United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.C., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Canandaigua, NY, Employer 

__________________________________________ 

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Docket No. 15-297 

Issued: May 12, 2015 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 14, 2014 appellant filed a timely appeal from a June 9, 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 appellant met his burden of proof to establish an emotional 

condition in the performance of duty. 

FACTUAL HISTORY 

On January 9, 2013 appellant, then a 45-year-old lead police officer, filed an occupational 

disease claim alleging that he sustained high blood pressure due to the “anxiety and stress of the 

job.” He stopped work on January 2, 2013. 

 1

 5 U.S.C. §§ 8101-8193.
2

In a January 24, 2013 development letter, OWCP requested that appellant submit 

additional factual and medical evidence in support of his claim, including a detailed description 

of the implicated work factors and medical evidence describing his medical condition with an 

explanation of the cause of any such condition. 

Appellant submitted a January 2, 2013 emergency room report in which an attending 

physician assistant reported blood pressure of 156/100 when he first arrived, but that it was 

136/88 after he had settled down for a while. The physician assistant diagnosed mild anemia and 

headache. In other notes from that visit, a registered nurse noted that appellant had a history of 

hypertension. 

In a May 29, 2013 decision, OWCP denied appellant’s emotional condition claim 

because he failed to establish any compensable work factors. It noted that he only provided a 

vague and general statement that job-related stress caused his claimed medical condition. 

By letter dated October 30, 2013, appellant requested reconsideration of his claim and 

described the incidents and conditions at work which he believed caused a stress-related 

condition. He alleged that in late 2010, while suffering from bladder cancer caused by his 

military service, the employing establishment mishandled his request for a transfer to another 

position. Appellant received his requested transfer to Canadaigua, NY, in August 2011 but was 

immediately transferred again to Rochester, NY, based on a false assertion by management that 

he did not have enough seniority to remain in the Canadaigua position. He alleged that this 

action was part of retaliatory and discriminatory actions that lasted for five months and that he 

was brought before an interview panel whose members attempted to discredit his character. In a 

written report, management officials allegedly called him unprofessional and accused him of 

being a liar. Appellant indicated that, in early December 2011, during his yearly psychological 

evaluation he lost confidence in the ability and character of Jay Supnick, the civilian contractor 

carrying out the evaluation, when he denied knowing about a coworker who had failed his 

entrance examination. During an early March 2012 evaluation, Mr. Supnick misinterpreted a 

comment that appellant had made about a former supervisor’s propensity for violence and 

reacted as though appellant had made an “emotionally unstable remark.” Appellant indicated 

that Mr. Supnick became visibly irate and requested that he leave the room so that he could 

speak to the police chief. He stated that he was wrongly removed from service the day after this 

evaluation, but that Mr. Supnick denied that he was responsible for removing him from service. 

Appellant was placed on administrative leave until March 14, 2012 when he was recommended 

for discontinued service. 

In his October 30, 2013 letter, appellant further alleged that between March and 

October 2012 he witnessed numerous criminal actions by employees and patients, but that 

management did not take steps to prevent such actions. He filed complaints with the Office of 

the Inspector General for the employing establishment concerning fraud, waste, and abuse, but 

the response of the factfinders was that the employing establishment was “not responsible for the 

actions of others.” Appellant’s promotion to the lieutenant rank in October 2012 had been 

improperly delayed by a human resources official who made remarks that made him feel 

uncomfortable. He alleged that after his promotion he was exposed to additional acts of 

retaliation by management and placed in hostile environments. In early January 2013, appellant 

experienced an emotional incident when he was abandoned at work after other officers called in 

sick and a police officer assigned to the union office was hostile toward him. Beginning 
3

January 23, 2013, he was wrongly placed on administrative leave for eight months, a situation 

which exacerbated his prostate and bone cancers. Appellant alleged that he was placed in a 

hostile work environment when he returned to work in August 2013, and that human resource 

officials stole his military health records from the mail. Also, a union member stated that 

appellant belonged in a secured unit for the mentally unstable. Appellant alleged that a number 

of employees who had harassed him had been removed from their jobs or were being 

investigated.2

Appellant submitted an October 15, 2012 letter to the chief of his workplace in which he 

asserted that management officials made misleading statements about his military-connected 

health issues, mental health, and fitness for duty. He was subjected to harassment and 

discrimination by these officials and the human resources office failed to notify him about 

opportunities for advancement. In a November 25, 2012 e-mail, appellant discussed a tort claim 

he filed with the Office of General Counsel of the employing establishment alleging that he 

received improper medical care for his bladder cancer from a physician who worked for the 

employing establishment. 

