United States Department of Labor

Employees’ Compensation Appeals Board

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M.N., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS BENEFITS ADMINISTRATION, 

Washington, DC, Employer

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Docket No. 20-0531

Issued: May 7, 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

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On January 10, 2020 appellant filed a timely appeal from a December 13, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the December 13, 2019 decision, OWCP received additional evidence. 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

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 June 17, 2019 appellant, then a 64-year-old Director of Workers’ Compensation, filed 

an occupational disease claim (Form CA-2) alleging that his major depression, post-traumatic 

stress disorder, and anxiety were caused and/or aggravated by factors of his employment. He 

alleged that K.C., his manager, created a toxic, hostile work environment, and arbitrarily demoted 

him on February 5, 2019. Appellant noted that he first became aware of his condition on 

February 6, 2019 and first realized its relation to his federal employment on March 27, 2019. He 

worked intermittently from March 12, 2019 forward.

In March 10 and May 13, 2019 employee disclosure forms and in June 5 and July 15, 2019 

letters, appellant indicated that he was filing a Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) reprisal action against K.C. He 

indicated that K.C. had retaliated against him since February 5, 2019, when he was tangentially 

named as a potential witness against K.C. in a No FEAR Act case brought by B.S., a coworker.

Appellant explained that the No FEAR Act complaints brought by B.S. were cited as evidence in 

her OWCP claim. He alleged that K.C. had wrongly, and without due process, demoted him and 

removed his supervisory authority and title, which he had held for over 10 years. Appellant alleged 

that this had a chilling effect on his ability to provide testimony and information for the Office of 

Special Counsel (OSC) and OWCP claims brought by B.S. He indicated that D.F., K.C.’s 

supervisor, stated that he was still a supervisor over the workers’ compensation office and that 

K.C. had overstepped his authority. During this time, appellant noted that his father was in hospice 

care and since passed away. He alleged that on March 8, 2019 at 3:47 p.m. he was subjected to an 

additional act of retaliation and intimidation when K.C. told him that he would no longer be in a 

supervisory position. Appellant indicated that he was shocked and alleged that this was an adverse 

action associated with his whistleblower-protected cooperation. He indicated that he sought urgent 

medical care after this matter. Appellant indicated that the retaliation and intimidation continued

with no intervention and that he was afraid to talk to the OSC or anyone else related to this matter. 

He further alleged, in his June 5 and July 15, 2019 letters, that T.B., Acting Executive Director of 

the Office of Human Capital Management (OHCM), and her staff, further perpetuated the cover 

up of his demotion by stonewalling his numerous efforts to informally resolve the matter and 

failing to investigate and make a ruling on the matter. Appellant alleged that T.B. rewrote the 

OHCM Organizational Chart to demote him and thereafter ignored, circumvented, and pigeonholed him. He also alleged that collusion by K.C. and P.A. resulted in his removal as a supervisor 

and humiliation in front of his peers. Appellant further alleged that K.C. and P.A. deliberately 

committed Health Insurance Portability and Accountability Act and Privacy Act violations by 

broadcasting his protected disability to his staff and had participated in the falsification/destruction 

of official federal records. 

OWCP received: one page of a position description which listed appellant as Director of 

Workers’ Compensation; a March 1, 2019 Fellow Recertification Approval; a May 10, 2019 letter 

from A.B., Medical Center Director; a May 2019 certificate of appreciation; copies of appellant’s 
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WebTA timesheet from February 5, 2019; a September 12, 2017 organizational flow chart of 

Office of the Chief Human Capital Officer; material from B.S.’ whistleblower case along with a 

comment from B.S. that appellant had been assisting her with her case and had become a target 

and subjected to retaliation; a copy of a news article; and a copy of appellant’s Equal Employment 

Opportunity (EEO) complaints against K.C. 

A March 27, 2019 letter from Ophelia Opoku-Acheampong, LGSW, a licensed graduate 

social worker, indicated that appellant had been receiving treatment from a hospital intensive 

outpatient program (IOP) since March 22, 2019 and was scheduled to attend treatment nine hours 

a week for four weeks. 

In a May 20, 2019 letter, Dr. Richard Mullin, a Board-certified psychiatrist, indicated that 

appellant has been his patient since March 2019. He noted that appellant reported that he had been 

dealing with a lot of stress at work which he described as a hostile work environment. Dr. Mullin 

diagnosed major depressive disorder, recurrent, and moderate, since at least 1997. He noted that 

appellant received treatment through the IOP program from March 21 through April 18, 2019. 

In an August 13, 2019 development letter, OWCP advised appellant that the evidence of 

record was insufficient to establish his claim. It requested that he submit additional factual and 

medical evidence in support of his claim. OWCP provided a questionnaire for appellant to 

complete. It also noted that the medical evidence did not substantiate that the diagnosis of major 

depressive disorder was caused or aggravated by employment factors and requested a narrative 

medical report from an attending psychiatrist or clinical psychologist. Appellant was afforded 30 

days to provide the requested information. By separate development letter of even date, OWCP 

also requested that the employing establishment provide comments from a knowledgeable 

supervisor regarding the accuracy of appellant’s statement relative to this claim. The employing 

establishment was also afforded 30 days to respond. 

