence in support of his allegations regarding T.C’s actions.21 

Appellant also alleged that on June 9, 2017 another employee, W.B., approached him 

“violently” and threatened him using vulgar language. However, he did not submit evidence 

supporting his assertions regarding W.C.’s actions on June 9, 2017. W.B. identified several 

individuals as being present during the claimed June 9, 2017 incident, however, he did not submit 

witness statements from them. In addition, appellant’s immediate supervisor, L.C., indicated that 

she witnessed the events of June 9, 2017, and reported that she did not hear W.C. make any 

threatening comments. She further advised that other employees present on June 9, 2017 were 

also interviewed, but that each employee noted that he or she did not hear W.B. threaten 

appellant.22 Therefore these statements do not corroborate appellant’s allegations of harassment. 

For these reasons, appellant has not established a compensable employment factor with respect to 

the claimed harassment at work.

23

 

20 See supra note 14.

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

22 Appellant submitted settlement agreements from EEO claims, but these agreements do not contain findings 

relating to matters claimed as causing an emotional condition in the present claim. Moreover, the agreements did not 

indicate that wrongdoing was committed by any party. See generally M.R., Docket No. 18-0304 (issued 

November 13, 2018) regarding the probative value of the final findings of EEO claims and grievances.

23 Appellant also generally alleged that he was exposed to a toxic/hostile work environment, but he did not provide 

a specific instances and a clear explanation for this allegation or evidence to support it. He also advised that he had 

previously sustained an emotional condition due to his belief that the employing establishment made false accusations 

against him in January 2010 and improperly issued him a letter of removal. However, appellant did not claim that 

these alleged events caused or contributed to the emotional condition claimed in the present case.
7

As the Board finds that appellant has not established a compensable employment factor, it 

is not necessary to consider the medical evidence of record.24

On appeal counsel asserts that the factual evidence of record is sufficient to establish that 

appellant was exposed to threats at work as alleged. As explained above, the evidence of record 

is insufficient to support this assertion.

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 his burden of proof to establish an emotional 

condition in the performance of duty, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the August 10, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 22, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

24 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).