United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.T., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Gulfport, MS, Employer

__________________________________________

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Docket No. 18-1104

Issued: October 9, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 9, 2018 appellant filed a timely appeal from a February 22, 2018 merit 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.

ISSUE

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

condition in the performance of duty.

 

1 Appellant timely requested oral argument before the Board. By order dated November 21, 2018, the Board 

exercised its discretion and denied the request as the matter could be adequately addressed based on a review of the 

case record. Order Denying Request for Oral Argument, Docket No. 18-1104 (issued November 21, 2018).

2

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On July 12, 2017 appellant, then a 51 year-old individual tax advisory specialist, filed an 

occupational disease claim (Form CA-2) alleging that she sustained stress, anxiety, and asthma 

causally related to factors of her federal employment. She maintained that a customer related that 

K.B., a manager, had instructed her to telephone a taxpayer advocate and make false complaints 

about “that black lady.”

3

 Appellant added that, as a result, she was afraid to report to work.

In a July 17, 2017 development letter, OWCP advised appellant of the additional factual 

and medical evidence necessary to establish her claim and attached a questionnaire for her 

completion. In a separate development letter of even date, it requested that the employing 

establishment provide additional information regarding her alleged injury, including comments 

from a knowledgeable supervisor on the accuracy of her statements and explaining any points of 

disagreement. OWCP afforded both parties 30 days to submit the requested evidence. 

In response, appellant submitted an undated letter to her supervisors in which she addressed 

allegations that she was rude and described her challenges dealing with customers. With her 

response she further submitted an October 29, 2013 statement addressing allegations that she was 

“booty dancing,” March 24, 2014 and March 6, 2015 statements regarding complaints by a 

customer, a statement addressing July 8, 2015 instructions to scan each payment when received, 

and e-mails regarding a complaint from a taxpayer about the order in which he was served. 

On August 7, 2017 the employing establishment indicated on a copy of the July 17, 2017 

development letter that comments from a knowledgeable supervisor upon the accuracy of 

appellant’s statement and explaining any points of disagreement were “N/A” (not applicable). It

further responded “No” to the question of whether staffing shortages affected her workload and

responded in the affirmative that she was able to perform her duties in accordance with 

expectations with no conduct problems. The remainder of the questions were answered with a 

simple “yes” or “no” without explanation.

By decision dated August 29, 2017, OWCP denied appellant’s occupational disease claim 

finding that she had failed to establish the factual component of fact of injury. It explained that 

she had not provided a detailed factual statement providing specific details regarding the incidents 

that she believed resulted in her emotional condition. OWCP concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA.

On September 25, 2017 appellant requested reconsideration. In an undated accompanying 

statement to OWCP, she related that on July 7, 2017 a customer, S.B., “apologized for allowing 

herself to make a false statement....” S.B. told appellant that a thin Caucasian lady gave her and 

others a telephone complaint number and advised them to refer to her as “the black lady.” She

telephoned the complaint line and told them that appellant “gave her poor customer service.” S.B.

advised that the thin Caucasian lady had “lined us up and told us what to say which was negative 

and damaging” and had rewarded their participation with “tax benefits and [preferential] 

 

3 On the claim form, appellant referred to K.B. as C.B.
3

treatment.” Appellant advised that S.B. told her coworkers, R.C. and W.L. about the incident. She 

maintained that she had become “overwhelmed with fear that triggered an asthma attack.” 

In a separate undated statement, appellant asserted that she had sustained an injury on 

July 7, 2017 when S.B. told her “she and many others were recruited to make false allegations 

about [appellant]” and to refer to her as “the black lady” by the manager, who appellant indicated 

was to K.B. S.B. agreed to inform a manager, L.P., about the incident. Appellant was not in the 

room when the customer spoke with the manager. 

Appellant related that her condition began in 2012 when K.B. sent an e-mail which falsely 

accused her of putting a sign on the door. She further contended that the employing establishment 

maintained that she was rude to a customer, investigated her purchase of a house, and watched her 

house. Appellant alleged that she had been threatened and called racial “epitaphs” by customers. 

