United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, VA 

MEDICAL CENTER, New Orleans, LA, 

Employer

__________________________________________

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Docket No. 17-1542

Issued: February 1, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 6, 2017 appellant filed a timely appeal from a June 20, 2017 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 his burden of proof to establish an emotional

condition in the performance of duty on March 17, 2016.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On July 11, 2016 appellant, then a 47-year-old supply technician, filed a traumatic injury 

claim (Form CA-1) alleging that on March 17, 20162 he sustained an emotional condition when 

he was inappropriately touched and assaulted at work.

3

 The claim form did not indicate whether 

appellant stopped work.4

Appellant submitted two handwritten employee health records dated July 8 and 26, 2016 

from an unknown provider. In the July 8, 2016 note, the provider indicated that appellant 

complained of headaches and nightmares following an incident when he was groped by another 

employee in the ambulatory procedure unit (APU) while on duty. Appellant complained of 

mental anguish and post-traumatic stress disorder (PTSD). 

By development letter dated July 28, 2016, OWCP advised appellant that the evidence 

submitted was insufficient to establish his claim. It requested that he respond to the attached 

questionnaire in order to establish that the employment incident occurred as alleged and provide 

additional medical evidence to establish a diagnosed condition causally related to the alleged 

incident. Appellant was afforded 30 days to submit the requested evidence. Appellant did not 

respond within the allotted time.

OWCP denied appellant’s claim by decision dated August 30, 2016. It determined that 

appellant had failed to provide a factual basis for his claim because he only provided vague and 

general information about the alleged March 17, 2016 employment incident. OWCP also found 

that appellant had failed to submit sufficient medical evidence to establish a diagnosed condition 

causally related to his federal employment.

On October 27, 2016 appellant requested reconsideration. In an attached statement, he

reported that on February 17, 2016 he was sexually assaulted by a physician at work. Appellant 

indicated that he was providing OWCP the police report and a copy of his psychologist’s report. 

He alleged that the evidence showed clearly that the incident did happen and was reported to the 

police.

Appellant submitted a March 4, 2016 investigation report by Officer R.T. He indicated 

that on February 26, 2016 he received a telephone call about a possible sexual assault against 

appellant that had occurred on February 17, 2016. Officer R.T. had an informal conversation 

with appellant who informed him that someone had touched him on the back, and he did not like 

it. The report contained a March 1, 2016 statement by appellant. Appellant described that on the 

day or between the days of February 17 or 18, 2016 between the hours of 10:30 a.m. and 12:00 

p.m. he was improperly touched by a doctor5at the APU when he had his back turned. He

 

2 Although appellant reported a date of injury of March 17, 2016 on the Form CA-1, subsequent medical reports 

and personal statements, however, indicated that the date of injury was February 17, 2016.

3 Appellant noted that the touching occurred from close to “sexual organ, up toward chest area and back.”

4 On August 3, 2016 appellant filed a claim for compensation (Form CA-7) for intermittent periods of disability 

from March 17 to August 3, 2016.

5 The doctor’s name was crossed out in the interview notes.
3

related that he was opening boxes and unloading material for the APU when the doctor came up 

from behind him, put his hands around appellant’s stomach close to his male private parts, and 

slid his hands up to touch appellant’s chest and back. Appellant stated that the doctor said 

something to him in a low voice and left quickly through the APU back exit door. He indicated 

that he felt violated and very uncomfortable for several days.

In a March 7, 2016 note, Officer R.T. indicated that he viewed the closed-circuit 

television (CCTV) recordings for the dates and times that appellant had provided. He initially 

saw no signs of an alleged sexual assault, but when he went back to the footage from 

February 17, 2016 at 10:00 a.m., he observed something that might be relevant to the 

investigation.

Officer R.T. provided a March 9, 2016 note about his interview with the physician who 

allegedly assaulted appellant. The physician explained that he had no recollection of the alleged 

assault. He stated that when he visited the APU, he always tried to provide encouragement to the 

staff and surgical team.

Ms. Ilyse S. Goldberg, a licensed clinical social worker, treated appellant. In an April 8, 

2016 report, Ms. Goldberg related that appellant’s primary care physician recommended a 

consultation after appellant “recently had [an] incident where he was groped by another 

employee.” She reviewed appellant’s history and noted that appellant currently reported 

problems with sleep, increased anxiety, nightmares, and intrusive thoughts. Appellant also 

indicated that he had violent feelings towards the individual who groped him at work and felt 

regret for not reacting violently when the alleged incident occurred. Ms. Goldberg reported no 

homicidal or suicidal ideation, no psychomotor problems observed, and no psychosis. She 

diagnosed acute stress reaction.

