United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.A., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

CARL T. HAYDEN VA MEDICAL CENTER, 

Phoenix, AZ, Employer

__________________________________________

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Docket No. 23-0167

Issued: December 18, 2023

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 15, 2022 appellant, through counsel, filed a timely appeal from a 

November 2, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

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. 3

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

5 U.S.C. § 8101 et seq.

3 The Board notes that following the November 2, 2022 decision, appellant submitted additional evidence to 

OWCP. 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 her burden of proof to establish a stress-related

condition in the performance of duty on August 16, 2012, as alleged.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior orders are incorporated herein by reference. The relevant facts are 

as follows.

On September 14, 2012 appellant, then a 38-year-old psychiatrist, filed a traumatic injury 

claim (Form CA-1) alleging that on August 16, 2012 she sustained acute stress disorder due to 

hearing a threatening message that had been left on her office telephone by one of her patients

while in the performance of duty.

5

 A staff assistant, S.G., indicated that the message was received 

on July 20, 2012, but that she had not listened to appellant’s messages for weeks and then called 

appellant on August 16, 2012, to report the contents of the office telephone voicemail. At that 

time, appellant was on leave under the Family and Medical Leave Act (FMLA) for a 

nonemployment-related illness.6 Employing establishment police investigated the recorded 

message and forwarded the recording to appellant to try and identify the caller. In an October 20, 

2012 statement, appellant indicated that she identified the caller as a patient at work after listening 

to the voicemail that was forwarded to her by the employing establishment police. She stated that, 

since she knew of the caller’s criminal past, gun possession, and alcohol dependence, she declined 

to press charges because she was fearful that he would retaliate. Appellant indicated that she knew 

that the caller had slashed his neighbor’s tires and advised that he previously had argued with her 

when she confronted him about his non-compliance regarding medications she had prescribed. 

She related that she felt unsafe and, as a result was unable to return to work. Appellant further 

advised that, whenever she went on leave, she provided patients a telephone number to be used if 

they needed medication refills or questions regarding their treatment.

Appellant submitted medical evidence in support of her claim, including reports of

Dr. David S. Burgoyne, a Board-certified psychiatrist.

On November 5, 2012 OWCP received a transcript of the message left on July 20, 2012,

which read as follows: 

“Hi Dr. [appellant’s last name], well[,] being how my [unintelligible] medicine are 

not acting like placebos anymore, I got a little more sleep and I’ve been able to 

think about the two days I went through your clinic and those two harassing phone

calls I got on my [cell phone]. And I can remember the last time I was at the 

reservation and this cop was driving by and started slowing down and Monte yelled 

4 Order Remanding Case, Docket No. 13-2150 (issued May 2, 2014); Order Remanding Case, Docket No. 19-1248 

(issued April 16, 2020).

5 OWCP assigned the claim OWCP File No. xxxxxx500. Appellant later claimed that she sustained post-traumatic 

stress disorder (PTSD) as result of hearing the message.

6 The record indicates that appellant last worked on July 19, 2012 and was removed by the employing establishment 

effective June 29, 2013.
3

at the top of his lungs “You can get [f-ing] murdered too” and he took off for his 

life. And then he looked at me and said if anybody ever mess with me I can murder 

them too. And I don’t ever want to have to resort to something like that to keep 

anybody from harassing me on my [cell phone], doctor. But what I haven’t told 

you, I don’t think, is the county declared me bipolar and the state declared me 

severely mentally insane. And believe me, since the 15th I’ve been really going 

through a lot. So I just don’t want to have to make that trip when I get my paycheck 

because I can’t even afford to put gas in my jeep. So have a good day doctor and I 

miss your friends. My phone number is .... Thank you very much.”

By decision dated January 9, 2013, OWCP denied the claim, finding that the message was 

left by a patient of appellant, but that appellant had not established a compensable factor of 

employment. 

On January 31, 2013 appellant, through her then-representative, requested a telephonic 

hearing before a representative of OWCP’s Branch of Hearings and Review. She submitted 

additional medical evidence in support of her claim. During the hearing held on May 14, 2013 

appellant testified that her work as a psychiatrist required her to receive and respond to messages 

from patients, and advised that S.G. contacted her on August 16, 2012, because she believed the 

message from her patient was “very serious” and required her attention. 

By decision dated July 29, 2013, the hearing representative affirmed the January 9, 2013 

decision.7 The OWCP claims examiner and the hearing representative only reviewed a transcript 

of the recorded message and did not listen to the recording itself before rendering their decisions.

Appellant appealed to the Board and, by order dated May 2, 2014, the Board remanded the 

case to OWCP to obtain the actual audio recording of the voicemail message and for further 

reconstruction and assemblage of the claim file as deemed necessary, to be followed by a de novo

decision on the merits of appellant’s claim.8

On remand, by decision dated May 18, 2015, OWCP noted that it had listened to the actual 

audio recording approximately 10 times and concluded that the message did not constitute a direct 

threat against appellant. It further found that, although the message could appear to be related to 

factors of employment as it was left for appellant by a patient, she was not performing factors of 

employment at the time she listened to the message because she was on FMLA leave. OWCP 

denied the claim, finding that appellant was not in the performance of duty at the time of the alleged 

injury. 

7 The hearing representative acknowledged that appellant’s receipt of the message at home while on leave could be 

considered incidental to her employment, but stated that the content of the message failed to support her allegation 

that there was a direct or implied threat to her.

