United States Department of Labor

Employees’ Compensation Appeals Board

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L.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

North Chicago, IL, Employer

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Docket No. 18-1208

Issued: April 30, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

On May 29, 2018 appellant filed a timely appeal from December 29, 2017 and May 11, 

2018 decisions of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the 

Appellate Boards docketed the appeal as No. 18-1208.

On November 15, 2017 appellant, then a 32-year-old temporary assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on November 13, 2017 she was sexually assaulted while 

in the performance of duty. She notified her supervisor of the incident that same date. On the 

reverse side of the claim form her supervisor reported that he was not present when the incident 

occurred and, as such, could not agree or disagree with the allegations she had made.

In an accompanying November 15, 2017 narrative statement, appellant reported that on 

November 13, 2017 she was stocking supplies in the central supply room when T.T. sexually 

assaulted her. She immediately returned to the breakroom and had to transfer another cart to the 

 

1 Appellant’s AB-1 form indicates that she is requesting an appeal of an April20, 2018 decision. However, there 

is no such decision of that date found in the case record. The December 29, 2017 and May 11, 2018 decisions are the 

only OWCP decisions within the Board’s jurisdiction.
2

supply room. When she left the supply room, T.T. approached her again and kissed her right 

cheek. Appellant reported that both incidents were unwanted.

In support of her claim, appellant also submitted a Department of Veterans’ Affairs 

voluntary witness statement dated November 14, 2017 in which she detailed the events 

surrounding the November 13, 2017 employment incident. 

By decision dated December 29, 2017, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that she sustained an emotional condition in the 

performance of duty, as alleged. It noted that she had not alleged compensable employment factors 

that caused her injury.

In an appeal request form dated January 8, 2018, appellant sought an oral hearing before 

an OWCP hearing representative. By decision dated May 11, 2018, OWCP’s hearing 

representative found that appellant had abandoned her hearing request. 

The Board, having duly considered the matter, concludes that this case is not in posture for 

decision and must be remanded for further development.2 

FECA provides that OWCP shall determine and make findings of fact in making an award 

for or against payment of compensation after considering the claim presented by the employee and 

after completing such investigation as it considers necessary with respect to the claim. 3 The 

reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the 

precise defect of the claim and the kind of evidence which would overcome it.4 

In its December 29, 2017 decision, OWCP did not discharge its responsibility to set forth 

findings of fact and a clear statement of reasons explaining the disposition so that appellant could 

understand the basis for the decision, as well as the precise defect and the evidence needed to 

overcome the denial of her emotional condition claim.5 The decision did not discuss the customary 

criteria for an assault case or address the allegations made by appellant to determine whether she 

had established a compensable factor of employment.

6

 

The Board further finds that OWCP failed to sufficiently develop the evidence regarding 

whether appellant was sexually assaulted at work while in the performance of duty on 

November 13, 2017. OWCP’s procedures provide that, in cases involving assault, OWCP should

obtain copies of police reports which may have been made, as well as statements from the official 

 

2 N.M., Docket No. 17-0262 (issued July 3, 2017).

3

5 U.S.C. § 8124(a)(2); 20 C.F.R. § 10.125.

4 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013). See 

also G.S., Docket No. 14-1933 (issued November 7, 2014).

5 K.J., Docket No. 14-1874 (issued February 26, 2015). See also J.J., Docket No. 11-1958 (issued June27, 2012).

6 FECA Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.10 (August 1992). 
3

superior, coworkers, the assailant, or other witnesses.7 In this instance, appellant detailed the 

circumstances surrounding the November 13, 2017 incident and reported T.T. as the assailant. She 

further identified employing establishment employees who had knowledge of the circumstances 

surrounding the claim. The record reflects that a police report had been filed. OWCP, however, 

failed to properly develop the evidence by requesting information from the employing 

establishment addressing her allegations of the sexual assault.8 

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter.9 While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence, particularly when such evidence 

is of the character normally obtained from the employing establishment or other governmental 

source.10 The Board finds that OWCP has not properly discharged its responsibilities in 

developing the case record or in issuing a proper decision. 

As such, this case will be remanded to OWCP for further development. OWCP shall 

request additional evidence from the employing establishment addressing the November 13, 2017 

employment incident.

11

 Following this and any other such further development deemed necessary, 

OWCP shall issue a de novo merit decision, which includes findings of fact and a clear and precise 

statement regarding whether appellant has met her burden of proof under the customary standards 

to establish an assault claim.

12

 Accordingly, 

 

7

Supra note 3.

8 Lillian E. Lesniak, Docket No. 00-1021 (issued February 22, 2001).

9

See Phillip L. Barnes, 55 ECAB 426 (2004).

10 See L.L., Docket No. 12-0194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008).

11 A.R., Docket No. 11-1949 (issued April16, 2012). The employing establishment is responsible for submitting 

to OWCP all relevant and probative factual and medical evidence in its possession, or which it may acquire through 

investigation or other means. Such evidence may be submitted at any time. 20 C.F.R. § 10.118(a). 

12 In light of this disposition, the issue of whether OWCP properly determined that appellant abandoned her request 

for hearing is rendered moot.
4

IT IS HEREBY ORDERED THAT the May 11, 2018 and December 29, 2017 decisions

of the Office of Workers’ Compensation Programs are set aside and the case is remanded for 

further proceedings consistent with this order of the Board.

Issued: April 30, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board