On August 27, 2019 appellant responded to OWCP’s questionnaire. He submitted: 

performance appraisals of other individuals; a December 15, 2017 recruitment request form; a job 

analysis worksheet for tasks of a workers’ compensation program analyst; position description of 

program analyst; job analysis worksheet for competencies; an obituary notice of his father, an 

August 26, 2019 letter from Dr. Mullin, a stress/diathesis model of depression, an October 1, 2018 

letter from the employing establishment’s Associate Deputy Assistant Secretary for Budget; a 

June 4, 2019 letter from appellant’s EEO counselor, a list of role and responsibilities of the EEO 

counselor, appellant’s notice of rights and responsibilities for EEO claim signed June 4, 2019; 

EEO settlement goals; a copy of appellant’s claim dated July 9, 2019; appellant’s June 7, 2019 

complaint of possible prohibited personnel practice or other prohibited activity; copies of 

appellant’s time and attendance and leave requests forms; an alternative dispute resolution list of 

goals for settlement; an August 1, 2019 witness statement from B.S.; appellant’s notes from a role 

clarity meeting with B.W. on February 11, 2016; August 2019 e-mails regarding appellant’s 

position description; job analysis worksheet for tasks; requests for personnel action; and a 

September 4, 2019 letter from the employing establishment. 

By decision dated December 13, 2019, OWCP found that appellant had established that he 

was a federal civilian employee who filed a timely claim and that “the evidence supports that an 

incident [appellant] claimed occurred as described.” It denied his emotional condition claim, 
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however, finding that the medical component of fact of injury had not been met as there was no 

medical evidence from a psychiatrist or licensed psychologist diagnosing an emotional condition. 

OWCP further found that, even if medical documentation containing a diagnosis was submitted, 

there were no accepted event(s) that were factors of employment. It noted that accepted events 

that were not factors of employment were: appellant’s allegation K.C. created a toxic work 

environment on February 5, 2019 when he was demoted, and K.C. has retailed against appellant

since he was tangentially named as a witness against K.C. in B.S.’ whistleblower case. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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 of FECA, that an injury was sustained 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. These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4

To establish a claim for an emotional condition in the performance of duty, an employee 

must submit: (1) factual evidence identifying employment factors or incidents alleged to have 

caused or contributed to his or her condition; (2) medical evidence establishing that he or she has 

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

that the identified compensable employment factors are causally related to his or her 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,

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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 illness has some 

connection with the employment, but nevertheless does not come within coverage under FECA.7

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.8 This burden includes the submission of a detailed 

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

 

3 Supra note 1.

4 M.H., Docket No. 19-0930 (issued June 17, 2020); Gary J. Watling, 52 ECAB 357 (2001).

5 R.B., Docket No. 19-0343 (issued February 14, 2020).

6 28 ECAB 125 (1976).

7 M.A., Docket No. 19-1017 (issued December 4, 2019); Robert W. Johns, 51 ECAB 137 (1999).

8 B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838 (1987).
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affected a condition for which compensation is claimed, and a rationalized medical opinion 

relating the claimed condition to compensable employment factors.9

Rationalized medical opinion evidence is required to establish causal relationship. The 

opinion of the physician must be based on a complete factual and medical background, must be 

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.10

ANALYSIS

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

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation.11 Its regulations at 20 C.F.R. § 10.126 

provide that the decision of the Director of OWCP shall contain findings of fact and a statement 

of reasons.

12

 Additionally, OWCP’s procedures provide that 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 the defect.13

In its December 13, 2019 decision, OWCP did not sufficiently explain whether any 

accepted factors of employment were factually established or whether they constituted

compensable factors of employment. It summarily denied appellant’s emotional condition claim 

and did not discharge its responsibility to set forth findings of fact and a clear statement of reasons 

explaining its 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 his emotional condition 

claim.14 OWCP should have explained whether the alleged employment events are factually 

established and whether they constitute compensable employment factors.15 

The case must therefore be remanded to OWCP for OWCP to review the evidence of record 

and make findings of fact and provide a statement of reasons for its decision, pursuant to the 

 

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

10 See O.R., Docket No. 20-0743 (issued January 28, 2021); D.M., Docket No. 20-0314 (issued June 30, 2020); I.J., 

59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

11 5 U.S.C. § 8124(a).

12 20 C.F.R. § 10.126.

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

14 See C.A., Docket No. 20-1297 (issued March 18, 2021); J.S., Docket No. 18-0513 (issued March 1, 2019); K.J., 

Docket No. 14-1874 (issued February 26, 2015). See also J.J., Docket No. 11-1958 (issued June 27, 2012).

15 5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or 

against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP 

“shall contain findings of fact and a statement of reasons.” See A.R., Docket No. 11-1949 (issued April 16, 2012).
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standards set forth in section 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126. After any further 

development as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the December 13, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further 

action consistent with this decision of the Board.

Issued: May 7, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board