Appellant provided a May 27, 2016 consultation note cosigned by Dr. Eliza S. McManus, 

a postdoctoral fellow, and Dr. Lisa-Ann J. Cuccurullo, a clinical psychologist. Dr. Cuccurullo 

related appellant’s complaints of chronic low back pain, nasal congestion and rhinitis, and sleep 

apnea.

In June 3 and July 7, 2016 reports cosigned by Dr. Cuccurullo, it was reported that 

appellant was referred for an assessment of Military Sexual Trauma (MST)/PTSD and related 

symptoms. Dr. Cuccurullo reviewed appellant’s history and noted a history of ongoing sexual 

harassment from one of appellant’s direct supervisors in the Navy for approximately six weeks. 

Appellant also related that on numerous occasions, while waiting to cash his check, other sailors 

and service members would whistle at him. He indicated that on a few occasions it escalated 

into physical fights when he confronted the men. Appellant further described an incident in 

February 2016 when a coworker inappropriately touched him at work. He stated that the 

coworker walked behind him, put his arms around him, and slid his arms up towards his chest. 

Appellant complained of unpleasant dreams related to his work-related incident and of feeling 

emotionally upset and nauseous when reminded of this incident. He also reported feeling “on 

guard and watchful” much of the time, especially at work. Dr. Cuccurullo diagnosed adjustment 

disorder with anxiety. She noted that appellant reported a “work-related stressor which occurred 

approximately three months ago.” Dr. Cuccurullo related that appellant had numerous anxiety 
4

symptoms related to this event. In a July 7, 2016 report, she indicated that appellant began 

treatment for his psychological symptoms.

OWCP received a September 3, 2016 handwritten statement by appellant. Appellant

explained that on February 17, 2016 he was working in the rear employee entrance of APU when 

the alleged assaulter, a physician, walked through the door and they said “hello” to each other. 

He related that the physician came behind him, put his arms around his waist, and rubbed his 

hands all the way up to his chest area. The physician then put his head on appellant’s back and 

said something, but appellant could not hear because he was in shock. Appellant indicated that 

the physician moved rapidly out the back door of the APU. He stated that he told two nurses in 

the break area about the assault and also noted that there was a surveillance camera monitoring 

the hall way in addition to a VA police report. Appellant resubmitted Officer R.T.’s 

investigation report.

On February 13, 2017 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a copy of the medical record, to Dr. Talaat H. Mohamed, a Board-certified 

psychiatrist, for a second opinion examination to determine whether he sustained an emotional 

condition causally related to a compensable employment factor. In a March 9, 2017 report,

Dr. Mohamed reviewed appellant’s history and noted his current complaints of sleep apnea and 

back pain. Upon examination, he reported that appellant was oriented to time, place, and person,

but not to situation (partially). Dr. Mohamed noted that appellant’s thinking was intact and 

logical. He indicated no symptoms or signs of PTSD and no symptoms or signs of real 

depression or major mental illness. Dr. Mohamed reported a diagnosis of adjustment disorder 

with anxiety (DSMV) and personality disorder. He explained that, after a thorough evaluation, 

he concluded that there was no disability.

In response to OWCP’s questions, Dr. Mohamed reported that appellant had no major 

psychiatric or emotional issues to interfere with his daily work. He indicated that appellant could 

return to work with no limitations. Dr. Mohamed diagnosed adjustment disorder to stress with 

mild anxiety. He responded “No,” that appellant’s diagnosed condition was not caused, 

worsened, or precipitated by the accepted employment incident outlined in the SOAF.

In a May 30, 2017 addendum report, Dr. Mohamed related that back in 2016 appellant 

had psychological testing and received a diagnosis of adjustment reaction with anxiety per the 

DSM-V as he had reported numerous anxiety events. He indicated that appellant had numerous

incidents that occurred prior to his federal employment, so appellant’s federal employment did 

not play a role in the diagnosed conditions. Dr. Mohamed further noted that a July 2016 police 

investigation was closed because they could not find sexual harassment.

By decision dated June 20, 2017, OWCP affirmed the denial of appellant’s emotional 

condition claim with modification. It accepted that the February 17, 2016 incident occurred as 

alleged, that appellant was diagnosed with a medical condition, and that the employment incident 

was within the performance of duty. OWCP denied appellant’s claim because he failed to 

establish that his emotional condition was causally related to the accepted February 17, 2016 

compensable employment factor or incident.
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LEGAL PRECEDENT

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

somehow related to an employee’s employment.6 There are situations where an injury or illness 

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

coverage of workers’ compensation.7 In the case of Lillian Cutler,8the Board explained that 

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

emotional condition under FECA. Where the injury or illness results from an employee’s 

emotional reaction to his or her regular or specially assigned duties or to a requirement imposed 

by the employing establishment or by the nature of the work, the injury, or illness comes within 

the coverage of FECA.9

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 work 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 

compensable factors of employment and may not be considered.10 

Physical contact by a coworker or supervisor may give rise to a compensable work factor, 

if the incident is established factually to have occurred as alleged.11 If a compensable factor of 

employment is substantiated, OWCP must base its decision on an analysis of the medical 

evidence.12

To establish an emotional condition claim, an employee must also submit rationalized 

medical evidence establishing that his or her claimed condition is causally related to the accepted 

compensable employment factor.13 The opinion of the physician must be based on a complete 

factual and medical background of the employee, must be one of reasonable medical certainty, 

and must be supported by medical rationale explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the employee.14 The 

weight of the medical evidence is determined by its reliability, its probative value, its convincing 

 

6 L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

7 A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

8 28 ECAB 125 (1976).

