United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer 

__________________________________________ 

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Docket No. 16-0479 

Issued: July 12, 2016 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 15, 2016 appellant filed a timely appeal from an October 16, 2015 merit 

decision and a December 1, 2015 nonmerit 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 met her burden of proof to establish a stress-related 

condition in the performance of duty causally related to factors of her federal employment; 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 asserts that full consideration was not given to her claim by OWCP. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 2, 2015 appellant, then a 55-year-old customer service supervisor, filed an 

occupational disease claim (Form CA-2) alleging that bullying by the station manager caused 

severe anxiety and elevated blood pressure. She had stopped work on November 1, 2014. In 

support of appellant’s claim she submitted brief reports from Dr. M. Catherine Yoder, a Boardcertified family physician, dated November 3 to December 31, 2014, in which the physician 

advised that appellant was suffering from severe stress and anxiety and was unable to work. On 

December 31, 2014 she indicated that appellant would be incapacitated for one more month. 

Appellant did not return to work. 

In letters dated January 29, 2015, OWCP requested additional information from appellant 

and the employing establishment. 

In a January 2, 2015 statement, Brian Cox, manager of the Southport Station, advised that 

Southport was appellant’s regular-duty station. He noted that she was detailed to the Clermont 

Station from April 1 to May 18, 2013, then returned to Southport and was detailed to the 

Wanamaker Station from December 14, 2013 to October 31, 2014. Mr. Cox reported that on 

October 27, 2014 appellant was notified via e-mail that she was to return to Southport on 

November 1, 2014 for a shift to begin at 10:00 a.m. He related that while he was en route to 

work, he was called by Supervisor Simpson2 who told him that appellant arrived at work early. 

Mr. Cox instructed Mr. Simpson to have appellant wait to talk with him. Mr. Cox indicated that, 

when he arrived at work, she refused to enter his office. He informed appellant that if she had 

acknowledged multiple e-mails and telephone calls that he sent her regarding her work hours, 

she would have known her proper start time. Appellant related to him that she refused to work 

under those conditions and threw a leave slip at him that was already filled out, left the building, 

and did not return. 

In a February 18, 2014 statement, Jennifer Johnson, customer services manager at the 

Wanamaker Station, reported that appellant seemed fine while working there and performed 

day-to-day supervisor duties. She indicated that appellant never mentioned that she was 

overstressed or upset about anything. 

In an undated statement, appellant related that on October 27, 2014 she was informed that 

she would be returning to the Southport Station on November 1, 2014. She indicated that her 

Form SF 50 stated that her off days were Sundays and Mondays, and that she worked 7:00 a.m. 

to 4:00 p.m. Appellant continued that on October 28, 2014 Mr. Cox sent her a form that for no 

reason changed her days off to Sundays and Fridays and amended her work hours to 8:00 a.m. to 

5:00 p.m. She reported that she previously had issues with Mr. Cox about changing her schedule 

prior to her detail to Wanamaker Station. Appellant noted that others had never been made to 

return to Southport, and implied that it was racially motivated. She indicated that she felt 

threatened by Mr. Cox, but reported to work at Southport on November 1, 2014 at 7:00 a.m. 

Appellant related that when he arrived she was already anxious, shaking, and afraid of him. She 

noted that Mr. Cox stated that he wanted all of his supervisors there each Monday, but she 

 2

 The full name of Supervisor Simpson is not contained in the record of evidence. 
3

related that she told him he had sent her home on a Monday after working one hour. Appellant 

asserted that he was only doing this to her and it was a form of harassment. She stated that she 

could not work in such an environment and left, went to a clinic where she was diagnosed with 

anxiety and elevated blood pressure, and that the following Monday her treating physician took 

her off work. 

Appellant also submitted an e-mail dated August 23, 2013 regarding staffing for 

vacations, and e-mails dated October 31, 2014 sent by her to District Manager Holly Burrell, in 

which appellant requested to stay at Wanamaker because she had serious issues with Mr. Cox. 

Ms. Burrell informed appellant that everyone was being returned to their regular stations, and she 

would address appellant’s concerns in a meeting, but that appellant should report to Southport. 

In a response, appellant maintained that, although Southport was her assignment of record, she 

also had assigned hours and scheduled days off, and had serious issues with Mr. Cox and his 

management, such that the inspector general should have been called. She advised that she 

would follow instructions, but under protest. Ms. Burrell replied that appellant should see her 

that day, noting that her e-mail appeared very accusatory and defensive. 

