United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.Y., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Fresno, CA, Employer

__________________________________________

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Docket No. 19-0654

Issued: November 5, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 1, 2019 appellant filed a timely appeal from a January 11, 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.

ISSUE

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

condition in the performance of duty.

FACTUAL HISTORY

On August 10, 2017 appellant, then a 52-year-old medical staff credentialer, filed an 

occupational disease claim (Form CA-2) alleging stress-related conditions, including migraine 

 

1 5 U.S.C. § 8101 et seq.
2

headaches triggered with nausea, diarrhea, and anxiety that she attributed to a hostile, 

unprofessional, and contentious work environment. She asserted that the constant offensive words 

and behavior were very stressful. Appellant reported that she first became aware of her condition

on January 9, 2017 and first realized that it resulted from her employment on May 4, 2017. On 

the reverse side of the claim form, the employing establishment indicated that she first received 

medical treatment and was last exposed to the conditions alleged to have caused her illness on 

August 10, 2017. 

In an undated narrative statement, appellant alleged that D.L.S., a senior credentialer and 

appellant’s coworker, made statements outside of the office that were not conducive to a 

psychologically safe working environment. She also asserted that a double standard was applied 

regarding a May 4, 2017 incident involving a missing signature since D.L.S. had missed signatures 

and forgotten things. Appellant further contended that D.L.S.’s tone was offensive, hostile, and 

not conducive to productivity. She alleged that the credentialing team had a history of “running”

people out, belittling others, and making a very uncomfortable work environment. 

In an August 16, 2017 statement, appellant related on that morning that B.O., a lead 

credentialer and appellant’s training supervisor, began to berate and question her about a missing 

fax. She alleged that the conversation became “heated.” 

Appellant submitted several e-mails between herself and D.R.S., service chief of the 

quality management service unit and appellant’s supervisor. In a January 9, 2017 e-mail, she 

described that, when she returned from vacation, there were a myriad of documents that were 

pulled from her cabinet, a couple of which had been torn up for her to see, and a couple of which 

had notes affixed to them that stated “Fix Label.” Appellant also expressed her disagreement with 

both D.L.S. and B.O.’s questioning of her ability to perform and understand the training that was 

provided. In an August 9, 2017 e-mail, she informed D.R.S. that her work atmosphere was no 

good and not conducive to learning. Appellant asserted that D.L.S. ridiculed and highlighted other 

people’s shortcomings, said and did whatever she felt like at the moment, and verbally insulted 

her. She described how she had mixed up two providers and D.L.S. laughed at her. 

OWCP also received a May 4, 2017 report of contact (ROC) by appellant. Appellant

alleged that, after that morning’s huddle, she sought clarification from D.L.S. and B.O. on how to 

remedy an error when a file had been taken to the most recent board without proper signatures. 

She contended that D.L.S. made statements in a loud and offensive manner. Appellant asserted 

that when she asked D.L.S. to “tone it down,” D.L.S. left the office. 

In an August 25, 2017 examination note, Dr. Jeanette Rylander, a Veterans Administration

staff physician, indicated that appellant was seen in their clinic for complaints of neck stiffness 

contributing to headache. She recommended that appellant remain off work that day. 

By development letter dated September 7, 2017, OWCP informed appellant that the 

evidence of record was insufficient to establish her claim. It advised her of the factual and medical 

evidence necessary to establish her claim and also provided a questionnaire for completion. 

OWCP afforded appellant 30 days to submit the necessary factual information and medical 

evidence. 
3

In a decision dated February 22, 2018, OWCP denied appellant’s emotional condition 

claim, finding that she had not established a compensable employment factor, and thus, had not 

established an emotional condition in the performance of duty. 

On September 4, 2018 appellant requested reconsideration. She indicated that she was 

providing new evidence in the form of an Equal Employment Opportunity Commission (EEOC) 

complaint and investigator’s report. Appellant pointed out that none of the witness accounts 

denied or contradicted her complaint of a hostile work environment, which validated the events 

listed in her complaint. 