In a statement dated September 18, 2017, R.C., a coworker advised that a taxpayer told 

appellant that K.B. had “asked her if she wanted to complain about the black lady and gave her the 

phone to do so.”

4

 In an undated statement received by OWCP on September 25, 2017, W.L., a 

coworker, advised that on July 7, 2017 S.B. told appellant that “she was referred to as the black 

lady while having a conversation with K.B. [S.B.] stated to [appellant] that she [did not] know 

why they would treat her that way because she is so nice.”

On November 1, 2017 S.B. confirmed that on July 7, 2017 she “spoke with [appellant] and 

told her about the incident in December 2016. The incident involved [K.B.] and her handling of 

people waiting to see [appellant] as she was the only person working that day.” She advised that 

appellant took her to speak with L.P. regarding the incident and, after appellant had left the room, 

she “proceeded to tell her what I had told [appellant].” 

By decision dated February 22, 2018, OWCP denied modification of its August 29, 2017 

decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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.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

 

4 R.C. also referred to K.B. as C.B.

5

Supra note 2.

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

7

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April10, 2019); see T.O., Docket No. 18-1012 (issued 

October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
4

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 an employee’s employment. In the case of Lillian Cutler,

9

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.10 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 

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.11

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.”

12

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. 13 Its 

 

8

See S.K., Docket No. 18-1648 (issued March14, 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).

9

28 ECAB 125 (1976).

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

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

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.17(j) (July 1997); see 

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

13 20 C.F.R. § 10.117(a); see also D.L., Docket No. 15-0547 (issued May 2, 2016).
5

regulations 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.14

ANALYSIS

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

Appellant has not attributed her emotional conditions to the performance of her work duties 

under Cutler.

15

 Instead, she generally contended that K.B. inaccurately accused her of placing a 

sign on the door and that the employing establishment maintained that she was rude to a customer, 

investigated her home purchase, and watched her house. Appellant also asserted that customers 

called her racial “epitaphs.” Primarily, however, she attributed her condition to a customer, S.B., 

informing her on July 7, 2017 that K.B. had told her to complain about her to a taxpayer advocate. 

The customer apologized to her for making a false statement. S.B. related that a thin Caucasian 

woman provided her and others with a telephone number to call and complain about “the black 

lady,” told them what to say, and rewarded their cooperation with tax advantages. In a 

November 1, 2017 statement, S.B. confirmed that on July 7, 2017 she had spoken with appellant 

and L.P. about a December 2016 incident and told L.P. the same information that she had conveyed 

to appellant.

OWCP requested that the employing establishment provide comments from a 

knowledgeable supervisor regarding the accuracy of appellant’s allegations. In response, it 

advised that comments from a knowledgeable supervisor regarding the accuracy of her allegations 

and explaining any points of disagreement was not applicable. Further, one word answers were 

given to a series of questions asking for an explanation. OWCP did not request further information 

from the employing establishment addressing appellant’s contentions. As discussed, OWCP’s 

procedures provide that, in emotional condition cases, a statement from the employing 

establishment is necessary to adequately adjudicate the claim.16

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

disinterested arbiter but, rather, shares responsibility in the development of the evidence, 

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

establishment. It shares responsibility to see that justice is done.17 In a case where it “proceeds to 

develop the evidence and to procure evidence, it must do so in a fair and impartial manner.”

18

 On 

remand, OWCP should obtain a statement from the employing establishment addressing 

appellant’s allegations. OWCP’s Federal (FECA) Procedure Manual provide that, if an employing 

establishment fails to respond to a request for comments on a claimant’s allegations, OWCP’s 

 

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

(June 2011).

15 Supra note 12.

16 Supra note 17.

17 S.L., supra note 15.

18 Id.
6

claims examiner may usually accept the claimant’s statements as factual.19 After such further 

development as deemed 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 February 22, 2018 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: October 9, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

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

(June 2011). See also L.B., Docket No. 17-1671 (issued November 6, 2018).