United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WEST LOS ANGELES VA MEDICAL 

CENTER, Los Angeles, CA, Employer

__________________________________________

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Docket No. 20-1307

Issued: June 29, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 22, 2020 appellant filed a timely appeal from a May 13, 2020 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.

FACTUAL HISTORY

On July 20, 2017 appellant, then a 49-year-old nurse, filed an occupational disease claim 

(Form CA-2) alleging that he sustained a mental illness as a result of undue stress causally related 

 

1 5 U.S.C. § 8101 et seq.
2

to factors of his federal employment. He attributed his condition to harassment by management. 

Appellant became aware of his condition and attributed it to factors of his federal employment on 

April 1, 2011. He was last exposed to the conditions identified as causing his condition on July 11, 

2017, the date he stopped work.

In a development letter dated August 3, 2017, OWCP advised appellant of the factual and 

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

In a separate development letter of even date, it requested that the employing establishment provide 

additional information regarding his alleged injury, including comments from a knowledgeable 

supervisor regarding the accuracy of his allegations and an explanation of any areas of 

disagreement. OWCP advised the employing establishment that, under 20 C.F.R. § 10.117(b), it 

could accept appellant’s allegations as factual if it failed to provide a complete reply. It afforded 

both parties 30 days to submit the requested evidence.

In an August 31, 2017 response, appellant asserted that A.P., a manager, had harassed him 

for the last two years that he had worked in the intensive care unit (ICU). A.P. and A.S., another 

manager, had singled him out for discipline and created a hostile work environment. Appellant 

maintained that he was “maliciously assigned” to administrative work details during simple 

investigations and received excessive discipline in the form of a 14-day suspension. He related 

that he was discriminated against on the basis of race and that A.P. had harassed him in a public 

area. Appellant indicated that he had filed four Equal Employment Opportunity (EEO) complaints 

prior to August 2017. Management retaliated against him by failing to release him after he 

obtained another position in the employing establishment. 

Appellant further related that A.S. had sent him six interrogating e-mails a day for eight or 

nine days without cause and that he was unjustly placed in nonregistered nurse positions. He 

advised that he had been detailed for eight months after an employee asked for his help disposing 

of a narcotic medication. Appellant asserted that “a Filipino nurse” had received a lesser 

disciplinary action for a significantly more serious infraction. 

OWCP received a February 5, 2017 proposed 14-day suspension of appellant for failure to 

follow an instruction to transport a patient from the ICU and for failure to follow procedures by 

disposing of a syringe of morphine without a witness. On March 30, 2017 the employing 

establishment finalized the proposed 14-day suspension. 

Appellant submitted evidence from his EEO complaint, including a letter from the 

employing establishment accepting a list of incidents for investigation. He also submitted an 

e-mail indicating that he had been tentatively offered and had accepted a registered nurse position 

and requesting information for the transfer. 

In an October 31, 2017 development letter, OWCP again requested that the employing 

establishment review appellant’s allegations and provide comments regarding their accuracy from 

a knowledgeable supervisor. It also explained that it could accept his allegations as factual under 

20 C.F.R. § 10.117(b) if it did not fully respond to its request. OWCP requested a response within 

30 days.
3

The employing establishment did not respond to OWCP’s August 3 and October 31, 2017 

requests for information. 

By decision dated December 27, 2017, OWCP denied appellant’s emotional condition

claim. It found that he had not established any compensable employment factors.

On January 23, 2018 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.2 

Following a preliminary review, by decision dated June 1, 2018, OWCP’s hearing 

representative vacated the December 27, 2017 decision. She found that OWCP had not adequately 

developed the factual aspect of the case. The hearing representative instructed OWCP to provide 

appellant’s August 31, 2017 letter to the employing establishment for review and comment and to 

obtain statements from the implicated individuals, including A.P. and A.S.

