United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.L., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Palatine, IL, 

Employer

__________________________________________

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Docket No. 19-0387

Issued: October 1, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 14, 2018 appellant filed a timely appeal from a July 12, 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.

ISSUE

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

condition in the performance of duty.

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On April 11, 2016 appellant, then a 59-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that on March 23, 2016 she sustained an emotional condition in the 

performance of duty. Her supervisor, M.O., advised on the reverse side of the claim form that she 

had experienced an anxiety attack after “overhearing a conversation.” Appellant stopped work on 

March 24, 2016.

In a March 30, 2016 statement, appellant related that she was dumping mail on March 23, 

2016 when she heard a coworker, A.M., screaming and swearing because he believed that she was 

not working with sufficient speed. Her husband and coworker, M.K., considered telephoning the 

police because of A.M.’s actions, and told a supervisor that A.M. was verbally harassing her and 

using the F-word and MF-word. The supervisor spoke with A.M. but his volume and swearing 

increased. Appellant related that A.M.’s actions had triggered her anxiety and post-traumatic 

stress disorder (PTSD) such that she almost lost consciousness. She sought treatment in the 

emergency room due to his accusation that she was too slow and his use of profanity. 

In an April 1, 2016 incident report, A.M. related that he had noticed that mail was coming 

down slowly and so he had complained about the person dumping the mail. M.K. yelled for the 

police. A.M. denied interacting with M.K. or appellant, noting that she was in front of the belt a 

distance away.

On April 22, 2016 the employing establishment controverted the claim, asserting that 

appellant “underwent a self-generated reaction (anxiety attack) to a conversation she may have 

overheard taking place between employees (including her husband who is also a coworker). This 

incident remains under investigation by [the employing establishment].”

In an undated statement received by OWCP on April 25, 2016, M.O. related that another 

supervisor had advised her on March 23, 2016 that M.K. had threatened to telephone the police 

about A.M.’s behavior, asserting that he had used profanity and raised his voice. She noted that 

A.M. had denied speaking to appellant or M.K. and instead had maintained that he had spoken 

with another coworker, M.G. about her delay in keeping the belt full. M.O. related that appellant 

had not seemed upset until she began to leave, at which point she began crying and fell. 

In a May 16, 2016 statement, appellant again described the events of March 23, 2016. She 

advised that she heard A.M. scream and swear. Appellant could not “completely understand the 

content of his rampage.” Her husband had informed her that he was speaking about her because 

she had not dumped the mail quickly enough. Appellant related that she heard A.M. use the MFword in reference to the dumper. She indicated that she was the only dumper working, so she 

knew she was the target of his words. Appellant asserted that the “hostility and aggression he 

 

2 Docket No. 17-1780 (issued March 14, 2018).
3

displayed were [so] severe that it called for the attention of four managers who were in the 

building.” 

By decision dated June 8, 2016, OWCP denied appellant’s emotional condition claim as 

she had not established an injury in the performance of duty. It found that she had not established 

a compensable factor of employment.

Appellant, on July 12, 2016, requested reconsideration. In a decision dated February 28, 

2017, OWCP denied modification of its June 8, 2016 decision. It found that appellant failed to 

corroborate her account of the events on March 23, 2016 and thus had not established verbal abuse 

or harassment. OWCP also noted that an emotional reaction to gossip was not a compensable 

work factor.

Appellant appealed to the Board. By decision dated March 14, 2018, the Board set aside 

the February 28, 2017 decision.3 The Board found that OWCP had not requested information from 

the employing establishment regarding its investigation into the March 23, 2016 incident. The 

Board remanded the case for OWCP to further develop the factual evidence. 

In a March 15, 2018 development letter, OWCP requested that the employing 

establishment provide any relevant information regarding its investigation of the March 23, 2016 

incident. On March 26, 2018 it again requested that the employing establishment provide 

information regarding its investigation of the March 23, 2016 incident, including witness 

statements and a description of any actions taken in response to the incident.

In a March 28, 2018 response, the employing establishment resubmitted statements 

previously provided with the original claim form. 

An OWCP claims examiner, in a June 26, 2018 e-mail, requested that the employing 

establishment provide “a statement for the file that states that the investigation was complete and 

the allegations were unfounded.”

4

In a July 11, 2018 e-mail, the employing establishment related, “Based on the results of the 

investigation by management it was found the allegations made by the claimant were not supported 

and no further administrative action was warranted.”

By decision dated July 12, 2018, OWCP denied appellant’s emotional condition claim. It 

found that the evidence was insufficient to establish any compensable factors of employment.

On appeal appellant argued that she had experienced a compensable work factor as she 

experienced an emotional reaction to profanity used while she was performing her work duties.

 

3

Id.

