United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.K., Appellant 

and 

U.S. POSTAL SERVICE, BELLEVUE POST 

OFFICE, Seattle, WA, Employer 

__________________________________________ 

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Docket No. 14-1504 

Issued: November 20, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On June 18, 2014 appellant, through her attorney, filed a timely appeal from a 

January 27, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) that 

denied her traumatic injury claim and a May 22, 2014 decision that denied merit review. 

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 met her burden of proof to establish that she 

sustained an emotional condition in the performance of duty causally related to factors of her 

federal employment that occurred on March 5, 2013; and (2) whether OWCP properly refused to 

reopen her claim for further review of the merits pursuant to 5 U.S.C. § 8128(a). 

On appeal appellant’s attorney asserts that the decisions are contrary to law and fact. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On March 5, 2013 appellant, then a 47-year-old city letter carrier, filed a traumatic injury 

claim alleging that Zachary Carter, the postmaster, ordered her in a loud voice to clock in that 

day while she was waiting for a union steward. She alleged this violated her rights and showed 

disrespect. In an attached statement, appellant noted that she had been in an accident the 

previous day when the mirror on her postal vehicle was cracked. Mr. Carter harassed and 

intimidated her about this, which caused anxiety. 

In a March 5, 2013 statement, Mr. Carter noted that a meeting was held about three 

weeks prior with appellant and her supervisor, Crystal Dalan, in which appellant’s return to work 

from a previous injury was discussed. Appellant did not agree with the proposed job and voices 

were raised. On March 5, 2013 Mr. Carter questioned her about an accident she had and 

subsequently observed her standing by the time clock about 10:10 a.m. He asked Ms. Dalan 

when appellant began work and was informed 10:00 a.m. When Mr. Carter questioned why 

appellant had not clocked in, Ms. Dalan stated that they were waiting for the union to hold a 

meeting about the motor vehicle accident. He inquired if appellant could case mail while they 

were waiting, and Ms. Dalan stated yes. Mr. Carter then approached appellant, who told him she 

had clocked in. When he told her to case mail, she disagreed, stating she was on “steward” time. 

Ms. Dalan and a union representative, Kyna Lower, then talked with appellant. 

In an April 4, 2013 correspondence, the employing establishment controverted the claim. 

It noted that appellant had been on the periodic rolls under file number xxxxxx153 from 

November 20, 2011 to February 9, 2013. Appellant was offered a modified assignment which 

she accepted and returned to work on February 12, 2013. 

By letter dated April 5, 2013, OWCP informed appellant of the evidence needed to 

support her claim. Appellant submitted a May 1, 2013 psychological evaluation from James A. 

Keyes, Ph.D., a clinical psychologist. She was seen for anxiety. Appellant had been off work 

for an employment-related condition and had recently returned to work. Dr. Keyes noted a 

history of physical and emotional problems. Appellant reported a history that on March 5, 2013 

she was waiting for union representation for a meeting about a motor vehicle accident the 

previous day when the postmaster directed her to return to work, which she believed constituted 

harassment. Dr. Keyes performed a mental status examination and diagnosed major depressive 

disorder, recurrent episode, moderate; panic disorder without agoraphobia and occupational 

problem. He advised that appellant had long-term problems with depression and anxiety that 

were likely related to personality factors and affected her relationships in and out of work, which 

predated her stress claim. 

In a May 8, 2013 decision, OWCP denied the claim, finding that appellant had not 

established a compensable factor of employment. 

Appellant timely requested a hearing, and submitted a statement in which she maintained 

that Mr. Carter violated her Weingarten rights on March 5, 2013. She had been instructed by 

Rod Artajo, the station manager, to clock in, find Ms. Lower, and report for an investigative 

interview regarding the motor vehicle accident that occurred the previous day. Appellant asked 

Mr. Artajo if she could meet with Ms. Lower prior to the investigative meeting and he agreed but 
3

that Ms. Lower needed to get something from her car. As appellant waited, Mr. Carter saw her. 

She alleged he rudely questioned her and yelled at her and prevented her from meeting with 

Ms. Lower when he ordered her to work. Appellant had a panic attack while Mr. Carter 

allegedly yelled at her and Ms. Lower told her to go to work. She filed an Equal Employment 

Opportunity Commission (EEO) complaint against Mr. Carter and alleged that her anxiety was 

due to years of harassment and being treated without respect by management which began in 

January 2001 while working under restrictions due to a major automobile accident that was not 

employment related. 

At the hearing, held on December 2, 2013, appellant testified that she had been harassed 

for years at the employing establishment and that she was not under active psychiatric care. On 

March 4, 2013 following the motor vehicle accident, she was told to come in the next day for an 

investigative interview, and Mr. Artajo had given her permission to talk with her union steward, 

Ms. Lower, prior to the investigative meeting. When Ms. Lower went to retrieve something 

from her car, Mr. Carter saw appellant waiting and she stated that he yelled at her to begin work. 