In a development letter dated June 4, 2018, OWCP requested that the employing 

establishment review and discuss an enclosed copy of appellant’s August 31, 2017 statement and 

provide responsive statements from A.P. and A.S. regarding his allegations. It again advised that,

under 20 C.F.R. § 10.117(b), it could accept his allegations as factual in the absence of a complete 

response from the employing establishment. OWCP afforded the employing establishment 30 

days to submit the requested information. 

On September 25, 2018 OWCP resent the employing establishment a copy of its June 4, 

2018 development letter and requested a prompt response. It noted that it had previously sent 

development letters on August 3 and October 31, 2017, but had received no response. The 

employing establishment did not respond to OWCP’s request for information.

By decision dated November 26, 2018, OWCP denied appellant’s emotional condition 

claim, finding that he had failed to establish a compensable employment factor. 

Thereafter, OWCP received an undated letter from appellant’s attorney noting the 

employing establishment had repeatedly ignored its request for information. 

On December 19, 2018 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.3

A telephonic hearing was held on April 25, 2019. At the hearing, appellant advised that he 

had filed a complaint with the Equal Employment Opportunity Commission (EEOC) regarding his

14-day suspension. In 2011, he began experiencing hostility from two Filipino coworkers, J.G. 

and M.L. J.G. had told a senior nurse to give appellant “hell.” M.L. belittled him before his peers 

and because of this the other nurses did not want to watch his patients during breaks. Appellant 

requested reasonable accommodation, but the request was denied. In 2016, A.P. wanted him to 

report on a patient, but a physician told him to take another patient to nuclear medicine for an 

 

2 Appellant also submitted a subpoena request. 

3 On February 12, 2019 appellant requested subpoenas be issued for a list of individuals at the employing 

establishment. On March 22, 2019 OWCP denied his subpoena request. 
4

emergency scan. A.P. was angry and accused him of not properly transferring the other patient 

even though he had handed the patient off to other nurses. She came into the ICU where he was 

watching the critically ill patient and began yelling at him to return upstairs. J.A., a coworker, 

witnessed the incident. On one occasion a barcode scanner was not working on a medication so 

he gave the medication to another nurse when he handed off the patient. A.P. accused him of 

stealing medication and called the police. During the investigation, he was transferred from patient 

care. Appellant received a job offer within the employing establishment at a different location that 

was rescinded after management intervened.

Thereafter, appellant submitted a June 22, 2016 report of contact form. J.A., a coworker, 

advised that on that date a woman was “screaming at the top of her lungs at [appellant] who was 

seated in a chair next to the patient.” J.A. asserted that the behavior was not professional.

By letter dated July 20, 2016, the employing establishment notified appellant that it had 

detailed him from his registered nurse duties to patient transport. 

In a statement dated June 5, 2017, L.S., a nurse, related that, in September 2015, she heard 

A.P. tell a nurse that she should write appellant up. The nurse declined, but A.P. stated that she 

would type up the report of contact. The nurse “eventually agreed after continued pressure.” L.S. 

thought the action was grievous. 

On May 28, 2019 OWCP received a chronological list of the events from appellant that he 

maintained had resulted in his psychological injury. Appellant advised that, in September 2015,

A.P. had written a report on another employee’s behalf in order to harass him. In June 2016, A.P. 

was verbally abusive when appellant was with a critically ill patient. He related that J.A., another 

employee, wrote a report of the incident indicating that A.P.’s actions were unprofessional. In 

August 2016, A.S. detailed him to transportation. He was told to transport patients and wait 

outside, but the nurses were upset that he did not assist them. A.S. sent appellant multiple e-mails 

about the situation. In November 2016, a Caucasian coworker failed to follow narcotic waste 

procedures, but received no discipline, but when it happened to appellant, he was removed from 

his duties as a nurse for six months. He got another job in February 2017, but the offer was 

rescinded. In March 2017, appellant informed the employing establishment that the notice of 

proposed suspension had mistakenly identified him as the individual who found the narcotic and 

that it was his cart. In April 2011, he had requested reasonable accommodation due to mental 

illness.

By decision dated July 9, 2019, OWCP’s hearing representative vacated the November 26, 

2018 decision. He remanded the case for OWCP to obtain comments from the employing 

establishment with a copy of the hearing transcript and appellant’s post-hearing statement.