4 An OWCP claims examiner submitted a similar request in a June 27, 2018 e-mail.
4

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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.6 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. 7

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 

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

the diagnosed emotional condition.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 an illness has 

some connection with the employment but nevertheless does not come within the concept or 

coverage of workers’ compensation.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 his or 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, he or she must 

 

5

Supra note 1.

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

7

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April10, 2019); see T.O., Docket No. 18-1012 (issued 

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

8

See S.K., Docket No. 18-1648 (issued March14, 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).

9

28 ECAB 125 (1976).

10 See G.R., Docket No. 18-0893 (issued November 21, 2018).

11 Supra note 6.

12 See B.O., Docket No. 17-1986 (issued January 18, 2019).
5

substantiate such allegations with probative and reliable evidence.13 Personal perceptions alone 

are insufficient to establish an employment-related emotional condition.14 On the other hand, the 

disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment, or 

to hold a particular position.15

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

there must be probative and reliable evidence that harassment or discrimination did in fact occur. 16 

Mere perceptions of harassment are not compensable under FECA.17

OWCP’s procedures provide: 

“An employee who claims to have had an emotional reaction to conditions of 

employment must identify those conditions. The CE [claims examiner] must 

carefully develop and analyze the identified employment incidents to determine 

whether or not they in fact occurred and if they occurred whether they constitute 

factors of the employment. When an incident or incidents are the alleged cause of 

disability, the [claims examiner] must obtain from the claimant, agency personnel 

and others, such as witnesses to the incident, a statement relating in detail exactly 

what was [stated] and done. If any of the statements are vague or lacking detail, 

the responsible person should be requested to submit a supplemental statement 

clarifying the meaning or correcting the omission.”

18

OWCP’s regulations provide that an employer who has reason to disagree with an aspect 

of the claimant’s allegation should submit a statement that specifically describes the factual 

argument with which it disagrees and provide evidence or argument to support that position.19

ANALYSIS

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

Appellant attributed her emotional condition to A.M. screaming and swearing at her on 

March 23, 2016 because she was slow dumping mail. On prior appeal, the Board noted that the 

 

13 Id.

14 M.R., Docket No. 18-0305 (issued October 18, 2018).

15 A.C., Docket No. 18-0507 (issued November 26, 2018).

16 S.B., Docket No. 18-1113 (issued February 21, 2019).

17 Id.

18 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty,Chapter 2.804.17(j) (July 1997); see 

also D.B., Docket No. 18-0537 (issued September 12, 2018).

19 20 C.F.R. § 10.117(a); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, 

Chapter 2.800.7(a)(2) (June 2011) (in certain types of claims, such as a stress claim, a statement from the employer is 

imperative to properly develop and adjudicate the claim).
6

employing establishment had indicated, in an April 22, 2016 statement, that an investigation into 

the March 23, 2016 incident was ongoing. The Board remanded the case for OWCP to obtain 

information from the employing establishment regarding the investigation. 

On remand, OWCP requested that the employing establishment provide any relevant 

information regarding its investigation in the March 23, 2016 employment incident, including any 

witness statements that it had obtained and any actions taken in response to the incident. The 

employing establishment failed to respond to its request. On June 26, 2018 OWCP requested that 

the employing establishment advise that the investigation was complete and the allegations 

unfounded. In a July 11, 2018 response, the employing establishment indicated that appellant’s 

allegations were unsupported.

As discussed, OWCP’s procedures provide, “When an incident or incidents are the alleged 

cause of disability, the CE must obtain from the claimant, agency personnel and others, such as 

witnesses to the incident, a statement relating in detail exactly what was said and done. If any of 

these statements are vague or lacking detail, the responsible person should be requested to submit 

a supplemental statement clarifying the meaning or correcting the omission.”

20

 Its regulations 

further provide that an employer who has reason to disagree with an aspect of the claimant’s 

allegations should submit a statement that specifically describes the factual argument with which 

it disagreed and provide evidence or argument to support that position.21 The July 11, 2018 e-mail

response from the employing establishment was conclusory in nature and lacked any supporting 

detail regarding the result of its investigation into the March 23, 2016 incident.

As the Board ordered in the prior decision, OWCP shall request that the employing 

establishment provide any relevant evidence to which it has access, including the results of its 

investigation of the March 23, 2016 incident.22 On remand OWCP shall develop the evidence 

regarding the claimed emotional condition in accordance with the Board’s prior decision and 

OWCP’s procedures.23 If the employing establishment does not appropriately respond to OWCP’s

request for additional information, OWCP may accept appellant’s allegations as factual in 

accordance with its regulations.24

CONCLUSION

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

 

20 Supra note 17.

21 20 C.F.R. § 10.117(a); see also L.D., Docket No. 15-1831 (issued September 21, 2016).

22 Supra note 2.

23 Supra note 17.

24 20 C.F.R. § 10.117(b); L.D., supra note 21.
7

ORDER

IT IS HEREBY ORDERED THAT the July 12, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this opinion of the Board.

Issued: October 1, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board