In a second statement appellant maintained that Mr. Cox screamed at her on several 

occasions, would stand behind her while she was working on the computer, expected her to 

complete route inspections in eight hours, which was impossible, and would change her 

reporting times and off days so that he did not have to pay her eight hours. She indicated that 

she became very upset when she was informed that she had to return to Southport. Appellant 

related that, when she returned, she had a flashback about what Mr. Cox had done in the past and 

was so upset that she had to leave and seek medical care. 

By correspondence dated November 3, 2014, appellant was informed by the employing 

establishment that the medical documentation for her claimed absence did not say that she was 

incapacitated from performing her supervisory duties. She also provided an assignment order 

dated October 27, 2014 advising her to report to her home installation at 8:00 a.m. on 

November 1, 2014 and that her days off were Friday and Sunday. Copies of processed clock 

rings from pay period 18 to pay period 26 in 2013 had handwritten notations, apparently made 

by appellant, indicating that she was sent home when she was not needed on her off day, that she 

was charged with unscheduled annual leave when her parents were in an automobile accident, 

that her off day was changed to Wednesday after working her off day, that she worked some 

when she was supposed to be on vacation, that her off day was changed to Friday without her 

approval, and that Mr. Cox changed her off day on other occasions. 

Correspondence dated February 6, 2015 indicated that appellant had filed an Equal 

Employment Opportunity (EEO) discrimination claim that was being processed. 

In an undated statement Tom Oberting, a former union steward at Southport indicated 

that he had observed that Mr. Cox had issues with women who worked for him and intimidated 

supervisors until they requested transfers. He specifically stated that he saw Mr. Cox threaten 

appellant with discipline because she would not discipline her carriers for small infractions, and 

would stand behind her, watching her every move, would change her hours and days off, and 

would force her to work longer hours. 
4

In a January 31, 2015 report, Diane M. Zaragoza, M.A., an intake clinician, advised that 

appellant was evaluated and would begin psychiatric outpatient treatment beginning 

February 2, 2015. In a February 12, 2015 report, Dr. Mohammad Kamal, a Board-certified 

psychiatrist, indicated that appellant reported a lot of bad issues at work including bullying and 

harassment by the station manager, and that this caused anxiety, depression, panic attacks, and 

anger. Dr. Kamal diagnosed adjustment disorder with mixed features of depression and anxiety, 

moderate-to-severe, panic disorder without agoraphobia, post-traumatic stress disorder, and 

hypertension, mainly work related. He prescribed medication and advised that appellant’s 

prognosis was fair. 

In a March 12, 2015 statement, Ms. Johnson reported that while appellant worked at the 

Wanamaker Station, she was not on automatic rings and worked hours when needed, which led 

to minor problems entering time. 

In a March 16, 2015 statement, Mr. Cox challenged appellant’s allegations, asserting that 

he never bullied or threatened her. He indicated that she saw any type of managing or 

performance discussion as an attack, and that he monitored the performance of all supervisors. 

Mr. Cox noted that, when he first became her manager, appellant had difficulty completing her 

duties, that she felt that rules and instructions did not apply to her, and only wanted to work 

when and where she pleased. He specifically replied to each of her allegations regarding leave 

and pay, indicating that he was unaware of some of the circumstances she reported. Mr. Cox 

concluded by stating that the employing establishment was ever-changing, and any changes to 

appellant’s schedule were made for the needs of the employing establishment. 

In an undated statement, Brian K. Blane, a former manager at the Wanamaker Station, 

advised that appellant was not detailed to Wanamaker due to any threatening, intimidating, or 

volatile situation at Southport, but due to operational reasons and her requests for a change in 

position. He further indicated that he talked with her about moving back to Southport Station, 

and she never indicated that she feared for her safety due to any actions of Mr. Cox. Shannon 

Blue, a city carrier at the Mapleton Station, indicated in an undated statement that on one 

occasion when appellant was a supervisor there, appellant became very upset about personal 

issues. 

By decision dated April 22, 2015, OWCP denied the claim, finding that appellant did not 

establish an injury arising out of employment. 

On June 24, 2015 appellant requested reconsideration. She again questioned being forced 

to return to Southport Station, and further alleged that Mr. Cox improperly charged her with 80 

hours absent-without-leave (AWOL) when she had approved Family Leave, and that her EEO 

claim had been accepted. Appellant also alleged that he had shared her personal medical records 

with others including his manager. She noted including statements from other employees 

regarding Mr. Cox’s harassing behavior. 

