United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Milwaukee, WI, Employer

__________________________________________

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Docket No. 18-0965

Issued: November 19, 2018

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 10, 2018 appellant, through counsel, filed a timely appeal from a March 16, 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 her burden of proof to establish an emotional 

condition in the performance of duty on July 20, 2017, as alleged.

FACTUAL HISTORY

On July 25, 2017 appellant, then a 56-year-old registered nurse, filed a traumatic injury 

claim (Form CA-1) alleging that on July 20, 2017 she sustained an emotional condition at work. 

On the Form CA-1, she indicated that reference should be made to an attached statement regarding 

the cause of the claimed emotional condition. Appellant stopped work on July 27, 2017.

In a July 25, 2017 statement, appellant indicated that on July 19, 2017 a coworker, T.R., 

arrived at the health unit with documentation dated July 17, 2017 which outlined his work 

restrictions. She informed T.R. that the documentation was insufficient according to employee 

labor relations manual and advised him he would need additional documentation from his 

physician that included a medical diagnosis and rationale for his work restrictions. T.R. returned 

with a Family and Medical Leave Act (FMLA) form and appellant told him that the form had to 

be submitted to another office for FMLA authorization. On July 20, 2017 P.R., a human resources 

management specialist and acting human resources management manager, who was T.R.’s wife, 

arrived at the health unit and inquired as to why T.R.’s restrictions were not in the health unit log. 

Appellant advised P.R. that she could not and would not discuss T.R.’s medical information with 

her. P.R. left the office and then returned with T.R. and stated that T.R. would give appellant 

permission to talk to her about the medical information. T.R. then provided such permission, but 

appellant refused to discuss T.R.’s medical information with P.R. and she asked her to leave so 

that she could discuss the information with T.R. alone. Appellant asserted that P.R. started yelling 

at her and inquiring why T.R.’s restriction was not in the health unit log. At that time, T.R. also 

began to raise his voice when speaking to appellant about his medical documentation. 

Appellant further noted that, J.Y., a nurse in the health unit, then walked up to her cubicle 

during this exchange of conversation and witnessed what was taking place. She indicated that she 

informed P.R. and T.R. that it was an ethical issue for her to discuss T.R.’s medical information 

with her. Appellant also advised that there was a conflict of interest given that P.R. was the acting 

human resources management manager, and she asked P.R. to control her voice when addressing 

her. She advised P.R. and T.R. that there were three nurses in the health unit who could work on 

the health unit log and only one person could work on the log at a time. Appellant then asked P.R. 

and T.R. to leave her office. She asserted that the conversation was extremely loud, intimidating, 

and quite threatening. Appellant asserted that P.R. and T.R. were both standing in her cubicle, 

which was a very small area, and they stood over her and yelled at her. She indicated that the

situation made her feel harassed, intimidated, threatened, and unsafe. Appellant noted that she had 

been physically and verbally harassed by another employing establishment manager in the past. 

Appellant submitted various documents, including witness statements and e-mail 

communications, in which individuals discussed their knowledge, or lack of knowledge about the 

events of July 20, 2017.
3

In a July 24, 2017 e-mail, J.Y. indicated that she heard P.R. and T.R. speaking in “loud 

voices” with appellant on July 20, 2017 while she was working in her cubicle near them. She 

noted that P.R. asked appellant questions about T.R.’s medical documentation, but that appellant 

refused to talk with her about it due to ethical concerns. In a July 26, 2017 statement, R.S., a 

human resources specialist, indicated that appellant and J.Y. reported to her that P.R. and T.R. 

spoke in a tone “that they did not like” on July 20, 2017.

In a July 24, 2017 e-mail, N.L., a nurse in the health unit, indicated that on July 20, 2017 

she heard appellant tell P.R. that she could not discuss T.R.’s medical documentation with her due 

to ethical issues. She noted that she did not hear P.R. raise her voice or become intimidating 

towards appellant. In a July 31, 2017 statement, L.N., indicated that she did not hear any 

communication between appellant and P.R. on July 20, 2017. In an August 1, 2017 statement, 

S.O. indicated that she did not hear anything even though she was at her desk most of the day on 

July 20, 2017.

In a July 20, 2017 e-mail, P.R. indicated that she approached appellant about T.R.’s 

medical records on that date, and appellant refused to discuss the subject, citing ethical issues. She 

discussed her summoning of her husband, T.R., to speak to appellant and give her permission to 

speak to her about the matter. P.R. then discussed the remainder of the conversation that she and 

T.R. had with appellant on July 20, 2017. In a July 27, 2017 e-mail, T.R. discussed the portion of 

the July 20, 2017 conversation in which he participated, noting that appellant indicated that she 

would not discuss his medical records with P.R. due to a conflict of interest.

Appellant submitted a July 17, 2107 disability note of Dr. Lauri Lowenbraun, an attending 

Board-certified psychiatrist.

In an August 14, 2017 development letter, OWCP requested that appellant submit 

additional factual and medical evidence in support of her emotional condition claim. In another 

August 14, 2017 letter, it asked the employing establishment to respond to appellant’s allegations. 

In an August 14, 2017 statement, appellant provided a discussion of her July 20, 2017 

conversation with T.R. and P.R. which was substantially similar to that contained in her July 25, 

2017 statement. She also submitted handwritten responses to the August 14, 2017 development 

letter in which she asserted that P.R. and T.R. yelled at her and harassed her on July 20, 2017.