In January 24 and May 6, 2013 e-mails to Eric Shinseki, then Secretary of the employing 

establishment, appellant asserted that a human resources manager at the employing establishment 

subjected him to sexual advances and that management illegally removed him from active 

service. Appellant generally alleged that he was subjected to harassment after he began working 

at the employing establishment. 

In a May 24, 2013 statement, Steve Barone, a coworker, described a meeting on that date 

with Brian Wert, a union official, and several others. He asserted that Mr. Wert called appellant 

“crazy” and “nuts” and stated that he “could easily be a patient [in 3 Building].” Mr. Wert also 

stated that appellant was “certifiable” and that coworkers felt unsafe around him. In a June 19, 

2013 e-mail to Craig Howard, the Medical Center Director for the employing establishment in 

Canandaigua, appellant alleged that an unspecified person used vulgar language to tell him to 

shut up when he was contacted regarding his return to duty. He indicated that Mr. Wert and 

others subjected him to harassment, retaliation, discrimination, sexual harassment, privacy 

violations, civil rights violations, and unfounded accusations.3

Appellant submitted several medical reports of Dr. Aurelian Niculescu, an attending 

Board-certified psychiatrist, including an October 8, 2013 report in which he diagnosed major 

depressive disorder, generalized anxiety disorder, and anxiety disorder with mixed features of 

panic disorder and agoraphobia. Dr. Niculescu posited that these conditions were aggravated by 

appellant’s being placed on administrative leave at work. 

In a June 9, 2014 decision, OWCP denied appellant’s emotional condition claim because 

he failed to establish any compensable work factors. It found that he had not submitted 

sufficient corroborative documentation, such as witness statements or grievance findings that 

 2

 In a separate undated statement, appellant generally alleged that he had suffered numerous acts of 

discrimination, harassment, hostility, false accusations and “administrative/managerial harassing actions.” 

3

 On June 20, 2013 Mr. Howard responded that no removal action was being contemplated regarding his 

employment. 
4

documented his claims of harassment, discrimination, and other acts of wrongdoing by the 

employing establishment. 

LEGAL PRECEDENT 

 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 an 

illness has some connection with the employment but nevertheless does not come within the 

concept or coverage of workers’ compensation. Where the disability results from an employee’s 

emotional reaction to his or her regular or specially assigned duties or to a requirement imposed 

by the employment, the disability comes within the coverage of FECA.4 On the other hand, the 

disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or 

to hold a particular position.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.6

 However, the Board 

has held that, where the evidence establishes error or abuse on the part of the employing 

establishment in what would otherwise be an administrative matter, coverage will be afforded.7 

In determining whether the employing establishment has erred or acted abusively, the Board will 

examine the factual evidence of record to determine whether the employing establishment acted 

reasonably.8 

 To the extent that disputes and incidents alleged as constituting harassment and 

discrimination by supervisors and coworkers are established as occurring and arising from 

appellant’s performance of his or her regular duties, these could constitute employment factors.9 

However, for harassment or discrimination to give rise to a compensable disability under FECA, 

there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of 

harassment or discrimination are not compensable under FECA.10

 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 affected by employment factors.11 This burden includes the submission of a detailed 

 4 Lillian Cutler, 28 ECAB 125 (1976). 

5 Gregorio E. Conde, 52 ECAB 410 (2001). 

6 Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 

ECAB 556 (1991). 

7 William H. Fortner, 49 ECAB 324 (1998). 

8 Ruth S. Johnson, 46 ECAB 237 (1994). 

9 David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991). 

10 Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). 

11 Pamela R. Rice, 38 ECAB 838, 841 (1987). 
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description of the employment factors or conditions which he believes caused or adversely 

affected a condition for which compensation is claimed and a rationalized medical opinion 

relating the claimed condition to compensable employment factors.12

 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.13 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.14 Causal relationship is a medical issue and the medical evidence 

generally required to establish causal relationship is rationalized medical opinion evidence. 

