United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Coppell, TX, Employer 

__________________________________________ 

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Docket No. 15-1851 

Issued: August 4, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 9, 2015 appellant filed a timely appeal from a May 28, 2015 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 Pursuant to the Federal 

Employees’ Compensation Act2

 (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 OWCP met its burden of proof to rescind its acceptance of 

appellant’s claim for aggravation of hypertension. 

 1

 The Board notes that appellant initially timely requested oral argument before the Board. By letter dated and 

received October 14, 2015, appellant withdrew her request for oral argument and requested that the Board proceed 

with review of the record. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On March 8, 2012 appellant, then a 52-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging an aggravation of hypertension due to work-related stress involving her 

supervisors on February 27, 2012. She noted that she was undergoing physical therapy for a 

mild stroke along with counseling and speech therapy. The employing establishment noted that 

appellant’s account of events differed from a witness account of events. 

In a statement dated February 27, 2012, appellant stated that upon entering her work 

space on February 23, 2012 she began to feel overwhelmed with anxiety, she began to panic and 

her heart race increased. She stated that she felt like she had to be on guard as she was not sure 

of what the encounter with J.J., Acting CFS Manager, would be like on this day after the way she 

had treated appellant on Thursday, February 23, 2012. Appellant claimed that J.J. had verbally 

falsely accused her of trying to run something and yelled at her in the presence of two CFS 

employees M.C. and D.W. She further described an altercation with J.J., quoting J.J. as stating, 

“I am tired of people trying to run things, I know how I want things done and I do not need you 

telling people what to do, you know better.” Appellant stated that she was shaken and hurt and 

began to cry. She alleged that another coworker, M.C., approached her and stated, “[Y]ou never 

told [D.W.] what to do, why is [J.J.] upset with you, I was standing right here, I never heard you 

tell her what to do.” On February 27, 2012 when J.J. approached appellant and spoke to her, 

appellant experienced a sharp pain on the left side of her forehead causing head pain and causing 

a twitch on the left side of her face. Appellant alleged that, after work, she drove to the 

emergency room, where she was told that her numbness and headaches were indications of 

“mini-strokes” brought on by severe stress. She believed that her stressful environment with J.J. 

caused physical and mental damage to her body. 

In a statement dated March 14, 2012 from coworker M.C., she related that she was 

working by herself when two coworkers later came to perform the same task, one of whom was 

appellant and the other of whom was D.W. She noted that J.J. came and asked appellant if she 

had instructed D.W. how to perform the task. M.C. stated that appellant had not told D.W. what 

to do, to which J.J. replied that appellant should not instruct any of her coworkers as to how to 

perform their jobs. She stated, she did not see J.J. yelling or shouting at appellant while 

appellant was in the room. Furthermore, M.C. denied making the statement which appellant had 

attributed to her in the February 27, 2012 statement. On the contrary, she stated that on the way 

out of the room their conversation was short and mainly appellant was complaining about D.W. 

In a statement dated March 15, 2012, J.J. recalled the events alleged to have occurred by 

appellant, but noted that she did not remember the actual dates or times. She noted that she had 

instructed D.W. to perform a task in a particular manner, and noted that D.W. was not 

performing the task in the manner that she had directed, which was not to throw out a magazine. 

D.W. had explained to J.J. that appellant had told her to do it a different way. J.J. noted that she 

had asked appellant why she told D.W. to perform the task, but appellant had responded that 

D.W. was lying. Appellant then called upon M.C., asking her whether she had heard appellant 

tell D.W. to throw out the magazine, to which M.C. responded that she had not heard anything. 

J.J. stated that he was not irate or in a rage. 
3

In a statement dated April 5, 2012, D.W. contended that J.J. had been upset and had 

attempted to get her and appellant to perform their jobs in a different manner. She noted that she 

felt that J.J. should not have been on the floor at all and that the incident had occurred over one 

envelope. 

On April 30, 2012 appellant responded to several of the witness statements. She asserted 

that M.C.’s accusation that she had fabricated M.C.’s quote in her February 27, 2012 statement 

was false. 

By letter dated March 23, 2012, OWCP advised appellant of the evidence needed to 

establish her claim. It afforded her 30 days to submit this additional evidence and requested that 

she respond to its inquiries. OWCP also requested that the employing establishment respond to 

its inquiries by letter dated March 29, 2012. 

In a report dated April 4, 2012, Dr. Darrell E. Thigpen internal medicine specialist, 

diagnosed appellant with a cerebral vascular accident, a late effect cerebrovascular accident, and 

a tension/stress headache. He noted that she began having left-sided weakness, facial numbness, 

tingling left arm with associated headaches during, and after a verbal hostile attack by her 

supervisor. The initial onset occurred February 23, 2012, which resulted in hospitalization after 

a second hostile-like verbal attack on February 27, 2012. 