In support of her reconsideration request, appellant submitted duplicate copies of 

evidence previously of record and an annual leave calendar. In a November 3, 2014 treatment 

note, Dr. Yoder noted seeing appellant for an anxiety attack. She described appellant’s report of 

increased anxiety due to a hostile work environment, stating that appellant was forced to return 
5

to an employing establishment where she had a significant conflict with the manager. Dr. Yoder 

diagnosed depression/anxiety and advised that appellant could not work. In a June 19, 2015 

report, Dr. Kamal noted that appellant had been treated in an intensive outpatient program since 

February 2015. He related that she indicated that her anxiety began due to her hostile work 

environment when her immediate supervisor began bullying her. Dr. Kamal reiterated his 

diagnoses and advised that appellant was unable to work due to experiencing anxiety, panic 

attacks, sleep disturbance, ruminating thoughts, and other symptoms of post-traumatic stress. 

The only coworker statement submitted was a duplicate of former union steward Oberting’s 

undated statement. 

By merit decision dated October 16, 2015, OWCP denied modification of the April 22, 

2015 decision. 

Appellant again requested reconsideration on November 9, 2015. She alleged that 

OWCP had not thoroughly reviewed her file. Appellant attached a copy of the employing 

establishment’s policy on workplace harassment dated June 10, 2014. Also included was an 

EEO affidavit dated April 30, 2015 from Donna M. Pepienbrock, identified by appellant as an 

employee she supervised. She stated that Mr. Cox told her that he was so mad at appellant that 

he wanted to fire her and that he hated her, that she witnessed him standing over her, that he 

would intervene in her work decisions, had changed her starting times, and days off. 

Ms. Pepienbrock also implied that Mr. Cox improperly sent appellant to the north side of town 

for a meeting. 

By decision dated December 1, 2015, OWCP denied appellant’s request for 

reconsideration without conducting a merit review. It noted that she did not submit any evidence 

with her request. 

LEGAL PRECEDENT -- ISSUE 1 

To establish her claim that she sustained an emotional condition in the performance of 

duty, appellant must submit the following: (1) medical evidence establishing that appellant has 

an emotional or stress-related disorder; (2) factual evidence identifying employment factors or 

incidents alleged to have caused or contributed to appellant’s condition; and (3) rationalized 

medical opinion evidence establishing that the identified compensable employment factors are 

causally related to appellant’s 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

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

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

5 Id.
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,

6

 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.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 Personal perceptions alone are insufficient to establish an 

employment-related emotional condition.11

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

employment, are administrative functions of the employing establishment 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 employing 

establishments, such as the Equal Employment Opportunity Commission, which is charged with 

statutory authority to investigate and evaluate such matters in the workplace. Rather, in 

 6

 28 ECAB 125 (1976). 

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

8

 Supra note 5. 

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

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

11 Roger Williams, 52 ECAB 468 (2001). 

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

13 Kim Nguyen, 53 ECAB 127 (2001). 

14 James E. Norris, 52 ECAB 93 (2000). 
7

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 coemployees or workers. Mere perceptions and feelings of harassment will not 

support an award of compensation.15 

ANALYSIS -- ISSUE 1 

Appellant has not alleged that her emotional condition was due to any specific job duties. 

Rather, she has alleged that she was harassed and worked in a hostile work environment, and that 

Mr. Cox, the branch manager, bullied and threatened her and inappropriately changed her 

schedule and days off. Appellant also alleged that she was inappropriately returned to her home 

station from a detail, that errors were made in her time and pay, and that Mr. Cox improperly 

shared her medical records. 

As a general rule, a claimant’s reaction to administrative or personnel matters falls 

outside the scope of FECA.16 The Board has long held that disputes regarding leave,17 the 

assignment of work,18 assessment of work performance,19 a change in a duty shift,20 are 

administrative functions of the employing establishment and, absent error or abuse, are not 

compensable.21 Absent evidence establishing error or abuse, a claimant’s disagreement or 

dislike of such a managerial action is not a compensable factor of employment.22 

In this case appellant submitted no evidence to substantiate her claims. Ms. Burrell and 

Mr. Cox explained that all supervisors were being returned to their station of record, and 

appellant submitted no evidence to show that her workstation or schedule were changed 

inappropriately. Although appellant submitted a leave schedule and evidence about clock rings, 

she did not submit any evidence such as earnings and leave statements that would demonstrate 

error or abuse in these matters. Likewise, she submitted no corroborating evidence to support 

her allegation that her medical records were improperly shared. Because appellant has not 

submitted any evidence corroborating these allegations, they cannot be deemed compensable 

factors of employment. 