In a September 5, 2017 statement, T.P., manager of health and resource management, noted

that on July 24, 2017 a coworker, J.A., advised about her attempts to obtain appellant’s version of 

the July 20, 2017 incident. J.A. told T.P. that she approached appellant about the July 20, 2017

incident, but appellant stated that she was fine and declined to discuss the matter. T.P. spoke with 

P.R. on July 25, 2017 and P.R. acknowledged that she approached appellant regarding T.R.’s work 

restrictions. On July 26, 2017 appellant came to T.P.’s office, provided a description of the 

July 20, 2017 incident, and submitted the traumatic injury claim form.

Appellant also submitted reports from Dr. Lowenbraun and Marisa Rodriguez, a clinical 

psychologist.

By decision dated September 13, 2017, OWCP denied appellant’s emotional condition 

claim because appellant failed to establish a compensable employment factor. It found that P.R. 
4

and T.R. spoke to appellant loudly on July 20, 2017, but such occurrence did not rise to the level 

of verbal abuse. 

On September 20, 2017 counsel requested a telephone hearing with a representative of 

OWCP’s Branch of Hearings and Review.

During the hearing held on January 31, 2018, appellant testified about her conversation 

with P.R. and T.R. on July 20, 2017, noting that J.Y was in an adjacent cubicle and N.L. also was 

present when P.R. and T.R. were in the health unit. She testified that P.R. and T.R. came close to 

her inside of her cubicle and yelled at her. Appellant indicated that she did not file an Equal 

Employment Opportunity (EEO) claim regarding the claimed incident, but she did file a complaint 

with T.P. Counsel argued that reports by treating physicians established that appellant’s exposure 

to loud voices at work caused post-traumatic stress disorder.

Appellant submitted additional reports from Dr. Lowenbraun and Ms. Rodriguez.

By decision dated March 16, 2018, OWCP’s hearing representative affirmed OWCP’s 

September 13, 2017 decision.

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.3 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.4

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.5 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.6

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 

 

3 Lillian Cutler, 28 ECAB 125 (1976).

4 Gregorio E. Conde, 52 ECAB 410 (2001).

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

6 Effie O. Morris, 44 ECAB 470, 473-74 (1993).
5

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.7 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.8

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 on July 20, 2017, as alleged.

Appellant alleged that she sustained an emotional condition due to an incident at work on 

July 20, 2017. The Board must initially review whether this incident is a covered employment 

factor 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.

9

 Rather, appellant primarily claimed 

that she was subjected to harassment and discrimination on July 20, 2017.

Appellant claimed that harassment and discrimination occurred on July 20, 2017 when 

P.R., the acting human resources management manager, and T.R., a coworker and P.R.’s husband, 

yelled at her when discussing T.R.’s medical documentation relating to his work restrictions. She 

indicated that P.R. attempted to get her to discuss T.R.’s medical documentation with her, but that 

she refused because she felt that it would be unethical to do so. Appellant claimed that she felt 

threatened, intimidated, and unsafe due to P.R. and T.R. speaking loudly to her in a confined space

on July 20, 2017.

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

employment factor.10 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.11 

The Board notes that appellant has submitted evidence showing that P.R. and T.R. spoke 

loudly to her on July 20, 2017. The record contains a statement from a coworker, Y.P., who was 

in close proximity for most of the time the conversation was held. She indicated that she heard 

P.R. and T.R. speaking loudly with appellant. However, the Board has held that speaking loudly 

is not by itself sufficient to establish a compensable work factor.12 The Board further notes that 

 

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

8

Id.

9 See supra note 3.

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

11 See id.

12 T.G., 58 ECAB 189 (2006).
6

appellant has not submitted sufficient evidence to show that the actions or statements of P.R. and 

T.R. on July 20, 2017 rose to the level of harassment or discrimination. She has not submitted 

evidence that they made any particular threatening or abusive comments.13 The Board has held 

that, while some statements may be considered abusive and constitute a compensable factor of 

employment, not every statement uttered in the workplace will be covered by FECA.14

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

respect to the claimed harassment and discrimination.

The Board further notes that, given P.R.’s role as a manager, the July 20, 2017 discussion 

about medical documentation relating to the development of work restrictions could be considered 

to be an administrative or personnel matter. 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.15 However, the Board has 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.16 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.17

The Board notes, however, that appellant did not substantiate any error or abuse committed 

by P.R. on July 20, 2017 in her role as a manager. Appellant did not present a final holding of a 

grievance or other form of complaint showing that such error or abuse occurred. Therefore, she 

did not establish a compensable employment factor with respect to administrative or personnel 

matters.

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 unnecessary 

to consider the medical evidence of record.18

 

13 Moreover, appellant did not present a final holding of a grievance or other form of complaint alleging harassment 

or discrimination which showed that such harassment or discrimination actually occurred. During the January 31, 

2018 hearing, appellant indicated that she filed a complaint with T.P., the human resources management manager, but 

the record does not contain any documents concerning such a grievance.

14 See generally C.T., Docket No. 08-2160 (issued May 7, 2009).

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

556 (1991).

16 William H. Fortner, 49 ECAB 324 (1998).

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

18 See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992) (finding that it is not necessary to consider the medical 

evidence of record if a claimant has not established any compensable employment factors).
7

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 an emotional 

condition in the performance of duty on July 20, 2017, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the March 16, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 19, 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