In a July 30, 2019 development letter, OWCP outlined appellant’s allegations at the hearing 

and in his post-hearing statement and requested that the employing establishment submit 

comments from a knowledgeable supervisor regarding the accuracy of his allegations. It further 

requested that it explain any aspects of disagreement and submit supporting evidence. OWCP 

again advised that without a reply it could accept appellant’s allegations as factual under 20 C.F.R. 

§ 10.117(b).
5

By decision dated September 19, 2019, OWCP denied appellant’s emotional condition 

claim as he had not established any compensable employment factors. 

On October 21, 2019 appellant noted that the employing establishment had repeatedly 

failed to submit information as requested by OWCP.

On January 10, 2020 appellant requested reconsideration. 

On February 3, 2020 OWCP provided the employing establishment with a copy of 

appellant’s request for reconsideration and asked that it provide any comments. 

The record contains a February 3, 2020 note from the employing establishment to OWCP,

indicating that it had received its February 3, 2020 letter. No further response was received.

By decision dated May 13, 2020, OWCP denied modification of its September 19, 2019 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim,5including that he or she sustained an injury in the 

performance of duty, and that any specific condition or disability for work for which he or she 

claims compensation is causally related to that employment injury.6 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.7

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.8

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

somehow related to a claimant’s employment. There are situations where an injury or illness has 

some connection with the employment, but nevertheless does not come within the purview of 

workers’ compensation. When disability results from an emotional reaction to regular or specially 

assigned work duties or a requirement imposed by the employment, the disability is deemed 

 

4 Supra note 1.

5 S.S., Docket No. 19-1021 (issued April 21, 2021); O.G., Docket No. 18-0359 (issued August 7, 2019); J.P., 59 

ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6 S.S., id.; G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7 20 C.F.R. § 10.115; M.K., Docket No. 18-1623 (issued April 10, 2019); Michael E. Smith, 50 ECAB 313 (1999).

8 See S.K., Docket No. 18-1648 (issued March 14, 2019); Donna Faye Cardwell, 41 ECAB 730 (1990).
6

compensable.9 However, disability is not compensable when it results from factors such as an 

employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a 

particular environment, or to hold a particular position.10

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.11 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, OWCP must base its decision on an analysis of the medical evidence.12

OWCP’s procedures provide: 

“An employee who claims to have had an emotional reaction to conditions of 

employment must identify those conditions. The [claims examiner] must carefully 

develop and analyze the identified employment incidents to determine whether or 

not they in fact occurred and if they occurred whether they constitute factors of the 

employment. When an incident or incidents are the alleged cause of disability, the 

[claims examiner] must obtain from the claimant, agency personnel and others, 

such as witnesses to the incident, a statement relating in detail exactly what was 

[stated] and done. If any of the statements are vague or lacking detail, the 

responsible person should be requested to submit a supplemental statement 

clarifying the meaning or correcting the omission.”

13

OWCP’s regulations provide that an employer who has reason to disagree with an aspect 

of the claimant’s allegation should submit a statement that specifically describes the factual 

argument with which it disagrees and provide evidence or argument to support that position.14 Its 

procedures further provide in certain types of claims, such as a stress claim, a statement from the 

employer is imperative to properly develop and adjudicate the claim.15

 

9 A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian 

Cutler, 28 ECAB 125, 129 (1976).

10 Lillian Cutler, id.

11 See R.B., Docket No. 19-0434 (issued November 22, 2019); O.G., supra note 5.

12 Id.

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.17(j) (July 1997). See

S.L., Docket No. 17-1780 (issued March 14, 2018).

14 20 C.F.R. § 10.117(a). See M.T., Docket No. 18-1104 (issued October 9, 2019).

