J.T. and Department of Veterans Affairs, Long Beach Healthcare System (Board decision, May 1, 2025)

ECAB final decision. The Board affirmed OWCP's denial of the claimed emotional condition. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A VA occupational therapist attributed an emotional condition mainly to supervisors' actions and personnel matters. The Board found he did not establish error, abuse, or another compensable work factor supporting the claim. It affirmed OWCP's denial.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Emotional condition claim denial affirmed.
• Key point: The alleged management conduct was not established as a compensable factor of employment.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.T., Appellant
)
)
and ) Docket No. 23-0196
)
Issued: May 1, 2025
DEPARTMENT OF VETERANS AFFAIRS,
)
LONG BEACH HEALTHCARE SYSTEM,
)
Long Beach, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge

JURISDICTION

On November 22, 2022 appellant filed a timely appeal from a June 13, 2022 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 his burden of proof to establish an emotional condition in the performance of duty, as alleged.

1
5 U.S.C. § 8101 et seq.
FACTUAL HISTORY

This case has previously been before the Board. 2 The facts and circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On January 10, 2018 appellant, then a 57-year-old occupational therapist, filed an occupational disease claim (Form CA-2) alleging that he sustained stress, anxiety, and physical illness due to factors of his federal employment, including harassment and inappropriate personnel actions. He noted that he first became aware of his conditions on January 7, 2015, and realized that they were caused or aggravated by his federal employment on January 14, 2015.

In a January 8, 2018 narrative statement, appellant related that during his work at the employing establishment, he had assisted in the care of thousands of veterans in stressful and heart- wrenching situations as his patients suffered serious and sometimes unexpected declines in health. He alleged that he was subjected to periodic inappropriate behavior from employing establishment staff and administration, and periodic abuse and disrespect from patients. Appellant alleged that his stress worsened after K.D. became his supervisor. He alleged that K.D. told him that all men are pigs and called him names in front of other staff. Appellant also alleged that K.D.’s inappropriate actions caused him to fear that she would do something that would place him in an unethical or illegal situation. He explained that K.D. took credit for his contributions and issued baseless verbal and written counseling. Appellant noted that he had filed grievances with regard to nearly a dozen of K.D.’s actions and had been successful in mitigating or overturning all but one; however, K.D. retaliated against him by inappropriately removing him from patient care for 14 months and suspending him without pay. He noted that he began to suffer stress-related ailments such as headaches, nausea, anxiety, sleeplessness, shortness of breath, and neck and chest pain, and the severity of his symptoms correlated with the severity of his work issues. Appellant related that three months after he was removed from patient care, he was organizing e -mails from K.D. demonstrating that she harassed and intimidated him when he experienced severe chest pain and had a heart attack. He alleged that after he returned to patient care in February/March 2016, K.D. and P.N. continued to harass, intimidate, and file baseless claims against him, all of which were ultimately rescinded. Appellant noted that after many hurdles he was able to overturn his suspension and received a settlement. He submitted copies of his grievances to the record, as well as e-mails to employing establishment officials.

An undated formal grievance against K.D. by appellant noted that on March 31, 2014 she removed a staff member from his clinic, leaving him by himself and creating foreseeable safety, scheduling, and patient care issues. Appellant related that K.D. removed the staff member because appellant was a man and K.D. thought that he did not deserve the same safety considerations as women.

OWCP received an undated formal grievance by appellant regarding his 14-day suspension issued on December 7, 2015. Appellant indicated that the suspension violated labor policies set by the union, because it was an adverse action without progressive discipline, violated employing

2
Docket No. 19-1829 (issued August 21, 2020).

2 establishment policies, had no factual basis, and was biased because colleagues who engaged in similar behaviors that actually led to injury or death did not receive similar discipline. He contended that K.D.’s December 18, 2015 report, which contained the bulk of the evidence his suspension was based on, was inaccurate and biased.

OWCP received numerous e-mails from appellant to his supervisor, K.D., which he alleged established harassing behavior, or error and abuse on the part of K.D.

A November 21, 2014 e-mail from K.D. responding to appellant’s informal grievance indicated that per his request she included his comments in his performance appraisal, and changed his ratings of unsatisfactory and not fully successful to fully successful.

By decision dated June 8, 2018, OWCP denied appellant’s emotional condition claim, finding that the evidence of record was insufficient to establish that the employment factors occurred as alleged. It explained that the only evidence provided to substantiate his allegations were statements that he authored and, therefore, the requirements had not been met to establish an injury as defined by FECA. 3

On May 29, 2019 appellant requested reconsideration. By decision dated June 24, 2019, OWCP denied his request for reconsideration of the merits of the claim under 5 U.S.C. § 8l28(a).

On August 29, 2019 appellant filed a timely appeal to the Board from the June 24, 2019 OWCP nonmerit decision.

By decision dated August 21, 2020, the Board found that OWCP improperly denied appellant’s request for reconsideration. 4 The Board found that he advanced a new and relevant legal argument that OWCP failed to obtain a response to his allegations from the employing establishment. The Board set aside the June 24, 2019 decision and remanded the case for further proceedings consistent with its decision.

By development letter dated February 9, 2021, OWCP requested that the employing establishment review appellant’s request for reconsideration and factual allegations. It directed that if the employing establishment had any comments, it should respond within 20 days.

On February 9, 2021 OWCP received a response from T.W., an employing establishment human resources specialist. The response indicated that “[t]he agency has nothing to add to this claim.”