8

Supra note 4. On May11, 2015 appellant filed a Form CA-2 in which she alleged that her work duties caused an 

aggravation of her preexisting depression. OWCP adjudicated that claim under OWCP File No. xxxxxx954. It 

accepted major depression, recurrent, with features of PTSD, and paid appellant retroactive wage-loss compensation

on the supplemental rolls, effective August 20, 2012. OWCP placed appellant on the periodic rolls, effective 

May 28, 2017, and administratively combined OWCP File Nos. xxxxxx500 andxxxxxx954, the latter servingas the 

master file. 
4

On April 12, 2016 appellant, through her then-representative, filed a timely request for 

reconsideration. She submitted additional medical evidence in support of her claim. By decision 

dated November 15, 2018, OWCP denied modification of the May 18, 2015 decision. It noted that 

the voicemail recording itself and a transcript had been reviewed. OWCP found the voicemail 

incidental to employment, but that the content of the voicemail failed to support the contention 

that there was a direct or implied threat directed toward appellant.

Appellant appealed to the Board and, by order dated April 16, 2020, the Board remanded 

the case to OWCP to obtain the actual audio recording of the voicemail message and for further 

reconstruction and assemblage of the claim file as deemed necessary, to be followed by a de novo

decision on the merits of appellant’s claim.9

On remand, by decision dated November 2, 2022, OWCP noted that it had previously 

listened to the actual audio recording “several times” and concluded that the message did not 

constitute a direct threat against appellant. It further found that, although the message could appear 

to be related to factors of employment as it was left for appellant by a patient, she was not 

performing factors of employment at the time she listened to the message because she was on 

FMLA leave. OWCP denied the claim, finding that appellant was not in the performance of duty 

at the time of the alleged injury.

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

9

Supra note 4.

10 Supra note 2.

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 April10, 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).
5

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 

compensable.14 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.15

The term “in the performance of duty” has been interpreted to be the equivalent of the 

commonly found prerequisite in workers’ compensation law, “arising out of and in the course of 

employment.”

16

 The phrase “course of employment” is recognized as relating to the work 

situation, and more particularly, relating to elements of time, place, and circumstance. In the 

compensation field, to occur in the course of employment, an injury must occur: (1) at a time 

when the employee may be reasonably said to be engaged in the master’s business; (2) at a place 

where he or she may reasonably be expected to be in connection with the employment; and 

(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in 

doing something incidental thereto.17 This alone is not sufficient to establish entitlement to 

benefits for compensability. The concomitant requirement of an injury “arising out of the 

employment” must be shown, and this encompasses not only the work setting but also a causal 

concept, the requirement being that the employment caused the injury. 18

OWCP’s procedures address off-premises injuries sustained by workers who perform 

service at home, noting that, ordinarily, the protection of FECA does not extend to the employee’s 

home, but there is an exception when the injury is sustained while the employee is performing 

official duties. In situations of this sort, the critical problem is to ascertain whether at the time of 

injury the employee was in fact doing something for the employer.19 

ANALYSIS

The Board finds this case not in posture for decision.

Appellant attributed her stress-related condition to a recorded threatening telephone 

message that had been left on her office telephone by one of her patients who discussed the medical 

treatment he received from appellant, and referenced murder multiple times in the context of an 

14 A.B., Docket No. 18-0635 (issued August 14, 2020); 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).

15 A.B., id.; Cutler, id.

16 Bernard D. Blum, 1 ECAB 1, 2 (1947).

17 C.Y., Docket No. 21-1009 (issued May 1, 2023); M.T., Docket No. 19-1546 (issued March 5, 2020);see J.B., 

Docket No. 17-0378 (issued December 22, 2017).

18 K.M., Docket No. 21-1306 (issued April 28, 2023); Eugene G. Chin, 39 ECAB 598 (1988).

19 Federal (FECA) Procedure Manual, Part 2 --Claims, Performance of Duty, Chapter 2.804.5f (August 1992); see 

also S.F., Docket No. 09-2172 (issued August 23, 2010).
6

agitated emotional state.20 The Board notes that appellant’s allegations relate to her regular or 

specially assigned duties under Lilian Cutler.

21

The relationship of the incident to appellant’s employment is established by the fact that

the threatening message was left by appellant’s patient, and that appellant had after-hours 

professional obligations, including the duty to listen to messages from patients. The Board 

therefore finds that at the time when appellant listened to the threatening message, she met the 

requirements that an employment incident occur at a time when appellant may be reasonably said 

to have been engaged in the master’s business, at a place where she may reasonably have been

expected to be in connection with the employment, and while she was reasonably fulfilling the 

duties of her employment or engaged in doing something incidental thereto.22 Although appellant 

was at home when she heard the threatening message, the establishment of an employment factor 

is not precluded because she was doing something for the employer at the time of the time of the 

claimed injury.23 Thus, the Board finds that appellant sustained a compensable employment factor 

upon hearing her patient’s threatening message on August 16, 2012.

As OWCP found there were no compensable employment factors, it did not analyze or 

develop the medical evidence. Thus, the Board will set aside OWCP’s decision, and remand the 

case for consideration of the medical evidence to determine whether appellant has established an 

emotional condition causally related to the compensable employment factor. After this, and such 

other further development as deemed necessary, OWCP shall issue a de novo decision on appellant’s 

emotional condition claim.

CONCLUSION

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

20 See J.Z., Docket No. 19-1156 (issued July28, 2020) (compensable employment factor found when mine operator 

made social media comments alleging that the claimant, a mine inspector, improperly put his sand pit out of business, 

and alluded to the use of firearms when stating that inspectors would be met with resistance).

21 Supra note 14.

22 See supra note 15. 

23 See supra note 17.
7

ORDER

IT IS HEREBY ORDERED THAT the November 2, 2022 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: December 18, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board