Appellant submitted her EEOC complaint filed on November 9, 2017. She also submitted 

a November 16, 2017 EEOC counselor report, which noted that she had filed a claim for 

harassment/hostile work environment. The report provided a description of appellant’s claim, 

including specific incidents alleged by her, and related that the resolution sought was to stop the 

alleged harassment and to be reassigned. 

OWCP also received a June 29, 2018 EEOC Investigative Report regarding appellant’s 

claim of hostile work environment on the basis of race. It described various events, which she

alleged demonstrated a hostile work environment, listed the documents that were reviewed, and 

provided a summary of the witness testimony. 

According to B.O.’s summary, she acknowledged that several times appellant’s files were 

left on her desk with a note describing errors and issues. B.O. explained that all the credentialing 

and privileging files were available to any credentialer as needed. She related that it was customary 

that, if a credentialer responsible for that file was out of the office, another credentialer was 

expected to access that file and provide a response. If something was found to not be in order with 

the file, then a note describing the issue was left with the file on the credentialer’s desk. B.O. also 

contended that appellant received adequate training and was informed of all the proper policies 

and procedures, as well as given one-on-one instruction. She further confirmed that their office 

had poor communication and that many discussions were had regarding the tension in the office. 

The report also contained a summary of D.L.S.’s testimony. D.L.S. asserted that she had 

never gone through appellant’s desk. She clarified that credentialing files were not private and 

that other credentialers would work on other files if the credentialer responsible was not in the 

office. The report indicated that D.L.S. confirmed that she criticized appellant’s work performance 

and that she admitted that she was not soft-spoken. D.L.S. explained that appellant’s work was 

substandard and she believed that appellant was not working at an acceptable level. She also 

responded that she refused appellant’s request for formal mediation in June 2017 because it was 

not mandatory and she did not think it would be of any good. 

In the summary of D.R.S.’s testimony, she related that appellant had repeatedly vocalized 

concerns and opinions regarding interpersonal communication challenges in the workplace. 

D.R.S. noted that she did not observe any evidence of discrimination in the working relationship 

between appellant and the two senior members on her team, but she intervened whenever an issue 

or conflict was brought to her attention. She indicated that notes were left on appellant’s desk in 

order to notify her of issues that needed to be addressed. D.R.S. was unable to confirm whether 

D.L.S. or B.O. interrupted appellant during a staff meeting, but she explained that there was a 
4

significant “give and take and energized discussions” in the meetings. She acknowledged that 

appellant was hired and received training during a time when the team was under pressure to 

produce, so the environment for learning may have been different in comparison with the team 

member that was hired after appellant. D.L.S. opined that all the parties were responsible for the 

general conflict that had risen between them. 

OWCP received a December 21, 2017 Notice of Partial Acceptance of appellant’s EEOC 

complaint for a hostile work environment. The letter explained that appellant’s claim of 

harassment had been accepted for investigation. 

Appellant submitted additional medical evidence, including August 15 and 16, 2018 return 

to work notes by Lindsay McQuade, a family nurse practitioner, an August 24, 2018 return to work 

note by Sodha Iqbal, a physician assistant, an August 28, 2018 work status note by Dr. Sarah 

Morgan, a psychiatrist. 

In an October 11, 2018 ROC report, appellant indicated that when she returned to work 

after medical leave the harassment and hostile work environment continued. She alleged that while 

she was out of the office from August 16 to October 1, 2018 her personal times and work items 

were removed from her desk. Appellant contended that D.R.S. had initially agreed to appellant’s 

request to accommodate, but later provided appellant with a revised form that would no longer 

accommodate. She also asserted that on October 3, 2018 someone damaged her property and left 

a signage on her desk calling appellant a “B***h” while she was out of the office. Appellant 

alleged that on October 11, 2018 she received several e-mails from credentialing staff concerning 

work that they perceived had errors, but she did not receive any response when she requested a 

meeting with the lead credentialer for a status meeting. She included a photo of the signage left 

on her desk. 

