United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.L., widow of J.L., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

LOS ANGELES INTERNATIONAL AIRPORT, 

Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 15-87 

Issued: April 15, 2015 

Appearances: Case Submitted on the Record

Sally L. LaMacchia, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 14, 2014 appellant, through counsel, filed a timely appeal from a July 8, 

2014 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 the employee’s death on June 12, 2011 was causally related to 

factors of his federal employment. 

On appeal appellant’s counsel asserts that unsubstantiated complaints by coworkers are 

sufficient to establish that harassment occurred and that OWCP decisions were deficient. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

Appellant, widow of the deceased employee, filed a claim for death benefits on 

July 5, 2011.2

 In an attached letter, she stated that the employee, a 51-year-old supervisory 

customs and border protection officer (CBPO) at the time of his death, complained about stress 

at work. Appellant indicated that the employee was under investigation following an incident 

with staff, was recently transferred to baggage control, and felt that he was not being treated 

fairly, noting that he was unable to sleep or eat well, and was concerned about the investigation 

and his job. 

An official superior’s report of the employee’s death, signed by Mona L. Aliipule, chief 

CBPO at the employing establishment on June 13, 2011, indicated that the employee complained 

of chest pain at work on June 12, 2011; paramedics were called, and the employee was 

transported to Daniel Freeman Marina Hospital. She stated that his death occurred at 6:30 p.m. 

that evening, at the hospital. Valentino D. Palle, supervisor of passenger operations stated that at 

approximately 5:00 p.m. on June 12, 2011 the employee entered a supervisor’s office, had his 

right hand on his chest, and requested help. He was advised to remove his shirt and gun belt and 

lay upon a table. A 911 call was placed. Mr. Palle indicated that the employee was alert and 

responsive when taken to the hospital. Darin K. Heisch, a supervisor, indicated that the 

employee complained of chest pain at work on June 12, 2011. He reported that at around 5:00 

p.m. he found the employee sitting at a table with his uniform shirt off, talking with fellow 

officers and that, after questioning the employee about his symptoms, he recommended that the 

employee go to the hospital. Paramedics were called and transported the employee to the 

hospital. Mr. Heisch indicated that he followed the ambulance to the hospital and described 

events until he was told that the employee had died. 

The death certificate, signed by Dr. Mark Galbraith, a Board-certified family physician, 

indicated that the immediate cause of death was cardiac arrest with an underlying cause of 

coronary artery disease. On June 24, 2011 Dr. Galbraith described a history that the employee 

had right chest pain and died in the ambulance on the way to the hospital. He indicated that the 

direct cause of death was cardiac arrest, and that contributing causes were smoking and stress. 

In correspondence dated May 7, 2012, OWCP requested that appellant and the employing 

establishment respond to the claim. In a July 16, 2012 response, Anthony Owens, the 

employee’s supervisor, indicated that on or about May 21, 2011 he temporarily reassigned the 

employee from passport control operations to baggage control operations because an officer that 

the employee supervised had made a complaint against him, and he decided to transfer the 

employee during the pendency of any investigation. Mr. Owens indicated that the employee 

remained at the same level and grade and kept his same responsibilities as a supervisor. On 

August 22, 2012 W. Jeannette Lewis, assistant director of mission support indicated that, around 

the time of the employee’s transfer, three investigations were being conducted involving him. 

She stated that the first resulted in a letter of reprimand and that the other two were pending at 

the time of his death and were in relation to complaints or allegations by coworkers and that 

these were closed upon his death. Ms. Lewis attached a June 10, 2011 letter of reprimand 

 2

 A copy of the certificate of marriage, issued by the State of California, indicates that appellant and the employee 

were married on October 18, 1992. 
3

addressed to the employee for engaging in activities that created the appearance of a conflict 

with his official duties and responsibilities. This referred to the March 2, 2011 incident when he 

arrived in full uniform two and a half hours before the beginning of his shift, to meet his brotherin-law who was arriving from Asia, and asked another officer to speed up the immigration 

process. Only when questioned did the employee identify the incoming passenger as his brotherin-law. The letter indicated that the employee’s interactions with his relative created the 

appearance of a conflict of interest between his official duties and his personal interest. 

By decision dated February 28, 2013, OWCP denied the claim because the evidence of 

record failed to establish that the employee’s death was caused by any work factors. 

On January 9, 2014 appellant, through counsel, requested reconsideration. She asserted 

that difficult relations between the employee and his subordinates rose to the degree of 

harassment and was therefore compensable. In August 20 and 21, 2013 affidavits, appellant 

stated that the employee worked overtime and would occasionally comment about the agency 

being understaffed and that he was overworked, and that he would be called in on his day off and 

holidays when others did not show up for work. She related that, in the months prior to his 

death, his personality, sleep, and eating habits changed. Appellant indicated that in 2008 the 

employee began having difficulty with a subordinate officer who filed three complaints of 

harassment against him that were found unsubstantiated, and that in 2011 he was transferred and 

two investigations were being done at the time of his death. She indicated that the employee was 

in good health at the time of his death. 

