United States Department of Labor

Employees’ Compensation Appeals Board

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P.T., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

MEMPHIS VETERANS ADMINISTRATION

MEDICAL CENTER, Memphis, TN, Employer

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Docket No. 19-1843

Issued: April 24, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 3, 2019 appellant filed a timely appeal from an August 22, 2019 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 aggravation of a 

preexisting emotional condition in the performance of duty. 

FACTUAL HISTORY

On March 27, 2019 appellant, then a 50-year-old motor vehicle operator, filed a traumatic 

injury claim (Form CA-1) alleging that on March 18, 2019 at 11:30 a.m. his preexisting anxiety 

 

1

5 U.S.C. § 8101 et seq.
2

and stress conditions were aggravated while in the performance of duty. He explained that when 

he was standing in line in the second floor cafeteria, the logistics chief, D.R., walked up behind 

him and assaulted him by punching his back and slapping the left side of his abdomen. On the 

reverse side of the claim form, the employing establishment contended that appellant was not 

injured in the performance of duty because he was on his lunch break in the cafeteria when the 

incident allegedly occurred. It indicated that appellant stopped work on March 27, 2019. 

In a March 19, 2019 voluntary witness statement, appellant noted that on March 18, 2019 

between 11:00 a.m. and 1:30 p.m. the logistics chief, D.R., walked up behind him and began 

punching his back and side and slapped his stomach with an open fist. He indicated that he turned 

around to see who was responsible, and upon seeing that it was D.R. his anxiety, anger, and stress 

were triggered. D.R. then said something, but appellant did not recall what it was. Appellant

noted that this was a violation of his workplace’s assault policy, and at the time of the incident 

there was a lot of tension between him and D.R. He postulated that D.R. may have tried to 

intimidate him or could have been retaliating against him for whistleblower activity.

In a form signed on March 27, 2019, appellant indicated that he sustained a stress-related 

injury at work on March 18, 2019. He stated that he was a veteran and was currently receiving 

benefits for a service-connected disability. Appellant noted that his military claim included posttraumatic stress disorder. 

March 27, 2019 medical records signed by Victoria L. Carroll, a mental health nurse 

practitioner, noted that she had provided appellant psychological, cognitive, and solution-based 

therapy. A May 27, 2019 work status letter signed by Ms. Carroll indicated that appellant had a 

psychiatric disability and therefore was unable to work from March 27 to April 26, 2019. She 

concluded that appellant would be able to return to work without restriction on April 27, 2019.

In an April 4, 2019 controversion letter, the employing establishment related that appellant 

failed to provide any statements from witnesses to substantiate that the alleged incident occurred. 

It noted that appellant’s medical evidence was insufficient to establish his claim for compensation 

benefits and indicated that it disputed appellant’s claim on the basis of fact of injury, performance 

of duty, and causal relationship. 

In an April 15, 2019 development letter, OWCP informed appellant that additional 

evidence was required in support of his claim. It advised him of the type of factual and medical 

evidence necessary to establish his claim and attached a questionnaire for his completion. OWCP 

afforded appellant 30 days to submit the requested evidence. By letter of even date, OWCP 

requested additional information from the employing establishment regarding the circumstances 

of the alleged March 18, 2019 assault. The employing establishment was asked to describe the

events and circumstances which immediately preceded and led up to the assault, and whether there 

was any animosity between appellant and the alleged assailant. Further, it was asked if any 

investigation subsequent to the incident was conducted.

March 21, 2019 progress notes from Dr. Anne Ayres, a clinical psychologist, indicated that 

appellant related that he was still having difficulties with work-related stress. She noted 

appellant’s provisional diagnoses as adjustment disorder with depressed and anxious features 

(work stressors), alcohol use disorder, unspecified depression, and post-traumatic stress disorder
3

(PTSD). Dr. Ayres recounted that he filed charges against a coworker and expressed concerns 

regarding how he is regarded by the employing establishment. 

May 2, 2019 progress notes signed by Dr. Tammie Tucker, Board-certified in internal

medicine, indicated that appellant complained of left-sided pain in his head, neck, and chest, 

shortness of breath, diaphoresis, and lightheadedness. Appellant’s medical history was listed as 

including depression, sleep apnea, and alcohol abuse, and a physical examination revealed 

reproducible chest wall tenderness upon palpation. Dr. Tucker diagnosed chest pain and 

musculoskeletal pain, and she additionally provided a differential diagnosis of angina and anxiety. 

