United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.K., Appellant

and

DEPARTMENT OF AGRICULTURE, RURAL 

HOUSING SERVICE, Columbus, OH, Employer

__________________________________________

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Docket No. 18-1411

Issued: July 22, 2020

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, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 13, 2018 appellant, through counsel, filed a timely appeal from a May 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 physical injuries 

and mental conditions in the performance of duty on September 22, 2015, as alleged.

FACTUAL HISTORY

On February 8, 2016 appellant, then a 46-year-old multi-family housing specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on September 22, 2015 she was drugged, 

followed to her room, and sexually assaulted while attending an employment-related conference

at a hotel. She reported that the assault resulted in bruising, bleeding, and post-traumatic stress 

disorder (PTSD). The employing establish acknowledged that appellant was in the performance 

of duty at the time of the incident and that the injury had not resulted from willful misconduct, 

intoxication, or an intent to self-harm. It also acknowledged that its knowledge of the facts of the 

incident agreed with statements of appellant and/or witnesses. The employing establishment 

submitted documentation of appellant’s request for a leave of absence and leave transfer 

application. 

In a development letter dated February 9, 2016, OWCP informed appellant that the 

evidence of record was insufficient to establish her claim. It advised her of the type of factual and 

medical evidence needed to establish her claim. OWCP afforded appellant 30 days to submit the 

requested information. In a separate letter of the same date, it asked the employing establishment 

to respond to appellant’s claim and provide information regarding her travel status. 

On February 19, 2016 B.H., an administrative program director at the employing 

establishment, confirmed that appellant was authorized to travel and participate in the 

employment-related conference at a hotel on the claimed date of injury. She indicated that the 

identity of the perpetrator was unknown and that it was unknown if there were any witnesses, and 

that, although appellant reported the incident to her, appellant had not wanted to report it further. 

B.H. indicated that appellant had used leave, advanced leave, and donated leave subsequent to 

September 28, 2015. She also included information about the hotel and other employing 

establishment conference attendees. 

In an attached September 25, 2015 e-mail, which had been sent directly to B.H., appellant 

described the September 22, 2015 incident. She wrote that after an evening event on that date she

went to the hotel bar with several coworkers who were attending the conference. While there, a 

coworker began talking to a group of people attending another conference at the hotel. Appellant 

indicated that she switched to drinking water and began to feel unwell. She informed another 

coworker that she was going to her room to sleep. As appellant entered the elevator and pressed 

the number for her floor, a man who was from the group attending the other conference joined her 

in the elevator. She asked him what floor he was on and he said that he was on the same floor as 

her. As appellant was walking to her room after exiting the elevator, she noticed that he was 

following her. When she opened the door to her hotel room, the assailant pushed her into her room 

and sexually assaulted her. Appellant indicated that she had not filed a police report, but had seen 

a physician on September 24, 2015 who ordered tests to screen for sexually transmitted diseases 

(STDs) and recommended that she contact a rape crisis center. She explained her emotional 

reaction to the assault, noting that she was “a mess” and could not focus at that time. B.H. noted 
3

that she provided support and comfort and that the employing establishment was working with 

appellant to support her need to be away from work. 

By decision dated March 15, 2016, OWCP denied appellant’s traumatic injury claim,

finding that fact of injury had not been established.

3

 

On April 5, 2016 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

In support of the request for an oral hearing, appellant submitted an October 5, 2015 report 

by Kristine Kaufman, a certified nurse practitioner, who reported that appellant was evaluated for 

follow up of a prior visit. Ms. Kaufman noted a history of a rape, which occurred for over two 

hours, after an assailant forced entrance into her hotel room while she was on a work trip. The 

rape included rectal penetration. Ms. Kaufman indicated that appellant believed that she had been 

given something in her drink to render her unable to fight back noting that she had difficulty 

moving her extremities, some vague loss of memory, and overwhelming anxiety and insomnia. 