Also submitted were a number of employing establishment documents, obtained through 

Freedom of Information Act (FOIA) requests, dated from September 12, 2008 to June 13, 2011, 

especially during the period February 18 to May 21, 2011.3

 These included descriptions of 

complaints made by passengers and coworkers regarding statements and actions of the 

employee. An August 9, 2010 letter informed the employee that three investigations of 

workplace harassment complaints filed against him were not substantiated and the cases had 

been closed. He was, however, cautioned against future misconduct. In a September 9, 2010 

memorandum, the employee disputed allegations made against him.4

 A May 21, 2011 “letter of 

instruction,” discussed a May 17, 2011 complaint that the employee was engaging in 

inappropriate conduct and that a review was ongoing. At that time he was reassigned from 

passport operations to baggage control operations. In undated statements, a number of officers 

working the evening shift commended the employee. 

In a December 5, 2013 report, William W. Deardorff, Ph.D., a psychologist, described his 

review of “declarations, medical records, and other materials available for review.” He 

described medical records dating from 1997 to 2007, indicating that these did not mention 

cardiac symptoms prior to the employee’s sudden death, stating that a causative link between 

occupational stress and sudden cardiac arrest had been firmly established in medical literature. 

Dr. Deardorff indicated that he had reviewed a “statement of facts” and documents from the 

 3

 A good portion of the identifying information was redacted from the documentation received in response to the 

FOIA request. 

4

 This was apparently in response to a complaint made by a passenger. 
4

employing establishment. He commented that the employee was getting conflicting and mixed 

messages in feedback from the employing establishment, and opined that this kind of experience 

represented high job strain as evidenced in large group studies. Dr. Deardorff further indicated 

that the employee’s wife described many symptoms of subclinical or clinical depression in 

response to the work situation over the 12 to 24 months prior to the employee’s death. He 

reviewed medical literature related to risk factors for coronary artery disease and sudden cardiac 

death. Dr. Deardorff concluded that occupational stress contributed to the employee’s death. 

In a merit decision dated July 8, 2014, OWCP found that the allegations that the 

employee was harassed at work had not been established as factual and denied appellant’s claim 

that the employee’s death was employment related. 

LEGAL PRECEDENT 

An appellant has the burden of proving by the weight of the reliable, probative and 

substantial evidence that the employee’s death was causally related to his or her employment.5

 

To establish her claim that the employee sustained stress in the performance of duty, 

which precipitated his death, appellant must submit the following: (1) factual evidence 

identifying and supporting employment factors or incidents alleged to have caused or contributed 

to his condition; (2) rationalized medical evidence establishing that his death was due to or 

aggravated by an emotional reaction; and (3) rationalized medical opinion evidence establishing 

that the identified compensable employment factors are causally related to his death.6 

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,

7

 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 under FECA.8

 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.9

 A claimant must support his or 

her allegations with probative and reliable evidence. Personal perceptions alone are insufficient 

to establish an employment-related emotional condition.10

 5 L.R. (E.R.), 58 ECAB 369 (2007). 

6 See Martha L. Watson, 46 ECAB 407 (1995). 

7

 28 ECAB 125 (1976). 

8 See Robert W. Johns, 51 ECAB 137 (1999). 

9 Supra note 7. 

10 Roger Williams, 52 ECAB 468 (2001). 
5

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.11 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.12

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

evidence introduced which establishes that the acts alleged or implicated by the employee did, in 

fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of 

whether such harassment or discrimination occurred. A claimant must establish a factual basis 

for his or her allegations that the harassment occurred with probative and reliable evidence.13 

With regard to emotional claims arising under FECA, the term “harassment” as applied by the 

Board is not the equivalent of “harassment” as defined or implemented by other agencies, such 

as the Equal Employment Opportunity Commission, 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 co-employees or workers. 

Mere perceptions and feelings of harassment will not support an award of compensation.14

In cases involving emotional or stress-related 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.15 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.16

ANALYSIS 

Appellant, the widow of the employee, alleges that the employee’s heart attack and death 

were caused by stress at work. OWCP denied the claim, finding that appellant did not establish 

any compensable employment factors. The Board must, therefore, review whether these alleged 

 11 Charles D. Edwards, 55 ECAB 258 (2004). 

12 Kim Nguyen, 53 ECAB 127 (2001). 

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

14 Beverly R. Jones, 55 ECAB 411 (2004). 

15 Dennis J. Balogh, 52 ECAB 232 (2001). 

16 Id. 
6

incidents and conditions of employment are covered employment factors under the terms of 

FECA.17

Appellant made a general contention on reconsideration that the employee worked 

overtime and on his days off. She, however, did not provide sufficient evidence to document the 

alleged overwork. Consequently, this allegation was not established by the evidence.18 

Appellant did not further attribute the employee’s stress to the performance of his regular duties 

as a customs officer or to any special work requirement arising from his employment duties 

under Cutler. Rather, her additional contentions pertained to claimed harassment by coworkers 

and investigations these necessitated. 