By decision dated March 15, 2021, OWCP denied modification of the June 8, 2018 decision.

On March 15, 2022 appellant requested reconsideration.

3
Supra note 1.
4
Supra note 2.

3
By development letter dated May 26, 2022, OWCP again requested that the employing establishment review appellant’s reconsideration request and factual allegations and respond within 20 days.

On June 2, 2022 OWCP received a response from T.W., which indicated that “[t]he employing agency has read employee’s written statement. Supervisor/agency does not wish to respond or add any additional information. Thank you.”

By decision dated June 13, 2022, OWCP denied modification of the March 15, 2021 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA 5 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 timely filed, that 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 every compensation claim regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 7

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 a claimant’s employment. There are situations where an injury or illness has 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.9 However, disability is not compensable when it results from factors such as an

5
Supra note 1.
6
See R.B., Docket No. 21-0962 (issued February 23, 2023); S.B., Docket No. 17-1779 (issued February 7, 2018);
J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 7 J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988). 8 See A.M., Docket No. 21-0420 (issued August 26, 2021); S.K., Docket No. 18-1648 (issued March 14, 2019); Donna Faye Cardwell, 41 ECAB 730 (1990). 9 See A.M., id.; 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).

4 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. 10

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 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 factors of employment and may not be considered. 11 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, it must base its decision on an analysis of the medical evidence. 12

Administrative and personnel matters, although generally related to the employee’s employment, are administrative functions of the employer rather than the regular or specially assigned work duties of the employee and are not covered under FECA. 13 Where the evidence demonstrates that the employing establishment either erred or acted abusively in discharging its administrative or personnel responsibilities, such action will be considered a compensable employment factor. 14

For harassment or discrimination to give rise to a compensable disability under FECA, there must be evidence which establishes that the acts alleged or implicated by the employee did, in fact, occur. 15 Mere perceptions of harassment or discrimination are not compensable under FECA.16 A claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence. 17 Unsubstantiated allegations of harassment or discrimination are not determinative of whether such harassment or discrimination occurred. 18

10
Lillian Cutler, id.
11
C.G., Docket No. 20-0058 (issued September 30, 2021); see R.B., Docket No. 19-0434 (issued November 22, 2019); O.G., Docket No. 18-0359 (issued August 7, 2019).
12
Id.
13
See D.T., Docket No. 19-1270 (issued February 4, 2020); Andrew J. Sheppard, 53 ECAB 170, 171 (2001);
Matilda R. Wyatt, 52 ECAB 421 (2001).
14
C.V., Docket No. 18-0580 (issued September 17, 2018); Kim Nguyen, 53 ECAB 127 (2001); William H. Fortner, 49 ECAB 324 (1998). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff ’d on recon, 42 ECAB 566 (1991). 15 Supra note 8.
16
A.E., Docket No. 18-1587 (issued March 13, 2019); M.D., 59 ECAB 211 (2007); Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).
17
See J.R., Docket No. 20-1382 (issued December 30, 2022); L.J., Docket No. 20-0998 (issued December 14, 2022); S.G., Docket No. 22-0495 (issued November 4, 2022); J.F., 59 ECAB 331 (2008); Robert Breeden, 57 ECAB 622 (2006). 18 T.Y., Docket No. 19-0654 (issued November 5, 2019); G.S., Docket No. 09-0764 (issued December 18, 2009).

5
ANALYSIS

The Board finds that appellant has not established that he sustained an emotional condition in the performance of duty, as alleged.

Initially, the Board notes that appellant has not attributed his emotional condition to Cutler19 factors.

Rather, appellant has attributed his emotional condition primarily to the actions of his supervisor, K.D. However, the Board has held that administrative and personnel matters, although generally related to the employee’s employment, are administrative functions of the employer rather than the regular or specially assigned work duties of the employee and are not covered under FECA.20 Furthermore, the record indicates that appellant filed grievance documents regarding an unfavorable performance appraisal and a disciplinary action. However, the mere fact that an administrative action is later modified or rescinded does not, in and of itself, establish error or abuse.21 The Board finds, therefore, finds that appellant has not established a compensable factor in this regard.

Appellant has also generally alleged harassment and discrimination. However, the Board has held that mere allegations, in the absence of factual corroboration, are insufficient to meet a claimant’s burden of proof. 22 Appellant has not submitted probative and reliable evidence to substantiate his allegations. Therefore, the Board finds that he has not established a compensable factor in this regard.

The Board thus finds that appellant has not established a compensable employment factor.
It is therefore not necessary to consider the medical evidence of record. 23

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

19
Supra note 9.
20
C.V., Docket No. 18-0580 (issued September 17, 2018).
21
A.G., Docket No. 16-1261 (issued November 17, 2016); see Michael Thomas Plante, 44 ECAB 510 (1993);
Richard J. Dube, 42 ECAB 916 (1991) (reduction of a disciplinary letter to an official discussion did not constitute abusive or erroneous action by the employing establishment).

See K.G., Docket No. 16-1066 (issued September 21, 2017); Pamela D. Casey, 57 ECAB 260 (2005); Bonnie 22

Goodman, 50 ECAB 139 (1998).
23
See B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical evidence of record if a claimant has not established any compensable employment factors). See also Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

6
CONCLUSION

The Board finds that appellant has not established an emotional condition in the performance of duty, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the June 13, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: May 1, 2025
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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