She observed that appellant had bruises to her upper forearms and inner thighs and noted that she 

had tested positive for gonorrhea. On examination Ms. Kaufman noted a small rectal tear remained 

present. She diagnosed rectal tear, rape trauma, and gonorrhea and noted that appellant had an 

appointment with a counselor.4 

Ms. Kaufman continued to see appellant in follow ups. On October 27, 2015 she noted

that appellant was experiencing insomnia secondary to rape. On November 18, 2015

Ms. Kaufman additionally diagnosed anxiety disorder due to a known physical condition and 

PTSD. On January 7, 2016 she diagnosed anxiety disorder and advised that appellant could return 

to work for five hours daily. In a report dated February 29, 2016, Ms. Kaufman noted seeing 

appellant for an ongoing colorectal bleeding condition. She noted that appellant was seeing Dr. El 

Zubeidi, a gastroenterologist, for this problem. Ms. Kaufmann documented a history of sexual 

assault as a teenager. In a March 7, 2016 report, she diagnosed PTSD and indicated that appellant

was still seeing a counselor.

Appellant filed a police report on May 17, 2016. A law enforcement officer submitted a 

narrative account of the September 22, 2015 sexual assault. The report included a statement dated 

April 26, 2016 from a coworker who drove appellant home from the conference, and a statement 

in which appellant described the incident in detail. The police report documented bruising on 

appellant’s arms, legs, and chest and rectal bleeding following the sexual assault.

At the hearing, held telephonically on November 14, 2016, appellant testified that she had 

been seeing a psychiatrist and counselor for over a year and was being treated for PTSD. The 

hearing representative described the type of medical evidence needed and asked appellant to 

submit a report from her September 24, 2015 appointment. The hearing representative held the 

case record open for 30 days for the submission of additional evidence.

 

3 The record, as presented to the Board on appeal, contains only the first page of the March 15, 2016 decision.

4 The record contains medical documentation that predates the September 22, 2015 assault.
4

Appellant thereafter submitted reports from Tiffany R. Pottkotter, a psychiatric mental 

health nurse practitioner. On April 25, 2016 Ms. Pottkotter indicated that appellant had been 

referred by her therapist. She noted the history of sexual assault and reported that appellant had 

surgery on April 22, 2016 to correct the rectal damage caused by the assault. Ms. Pottkotter 

indicated that appellant had returned to work on January 11, 2016, but that she could not do her 

job because it required her to go to people’s doors, and she did not know who was behind the 

doors. She diagnosed PTSD and moderate recurrent major depressive disorder.

In a report dated May 20, 2016, Ms. Pottkotter noted that appellant’s surgery had gone well

and she was feeling better physically. She reported that appellant had gone to Cleveland to file a 

police report. In a report dated June 16, 2016, Ms. Pottkotter noted that appellant had been feeling 

much better and had returned to work on June 13, 2016. It was also noted that appellant was 

working to train an emotional support dog. However, in an August 12, 2016 report, Ms. Pottkotter

indicated that appellant was still struggling with insomnia. In a note dated November 18, 2016, 

she advised that appellant continued to exhibit hypervigilance, depression, and anxiety. 

Ms. Pottkotter noted that appellant continued to receive counseling due to the sexual assault.

By decision dated January 30, 2017, the hearing representative affirmed the March 15, 

2016 decision, finding that appellant had not established a diagnosis in connection with the 

accepted employment incident.

In correspondence to counsel dated July 27, 2017, a representative of Dr. Ryan Travis, a 

Board-certified psychiatrist, indicated that he was uncomfortable providing a report establishing 

causation in appellant’s case, as he was not a forensic psychiatrist or psychologist. It was noted

that he could only report what appellant told him about her condition.

On October 25, 2017 appellant, through counsel, requested reconsideration of OWCP’s 

January 30, 2017 decision and submitted additional medical evidence.