Appellant asserted that difficult relations between the employee and subordinate 

employees rose to the degree of harassment and was therefore compensable. She argued that the 

fact that some of the complaints were found unsubstantiated was sufficient to establish 

harassment. If 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 regular duties, these could constitute employment factors.19 The evidence, 

however, must establish that the incidents of harassment or discrimination occurred as alleged to 

give rise to a compensable disability under FECA.20 The record in this case does not fully 

describe the content of the allegations made by coworkers. In addition to the August 9, 2010 

letter finding some complaints unsubstantiated, the record also includes a letter of instruction 

dated May 21, 2011, when the employee was transferred, and a June 10, 2011 letter of 

reprimand. The Board finds that the evidence of record does not establish a persistent 

disturbance, torment or persecution, i.e., mistreatment by coworkers.21 The supportive 

statements submitted by appellant are general in nature and do not refer to specific events. She 

did not submit sufficient evidence to substantiate allegations of harassment and discrimination.22

To the degree that appellant is also alleging error and abuse on the part of the employing 

establishment in conducting investigations of the complaints, investigations are an administrative 

function of the employing establishment that do not involve an employee’s regular or specially 

assigned employment duties.23 As noted above, 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.24 However, if the evidence discloses error or abuse on the part of the employing 

 17 See R.K., Docket No. 08-144 (issued June 3, 2008). 

18 See Bonnie Goodman, 50 ECAB 139 (1998). 

19 Janice L. Moore, 53 ECAB 777 (2002). 

20 Id. 

21 Supra note 14. 

22 See Robert Breeden, 57 ECAB 622 (2006). 

23 Beverly A. Spencer, 55 ECAB 501 (2004). 

24 Supra note 11. 
7

establishment in an administrative function, it will be considered a compensable factor of 

employment.25 

On appeal appellant’s attorney referenced the case Rene John Rutkofske26 as supportive 

of appellant’s contention that error and abuse occurred because complaints against the employee 

were determined to be unsubstantiated. As noted, the record supports that complaints were made 

against the employee by coworkers and passengers, and investigated. In Rutkofske, in addition to 

filing an EEO complaint against Mr. Rutkofske, a coworker continued to harass him and filed 

warrants for his arrest regarding claimed incidents that occurred at work, for which he spent a 

day in jail. In that case, the Board found that Mr. Rutkofske’s reaction to a coworker bringing 

false criminal charges against him for an alleged incident that occurred at work was sufficient to 

establish a compensable employment factor.27 In the case at hand, the record only indicates that 

complaints were filed against the employee and some were determined to be unsubstantiated. 

The record also includes letters of instruction and reprimand; the employee was transferred 

shortly before his death, and was under investigation at that time. In determining whether the 

employing establishment erred or acted abusively, the Board has examined whether the 

employing establishment acted reasonably.28 The employing establishment retains the right to 

investigate an employee if wrongdoing is suspected.29 The Board finds that in this case the 

employer acted reasonably and did not commit error or abuse in investigating the complaints 

against the employee. Appellant has failed to establish a compensable factor of employment in 

this regard. 

Lastly, as to appellant’s argument on appeal that OWCP decisions were deficient, in its 

February 28, 2013 decision, OWCP correctly determined that appellant had submitted 

insufficient evidence to support her contentions. In the July 8, 2014 decision, OWCP fully 

discussed appellant’s allegations of harassment and concluded that appellant had not established 

a compensable factor of employment. 

As appellant failed to establish a compensable employment factor, the Board need not 

address the medical evidence of record.30 

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. 

 25 Supra note 23. 

26 Docket No. 96-407 (issued June 19, 1998). 

27 Appellant also referenced the case, S.C., Docket No. 12-553 (issued November 9, 2012). S.C. was in reference 

to a matter involving whether OWCP met its burden of proof to rescind acceptance of a claim and is therefore not 

probative to the issues in the instant case. 

28 M.D., 59 ECAB 211 (2007). 

29 K.W., 59 ECAB 271 (2007). 

30 Katherine A. Berg, 54 ECAB 262 (2002). 
8

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish that the 

employee’s June 12, 2011 death was due to employment-related stress. 

ORDER 

IT IS HEREBY ORDERED THAT the July 8, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: April 15, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board