United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WEST LOS ANGELES VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Los Angeles, CA, Employer

__________________________________________

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Docket No. 19-0156

Issued: May 23, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 October 29, 2018 appellant filed a timely appeal from a July 23, 2018 merit decision 

and a September 19, 2018 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).1 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 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.

2 5 U.S.C. § 8101 et seq.
2

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish an emotional 

condition in the performance of duty, as alleged; and (2) whether OWCP properly denied her 

request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On January 18, 2018 appellant, then a 49-year-old nursing assistant, filed an occupational 

disease claim (Form CA-2) alleging that she sustained post-traumatic stress disorder (PTSD) and 

depression causally related to factors of her federal employment. She attributed her condition to 

a charge nurse telephoning the employing establishment’s police prior to an October 21, 2017 

meeting. Appellant did not stop work.

In a development letter dated February 8, 2018, OWCP notified appellant that the evidence 

submitted was insufficient to establish her emotional condition claim. It requested that she submit 

a detailed description of the employment factors that she believed caused or contributed to her 

illness, factual evidence corroborating any workplace incidents, and a report from her attending 

psychiatrist or clinical psychologist addressing causation. OWCP afforded appellant 30 days to 

submit the necessary evidence.

Thereafter, OWCP received an October 21, 2017 investigative report from the employing 

establishment’s police. The name of the individual who had telephoned the police was redacted 

in the investigative report. The investigating officer who completed the report indicated that the 

police had dispatched officers to standby during a meeting with a hostile employee. At the 

meeting, appellant discussed the working relationship between managers and staff. She became 

irritated when the parties brought up past situations and she then left the room. After appellant 

left, the person who had telephoned the police asked what would happen if appellant went to her 

vehicle and got a gun. The officers inquired whether she had ever threatened anyone with a gun

and the individual responded in the negative. The officers advised the individual not to make 

unsubstantiated statements for effect and “to handle things that are administrative in the proper 

manner and not to exaggerate the circumstances that have not yet presented themselves.” 

Appellant also submitted a January 5, 2018 work status report by Dr. Stanley Kuo Yu, a 

Board-certified gastroenterologist, who provided a diagnosis of acute stress disorder and removed 

her from work for the period January 5 through 10, 2018.

In a report dated January 11, 2018, Cary Devin Glass, Ph.D., a clinical psychologist, noted 

that since October appellant had been reporting trouble at work including harassment by multiple 

people at work. He diagnosed major depressive disorder recurrent episode, anxiety, history of 

post-traumatic stress disorder due to occupational problems or work circumstances.

In a proposed 10-day suspension dated January 3, 2018, the employing establishment 

charged appellant with inappropriate conduct on October 21, 2017 when she switched assignments 

without the proper authority. It asserted that she had used profanity on October 21, 2017 toward 

P.S., the charge nurse, and raised her voice talking to two charge nurses after P.S. had telephoned 

the police about her conduct. Appellant also asked M.V. on October 21, 2017 to step outside the 
3

facility and told her that she did not like how she gave her a break sheet. The employing 

establishment additionally charged appellant with carelessness in her work duties. It advised that 

on October 14, 2017 C.E., the charge nurse, asked her to look for a missing patient. Appellant 

neglected to tell C.E. that she had found the patient and responded angrily when he informed her 

that he had located the patient. On or around October 21, 2017, a nurse found one of her patients 

smelling of urine. He related that he had asked for help, but his nurse assistant failed to respond. 

Appellant used profanity when the charge nurse informed her of the patient’s comments. The 

employing establishment also charged her with delay in patient care when around October 20, 

2017 she had failed to set up a patient’s lunch tray and had neglected to move a patient after he 

requested to return to bed. 