In a report dated May 24, 2017, Dr. Travis noted that appellant had been referred by

Ms. Pottkotter. He reported a history that she was sexually assaulted at a work conference and 

subsequently developed PTSD, which she felt impacted her ability to work. Dr. Travis indicated 

that appellant continued to have very high levels of anxiety and depression. He noted that appellant

had returned to work part time with some accommodations, but that she was not functioning well

and complained of difficulty with focus and concentration, depression, and lack of energy and

motivation. Appellant reported that she would prefer to stay in her home at all times because that 

was where she felt safe. She noted that she was very nervous and fearful when away from her 

home, including at work. Appellant explained that she felt anxious and overwhelmed when 

interacting when people, particularly with males because this triggered reminders of the sexual 

assault. She reported that she slept poorly and had nightmares, which impaired her functioning at 

work because she always felt exhausted. On psychiatric examination, Dr. Travis noted that her 

mood, anxiety, energy, and attention were poor, while her sleep and memory were fair. He advised

that appellant should continue with her current medication management and therapy and would 

discuss the possibility of a referral to a forensic psychiatrist or psychologist if a more formal 

evaluation was needed.
5

In a letter dated August 31, 2017, Dr. Brad Bundy, an osteopath specializing in psychiatry,

indicated that he had seen appellant on an in-patient basis from February 27 through 

March 2, 2017. He provided a primary diagnosis at that time of major depression with underlying 

symptoms of PTSD. Dr. Bundy indicated that appellant was stabilized and referred to outpatient 

treatment. He noted that she returned on August 31, 2017 for a second opinion evaluation. 

Dr. Bundy reported that at that time she told him that her depressive and anxious symptoms 

continued to respond well to treatment, but that she still experienced some PTSD symptoms that 

were secondary to the traumatic rape. He indicated that appellant had also discussed the PTSD 

symptoms while hospitalized. Dr. Bundy noted that appellant continued to have nightmares and 

flashbacks, hyperarousal, and avoidance of situations associated with the trauma. He 

recommended that she continue to follow up with outpatient treatment.

By decision dated May 16, 2018, OWCP denied modification of the January 30, 2017

decision.

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 

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether fact of injury has been established. A 

fact of injury determination is based on two elements. First, the employee must submit sufficient 

evidence to establish that he or she actually experienced the employment incident at the time and

place, and in the manner alleged. Second, the employee must submit sufficient evidence, generally 

 

5 5 U.S.C. § 8101 et seq.

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 April 10, 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 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).
6

only in the form of medical evidence, to establish that the employment incident caused a personal 

injury. 

Pursuant to OWCP’s procedures, no development of a claim is necessary when there is a 

visible injury, even when time has been lost from work due to disability, following a serious injury 

(motor vehicle accidents, stabbings, shootings, etc.).9 The procedures provide that no development 

is necessary when the employing establishment does not dispute the facts of the case and there are 

no questionable circumstances surrounding the case. No medical report is required to establish a 

minor condition such as a laceration.10 Sound judgment should be employed in these cases to 

provide appropriate and immediate medical care for the injured worker since expeditious treatment 

for these injuries is critical.11 

ANALYSIS

The Board finds that appellant has met her burden of proof to establish a physical injury 

causally related to the September 22, 2015 employment incident. The Board further finds that 

appellant has established diagnosed mental conditions in connection to the accepted September 22, 

2015 employment incident.

The employing establishment does not dispute that appellant was sexually assaulted on 

September 22, 2015 in a hotel room in Cleveland, Ohio while in travel status for a work 

conference. The Board has held that an employee on travel status or a special mission for his or 

her employer is under the protection of FECA 24 hours a day with respect to any injury that results 

from activities incidental to such duties.12 Thus, injuries arising out of the necessity of staying in 

hotels or eating in restaurants away from home are presumed compensable.13 The Board finds that 

due to her travel status the sexual assault occurred in the performance of duty, as alleged. 