In an October 16, 2018 narrative ROC summary, appellant related that, beginning 

August 16, 2018, she was unable to work for a total of six weeks due to stress of enduring a hostile 

work environment. She explained that, during the time while out of work, she had learned that her 

desk had been cleaned and her personal and professional items discarded. Appellant reported that 

on October 3 she informed B.L.R. and D.L.S. that she was leaving and when she returned from a 

meeting at approximately 12:40 p.m., she found her property damaged with writing that read 

“[appellant] is a B .” She related that on October 5, 2018 D.R.S. approved for her to work in 

another office outside of the hostile space. Appellant asserted that on October 15, 2018 D.L.S. 

shoved documents in her office and that someone had written a racially offensive slur on the back 

of her door. She attached a photo of the racial slur written on her door. 

By decision dated January 11, 2019, OWCP denied modification of OWCP’s February 22, 

2018 decision.2 

 

2 The January 11, 2019 decision noted that it superseded December 3, 2018 and January 8, 2019 OWCP decisions. 
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LEGAL PRECEDENT

An employee seeking benefits under FECA3 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,4that 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.5 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.6

To establish an emotional condition in the performance of duty, a claimant must submit 

the following: (1) factual evidence identifying employment factors or incidents alleged to have 

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

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

establishing that his or her emotional condition is causally related to the identified compensable 

employment factors.7

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

somehow related to an employee’s employment.8 In the case of Lillian Cutler,9the Board 

explained that there are distinctions as to the type of employment situations giving rise to a 

compensable emotional condition under FECA. There are situations where an injury or illness has 

some connection with the employment, but nevertheless does not come within the concept or 

coverage under FECA.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 On the other hand, when an injury or 

illness results from an employee’s feelings of job insecurity per se, fear of a reduction-in-force or 

 

3 Supra note 1.

4 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989). 

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

6 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

7 G.R., Docket No. 18-893 (issued November 21, 2018); George H. Clark, 56 ECAB 162 (2004).

8 L.Y., Docket No. 18-1619 (issued April 12, 2019); L.D., 58 ECAB 344 (2007).

9 28 ECAB 125 (1976).

10 W.F., Docket No. 17-640 (issued December 7, 2018); David Apgar, 57 ECAB 137 (2005).

11 Cutler, supra note 9; see also Trudy A. Scott, 52 ECAB 309 (2001).
6

his or her frustration from not being permitted to work in a particular environment or hold a 

particular position, unhappiness with doing work, or frustration in not given the work desired or 

to hold a particular position, such injury or illness falls outside FECA’s coverage because they are 

found not to have arisen out of employment.12 

Administrative and personnel matters, although generally related to the employee’s 

employment, are administrative functions of the employing establishment rather than the regular 

or specially assigned work duties of the employee and are not covered under FECA.13 However, 

the Board has held that, where the evidence establishes error or abuse on the part of the employing 

establishment, coverage will be afforded.14 In determining whether the employing establishment 

erred or acted abusively, the Board will examine the factual evidence of record to determine 

whether the employing establishment acted reasonably.15

For harassment or discrimination to give rise to a compensable disability, there must be 

evidence which establishes that the acts alleged or implicated by the employee did, in fact, occur.16 

Unsubstantiated allegations of harassment or discrimination are not determinative of whether such 

harassment or discrimination occurred.17 A claimant must substantiate allegations of harassment 

or discrimination with probative and reliable evidence.18 With regard to emotional claims arising 

under FECA, the term “harassment” as applied by the Board is not equivalent of “harassment” as 

defined or implemented by other agencies, such as the EEOC compliant, which is charged with 

statutory authority to investigate and evaluate such matters in the workplace. Rather, in evaluating 

claims for workers’ compensation under FECA, the term “harassment” is synonymous, as 

generally defined, with a persistent disturbance, torment or persecution, i.e., mistreatment by 

coemployees or coworkers. Mere perceptions of harassment or discrimination are not 

compensable under FECA.19 

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 

work 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 compensable factors of 

 

12 B.L., Docket No. 18-0965 (issued November 19, 2018); William E. Seare, 47 ECAB 663 (1996).

13 Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 

556 (1991).

14 S.K., Docket No. 18-1648 (issued March 14, 2019); William H. Fortner, 49 ECAB 324 (1998). 

15 A.E., Docket No. 18-1587 (issued March 13, 2019); see Ruth S. Johnson, 46 ECAB 237 (1994).

16 B.Y., Docket No. 17-1822 (issued January 18, 2019); K.W., 59 ECAB 271 (2007); Robert Breeden, 57 ECAB 

622 (2006).