In a response dated January 8, 2018, appellant asserted that there was no policy against 

switching assignments. She denied using profanity on October 21, 2017, raising her voice on 

October 21, 2017, or asking M.V. to leave the facility. Appellant advised that she had just sat 

down after locating the patient on October 14, 2017 when C.E. came by and told her that he had 

found the patient. She denied failing to provide proper patient care and related that at the meeting 

with the police officers, she had not raised her voice or become confrontational. 

On February 8, 2018 the employing establishment suspended appellant for 10 days after it 

sustained the charges in the proposed suspension. It indicated that it had considered her written 

reply to the proposed suspension in reaching its determination.

In a statement dated February 12, 2018, appellant related that before she had arrived at 

work on October 21, 2017 she had asked a coworker to switch assignments because she was 

uncomfortable working with P.S. P.S. became confrontational after she told her she had changed 

assignments even though management had previously allowed staff to switch assignments if both 

parties agreed. Appellant asked P.S. and C.E., the charge nurses, to meet with her regarding “their 

unprofessional and hostile actions towards me.” P.S. telephoned the police before the meeting. 

Appellant maintained that the police report demonstrated that P.S. and C.E. “made false 

accusations, slanderous remarks against my character that could have gotten me seriously hurt had 

the police officers not have witnessed the meeting themselves and observed me to be 

nonconfrontational....” She asserted that P.S. had sexually and verbally harassed her after she 

learned of her sexual orientation. Appellant indicated that she had advised management of the 

harassment. 

In an undated statement received by OWCP on March 6, 2018, appellant related that P.S. 

had made sexual advances towards her that had become more aggressive over time. Coworkers 

had observed the harassment, but were afraid of retaliation.

The employing establishment, in a March 7, 2018 response, controverted appellant’s claim 

contending that she filed her claim after it issued a proposed disciplinary action. 

In a report dated March 13, 2018, appellant’s treating psychiatrist, Dr. Elena Ortiz Portillo, 

Board-certified in psychiatry, noted that appellant would benefit from being transferred to a 

different unit or department with her employer. She placed appellant off work for the period 

March 15 through 21, 2018.
4

By decision dated July 23, 2018, OWCP denied appellant’s emotional condition claim, 

finding that she had not established a compensable employment factor.

On August 27, 2018 appellant requested reconsideration. In an August 10, 2018 statement, 

she related that after she had informed management she had been sexually harassed she had 

difficulty performing her employment duties “due to the fear of retaliation, continuing harassment 

from upper management, and judgment of others.” Appellant advised that management had not 

investigated her complaints of sexual harassment or contacted witnesses. She maintained that 

upper management had threatened her job, issued false accusations, suspended her, falsified her 

time, changed her work shifts, prevented her from attending classes for her nursing degree, and 

written her up for doing her work duties. Appellant cited provisions of the Whistleblower 

Protection Act.

By decision dated September 19, 2018, OWCP denied appellant’s request for 

reconsideration, finding that she had not raised an argument or submitted evidence sufficient to 

warrant reopening her case for further merit review pursuant to 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence including that he or she sustained an injury in the performance of duty, and that any 

specific condition or disability from work for which he or she claims compensation is causally 

related to that employment injury.4 To establish an emotional condition in the performance of 

duty, the claimant must submit the following: (1) medical evidence establishing an emotional 

condition; (2) factual evidence identifying employment factors or incidents alleged to have caused 

or contributed to the condition; and (3) rationalized medical opinion evidence establishing that the 

identified compensable employment factors are causally related to the emotional condition.5

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,

6

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.7 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 

 

3

Id.

4 G.G., Docket No. 18-0432 (issued February 12, 2019).

5 B.Y., Docket No. 17-1822 (issued January 18, 2019).

6 28 ECAB 125 (1976).

7 See G.R., Docket No. 18-0893 (issued November 21, 2018).
5

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.8

Allegations alone by a claimant are insufficient to establish a factual basis for an emotional 

condition claim.9 Where the claimant alleges compensable factors of employment, he or she must 

substantiate such allegations with probative and reliable evidence.10 Personal perceptions alone 

are insufficient to establish an employment-related emotional condition.11 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.12

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.13 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.14 

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.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

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish an emotional 

condition in the performance of duty, as alleged.