By letter dated March 14, 2012, the employing establishment controverted appellant’s 

claim contending that her contentions have been contradicted by witnesses. 

On May 9, 2012 OWCP scheduled an appointment with a second opinion physician and 

forwarded appellant’s medical files along with a statement of accepted facts (SOAF) to resolve 

the matter of whether her conditions were work related. The appointment included a functional 

capacity evaluation (FCE). 

In a note dated April 27, 2012, Dr. Thigpen noted that appellant remained unable to 

work. 

In a second opinion report dated June 11, 2012, Dr. Prem Pillay, Board-certified in 

cardiovascular medicine, examined appellant, reviewed her medical records, and reviewed the 

SOAF. He diagnosed accelerated hypertension causing mild stroke based on her medical 

history, but noted no residual weakness. Dr. Pillay determined that this suggested a complete 

resolution, which was confirmed by the FCE. He opined, that the hypertension was accelerated 

by the employment factors due to increased stress from verbal abuse. Dr. Pillay further noted 

that appellant could return to her previous job without restrictions. 

By decision dated July 5, 2012, OWCP accepted appellant’s claim for aggravation of 

hypertension. 

In a new SOAF dated April 3, 2013, OWCP noted that appellant had stopped work on 

February 28, 2012 and had not returned. It further noted that it had authorized physical therapy 

and group psychotherapy for her. OWCP observed that there were no accepted factors of 

employment. 
4

On April 3, 2013 OWCP proposed to vacate its July 5, 2012 decision. It noted that the 

decision had been issued prematurely without consideration of fact of injury. OWCP noted that 

another letter requesting factual information would be sent to appellant and the employing 

establishment, followed by appropriate development and a de novo decision. 

On April 4, 2013 OWCP sent appellant and the employing establishment development 

letters, which noted that she had submitted insufficient evidence to support her allegation that J.J. 

verbally attacked her, moved her to alienate her, threatened her, or intended to antagonize or 

intimidate her. 

In a statement dated April 25, 2013, appellant alleged that she suffered from hypertension 

and consequential injuries of left-sided weakness and post-traumatic stress disorder causally 

related to the alleged behavior of her supervisor, J.J. She requested clarification as to why 

OWCP listed events that she had previously thought had been accepted by OWCP as events that 

OWCP found did not occur. The remainder of appellant’s statement was substantially 

duplicative of her original February 27, 2012 statement and responses to OWCP’s inquiries. 

By decision dated June 27, 2013, OWCP rescinded acceptance of the claim due to a lack 

of factual evidence regarding the alleged work-related incidents. It reiterated that there were no 

accepted events that were compensable factors of employment. OWCP found that appellant had 

failed to establish that the incident had occurred as described. 

On July 8, 2013 appellant requested a hearing before an OWCP hearing representative. 

The hearing was held on October 24, 2013. At the hearing, appellant contended that the witness 

statements were sufficient to establish her claim. She alleged that the employing establishment’s 

human resources department failed to perform a sufficient investigation into the alleged 

work-related incidents and reiterated her account of what occurred on the relevant dates. 

Appellant stated that, in the week prior to the incident on February 23, 2012, she had no medical 

issues or issues of stress in her personal life. She noted that she had won a grievance before the 

Equal Employment Opportunity Commission (EEOC) for a later incident in which she has 

attempted to return to work, but the employing establishment called the postal police on her. 

However, appellant also noted that another EEOC complaint was ongoing. She stated that she 

had returned to work, but that it had been “strained.” Appellant claimed that J.J. had actually 

written the statement attributed to M.C. After the hearing, appellant resubmitted witness 

statements. 

By letter dated December 6, 2013, the employing establishment submitted comments on 

the transcript of the hearing held on October 24, 2013. It noted that, while appellant had stated 

that a coworker witnessed the entire incident, this coworker’s statement contradicted appellant’s 

description of the incident. The employing establishment also noted that appellant was mixing 

information regarding her claim before the EEOC with aspects of her workers’ compensation 

claim. It stated that she had received numerous releases from her physicians to return to work, 

but had not yet returned to work. 

By decision dated January 9, 2014, the hearing representative found that OWCP had 

properly rescinded acceptance of appellant’s claim in its June 27, 2013 decision. 
5

The hearing representative concluded that appellant had not met her burden of proof to 

establish the factual component of the claim and as such OWCP properly met its burden of proof 

to rescind acceptance of the claim. 

On December 26, 2014 appellant requested reconsideration of OWCP’s decision dated 

January 9, 2014. With her request, she attached a statement, alleging that the hearing 

representative had totally ignored the statements and facts that she had provided and simply 

agreed with the employing establishment’s witnesses. Appellant also submitted several reports 

from her physicians. 

By decision dated May 28, 2015, OWCP denied modification of the January 9, 2014 

hearing representative decision. 