17 James E. Norris, 52 ECAB 93 (2000).

18 J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 16.

19 G.R., Docket No. 18-0893 (issued November 21, 2018); M.D., 59 ECAB 211 (2007); Jack Hopkins, Jr., 42 ECAB 

818, 827 (1991).
7

employment and may not be considered.20 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.21

ANALYSIS

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

Appellant alleged that she sustained an emotional condition as a result of a number of 

employment incidents and conditions. OWCP denied her emotional condition claim on the 

grounds that she did not establish any compensable employment factors. The Board must, thus, 

initially review whether these alleged incidents and conditions of employment are covered 

employment factors under the terms of FECA.22 The Board notes that appellant’s allegations do 

not pertain to her regularly or specially assigned duties under Cutler. Rather, appellant has alleged 

a hostile work environment, harassment and discrimination, and error and abuse on the part of her 

supervisors. 

Specifically, appellant asserted that D.L.S. and B.O. often criticized appellant about her 

work and held her to a double standard even though she was inadequately trained. The Board has 

long held that disputes regarding assessment of work performance is administrative or a personnel 

matter, and can only be considered a compensable work factor if there is probative evidence of 

error or abuse.23 Appellant did not submit any evidence to show that she was not properly trained 

or to substantiate that D.L.S. and B.O. unreasonably criticized her. 

Appellant also submitted various e-mails from herself to D.R.S. where she expressed 

concerns about how D.L.S. and B.O. interacted with her. She described a specific incident when 

she returned from vacation and there were various files pulled from her cabinet and left on her 

desk with notes attached to them to “Fix Label.” The Board notes that these e-mails do not show 

that the employing establishment committed error or abuse in this situation.24 Moreover, in the 

summary of D.R.S. and B.O.’s testimonies, they both acknowledged that all files were available 

to any credentialer as needed. They related that it was common practice in their office to access 

another credentialer’s files if that credentialer was out of the office and if an issue was noticed, a 

note was left with the file on the crendentialer’s desk. Thus, the Board finds that appellant did not 

submit sufficient evidence to establish a compensable employment factor.

In an October 11, 2018 ROC report, appellant contended that D.R.S. had initially approved 

appellant’s request for reasonable accommodation, but later provided appellant with a revised form 

 

20 S.K., Docket No. 18-1648 (issued March 14, 2019); Dennis J. Balogh, 52 ECAB 232 (2001).

21 P.B., Docket No. 17-1912 (issued December 28, 2018); K.S., Docket No. 18-845 (issued October 26, 2018).

22 Supra note 20.

23 F.A., Docket No. 17-0315 (issued July 11, 2017); Elizabeth W. Esnil, 46 ECAB 606 (1995).

24 See B.S., Docket No. 19-0378 (issued July 10, 2019).
8

that she would no longer accommodate. The Board has held that management’s handling of 

reasonable accommodations are administrative functions of the employing establishment, and not 

duties of the employee.25 Appellant has not submitted corroborating evidence of error or abuse in 

this administrative matter, and thus, has not established a compensable employment factor.26

Appellant submitted several documents related to her EEOC action, including the 

November 9, 2017 complaint, a November 16, 2017 counselor report, a December 21, 2017 partial 

acceptance letter, and a June 29, 2018 investigative report. While the December 21, 2017 letter 

acknowledges partial acceptance of concluded that her allegations of harassment and hostile work 

environment were accepted for investigation by EEOC, this information alone is insufficient to 

establish harassment or discrimination. The Board notes that there is no admission of error, fault, 

or legal violation on the part of the employing establishment in the EEOC documents submitted 

and no final EEOC decision has been issued.27

Appellant also further attributed her emotional condition to alleged harassment on the basis 

of her race. To the extent that disputes and incidents alleged as constituting harassment and 

discrimination by supervisors and coworkers are established as occurring and arising from the 

employee’s performance of his or her regular duties, these could constitute employment factors.28 

However, for harassment or discrimination to give rise to a compensable disability under FECA, 

there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of 

harassment or discrimination are not compensable under FECA.29

Appellant also provided general statements of how D.L.S. spoke to her in an offensive and 

hostile manner that was not conducive to productivity and that D.L.S. often made statements that 

did not promote a psychologically safe working environment. She provided a May 4, 2017 ROC 

summary which described an incident when D.L.S. spoke to her offensively and disrespectfully 

about a missing signature. 