Appellant alleged that she sustained an emotional condition as a result of several 

employment incidents and factors. OWCP denied her emotional condition claim because she had 

 

8 Supra note 6.

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

10 Id.

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

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

13 See M.C., Docket No. 18-0585 (issued February 13, 2019).

14 See S.K., Docket No. 18-1648 (issued March 14, 2019).

15 Id.

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

17 Id.
6

not established a compensable employment factor. The Board must, thus, initially review whether 

these alleged incidents and conditions of employment are covered employment factors under the 

terms of FECA.18 

The Board notes that appellant’s allegations do not pertain to her regular or specially 

assigned duties under Cutler.

19

 Rather, she has alleged error and abuse in administrative matters 

by the employing establishment and harassment by her supervisor.

Appellant alleged that the employing establishment erred in issuing her a 10-day 

suspension for inappropriate conduct and carelessness in her work duties. As a general rule, a 

claimant’s reaction to administrative or personnel matters falls outside the scope of FECA.20 The 

Board has long held that disputes regarding the assignment of work,21 handling of compensation 

claims,22 and disciplinary matters,23 are administrative functions of the employing establishment 

and, absent error or abuse, are not compensable.24 Absent evidence establishing error or abuse, a 

claimant’s disagreement or dislike of such a managerial action is not a compensable factor of 

employment.25

Appellant has not provided sufficient evidence to substantiate her allegations of error or 

abuse by the employing establishment in an administrative matter. The employing establishment 

suspended her for 10 days based on its finding that she had switched assignments without 

authorization, used profanity to a charge nurse, asked another nurse to step outside the facility, 

failed to notify a charge nurse that she had located a missing patient, and failed to provide timely 

patient care. While appellant denied the allegations, she has not submitted any evidence, such as 

an admission of error of finding of fault, establishing that the employing establishment acted 

unreasonable in administrative matters.26 

Appellant also alleged that P.S., a charge nurse, sexually harassed her after she learned of 

her sexual orientation. She maintained that the harassment increased over time. Appellant also 

contended that P.S. verbally harassed her and retaliated against her after she reported the 

harassment to management. 

 

18 See E.S., Docket No. 18-1493 (issued March 6, 2019).

19 Supra note 6. 

20 F.C., Docket No. 18-0625 (issued November 15, 2018).

21 See M.C., supra note 13.

22 C.V., Docket No. 18-0580 (issued September 17, 2018).

23 Supra note 5.

24 See G.G., supra note 4.

25 Supra note 18.

26 See B.O., supra note 9.
7

Disputes and incidents alleged as constituting harassment and discrimination by managers 

and coworkers may constitute compensable employment factors if they are established as 

occurring and arising from appellant’s performance of her regular duties.27 The Board has held 

that unfounded perceptions of harassment do not constitute an employment factor.28 For 

harassment to give rise to a compensable disability under FECA, there must be evidence that 

harassment did in fact occur.29 Appellant has not provided any evidence such as witness statements 

supporting her allegations or sexual or verbal harassment by P.S.30 As there is no factual evidence 

to support her allegations of sexual or verbal harassment, she has not established a compensable 

work factor with respect to those allegations.31

Appellant also contended that P.S. harassed her by telephoning the police on 

October 21, 2017. An October 21, 2017 redacted investigative report from the employing 

establishment’s police advised that it had dispatched two police officers to attend a meeting at the 

request of an individual who believed that she might become hostile. The officers indicated that 

appellant became annoyed when the parties discussed past incidents and left the room. The person 

who called the officers to the meeting questioned what would happen if she returned with a gun. 