Rationalized medical opinion evidence is medical evidence which includes a physician’s detailed 

explanation regarding the causal relationship between the claimant’s diagnosed condition and the 

compensable employment factors.15

ANALYSIS 

Appellant alleged that the employing establishment sustained an emotional condition as a 

result of a number of employment incidents and conditions. OWCP denied his emotional 

condition claim because he had failed to establish any compensable employment factors. The 

Board must, thus, initially review whether these alleged incidents and conditions of employment 

are covered employment factors under the terms of FECA. The Board notes that appellant’s 

allegations do not pertain to his regular or specially assigned duties under Cutler.

16 Rather, 

appellant has alleged error and abuse in administrative matters and harassment and 

discrimination on the part of his supervisors. 

Appellant alleged that his employer committed wrongdoing by mishandling his transfer 

to another work location, violating his privacy by improperly handling and discussing his 

medical records, and wrongly placing him on administration leave. He also alleged improper 

actions with respect to carrying out improper investigatory actions which impugned his 

character, ignoring his claims of fraud and waste, mishandling his annual psychological 

evaluation, and allowing him to work on one occasion without adequate coworker support. Such 

administrative and personnel matters, although generally related to the employee’s employment, 

 12 Effie O. Morris, 44 ECAB 470, 473-74 (1993). 

13 See Norma L. Blank, 43 ECAB 384, 389-90 (1992). 

14 Id.

15 Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990). 

16 See supra note 4. On appeal counsel asserted that appellant implicated work duties as causing his claimed 

stress-related condition. However, the Board has reviewed appellant’s statements of records and notes that he has 

not implicated any work duties in this regard. 
6

are administrative functions of the employer rather than the regular or specially assigned work 

duties of the employee and are not covered under FECA. However, the Board has held that, 

where the evidence establishes error or abuse on the part of the employing establishment in what 

would otherwise be an administrative matter, coverage will be afforded.17 

Appellant has not submitted sufficient evidence to establish that the employing 

establishment committed error or abuse with regard to these matters. He did not submit the 

findings of any grievances or complaints showing that the employing establishment had been 

found to have committed wrongdoing with respect to administrative or personnel actions.18 

Appellant submitted various e-mails and letters in which he provided additional details about his 

claims of employing establishment wrongdoing in administrative and personnel matters, but he 

did not submit corroborative evidence to support the assertions contained in these documents. 

For these reasons, he has not established a compensable work factor with respect to 

administrative or personnel matters. 

 Appellant claimed that he was subjected to harassment and discrimination at work. He 

generally alleged that managers and others subjected him to retaliatory actions, privacy, and civil 

rights violations, sexual harassment, and hostile work environments. Appellant further claimed 

that Mr. Wert, a union official, stated during a meeting with management officials and others that 

he was “crazy” and “nuts” and “could easily be a patient [in 3 Building].” He claimed that, in a 

written report, managers officials wrongly called him unprofessional and a liar and that his 

character was unfairly impugned during an investigatory meeting. 

 The Board finds that appellant did not submit sufficient evidence to establish that he was 

harassed or discriminated against by his supervisors or others.19 Appellant alleged that 

supervisors made statements and engaged in actions which he believed constituted harassment 

and discrimination, but he provided no corroborating evidence, such as witness statements, to 

establish that the statements actually were made or that the actions actually occurred.20 The 

record contains a statement in which a witness attributed various comments about appellant’s 

emotional state to Mr. Wert. However, there is no indication, and appellant does not claim, that 

he was present when these ostensible comments were made. Thus, he has not established a 

compensable employment factor under FECA with respect to the claimed harassment and 

discrimination. 

 For the foregoing reasons, appellant has not established any compensable employment 

factors under FECA and, therefore, has not met his burden of proof in establishing that he 

sustained an emotional condition in the performance of duty. He 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. 

 17 See supra notes 6 through 8. 

18 Appellant alleged that he received improper treatment from employing establishment physicians, but he did not 

provide evidence to support this assertion or adequately explain how such a matter was related to his employment. 

19 See Joel Parker, Sr., 43 ECAB 220 (1991) (finding that a claimant must substantiate allegations of harassment 

or discrimination with probative and reliable evidence). 

20 See supra notes 9 and 10. 
7

CONCLUSION 

 The Board finds that appellant did not meet his burden of proof to establish that he 

sustained an emotional condition in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the June 9, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: May 12, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board