United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.P., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Fayetteville, AR, Employer 

__________________________________________ 

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Docket No. 15-1779 

Issued: November 23, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 25, 2015 appellant filed a timely appeal from a June 1, 2015 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. 

ISSUES 

The issues are: (1) whether appellant has met his burden of proof to establish an 

emotional condition causally related to compensable work factors, and (2) whether OWCP 

properly denied appellant’s request for subpoenas. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 16, 2013 appellant, then a 49-year-old social worker, filed an occupational 

disease claim (Form CA-2) alleging that he sustained emotional stress “related to discrimination 

and [Equal Employment Opportunity (EEO)] claim/process.” By letter dated December 17, 

2013, OWCP requested that he submit additional evidence to support his claim for 

compensation. 

Appellant submitted a statement dated January 24, 2014. He indicated that he had filed 

an initial EEO claim in 2011, and his psychiatric condition was related to “multiple cases of 

workplace secondary trauma stress, workplace stress, discrimination, stress associated with the 

EEO claim, and retaliation related to the EEO claim.” According to appellant, the EEO process 

was by its own nature stressful. Appellant discussed his work on an Indian Reservation prior to 

his employment with the employing establishment. He alleged that he began work at the 

employing establishment in 2003 and worked long hours during a two-week deployment with 

evacuees after Hurricane Katrina in 2005. According to appellant, he was the only full-time 

therapist in 2006, rarely took lunch breaks, and it was stressful seeing veterans that needed more 

care than the clinic could provide. He alleged there was little or no administrative support, and 

he received only a fully satisfactory on performance appraisal despite his work efforts. As to the 

time following 2006, appellant alleged that he was subject to discrimination and repression. 

According to appellant, the employees at the work site were primarily female and he was subject 

to discrimination as a male, and never once during the EEO process did he perceive any genuine 

concern for his well-being. He referred to evidence from the 2011 EEO claim that included his 

closing statement and appeal. 

With respect to appellant’s EEO claim, the record contains a decision dated July 5, 2013 

from an administrative judge. The decision indicated that appellant had alleged he was 

discriminated against on the basis of sex (male) and was subject to a hostile work environment. 

The allegations included actions by supervisors from 2007 to 2011. Appellant alleged that 

supervisor J.T. had accused appellant on two occasions of losing travel allowances for 

employees, failed to solicit his input on projects, criticized appellant in 2009 for failing to tell 

patients he had been selected to the position of consult screener, did not offer appellant the 

opportunity to volunteer for team leader, and denied appellant an opportunity to attend leadership 

training. In addition, appellant alleged that another supervisor gave him a negative reference in 

2009 when he applied for another position. The judge addressed each allegation and found 

appellant had not established a hostile work environment or discrimination. The decision found: 

“Complainant has presented no evidence that any of the incidents were because of his sex. 

Complainant failed to prove that he was subjected to conduct sufficiently severe or pervasive to 

create a hostile work environment or that any of the [employing establishment’s] actions were 

motivated by discrimination.” 

As noted by appellant, he submitted his “closing statement” dated January 13, 2013 

presenting his arguments in the EEO claim. Appellant indicated that he found the EEO process 

to be intimidating. In a September 13, 2013 “appeal” of the EEO decision appellant reviewed his 

disagreement with the administrative judge’s decision. Appellant again indicated that the EEO 

process was unfair and intimidating. In addition, the record also contains a transcript of an 

October 27, 2011 interview with an EEO investigator. 
3

In an e-mail from appellant dated December 27, 2013, appellant indicated that he had 

filed a second EEO claim in 2013 alleging retaliation for filing the 2011 EEO claim. The 

employing establishment submitted a February 12, 2014 letter from a workers’ compensation 

specialist arguing appellant had not established compensable work factors. 

Appellant submitted a January 23, 2014 statement asserting that his work-related 

condition started prior to filing an EEO claim. According to appellant, his condition was due to 

accumulated “secondary trauma stress” and workplace stress including discrimination. By letter 

dated March 9, 2014, appellant reported that his stress was not solely due to the EEO process, 

but “workplace dynamics and work-related stress” led him to filing an EEO claim. He also 

submitted a May 9, 2014 letter arguing that employees have difficulty submitting supplemental 

evidence because coworkers will respond to employing establishment requests, but not to his 

requests for information. Appellant referred to “excessive hours, staffing shortages, toxic work 

environment which was exasperated [sic] and compounded by years of ill treatment by 

supervision (disparity of treatment, isolating and critical).” 

By decision dated June 30, 2014, OWCP denied the claim for compensation. It found 

appellant had not established a compensable work factor. 

