United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Victorville, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-1270

Issued: September 4, 2020

Appearances: Case Submitted on the Record

Joe Mansour, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 11, 2018 appellant, through her representative, filed a timely appeal from a 

December 20, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

 

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 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated July 15, 2020, 

the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be 

addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 18-1270 (issued 

July 15, 2020). 
2

Pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction to consider the merits of this case.4

ISSUE

The issue is whether appellant has met her burden of proof to establish an emotional 

condition in the performance of duty, as alleged.

FACTUAL HISTORY

This case has previously been before the Board.5 The facts and circumstances as set forth

in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.

On May 31, 2013 appellant, then a 49-year-old disciplinary hearing officer (DHO), filed a 

traumatic injury claim (Form CA-1) alleging an emotional condition caused by staff intimidation 

after reporting misconduct while in the performance of duty.

In a July 2, 2013 statement, appellant asserted that R.A., a fellow DHO, subjected her to 

harassment, intimidation, and profane, vulgar language after she had reported his misconduct. She 

recalled that in August 2009 and June 2010, R.A. became angry when she used office space he 

had wanted for himself. Appellant further alleged that in August 2010, management denied her 

request to change offices as “someone had to watch the wolf in the hen house.” She alleged that 

on February 7, 2013, R.A. made derogatory, profane jokes about murdered law enforcement 

officers and engaged in other disruptive behavior. Appellant also alleged that on February 8, 2013, 

R.A. received a personal call on his cell phone and used the phrase “a pain in the ass” loudly 

enough for appellant to hear. She asserted that on May 23, 2013 R.A. gave her “a very dirty stare”

as she walked through a door he held open for her. Management took no disciplinary action against 

R.A. and denied appellant’s request to be transferred to a different facility. Appellant contended 

that R.A.’s overbearing, harassing manner with female secretaries, frequent profanity, and 

management’s encouragement of his aggressive, unprofessional demeanor had created a hostile 

work environment.

By decision dated July 25, 2013, OWCP denied appellant’s claim finding that she failed to 

establish the factual basis of her claim as the evidence submitted was insufficient to substantiate 

that the injury or events occurred as alleged. It concluded that the requirements had not been met 

to establish an injury as defined by FECA. 

On August 2, 2013 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review, later modified to a request for a review of the written record. She 

provided statements dated June 7 and August 2, 2013, and March 6, 2014 alleging discrimination 

 

3 5 U.S.C. § 8101 et seq. 

4 The Board notes that, following the December 20, 2017 decision, OWCP received additional evidence. 

Appellant’s representative also submitted new evidence on appeal. 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.

5 Order Remanding Case, Docket No. 14-1663 (issued September 29, 2015).
3

on the basis of race (Native American), as she was asked by management to reschedule 

November 2011 Native American Heritage Month events on short notice and management also 

denied her several job promotions. Appellant alleged that on April 1, 2013 R.A. discussed his GS13 pay grade loudly to intimidate her, as she was a GS-12 who performed the same duties. She 

noted that after Coworker B., a GS-13 DHO and her former trainee6 who was also a personal friend 

of R.A., had been placed in the same office due to an adverse action, R.A.’s demeanor became 

more aggressive. Appellant also alleged that from May 2010 to June 2012, R.A. focused 

inappropriately on one of the female office secretaries, which caused a senior manager to move 

the secretary to another office on days that R.A. was scheduled to work. She noted a January 2013 

incident involving a computer in which she was issued a proposed 14-day suspension and R.B., 

her husband, who worked in a different sector of the facility, received a proposed letter of 

reprimand. Appellant asserted that on eight occasions from April 25 to May 31, 2013, R.A. 

engaged in loud, profane conversations, excluded her from office small talk, refused to 

acknowledge her even if no other coworkers were present, and on May 14, 2013 refused to eat 

mango bread she had brought to the office to share. On June 4, 2013 a day when R.A. was not 

scheduled to work at the employing establishment, he reported for work and glared at appellant.

In support of her claim, appellant submitted affidavits from her Equal Employment 

Opportunity (EEO) complaints for harassment and discrimination. In a November 8, 2013 

affidavit, Manager A.M. indicated that he was aware of previous similar behavior by R.A. He 

noted that R.A. was permitted to work a portion of the week at the employing establishment as 

part of a settlement agreement. In a November 13, 2013 affidavit, R.B. recalled hearing R.A. use 

offensive language at work in late 2012 and noted that he observed R.A. glaring at appellant on 

unspecified dates. In a November 18, 2013 affidavit, manager L.M. noted that there were no cases 

assigned to R.A. from February 7 to June 18, 2013 that required his presence at the employing 

establishment, and that she had instructed a senior manager to speak to R.A. and appellant about 

appellant’s allegations. In a December 18, 2013 affidavit, A.O., a secretary in the DHO office 

from April to July 2010, recalled that R.A. made unspecified “snide remarks,” used offensive 

language, and behaved in an offensive manner with a sexual undertone.