Verbal altercations and difficult relationships with supervisors/managers, when 

sufficiently detailed and supported by the record, may constitute compensable factors of 

employment.30 However, this does not imply that every ostensibly abusive or threatening 

statement uttered in the workplace will give rise to coverage under FECA. For appellant to prevail 

on her claim, she must support her allegations with probative and reliable evidence.31 The Board 

has held that being spoken to in a loud or harsh tone does not in itself constitute verbal abuse or 

 

25 See S.B., Docket No. 18-1113 (issued February 21, 2019); Janet I. Jones, 47 ECAB 345, 347 (1996).

26 Id. 

27 See S.W., Docket No. 17-1016 (issued September 19, 2018); A.C., Docket No. 18-0507 (issued 

November 26, 2018).

28 David W. Shirey, 42 ECAB 783, 795-96 (1991).

29 Supra note 19.

30 J.M., Docket No. 16-0717 (issued January 12, 2017); L.M., Docket No. 13-0267 (issued November 15, 2013).

31 Y.J., Docket No. 15-1137 (issued October 4, 2016).
9

harassment.32 Appellant, however, has not submitted any witness statements or other evidence 

corroborating that she was spoken to in an offensive and disrespectful manner. The Board has 

held that mere allegations, in the absence of factual corroboration, are insufficient to meet a 

claimant’s burden of proof.33

Appellant submitted an October 11, 2018 ROC report, where she described that on 

October 3, 2018 someone damaged her property and left a signage on her desk of “[appellant] is a 

B** **.” She included a photo of the signage left on her desk. In an October 16, 2018 narrative 

ROC summary, appellant claimed that on October 15, 2018 D.L.S. shoved documents in her office 

and someone had written a racial slur on the back of her door. She attached a photo of the racially 

offensive slur on her door. The Board notes that the photographs establish as factual that someone 

wrote a hateful message on appellant’s desk and wrote a racial slur on the back of her door. The 

Board has held that the use of an epithet, which is derogatory in nature, and disparaging comments 

concerning national or ethnic origin, can constitute harassment and discrimination under FECA.34 

The Board therefore finds that appellant has provided reliable and probative evidence regarding 

the signage left on her desk and the slur on the back of her door that, accordingly, she has 

established compensable work factors.

35

 Thus, appellant has established compensable 

employment factors with respect to these allegations of harassment and discrimination.

The Board finds that appellant has established compensable employment factors with 

respect to her allegations of harassment that signage was left on her desk on October 3, 2018 and 

that someone wrote a racially offensive slur on the back of her door. Thus, OWCP must base its 

decision on analysis of the medical opinion evidence with regard to causal relationship. The Board 

will therefore set aside OWCP’s January 11, 2019 decision and remand the case for OWCP to 

review of the medical evidence as it relates to the accepted compensable factors of employment.36 

CONCLUSION

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

 

32 R.T., Docket No. 13-1665 (issued September 12, 2014).

33 See Pamela D. Casey, 57 ECAB 260 (2005); Bonnie Goodman, 50 ECAB 139 (1998).

34 J.M., Docket No. 17-0284 (issued February 7, 2018); Felix Flecha, 52 ECAB 268, 273 (2001); Abe E. Scott, 45 

ECAB 164 (1993).

35 S.S., Docket No. 17-0959 (issued June 26, 2018); C.O., Docket No. 07-1290 (issued December 6, 2007).

36 See K.G., Docket No. 16-1066 (issued September 21, 2017); T.F., Docket No. 12-0439 (issued August 20, 2012).
10

ORDER

IT IS HEREBY ORDERED THAT the January 11, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision of the Board.

Issued: November 5, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board