On July 11, 2014 appellant requested an oral hearing before an OWCP hearing 

representative, which was held on February 18, 2015. By letter received on August 25, 2014, he 

requested that subpoenas be issued for witnesses, including a former supervisor, physicians, and 

his spouse. Appellant also referred to EEO hearing transcripts and reports. He also submitted a 

letter dated January 22, 2015 again requesting the witnesses be subpoenaed. The hearing 

representative advised appellant on January 26, 2015 that the subpoena request was denied. The 

hearing representative found appellant had not provided sufficient explanation as to why 

subpoenas were necessary with respect to the issue presented. She noted that, if an adverse 

decision was issued on the merits, she may appeal all issues of the case, including the subpoena 

issue. 

At the hearing, appellant alleged that in 2006 he had “879 encounters and 347 unique 

veterans.” He alleged that he was treated differently after he filed an EEO claim, and that the 

employing establishment would destroy an employee rather than admit making a mistake. 

Appellant also reported that in September 2014 he was reprimanded for nodding off in a 

meeting. 

By decision dated June 1, 2015, the hearing representative affirmed the June 30, 2014 

OWCP decision. The hearing representative found that appellant had not established any 

compensable work factors with respect to his claim. Regarding the request for subpoenas she 

found that appellant failed to provide adequate rationale explaining why the information could 

not be obtained by other means or why it was relevant. 

LEGAL PRECEDENT -- ISSUE 1 

Appellant has the burden of establishing by the weight of the reliable, probative, and 

substantial evidence that the condition for which he claims compensation was caused or adversely 
4

affected by factors of his federal employment.2 This burden includes the submission of detailed 

description of the employment factors or conditions which appellant believes caused or adversely 

affected the condition or conditions for which compensation is claimed.3

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

somehow related to an employee’s employment. There are situations where an injury or illness has 

some connection with the employment but nevertheless does not come within the coverage of 

workers’ compensation. These injuries occur in the course of the employment and have some kind 

of causal connection with it, but nevertheless are not covered because they are found not to have 

arisen out of the employment. Disability is not covered where it results from an employee’s 

frustration over not being permitted to work in a particular environment, or to hold a particular 

position, or to secure a promotion. On the other hand, where disability results from an employee’s 

emotional reaction to his regular or specially assigned work duties, or to a requirement imposed by 

the employment, the disability comes within the coverage of FECA.4

A reaction to an administrative or personnel matter is generally not covered as it is not 

related to the performance of regular or specially assigned duties.5

 Nevertheless, if the evidence 

demonstrates that the employing establishment erred, acted abusively or unreasonably in the 

administration of a personnel matter, any physical or emotional condition arising in reaction to 

such error or abuse may be covered.6

ANALYSIS -- ISSUE 1 

In the present case, appellant has alleged that he sustained an emotional condition as a 

result of his federal employment. The Board finds that while appellant refers to his work in 2005 

and 2006, he does not discuss in detail his work duties or allege a reaction to the performance of 

his regular or specially assigned duties. Appellant does refer to “excessive hours” in his May 9, 

2014 letter, notes a two-week deployment after Hurricane Katrina, and he has alleged that he was 

the only therapist for a period of time at the employing establishment. 

To the extent that he is alleging a reaction to overwork, he has not established a 

compensable work factor. A claimant must provide a detailed allegation and supporting 

evidence to establish a compensable work factor based on overwork.7

 There is no probative 

evidence of record in this regard. 

 2 Pamela R. Rice, 38 ECAB 838 (1987). 

3 Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996). 

4 Lillian Cutler, 28 ECAB 125 (1976). 

5 See Brian H. Derrick, 51 ECAB 417, 421 (2000). 

6 Margreate Lublin, 44 ECAB 945, 956 (1993). 

7 See Sherry L. McFall, 51 ECAB 436 (2000). 
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With respect to a claim for an emotional reaction resulting from discrimination or a 

hostile work environment, the record does not support such a claim. The record indicated that 

appellant filed an EEO claim for discrimination and a hostile work environment in 2011. 

Appellant has expressed his frustration with the EEO “process” of establishing a claim. Stress 

resulting from a reaction to the procedures and requirements of an EEO claim, or frustration at a 

lack of success with respect to an EEO claim, is not compensable under FECA.8

In the July 5, 2013 EEO decision, the administrative judge makes detailed findings with 

respect to appellant’s allegations and finds no basis for finding discrimination by the employing 

establishment. The record does not contain probative evidence sufficient to establish 

discrimination or a hostile work environment. In the absence of probative evidence, the 

allegation of discrimination or hostile work environment is merely a perception of dissatisfaction 

with supervisors that does not constitute a compensable work factor.9

 The record indicated that 

appellant filed another EEO claim alleging retaliation for filing the 2011 EEO claim. The filing 

of a claim for retaliation does not establish that the alleged retaliation occurred.10 There must be 

probative, supporting evidence to establish harassment in retaliation of filing an EEO claim.11 

Again a mere perception of harassment is not a compensable work factor. There is no probative 

evidence of record with respect to an allegation of retaliation in this case. 