A May 2, 2019 emergency department discharge instruction report signed by Dr. Joel Raja, a 

resident physician, noted that appellant was treated for nonanginal chest pain and recommended 

follow-up appointments.

A May 14, 2019 e-mail from the employing establishment responding to OWCP’s 

development letter indicated it was unaware of any animosity between appellant and D.R., and 

that the employing establishment’s police conducted the only investigation of the alleged assault. 

It further indicated that it had no knowledge of any witnesses to the alleged assault or if appellant 

had similar preexisting injuries or conditions prior to the alleged assault. The employing 

establishment also noted it that had no knowledge about whether appellant sustained any other 

injuries between the date of his alleged injury and the date he reported the alleged injury.

May 6, 2019 medical records signed by Dr. Uzma Shirwany, Board-certified in internal 

medicine, indicated that appellant presented paperwork for retirement disability, and he noted that 

the nature of his disability was PTSD and stress. He also indicated that he was experiencing chest 

pain, and an electrocardiogram revealed no acute ST-segment changes. 

A May 15, 2019 letter from the employing establishment provided additional information 

in response to OWCP’s development letter. The employing establishment related that it could not 

provide a full description of the events and circumstances leading to the assault because appellant’s 

supervisor was not present at the time of the alleged incident. It also related that appellant’s 

supervisor had no knowledge of any animosity between appellant and the alleged assailant. In 

response to OWCP’s request for the employing establishment to forward a copy of the 

investigative report of the alleged assault, it noted that the employing establishment police took a 

statement from appellant and had provided the voluntary witness statement to OWCP. The 

employing establishment also noted that while appellant’s medical documentation indicated that 

he experienced work-related stress, it did not identify specific work factors contributing to his 

stress or provide a medical opinion that his symptoms were a direct result of specific work factors. 

It indicated that appellant had therefore failed to establish causal relationship. 

By decision dated May 16, 2019, OWCP denied appellant’s emotional condition claim, 

finding that the evidence of record failed to establish that the claimed incident occurred, as alleged. 

On June 11, 2019 appellant requested reconsideration and submitted a March 19, 2019

incident report from the employing establishment police department which related appellant’s

report that, between the hours of 11:00 a.m. and 1:30 p.m. on March 18, 2019, D.R. approached 

him from behind and physically assaulted him by punching him in the back and on the side and 
4

slapping his stomach. Appellant recounted that he could not understand why his supervisor was 

playing in the manner that he did due to the recent tension that had arisen.

OWCP subsequently received an April 10, 2019 voluntary employing establishment police 

witness statement by D.R. who noted that on March 18, 2019 he and two colleagues went to lunch 

at the employing establishment’s canteen. D.R. parted ways with his colleagues and as he was 

walking towards the soda cooler he saw appellant standing in the fast food line in front of the 

condiment section and they made eye contact. As he approached appellant, appellant stopped 

stooping, which he noted in the report was a bad posture look, straightened his back, and nodded 

his head. D.R. further noted that he walked up to appellant and touched his stomach with an open 

hand while patting his back. He indicated that he asked appellant “what was good for lunch” and 

appellant replied that he was having a hamburger and French fries. D.R. related that he chatted 

with appellant until appellant and the three people in front of him received their meals. He then 

met up with his two colleagues and walked back to the office. D.R. recounted that when he 

received appellant’s claim a week later his coworkers and appellant’s supervisor were not aware 

of any injury sustained by appellant. 

By decision dated August 22, 2019, OWCP denied modification of its May 16, 2019 

decision.

LEGAL PRECEDENT

To establish an emotional condition in the performance of duty, appellant must submit the 

following: (1) factual evidence identifying employment factors or incidents alleged to have caused 

or contributed to the condition; (2) rationalized medical evidence establishing that he or she has 

an emotional condition or psychiatric disorder; and (3) rationalized medical opinion evidence 

establishing that the emotional condition is causally related to the identified compensable 

employment factors.2

It is well established as a general rule of workers’ compensation law that, as to employees 

having fixed hours and places of work, injuries occurring on the premises of the employing 

establishment, while the employees are going to or from work, before or after working hours, or 

at lunch time, are compensable.3

Assaults arise out of the employment either if the risk of assault is increased because of the 

nature or setting of the work or if the reason for the assault was a quarrel having its origin in the 

work. Assaults for private reasons do not arise out of employment unless, by facilitating an assault 

that would not otherwise be made, the employment becomes a contributing factor.4

 

2

See W.F., Docket No. 18-1526 (issued November 26, 2019); C.M., Docket No. 17-1076 (issued November 14, 

2018); C.V., Docket No. 18-0580 (issued September 17, 2018); Kathleen D. Walker, 42 ECAB 603 (1991).