By decision dated April 9, 2014, an OWCP hearing representative affirmed the July 25, 

2013 decision. She modified the previous decision to the extent that she found appellant’s 

allegations were factual as the employing establishment had not contested their occurrence. The 

hearing representative, however, further found that the incidents alleged by appellant did not 

constitute compensable employment factors. Appellant appealed to the Board.

By order issued September 29, 2015,7the Board set aside OWCP’s April 9, 2014 decision 

and remanded the case for OWCP to obtain the requisite information from the employing

establishment and determine whether her allegations were factually substantiated and for

clarification as to which of the alleged employment incidents had been accepted as factual and the 

evidentiary basis for those findings.

 

6 The Board notes that this coworker’s full name is not contained in the case record. 

7

Id.
4

In a November 4, 2015 letter, OWCP requested the employing establishment obtain 

comments from R.A. “and/or a knowledgeable supervisor” regarding appellant’s allegations, as 

follows: a June 2010 conflict with R.A. over office space; denial of appellant’s request to move 

offices; R.A.’s inappropriate behavior with female secretaries; appellant was asked to reschedule 

Native American Heritage Month events; appellant asked that R.A. not report to the employing 

establishment on unscheduled days; R.A. made disrespectful jokes on February 7, 2013; R.A. said 

“pain in the ass loudly” during a personal telephone call on February 8, 2013; R.A. gave appellant 

a dirty stare on May 23, 2013; R.A. engaged in excessive personal conversations and ignored 

appellant from May 3 to 30, 2013; on May 14, 2013, R.A. grunted and returned to his office when 

informed that mango bread had been brought in by appellant; R.A. reported to the workplace on 

June 4, 2013, a nonscheduled day; R.A. glared at her on June 4, 6, and 7, 2013. OWCP afforded 

the employing establishment 30 days to submit the necessary evidence.

In response, C.C. provided a February 9, 2016 e-mail noting that he had “nothing to add.”

In a February 26, 2016 e-mail, R.A. categorically denied appellant’s allegations. He asserted that 

he had been “nothing but professional in [his] dealings with this worthless individual” who was 

also a “habitual liar.” Additionally, R.A. characterized appellant’s complaints as “petty juvenile 

games” and a ploy to obtain money from the employing establishment. In a March 9, 2016 e-mail, 

M.R., a special investigative assistant, noted that a June 8, 2015 investigation of appellant’s 

allegations resulted in a finding of insufficient evidence as R.A. denied the allegations and 

Coworker B. corroborated his denials. 

By decision dated June 29, 2016, OWCP denied appellant’s emotional condition claim as 

the evidence of record failed to establish a compensable factor of employment. It accepted as 

factual, but not compensable, that R.A. worked at the employing establishment two days a week 

under a settlement agreement, that Coworker B. was in his position due to an agency adverse 

action, and that there was a computer-related incident involving appellant and her husband with 

proposed disciplinary action. OWCP found that these incidents were administrative or personnel 

matters not within the performance of duty, and that no error or abuse was shown. It found that 

the remainder of the allegations listed in the November 14, 2015 development letter were not 

established as factual. 

On October 7, 2016 appellant requested an oral hearing before an OWCP hearing 

representative.8 By decision dated June 20, 2017, OWCP’s hearing representative denied 

appellant’s request for an oral hearing as it was not timely filed within 30 days of the June 29, 

2016 decision. The hearing representative further indicated that he exercised his discretion, but 

determined that the issue in this case could equally well be addressed by a request for 

reconsideration before OWCP along with the submission of new evidence.

On July 6, 2017 appellant requested reconsideration of the June 29, 2016 OWCP decision, 

alleging that the evidence of record established a pattern of harassment, sexual harassment, and 

racial discrimination. She submitted an October 26, 2016 affidavit by R.A. in an EEO proceeding 

 

8 The postmark is of record, but is illegible. 
5

involving a coworker. R.A. testified that he had been demoted to DHO in 2009 due to disciplinary 

action for unprofessional conduct while off duty.9

By decision dated December 20, 2017, OWCP denied modification of its prior decision. It 

found as factual, but not compensable, that R.A. was disciplined for unprofessional conduct prior 

to working at the employing establishment, that he was allowed to work two days a week at the 

employing establishment due to an agency adverse action, and that appellant and her husband were 

involved in a computer-related incident with subsequent disciplinary action. OWCP noted that 

these were administrative incidents not within the performance of duty. It found that the remaining 

30 incidents were not established as factual as they were either vague or uncorroborated. 