When Ms. Lower returned she did not help appellant. Counsel argued that appellant had 

established a compensable factor of employment. 

In a December 5, 2013 report, Dr. Nhumey Tropp, an osteopath, advised that appellant 

reported being stressed at work that day due to interaction with a supervisor. He diagnosed 

anxiety state, unspecified. On December 6, 2013 Dr. Pamela Girres, a Board-certified internist, 

reported that appellant had an encounter with a supervisor the previous day. Appellant’s 

examination was normal and she was advised to resume work on December 7, 2013. 

By decision dated January 27, 2014, an OWCP hearing representative affirmed the 

May 8, 2013 decision. He found that appellant did not establish an employment-related 

emotional condition due to the events of March 5, 2013. The hearing representative determined 

that she did not substantiate her allegations of error or abuse by management that day. 

On March 19, 2014 appellant, through her attorney, requested reconsideration. She 

submitted a March 4, 2013 statement in which she described the motor vehicle accident. On 

April 22, 2013 appellant again described the events of March 5, 2013. She also addressed 

subsequent events, including a March 9, 2013 incident and a 14-day suspension. Two unsigned 

copies of an investigative interview conducted on March 5, 2013, completed by different 

individuals, were submitted. They reflect that appellant was represented by Ms. Lower, who was 

present as a union steward. Documentation regarding an improper vehicle curbing incident that 

occurred on March 9, 2013 and resulted in a 14-day suspension for which appellant filed a 

grievance was also submitted. A dispute resolution team decision dated July 10, 2013 removed 

the 14-day suspension and expunged it from her records. In a March 8, 2013 report, Dr. Girres 

stated that appellant had been treated prior to the March 5, 2013 incident and that the details and 

diagnosis were confidential. She advised that appellant could return to work on March 9, 2013.2

 2

 Dr. Girres also provided a February 15, 2013 report in which she indicated that appellant had a tender right first 

dorsal interspace. 
4

In a nonmerit decision dated May 22, 2014, OWCP found that the evidence submitted on 

reconsideration was not relevant to the incident of March 5, 2013 and denied appellant’s request 

for merit review. 

LEGAL PRECEDENT -- ISSUE 1 

To establish his or her claim that he or she sustained a stress-related condition in the 

performance of duty, a claimant must submit the following: (1) medical evidence establishing 

that he or she has an emotional or stress-related disorder; (2) factual evidence identifying 

employment factors or incidents alleged to have caused or contributed to his or her condition; 

and (3) rationalized medical opinion evidence establishing that the identified compensable 

employment factors are causally related to his or her stress-related condition.3 If a claimant does 

implicate a factor of employment, OWCP should then determine whether the evidence of record 

substantiates that factor.4

 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.5

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,

6

 the Board 

explained that there are distinctions as to the 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 coverage under FECA.7 

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.8

 Allegations alone by a claimant are insufficient to 

establish a factual basis for an emotional condition claim.9 Where the claimant alleges 

compensable factors of employment, he or she must substantiate such allegations with probative 

and reliable evidence.10 An employee’s perceptions alone are insufficient to establish an 

employment-related emotional condition.11

 3 Leslie C. Moore, 52 ECAB 132 (2000). 

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

5 Id.

6

 28 ECAB 125 (1976). 

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

8 Lillian Cutler, supra note 6. 

9 J.F., 59 ECAB 331 (2008). 

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

11 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.12 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.13

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.14 

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 EEO 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.15

ANALYSIS -- ISSUE 1 

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

sustained an emotional condition in the performance of duty causally related to factors of her 

federal employment that occurred on March 5, 2013. 

Appellant did not attribute her emotional condition to the performance of her regular 

work duties or to any special work requirement arising from her employment duties under 

Cutler.

16 Rather, her claim pertains to events that occurred on March 5, 2013. Appellant alleged 

that Mr. Carter, the postmaster, yelled at her and instructed her to begin working while she was 

waiting for a union steward prior to attending a scheduled investigative interview regarding a 

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

13 Kim Nguyen, 53 ECAB 127 (2001). 

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

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

16 See supra note 14. 
6

motor vehicle accident that occurred the previous day. She alleged that he violated her 

