H.S. and Department of Veterans Affairs, Boston Home and Community-Based Services, Brockton Campus (Board decision, December 5, 2023)

ECAB remand decision. The Board set aside OWCP's denial and directed it to combine related claim files before issuing a new decision. Whether the alleged workplace factors caused a compensable condition remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A VA pharmacy technician claimed depression and anxiety arising from alleged harassment and unwanted touching at work. OWCP denied her emotional-condition claim, finding that the alleged employment factors were not established. The Board found that she had filed other claims involving related allegations and that OWCP needed the records together for a full review. It set aside the denial and directed OWCP to combine the files and issue a new decision. The Board did not decide whether the alleged conduct occurred or caused a compensable condition.

Decision snapshot

• Authority: Federal Employees' Compensation Act claim procedures.
• Outcome: Emotional-condition claim denial set aside; related files ordered combined.
• Key point: Related claims involving similar allegations must be considered together when their records bear on the decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

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H.S., Appellant
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and ) Docket No. 22-1206
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Issued: December 5, 2023
DEPARTMENT OF VETERANS AFFAIRS,
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BOSTON HOME & COMMUNITY-BASED
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SERVICES, BROCKTON CAMPUS,
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Brockton, MA, Employer
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__________ )

Appearances: Case Submitted on the Record
Marc Levy, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 18, 2022 appellant, through counsel, filed a timely appeal from a July 27, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 22-1206.

On October 7, 2020 appellant, then a 44-year-old pharmacy technician, filed an occupational disease claim (Form CA-2) alleging that she developed major depressive disorder with anxiety as a result of factors of her federal employment. She attributed her emotional condition to bullying/harassment and unwanted touching by R.V., a coworker and former romantic partner. Appellant reported R.V.’s harassing actions to the police, employing establishment 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. management, and the Equal Employment Opportunity Commission, (EEOC) but asserted that there was no action taken by these entities, which she felt was erroneous. She also attributed her condition to the actions of C.W., a friend of R.V. and a pharmacist, who retaliated by requiring her to repeatedly replicate medications, by blaming her for missing notes, reporting her for intoxication at work, and for mistakes in entering patient information.

On October 21, 2020 the employing establishment advised that appellant’s contentions might be duplicative of her allegations made under OWCP File Nos. xxxxxx784 and xxxxxx787.

By decision dated March 2, 2022, OWCP denied appellant’s emotional condition claim, finding that the evidence of record was insufficient to establish that she experienced the employment factors alleged to have caused the injury. It concluded therefore that the requirements had not been met to establish an injury as defined by FECA.

On May 9, 2022 appellant, through counsel, requested reconsideration and submitted additional factual and medical evidence.

By decision dated July 27, 2022, OWCP denied modification of its March 2, 2022 decision.

The Board has duly considered this matter and concludes that the case is not in posture for decision.

OWCP’s procedures provide that cases should be administratively combined when a new injury is reported for an employee who previously filed a claim for a similar injury , and further indicates that the cases should be administratively combined as soon as the need to do so becomes apparent.2

Herein, appellant’s claim under OWCP File No. xxxxxx784 also involves an emotional condition, based on allegations that she developed stress due in part to sexual harassment by R.V. Appellant also filed an occupational disease claim in OWCP File No. xxxxxx787 alleging that she developed stress due to the actions of her supervisor, and she most recently filed a traumatic injury claim in OWCP File No. xxxxxx581 alleging sexual harassment by another coworker, M.M. Therefore, for full and fair adjudication, this case must be remanded to OWCP to administratively combine OWCP File Nos. xxxxxx581, xxxxxxx784, xxxxxx787, and xxxxxx840. This will allow OWCP to consider all the relevant claim files and accompanying evidence in developing appellant’s current compensation claim. Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision regarding her emotional condition claim.

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1) (February 2000); see Order Remanding Case, J.W., Docket Nos. 21-0588 & 21-0599 (issued January 21, 2022); Order Remanding Case, R.R., Docket No. 20-0911 (issued October 30, 2020); Raymond W. Thomas, Docket No. 01-545 (issued June 25, 2002).

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IT IS HEREBY ORDERED THAT the July 27, 2022 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: December 5, 2023
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

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