In the course of the sexual assault appellant sustained visible injuries. Visible injuries 

resulting from an assault of a federal employee have previously been accepted as compensable 

pursuant to OWCP’s regulations and they do not require claim development or medical record 

support.14 Appellant sustained a rectal tear and bruises on her arms, legs, and chest -- all of which 

were visible to her health care providers and were and documented to exist in medical reports 

contemporaneous to September 22, 2015. As the employing establishment agreed with the factual 

 

9 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a) 

(June 2011); see also I.H., Docket No. 19-1678 (issued April 21, 2020); K.P., Docket No. 18-0350 (issued 

February 11, 2020); B.H., Docket No. 11-0812 (issued January 12, 2012).

10 Id.

11 See E.H., Docket No. 19-1282 (issued December 23, 2019); M.C., Docket No. 18-1278 (issued March 7, 2019); 

R.T., Docket No. 08-0408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

12 T.C., Docket No. 16-1070 (issued January 24, 2017); Ann P. Drennan, 47 ECAB 750 (1996); Janet Kidd (James 

Kidd), 47 ECAB 670 (1996); William K. O Connor, 4 ECAB 21 (1950).

13 S.W., Docket No. 19-1447 (issued April 24, 2020); A.W., 59 ECAB 593 (2008).

14 See I.H. supra note 9.
7

allegations on appellant’s Form CA-1 and did not dispute that the sexual assault occurred in the 

performance of duty, the Board finds that appellant’s claim is accepted for her visible injuries. 

Pursuant to OWCP regulations appellant must be provided prompt medical treatment for her 

visible injuries and her claim developed for additional physical injuries, if alleged.

Appellant has also alleged that she sustained mental conditions in the performance of duty. 

OWCP determined that she had not submitted medical evidence sufficient to establish a diagnosed 

mental condition in relation to the sexual assault. 

In a series of medical reports, Dr. Bundy indicated that he had seen appellant from 

February 27 through March 2, 2017. He provided a primary diagnosis of major depression with 

underlying symptoms of PTSD in his August 31, 2017 report. Dr. Bundy noted in his report that 

appellant still experienced PTSD symptoms that were secondary to a traumatic rape that occurred 

two years prior when she was at a conference for work. In a report dated May 24, 2017, Dr. Travis 

reported a history that appellant was sexually assaulted at a work conference. He provided a 

diagnosis of PTSD. Dr. Travis described appellant’s symptoms and advised that on psychiatric 

examination her mood, anxiety, energy, and attention were poor, while her sleep and memory were 

fair. 

The Board finds that appellant has submitted medical evidence, consisting of reports from 

Drs. Bundy and Travis, which provides diagnoses of mental conditions of major depression and 

PTSD. Therefore, the Board finds that appellant has established at least two diagnosed mental 

conditions in connection to the accepted September 22, 2015 employment incident. As appellant 

has established diagnosed mental conditions in connection to the September 22, 2016 employment 

incident, the issue of whether any of the diagnosed conditions were causally related to the accepted 

incident must be developed and considered by OWCP.

Upon return of the case file OWCP shall make payment and/or reimbursement of medical 

expenses and wage-loss compensation, if any, with regard to the accepted physical injuries.

15

 It 

shall also further develop the medical evidence as to other alleged physical conditions, if any. 

Further, OWCP shall also consider the medical evidence of record with regard to whether 

appellant’s diagnosed mental conditions are causally related to the accepted employment injury. 

Following such further development as deemed necessary it shall issue a de novo decision.

CONCLUSION

The Board finds that appellant has met her burden of proof to establish a physical injury 

causally related to the September 22, 2015 employment incident. The Board further finds that 

 

15 The case record should be perfected on remand to include a complete copy of the March 15, 2016 OWCP 

decision.
8

appellant has established diagnosed mental conditions in connection to the accepted September 22, 

2015 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the May 16, 2018 decision of the Office of Workers’

Compensation Programs is reversed and the case is remanded to OWCP for proceedings consistent 

with this decision of the Board.

Issued: July 22, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board