Weingarten rights and was disrespectful.17 

The Board has held that, while verbal abuse may constitute a compensable factor of 

employment, not every statement in the workplace will be covered by FECA.18 Appellant 

submitted insufficient evidence to substantiate her allegations of abuse by the postmaster. There 

is no statement from any witness that supports Mr. Carter yelled at her or treated her in a 

disrespectful manner on March 5, 2013. As such, appellant has not established that she was 

subjective to verbal abuse on March 5, 2013. She also contended that her Weingarten rights 

were violated. The Weingarten decision gave employees the right to representation during an 

investigative interview when the employee has the reasonable belief that the interview may lead 

to discipline.19 The evidence of record supports that Ms. Lower, appellant’s union steward, was 

present for the investigative interview held on March 5, 2013. There is insufficient evidence of 

any administrative error in this regard.20

With regard to Mr. Carter directing appellant to work while she waited for the 

investigative interview to begin, the assignment of work is an administrative function of the 

employer. The manner in which a supervisor exercises his or her discretion generally falls 

outside the ambit of FECA.21 Where the evidence demonstrates that a manager either erred or 

acted abusively in discharging his or her administrative or personnel responsibilities, such action 

will be considered a compensable employment factor.22 In this case, there is no evidence to 

establish error or abuse by Mr. Carter. The record does not contain independent, corroborative 

evidence to support appellant’s allegations regarding the events of March 5, 2013. 

Appellant alleged that Mr. Carter harassed her that day; but mere perceptions of 

harassment or discrimination are not compensable under FECA.23 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 with probative and 

 17 Mr. Carter also noted a meeting that was held about three weeks before March 5, 2013, involving him, 

appellant, and Ms. Dalan in which appellant’s return to work from a previous injury was discussed. Mr. Carter 

noted that appellant did not agree with the proposed job and voices were raised. Appellant did not allege that this 

caused her emotional condition on her March 5, 2013 traumatic injury claim. In any event, the Board has held that a 

raised voice in the course of a conversation does not, in and of itself, warrant a finding of verbal abuse. C.T., Docket 

No. 08-2160 (issued May 7, 2009). 

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

19 N.L.R.B., v. J. Weingarten, 410 U.S. 251 (1975). 

20 See. R.G., Docket No. 12-1236 (issued November 15, 2012). 

21 Donney T. Drennon-Gala, 56 ECAB 469 (2005). 

22 Kim Nguyen, 53 ECAB 127 (2001). 

23 Supra note 14. 
7

reliable evidence.24 As noted, appellant submitted no corroborative evidence in this case. 

Therefore, she did not establish a compensable factor of employment.25

Appellant has not met her burden of proof to establish that she sustained an emotional 

condition in the performance of duty on March 5, 2013.26

LEGAL PRECEDENT -- ISSUE 2 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.27 Section 10.608(a) of the Code of Federal Regulations provide that a 

timely request for reconsideration may be granted if OWCP determines that the employee has 

presented evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).28 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (i) shows that OWCP 

erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal 

argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new 

evidence not previously considered by OWCP.29 Section 10.608(b) provides that when a request 

for reconsideration is timely but fails to meet at least one of these three requirements, OWCP 

will deny the application for reconsideration without reopening the case for a review on the 

merits.30

ANALYSIS -- ISSUE 2 

With her March 19, 2014 reconsideration request, appellant did not allege or contend that 

OWCP erroneously applied or interpreted a specific point of law, or advance a relevant legal 

argument not previously considered by OWCP. Consequently, she was not entitled to a review 

of the merits of her claim based on the first and second above-noted requirements under section 

10.606(b)(2).31

With respect to the third requirement under section 10.606(b)(2), appellant submitted two 

unsigned copies of an investigative interview conducted on March 5, 2013, completed by 

different individuals. This material reflects that appellant was represented by Ms. Lower as a 

 24 Id. 

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

26 As appellant did not establish a compensable employment factor, the Board need not consider the medical 

evidence of record. See Katherine A. Berg, 54 ECAB 262 (2002). 

27 5 U.S.C. § 8128(a). 

28 20 C.F.R. § 10.608(a). 

29 Id. at § 10.606(b)(3). 

30 Id. at § 10.608(b). 

31 Id. at § 10.606(b)(2). 
8

union steward. The statements are not relevant to the issue of whether appellant established a 

compensable employment factor. Similarly, additional evidence submitted in regard to the 

events that occurred after March 5, 2013 is not relevant to the merit issue in this case. 

The evidence submitted by appellant on reconsideration is not relevant to whether she 

established a compensable employment factor on March 5, 2013. 

Appellant did not establish that OWCP erred in applying a point of law, advance a 

relevant legal argument not previously considered, or constitute relevant and pertinent new 

evidence not previously considered by OWCP. OWCP properly denied her reconsideration 

request. 

CONCLUSION 

The Board finds that appellant did not establish that she sustained an emotional condition 

in the performance of duty on March 5, 2013. The Board further finds that OWCP properly 

refused to reopen appellant’s case for further consideration of the merits of her claim pursuant to 

5 U.S.C. § 8128(a). 

ORDER 

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

Compensation Programs dated May 22 and January 27, 2014 are affirmed. 

Issued: November 20, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board