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7(a)(2) 

(June 2011).
7

ANALYSIS

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

Appellant attributed his stress-related condition to various incidents from 2011 to 2017 that 

he maintained constituted harassment by management. He asserted that A.P. and A.S. had 

disciplined him unfairly and created a hostile work environment. Appellant alleged that A.P. had 

verbally abused him in a public setting. He maintained that he was assigned to long work details 

during simple investigations and received excessive discipline. Appellant contended that 

management had discriminated against him based on race and retaliated against him after he 

obtained another position. He further alleged that A.P. verbally harassed him and falsely accused 

him of stealing medicine. In support of his contentions, appellant submitted a June 22, 2016 report 

of contact form from J.P., who maintained that a woman had screamed at appellant in an 

unprofessional manner as he sat by a patient. He further submitted a June 5, 2017 statement from 

L.S., who advised that A.P. had pressured another nurse to discipline appellant in an inappropriate

manner.

OWCP, in development letters dated August 3 and October 31, 2017, requested that the 

employing establishment review appellant’s allegations, describe any points of disagreement, and 

provide comments from a knowledgeable supervisor regarding the accuracy of his statements. The 

employing establishment did not respond to OWCP’s requests. 

Following a preliminary review, by decision dated June 1, 2018, OWCP’s hearing 

representative instructed OWCP to provide appellant’s most recent statement describing the 

incidents to which he attributed his stress-related condition to the employing establishment for 

review and comment. She advised that OWCP should obtain statements from individuals 

implicated in the events, in particular A.P. and A.S.

In development letters dated June 4 and September 25, 2018, OWCP requested that the 

employing establishment review appellant’s allegations and provide a response from a 

knowledgeable supervisor regarding their accuracy, explain any points of disagreement, and 

provide statements from A.P. and A.S. The employing establishment did not respond to OWCP’s 

requests.

By decision dated July 9, 2019, an OWCP hearing representative remanded the case for 

OWCP to obtain comments from the employing establishment. 

In a development letter dated July 30, 2019, OWCP described the allegations made by 

appellant at the hearing and in a post-hearing statement and requested comments from a 

knowledgeable supervisor regarding the accuracy of the contentions, and submitting any 

supporting evidence if it disagreed with any aspect of the claim. The employing establishment did 

not respond to OWCP’s request.

As noted, OWCP’s regulations provide that an employer with reason to disagree with any 

aspect of appellant’s claim shall submit a statement describing its disagreement with a specific 
8

allegation or argument and submit evidence such as witness statements supporting its position.16 

OWCP’s procedures provide that, if an employment establishment fails to respond to a request for 

comments on a claimant’s allegations, OWCP’s claims examiner may accept the claimant’s 

statements as factual.17 OWCP has repeatedly attempted to obtain information from the employing 

establishment regarding appellant’s allegations. It further has informed the employing 

establishment of the provisions of 20 C.F.R. § 10.117 and that it may accept appellant’s allegations 

as factual if it failed to respond adequately to its request for information. The employing 

establishment has egregiously failed to respond to OWCP’s request for information, only advising 

OWCP that it received their request. As the employing establishment has not complied with 

OWCP’s multiple requests, nor proffered a reason for not doing so, the Board finds that appellant’s 

allegations are accepted as factual.18

As appellant has established compensable factors of employment, OWCP must base its 

decision on an analysis of the medical evidence. The case will, therefore, by remanded to OWCP 

to analyze and develop the medical evidence.19 After this and such further development as deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that appellant has established compensable factors of employment. The 

Board further finds that the case is not in posture for decision regarding whether appellant 

sustained an emotional condition in the performance of duty. The case is remanded for further 

development of the medical evidence.

 

16 Supra note 14.

17 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5d(1) 

(June 2011). See also M.T., supra note 14; L.B., Docket No. 17-1671 (issued November 6, 2018).

18 Id. See generally, C.E., Docket No. 07-2261 (issued November 24, 2008).

19 See S.K., Docket No. 18-0705 (issued July 29, 2020); C.S., Docket No. 19-0116 (issued January 10, 2020).
9

ORDER

IT IS HEREBY ORDERED THAT the May 13, 2020 decision of the Office of Workers’

Compensation Programs is reversed and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: June 29, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board