The officers cautioned the individual not to make uncorroborated statements or exaggerate 

circumstances. While the investigative report does not establish that appellant had become hostile 

or threatening during the October 21, 2017 meeting, neither does it establish harassment by 

management in requesting that the police attend the meeting. Additionally, complaints concerning 

the manner in which a supervisor performs his or her duties as a supervisor, or the manner in which 

a supervisor exercises his or her supervisory discretion fall, as a rule, outside the scope of coverage 

provided by FECA.32 This principle recognizes that a supervisor or manager in general must be 

allowed to perform his or her duties, and that employees will at times dislike the actions taken, but 

mere disagreement or dislike of a supervisory or management action will not be actionable, absent 

evidence of error or abuse.33

The Board, therefore, finds that appellant has not established a compensable employment 

factor under FECA. Appellant has thus not met her burden of proof to establish that she sustained 

an emotional or stress-related condition in the performance of duty.34 

On appeal appellant contends that she could not concentrate after reporting that she had 

been sexually harassed, and that her PTSD negatively affected her work capacity. As explained 

 

27 D.B., Docket No. 18-1025 (issued January 23, 2019).

28 A.C., Docket No. 18-0484 (issued September 7, 2018).

29 See F.C., supra note 20.

30 Id.

31 See M.C., supra note 13; see also S.B., Docket No. 11-0766 (issued October 20, 2011).

32 See G.G., supra note 4.

33 Id.

34 See F.C., supra note 20.
8

above, however, she has not met her burden of proof to substantiate sexual harassment or a 

compensable work factor.

35

 Consequently, as appellant has not established a compensable 

employment factor, the Board need not consider the medical evidence of record.36

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 and 20 C.F.R. 

§§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against payment of compensation at any time on his own motion or on application.37

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.38

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP decision for which review is sought.39 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.40 If the request is timely, but fails to meet at least one 

of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.41

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a).

 

35 See S.B., supra note 16.

36 See G.G., supra note 4.

37 5 U.S.C. § 8128(a).

38 20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

39 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal 

Employees Compensation System (iFECS). Id. at Chapter 2.1602.4b.

40 Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

41 Id. at § 10.608(b); A.C., Docket No. 17-1616 (issued November 27, 2018).
9

The underlying issue on reconsideration is whether appellant has established an emotional 

condition in the performance of duty, as alleged. On reconsideration, she described her challenges 

fulfilling the duties of her employment due to her fear of harassment and retaliation. Appellant 

maintained that management threated her job, made false accusations against her, changed her 

time and work shifts, and prevented her from attending classes. However, while she made 

generally allegations against management, she did not discuss a point of law or advance a relevant 

legal argument regarding a compensable work factor in this case.42 Appellant referenced the 

Whistleblower Protection Act, however, this statute is not relevant to the issue at hand, which is 

whether she has established an injury under FECA.43 The Board, therefore, finds that she did not 

show that OWCP erroneously applied or interpreted a specific point of law, or advance a new and 

relevant legal argument not previously considered. Thus, appellant is not entitled to a review of 

the merits of her claim based on the first and second above-noted requirements under section 

10.606(b)(3).44

The Board further finds that appellant did not submit any evidence with her reconsideration 

request. As she did not submit relevant and pertinent new evidence, appellant has failed to satisfy 

the third requirement under section 10.606(b)(3).45

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific 

point of law, advance a relevant legal argument not previously considered by it, or submit relevant 

and pertinent new evidence not previously considered by OWCP. Pursuant to 20 C.F.R. 

§ 10.608(b), OWCP properly declined to review the merits of appellant’s claim.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish an emotional

condition in the performance of duty, as alleged. The Board further finds that OWCP properly 

denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

 

42 See B.Y., supra note 5.

43 See B.W., Docket No. 18-1415 (issued March 8, 2019) (the submission of evidence or argument which does not 

address the particular issue involved does not constitute a basis for reopening a case).

44 See B.Y., supra note 5.

45 See F.C., supra note 20.
10

ORDER

IT IS HEREBY ORDERED THAT the September 19 and July 23, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: May 23, 2019

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