United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

MARTINEZ VA MEDICAL CENTER, 

Martinez, CA, Employer

__________________________________________

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Docket No. 21-1170

Issued: August 28, 2023

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 July 27, 2021 appellant filed a timely appeal from an April 29, 2021 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.

3

1 The Board notes that, during the pendency of this appeal, OWCP issued an August 5, 2021 decision which denied 

a July 14, 2021 request for an oral hearing before a representative of OWCP’s Branch of Hearings and Review. The 

Board and OWCP may not simultaneously exercise jurisdiction over the same issue(s). 20 C.F.R. §§ 501.2(c)(3), 

10.626; see J.W., Docket No. 19-1688, n.1 (issued March 18, 2020); J.A., Docket No. 19-0981, n.2 (issued 

December 30, 2019); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990). 

Consequently, OWCP’s August 5, 2021 decision is set aside as null and void.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the April 29, 2021 decision, OWCP received additional evidence. 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 an emotional

condition in the performance of duty on February 1, 2021 as alleged.

FACTUAL HISTORY

On March 7, 2021 appellant, then a 34-year-old accountant, filed a traumatic injury claim 

(Form CA-1) alleging that on February 1, 2021 she sustained trauma, panic attack, anxiety, 

depression, and post-traumatic stress disorder while in the performance of duty. She indicated that 

she was verbally attacked, harassed, bullied, and humiliated during an audit by D.C., an employing 

establishment administrative finance officer (AFO) while A.S., the chief of the employing 

establishment’s accounting section, was present. On the reverse side of the claim form, A.S.

indicated that she and D.C. disagreed with appellant’s description of events. Appellant stopped 

work on February 4, 2021. 

In support of her claim, appellant submitted an undated statement alleging that on 

February 2, 2021 A.S. and D.C. asked to speak with her in her office and then advised her that 

they would be conducting an unannounced audit. She indicated that the audit lasted approximately 

four hours without a break, and that D.C. was disrespectful, demanding, and bullying. Appellant 

asserted that D.C. mishandled paperwork, tormented her, belittled her, and discriminated against 

her based upon her race. 

In a report dated February 22, 2021, Dr. Christine Chang Lim, a psychiatrist, indicated that 

appellant related symptoms of stress, anxiety, depression, headache, and sweating which she 

attributed to an AFO bullying, harassing, and discriminating against her, and searching through 

her personal belongings during an audit. After the incident appellant felt that she could not trust 

any person at her job, that her privacy was invaded, and that her work environment was hostile. 

Dr. Lim noted a history of prior psychiatric issues and treatment, including that appellant was 

taking an anti-depressant medication. 

In a work excuse note dated February 22, 2021 and a Family and Medical Leave Act 

certification of health provider form dated February 24, 2021, Dr. Lisa Mieko Nakata, a 

psychiatrist, recommended that appellant remain out of work from February 27 through 

March 29, 2021. 

In a March 18, 2021 development letter, OWCP informed appellant of the deficiencies of 

her claim. It advised her of the type of medical and factual evidence needed. OWCP provided 

appellant with a questionnaire for her completion. It afforded her 30 days to respond. No 

additional evidence was received.

By decision dated April 29, 2021, OWCP denied appellant’s emotional condition claim 

finding that the incident occurred as alleged, but that she had not provided medical evidence of a 

diagnosed condition in connection with the February 1, 2021 incident. It further found that she

had not substantiated a compensable factor of employment. OWCP concluded, therefore, that the 

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

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

essential elements of his or her claim, including that the individual is an employee of the United 

States within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation of FECA,5that an injury was sustained in the performance of duty as alleged, and that 

any disability or medical 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 upon a traumatic injury or an occupational disease.7

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.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 illness has some 

connection with the employment, but nevertheless does not come within coverage of FECA.10 

When disability results from an emotional reaction to regular or specially assigned work duties, or 

to a requirement imposed by the employing establishment, the disability is deemed compensable.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 

4

Supra note 2.

5

S.S., Docket No. 19-1021 (issued April21, 2021); F.H., Docket No.18-0869 (issued January 29, 2020); J.P., 

Docket No. 19-0129 (issued December 13, 2019); Joe D. Cameron, 41 ECAB 153 (1989). 

6 L.C., Docket No. 19-1301 (issued January29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

7 L.N., Docket No. 22-0126 (issued July 15, 2023); P.A., Docket No. 18-0559 (issued January29, 2020); K.M., 

Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41 ECAB 992 (1990).

8

S.D., Docket No. 23-0898 (issued July 13, 2023); R.B., Docket No. 19-0343 (issued February 14, 2020).

9

28 ECAB 125 (1976).

10 See L.Y., Docket No. 21-0344 (issued June 15, 2023); M.R., Docket No. 18-0305 (issued October 18, 2018); 

Robert W. Johns, 51 ECAB 136 (1999).

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

Cutler, supra note 9.
4

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 employing establishment 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 regulations further provide in certain types of claims, such as a stress claim, a 

statement from the employing establishment is imperative to properly develop and adjudicate the 

claim.14

ANALYSIS

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

In her statement, appellant indicated that on February 2, 2021 A.S. and D.C. asked to speak 

with her in her office and then advised her that they would be conducting an unannounced audit. 

She indicated that the audit lasted approximately four hours without a break, and that D.C. was 

disrespectful, demanding, and bullying. Appellant asserted that D.C. mishandled paperwork that 

she had not yet completed, and tormented her, belittled her, and discriminated against her based 

upon her race. In a February 22, 2021 medical note, Dr. Lim also documented that she related that 

D.C. searched appellant’s personal belongings and that she described the work environment as 

hostile.

In a development letter dated March 18, 2021, OWCP requested that appellant complete a 

questionnaire. However, it did not contact the employing establishment directly to request that it

provide comments from a knowledgeable supervisor on the accuracy of the allegations and any 

additional information such as witness statements. 

The Board finds that it is unable to make an informed decision in this case as OWCP did 

not request information from the employing establishment.

15

 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

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

also J.R., Docket No. 20-1382 (issued December 30, 2022); G.K., Docket No. 20-0508 (issued December 11, 2020); 

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

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

14 Supra note 12 at Chapter 2.800.7(a)(2) (June 2011).

15 J.R. supra note 12; G.I., Docket No. 19-0942 (issued February 4, 2020); V.H., Docket No. 18-0273 (issued 

July 27, 2018).

16 Supra note 14; see also M.T., Docket No. 18-1104 (issued October 9, 2019); D.L., Docket No. 15-0547 (issued 

May 2, 2016).
5

In this case, further findings by OWCP are needed.17 Although it is appellant’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.18 It shares responsibility to see that justice is done.19 

The case will accordingly be remanded for OWCP to further develop the evidence. On 

remand, OWCP shall obtain a signed detailed statement and relevant evidence and/or argument 

regarding appellant’s allegations from the employing establishment.20 After this and such other 

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

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 29, 2021 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: August 28, 2023

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

17 A.O., Docket No. 19-1612 (issued April 8, 2021); N.S., Docket No. 16-0914 (issued April 10, 2018).

18 L.J., Docket No. 20-0998 (issued December 14, 2022); R.A., Docket No. 17-1030 (issued April16, 2018); T.B., 

Docket No. 19-0323 (issued August 23, 2019).

19 M.T., supra note 16.

20 A.O., supra note 17; G.K., supra note 12; R.V., Docket No. 18-0268 (issued October 17, 2018).