LEGAL PRECEDENT

An employee seeking benefits under FECA10 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.11 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.12

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.13

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

somehow related to an employee’s employment. 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. Where the disability results from an employee’s emotional 

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

 

9 By decision dated July 28, 2017, OWCP denied reconsideration as the July 6, 2017 request was not timely filed 

within one year of the June 29, 2016 OWCP decision and failed to demonstrate clear evidence of error. In a 

December 4, 2017 letter, appellant alleged that OWCP had not properly adjudicated her claim. In a December 11, 

2017 letter, OWCP noted that the delay between appellant’s October 2016 request for an oral hearing and the June 20, 

2017 decision provided little time for her to request reconsideration. It would therefore perform a merit review and 

issue a de novo decision in the claim.

10 5 U.S.C. § 8101 et seq.

11 A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

12 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).

13 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

employment, the disability comes within the coverage of FECA.14 On the other hand, the disability 

is not covered where it results from such factors as an employee’s fear of a reduction-in-force or 

his or her frustration from not being permitted to work in a particular environment, or to hold a 

particular position.15

A claimant has the burden of proof to establish by the weight of the reliable, probative, and 

substantial evidence that the condition for which he or she claims compensation was caused or 

adversely affected by employment factors.16 This burden includes the submission of a detailed 

description of the employment factors or conditions which he or she believes caused or adversely 

affected a condition for which compensation is claimed, and a rationalized medical opinion 

relating the claimed condition to compensable employment factors.17

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 

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 factors of employment and may 

not be considered.18 If a claimant does implicate a factor of employment, OWCP should then 

determine whether the evidence of record substantiates that factor. When the matter asserted is a 

compensable factor of employment and the evidence of record establishes the truth of the matter 

asserted, it must base its decision on an analysis of the medical evidence.19

ANALYSIS

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

OWCP has determined that appellant has established two factual, but noncompensable 

factors of employment. On prior remand OWCP sought additional factual information from the 

employing establishment consistent with the Board’s order. Amongst other items it obtained a 

statement from a special investigative assistant, M.R., who summarized a June 8, 2015 

investigation of appellant’s allegations. However, M.R. did not provide, and OWCP did not 

obtain, the original investigative report or the affidavits of R.A. and R.B. that were included as a 

part of the investigation. 

 

14 Lillian Cutler, 28 ECAB 125 (1976).

15 A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

16 B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

17 P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

18 See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

19 Id.
7

The Board finds that because appellant alleged a factor, in this case sexual harassment,

OWCP was obligated to obtain a copy of the investigative memorandum and accompanying 

affidavits and other supportive material in the employing establishment’s possession.

20

 It did not 

do so in this case and thus the record before the Board does not contain the necessary evidence to 

determine whether the employing established committed error or abuse in either of the two 

instances which have been found factual. 

The Board therefore finds that it is unable to make an informed decision regarding 

appellant’s allegations as the employing establishment did not fully respond to the request for 

comment made by OWCP in the November 24, 2015 development letter.21

Although it is a claimant’s burden of proof to establish his or her claim, OWCP is not a 

disinterested arbiter, and it rather shares responsibility in the development of the evidence, 

particularly, when such evidence is of the character normally obtained from the employing 

establishment or other government source.22 

To avoid piecemeal adjudication of the claim, the Board will remand the case to OWCP 

for retrieval of the investigative report referenced by M.R. to be followed by a de novo decision as 

to whether appellant has established a compensable factor of employment for which she sustained 

an emotional condition in the performance of duty, as alleged.

CONCLUSION

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

 

20 R.V., Docket No. 18-0268 (issued October 17, 2018); see K.W., Docket No. 15-1535 (issued September 23, 2016)

(remanding the case for further development by OWCP when the employing establishment did not provide an 

investigative memorandum in an emotional condition claim based on sexual harassment).

21 Id.; see R.A., Docket No. 17-1030 (issued April 16, 2018).

22 R.V., supra note 20, see K.W., Docket No. 15-1535 (issued September 23, 2016) (remanding the case for further 

development by OWCP when the employing establishment did not provide an investigative memorandum in an 

emotional condition claim based on sexual harassment).
8

ORDER

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

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

consistent with this decision of the Board.

Issued: September 4, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board