Appellant also alleged that employing establishment management, especially Mr. Cox, 

treated her unfairly. Generally, complaints about the manner in which a supervisor performs his 

or her duties or the manner in which a supervisor exercises his or her discretion fall, as a rule, 

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

16 Carolyn S. Philpott, 51 ECAB 175 (1999). 

17 Jose L. Gonzalez-Garced, 46 ECAB 559 (1995). 

18 Robert W. Johns, 51 ECAB 137 (1999). 

19 Elizabeth W. Esnil, 46 ECAB 606 (1995). 

20 Peggy R. Lee, 46 ECAB 527 (1995). 

21 Supra note 11. 

22 Donney T. Drennon-Gala, 56 ECAB 469 (2005). 
8

outside the scope of coverage provided by FECA. This principle recognizes that a supervisor or 

manager in general must be allowed to perform his or her duties and employees will, at times, 

dislike the actions taken. Mere disagreement or dislike of a supervisory or managerial action 

will not be compensable, absent evidence of error, or abuse.23 Here again, the record contains no 

corroborating evidence that Mr. Cox, or any other employing establishment supervisor or 

manager, treated appellant in a disrespectful or unfair manner. As there is no evidence of error 

or abuse in discharging management duties, this allegation is not compensable.24

Regarding appellant’s contention that she was subjected to harassment at work by 

Mr. Cox, who bullied and threatened her and treated her in a discriminatory manner, mere 

perceptions of harassment or discrimination are not compensable under FECA25 and 

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 reliable evidence.26 Although appellant indicated that she had 

filed an EEO claim, the record does not contain an EEO decision. Former union steward 

Mr. Oberting’s statement is insufficient to meet her burden of proof. While he generally 

supported appellant’s contentions regarding Mr. Cox, he did not provide specific dates or 

describe situations with sufficient specificity. 

Appellant submitted insufficient evidence to show a persistent disturbance, torment, or 

persecution, i.e., mistreatment by employing establishment management.27 She therefore did not 

establish a factual basis for her claim of harassment by probative and reliable evidence.28 

For the foregoing reasons, appellant has not established a compensable factor of 

employment under FECA and therefore has not met her burden of proof to establish that she 

sustained an emotional condition in the performance of duty. As appellant failed to establish a 

compensable employment factor, the Board need not address the medical evidence of record.29 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of the October 16, 2015 decision on the merits of 

appellant’s claim, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607. 

 23 Id. 

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

25 Supra note 13. 

26 Id. 

27 Supra note 14. 

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

29 Katherine A. Berg, 54 ECAB 262 (2002). 
9

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.30 Section 10.608(a) of the Code of Federal Regulations provides that 

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

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

10.606(b)(3).31 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (1) shows that OWCP 

erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument 

not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.32 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.33

ANALYSIS -- ISSUE 2 

With her November 9, 2015 reconsideration request, appellant did not allege or 

demonstrate 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).34

With respect to the third above-noted requirement under section 10.606(b)(3), with her 

November 9, 2015 request for reconsideration, appellant submitted a copy of the employing 

establishment’s policy on workplace harassment dated June 10, 2014 and an April 30, 2015 

statement from Ms. Pepienbrock, who supported some of appellant’s contentions regarding 

Mr. Cox. 

OWCP, in its December 1, 2015 decision, incorrectly found that appellant had submitted 

no relevant and pertinent new evidence in support of her request for reconsideration. The Board 

finds that appellant’s reconsideration request was accompanied by the workplace harassment 

policy (not previously of record) and a new statement which was supportive of the allegations of 

workplace harassment. The Board further finds that this new evidence is relevant and pertinent 

to her claim. As appellant submitted new evidence not considered by OWCP that is relevant and 

pertinent to the issue of whether she established her emotional condition claim, she is entitled to 

a review of the merits of her claim under section 10.606(b)(3) of OWCP’s regulations.35 The 

 30 5 U.S.C. § 8128(a). 

31 20 C.F.R. § 10.608(a). 

32 Id. at § 10.608(b)(1)-(3). 

33 Id. at § 10.608(b). 

34 Id. at § 10.606(b)(2). 

35 Id. at § 10.606(b)(2); see T.F., Docket No. 10-1701 (issued May 3, 2011). 
10

case shall therefore be remanded to OWCP to consider whether the submissions with her 

November 9, 2015 reconsideration request are sufficient to establish an employment factor 

which may give rise to a compensable disability under FECA. The Board will therefore set aside 

OWCP’s December 1, 2015 decision. After this and such further development deemed 

necessary, OWCP shall issue an appropriate decision. 

CONCLUSION 

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

condition in the performance of duty causally related to factors of her federal employment. The 

Board further finds that OWCP improperly denied her November 9, 2015 request for a merit 

review pursuant to section 8128(a) of FECA.

ORDER 

IT IS HEREBY ORDERED THAT the October 16, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. The December 1, 2015 decision is set aside, and 

the case is remanded to OWCP for proceedings consistent with this opinion of the Board. 

Issued: July 12, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board