3 Eileen R. Gibbons, 52 ECAB 209 (2001); Narbik A. Karamian, 40 ECAB 617, 618 (1989).

4

J.G., Docket No. 17-0747 (issued May 14, 2018).
5

In this regard, Federal (FECA) Procedure Manual, Chapter 2.08045 provides the following 

as to the development of assault cases:

“10. Assault Cases. Where the injury or death is caused by the assault of another 

person, it is necessary to establish to the extent possible whether the assault was 

accidental, arose out of an activity directly related to the work or work environment, 

or arose out of a personal matter having no connection with the employment. In 

the case of a personal matter, the evidence must show whether it was materially and 

substantially aggravated by the work association. An assault occurring off the 

[employing establishment’s] premises and outside of work hours may be 

compensable if it arose for reasons related to the employment.

a. It is the responsibility of the [claims examiner] CE to obtain copies of 

any police reports which may have been made. Statements should also be 

obtained from the official superior and coworkers or other witnesses 

showing:

(1) Whether there was any animosity between the injured or 

deceased employee and the assailant by reason of a personal 

association away from work and, if so, this should be explained 

fully; and

(2) A full description of the events and circumstances which 

immediately preceded, led up to, and resulted in the assault.

b. A similar statement should be obtained from the assailant, if possible, and 

in disability cases, from the injured employee.’”

ANALYSIS

The Board finds that this case is not in posture for decision.

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.6 In his April 20, 2019 voluntary 

witness statement, logistics chief D.R. related that on March 18, 2019 while in the employing 

establishment’s canteen he walked up to appellant and touched his stomach with an open hand 

while patting his back. The Board therefore finds that the record establishes that on March 18, 

2019 D.R. touched appellant’s back and stomach in the employing establishment’s cafeteria at 

lunch time and that this incident occurred in the performance of duty.7 Whether this touching

 

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.10 (August1992).

6 D.B., Docket No. 19-1543 (issued March 6, 2020). 

7

Supra note 3.
6

incident constituted an assault sufficient to cause an emotional condition, is however, a separate 

inquiry.

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The Board finds that OWCP did not sufficiently develop the evidence to determine whether 

this touching constituted an egregious physical assault, sufficient to cause an aggravation of 

appellant’s emotional condition. In his March 19, 2019 voluntary witness statement, appellant 

alleged that there recently was tension between him and D.R., and he noted that D.R.’s assault may 

have been retaliation for engaging in whistleblowing activity. He also noted that there was tension 

between him and D.R. in the March 19, 2019 employing establishment’s police incident report. In 

his statement as a part of the police report, D.R. reported that he approached the appellant patted 

his stomach and patted his pack and asked him what was for lunch. He further noted that he spoke 

with appellant while three people in front of them were served, then left without issue.

OWCP requested that the employing establishment describe the events that led up to the 

alleged incident and whether there was animosity between appellant and the alleged assailant;

however, appellant’s supervisor responded that he could not answer these questions as he was not 

present at the incident. 

As previously noted, OWCP’s procedures provide that a statement should be obtained from 

the assailant, if possible, detailing whether there was any animosity between the injured employee 

and the assailant by reason of a personal association away from work and, if so, this should be 

explained fully, and should additionally provide a full description of the events and circumstances 

which immediately preceded, led up to, and resulted in the injury.

9 OWCP, however, did not 

request that the employing establishment obtain the statement from the alleged assailant.

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

While appellant 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

Accordingly, the Board will remand the case for OWCP to obtain the necessary 

information from D.R. regarding the claimed March 18, 2019 employment incident. Following 

such further development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for a decision.

 

8

See Edward L. Gerwe, Docket No. 06-0181 (issued April 11, 2006); Rem Vescosi, Docket No. 01-1712 (issued 

June 5, 2003).

9

See supra note 5. 

10 A.M., Docket No. 18-0630 (issued December 10, 2018). 
7

ORDER

IT IS HEREBY ORDERED THAT the August 22, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision of the Board.

Issued: April 24, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board