Appellant has alleged error and abuse by the employing establishment with respect to 

performance appraisals and reprimands, which are considered administrative or personnel 

matters.12 As noted above, unless there is evidence of error or abuse, an administrative or 

personnel matter is not a compensable work factor. No evidence of error or abuse on an 

administrative or personnel matter was presented. In addition, the alleged incidents of being 

criticized by supervisors do not constitute compensable work factors. While the Board has 

recognized that a compensable factor may be established based on verbal abuse,13 not every 

statement that is uttered in the workplace is sufficient to give rise to a compensable work 

factor.14 Even if a raised voice is used, this does not in itself establish verbal abuse.15 No 

evidence sufficient to establish a compensable factor based on verbal abuse was presented in this 

case. 

 8 Christine C. Bodenheimer, Docket No. 04-1230 (issued September 10, 2004); Derrick A. Lee, Docket No. 03-

0881 (issued August 11, 2003); Eileen P. Corigliano, 45 ECAB 581 (1994). 

9 See M.G., Docket No. 14-1538 (issued April 16, 2015). 

10 See C.S., 58 ECAB 137 (2006). 

11 D.J., Docket No. 15-0060 (issued April 10, 2015). 

12 See P.M., Docket No. 14-1625 (issued February 23, 2015) (performance reviews are personnel or 

administrative matters); G.C., Docket No. 13-0704 (issued April 4, 2014) (disciplinary actions are administrative or 

personnel matters). 

13 David W. Shirey, 42 ECAB 783 (1991). 

14 David C. Lindsey, Jr., 56 ECAB 263 (2005). 

15 Beverly R. Jones, 55 ECAB 411 (2005); Karen K. Levene, 54 ECAB 671 (2003). 
6

On appeal, appellant asserts that OWCP did not carefully consider the evidence in his 

case. He reiterates his belief that he has an employment-related emotional condition. The Board 

has considered the evidence of record and finds, for the reasons discussed, that appellant did not 

meet his burden of proof to establish an emotional condition casually related to compensable 

work factors. 

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. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8126 of FECA provides that the Secretary of Labor, on any matter within her 

jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of 

witnesses within a radius of 100 miles.16 The implementing regulations provide that a claimant 

may request a subpoena, but the decision to grant or deny such a request is within the discretion 

of the hearing representative, who may issue subpoenas for the attendance and testimony of 

witnesses and for the production of books, records, correspondence, papers, or other relevant 

documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained 

by other means and for witnesses only where oral testimony is the best way to ascertain the 

facts.17 In requesting a subpoena, a claimant must explain why the testimony is relevant to the 

issues in the case and why a subpoena is the best method or opportunity to obtain such evidence 

because there is no other means by which the testimony could have been obtained.18 Section 

10.619(a) of the implementing regulations provide that a claimant may request a subpoena only 

as a part of the hearings process and no subpoena will be issued under any other part of the 

claims process. 

The OWCP hearing representative retains discretion on whether to issue a subpoena. The 

function of the Board on appeal is to determine whether there has been an abuse of discretion.19 

Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable 

exercise of judgment or actions taken which are clearly contrary to logic and probable deduction 

from established facts.20

ANALYSIS -- ISSUE 2 

On appeal, appellant noted that he had been unable to subpoena witnesses that could have 

validated and confirmed his reports. The Board finds that the hearing representative properly 

denied appellant’s subpoena requests. Appellant did not explain why a subpoena was the best 

 16 5 U.S.C. § 8126(1). 

17 20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001). 

18 Id. 

19 See Gregorio E. Conde, supra note 17. 

20 Claudio Vazquez, 52 ECAB 496 (2001). 
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method to obtain the evidence in question and why oral testimony was the best way to ascertain 

the facts in this case. The hearing representative noted that appellant had not explained the 

necessity for subpoena of witnesses in this case. As to documents, appellant had access to and 

submitted relevant evidence regarding his EEO claims. 

A hearing representative has, as noted above, discretion with respect to a subpoena 

request. There is no evidence that the hearing representative abused her discretion in denying 

appellant’s request for subpoenas. The Board therefore finds that the hearing representative 

properly denied appellant’s subpoena requests. 

CONCLUSION 

The Board finds appellant did not meet his burden of proof to establish an emotional 

condition causally related to compensable work factors. The Board further finds that the OWCP 

hearing representative properly denied the subpoena requests. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 1, 2015 is affirmed. 

Issued: November 23, 2015 

Washington, DC 

 

 Christopher J. Godfrey, 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