9

Id.; see also Trudy A. Scott, 52 ECAB 309 (2001).

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

11 Denise Y. McCollum, 53 ECAB 647 (2002); Helen Casillas, 46 ECAB 1044 (1995).

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

13 See William P. George, 43 ECAB 1159 (1992).

14 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).
6

quality, the care of analysis manifested, and the medical rationale expressed in support of the 

physician’s opinion.15

ANALYSIS

Appellant alleged that he sustained an emotional condition as a result of being 

inappropriately touched on February 17, 2016 by a physician at work. OWCP accepted as a 

compensable employment incident that he had been inappropriately touched by a physician, a coworker, on that date.16

 Appellant’s burden of proof, however, also requires the submission of 

rationalized medical evidence establishing that his claimed condition is causally related to the 

compensable employment incident.

17

The Board finds that appellant has failed to meet his burden of proof to establish that his 

emotional condition resulted from the compensable February 17, 2016 employment incident.

In support of his claim, appellant submitted medical reports dated May 27 through July 7, 

2016 cosigned by Dr. Cuccurullo. Dr. Cuccurullo reviewed appellant’s history and indicated that 

appellant reported ongoing sexual harassment when he was in the Navy. Appellant also stated 

that on numerous occasions while waiting to cash his check, other sailors and service members 

would whistle at him. Dr. Cuccurullo described a February 2016 incident when a coworker 

inappropriately touched him at work. She related that appellant complained of unpleasant 

dreams, feeling emotionally upset and nauseous, and feeling watchful most of the time following 

the work-related incident. Dr. Cuccurullo diagnosed adjustment disorder with anxiety. She did 

not, however, offer an opinion as to whether the February 17, 2016 incident caused or 

contributed to appellant’s emotional condition. The Board has held that medical evidence that 

does not offer any opinion regarding the cause of an employee’s condition is of limited probative 

value on the issue of causal relationship.18 These reports, therefore, are insufficient to establish 

appellant’s claim.

Appellant also provided an April 8, 2016 report by Ms. Goldberg, a licensed clinical 

social worker. Ms. Goldberg indicated that appellant recently had an incident where he was 

groped by another employee and diagnosed acute stress reaction. Social workers are not 

physicians as defined under FECA; therefore, their opinions are of no probative value.19

Likewise, the employee health records dated July 8 and 26, 2016 by an unknown provider 

are also insufficient to establish appellant’s claim as there is nothing in the record to substantiate 

 

15 James Mack, 43 ECAB 321 (1991).

16 Supra note 11.

17 Supra note 13.

18 C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 

58 ECAB 149 (2006).

19 The Board has held that medical evidence must be from a qualified physician and that a social worker is not a 

physician as defined under FECA such that an opinion from a social worker is of no probative medical value. See 

S.S., Docket No. 13-1919 (issued May 16, 2014); 5 U.S.C. § 8101(2) (defines the term physician).
7

that they were signed by a physician. The Board has found that a medical report may not be 

considered probative medical evidence if there is no indication that the person completing the 

report qualifies as a physician under FECA.20 

Thus, the Board finds that appellant has not submitted rationalized medical evidence 

establishing that his personality adjustment and anxiety disorder is causally related to the 

accepted compensable employment incident.

21

 

Appellant was also examined by Dr. Mohamed, OWCP’s second opinion examiner who

indicated in a March 9, 2017 report that appellant’s adjustment disorder with anxiety DSM-V

and personality disorder were not caused, worsened, or precipitated by the compensable 

employment factor. In a May 30, 2017 addendum report, he noted that appellant reported 

numerous anxiety events and that a great deal of those incidents occurred prior to federal 

employment. The Board finds, therefore, that appellant did not meet his burden of proof to 

establish his emotional condition claim.

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 on March 17, 2016.

 

20 R.M., 59 ECAB 690 (2008).

21 See M.W., Docket No. 16-0877 (issued March 17, 2017).
8

ORDER

IT IS HEREBY ORDERED THAT the June 20, 2017 merit decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 1, 2018

Washington, DC

Christopher J. Godfrey, 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