LEGAL PRECEDENT 

Pursuant to section 8128 of FECA, the Secretary of Labor may review an award for or 

against payment of compensation at any time on his or her own motion or on application.3

 The 

Board has upheld OWCP’s authority under this section to reopen a claim at any time on its own 

motion and, where supported by the evidence, set aside or modify a prior decision and issue a 

new decision.4 The Board has noted, however, that the power to annul an award is not arbitrary 

and that an award for compensation can only be set aside in the manner provided by the 

compensation statute.5

Workers’ compensation authorities generally recognize that compensation awards may be 

corrected, in the discretion of the compensation employing establishment and in conformity with 

statutory provision, where there is good cause for so doing, such as mistake or fraud. Once 

OWCP accepts a claim, it has the burden of justifying termination or modification of 

compensation benefits. This also holds true where OWCP later decides that it erroneously 

accepted a claim.6

OWCP bears the burden of justifying rescission of acceptance on the basis of new 

evidence, legal argument, and/or rationale.7

 Probative and substantial positive evidence8 or 

sufficient legal argument9

 must establish that the original determination was erroneous. OWCP 

must also provide a clear explanation of the rationale for rescission.10

 3

 5 U.S.C. § 8128. 

4 See John W. Graves, 52 ECAB 160, 161 (2000). See 20 C.F.R. § 10.610. 

5 Delphia Y. Jackson, 55 ECAB 373 (2004). 

6 See V.C., 59 ECAB 137 (2007). 

7 See John W. Graves, supra note 4; Alice M. Roberts, 42 ECAB 747, 753 (1991). 

8 See Michael W. Hicks, 50 ECAB 325, 329 (1999). 

9 See, e.g., Beth A. Quimby, 41 ECAB 683, 688-89 (1990). 

10 See supra note 6. 
6

To establish a claim of an emotional condition sustained in the performance of duty, an 

employee must submit the following: (1) medical evidence establishing that he has an emotional 

or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged 

to have caused or contributed to his condition; and (3) rationalized medical opinion evidence 

establishing that the identified compensable employment factors are causally related to his 

emotional condition.11

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

somehow related to an employee’s employment.12 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.13 Where the disability results from an 

employee’s emotional reaction to his regular or specially assigned duties or to a requirement 

imposed by the employment, the disability comes within the coverage of FECA.14 On the other 

hand, the disability is not covered where it results from such factors as an employee’s fear of a 

reduction-in-force or his frustration from not being permitted to work in a particular environment 

or to hold a particular position.15

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.16 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 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.18

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.19 If a claimant does implicate a factor of 

 11 V.W., 58 ECAB 428, 431 (2007); Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990). 

12 L.D., 58 ECAB 344, 350 n.8 (2007); Robert Breeden, 57 ECAB 622, 625 (2006). 

13 A.K., 58 ECAB 119, 121 (2006); David Apgar, 57 ECAB 137, 140 (2005). 

14 5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309, 314 (2001); Lillian Cutler, 28 ECAB 125, 129 (1976). 

15 J.F., 59 ECAB 331, 338 (2008); Gregorio E. Conde, 52 ECAB 410, 411-12 (2001). 

16 See Matilda R. Wyatt, 52 ECAB 421, 423 (2001); Thomas D. McEuen, 41 ECAB 387, 391-92 (1990). 

17 See William H. Fortner, 49 ECAB 324, 325 (1998). 

18 Ruth S. Johnson, 46 ECAB 237, 241 (1994). 

19 D.L., 58 ECAB 217, 220 (2006). 
7

employment, OWCP should then determine whether the evidence of record substantiates that 

factor.20 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.21

ANALYSIS 

Appellant alleged that an aggravation of hypertension caused by a supervisor, J.J., yelling 

at her and berating her on February 23 and 27, 2012. By decision dated July 5, 2012, OWCP 

accepted her claim for aggravation of hypertension, but failed to discuss the factual aspect of her 

claim. On April 3, 2013 it proposed to rescind its July 5, 2012 decision as it determined the facts 

as alleged by appellant had not been established. The rescission was made final as of 

June 27, 2013. Appellant subsequently requested an oral hearing, after which an OWCP hearing 

representative issued a decision affirming OWCP’s the January 9, 2014 rescission. 

The Board finds that OWCP presented sufficient evidence to meet its burden of proof to 

rescind its acceptance of appellant’s claim. OWCP had accepted the claim without analyzing the 

conflicting factual evidence from witnesses, supervisors, and coworkers as to what actually 

occurred on the relevant dates. At the time of acceptance, it treated the claim as a traumatic 

injury even though appellant had claimed numerous dates of alleged abuse by her supervisor. 

Moreover, it accepted the claim for aggravated hypertension induced by psychological 

stress without analyzing whether any of the alleged abusive actions taken by appellant’s 

supervisor fell under the performance of duty. The Board has held that the manner in which a 

supervisor exercises his or her discretion falls outside the coverage of FECA. This principle 

recognizes that a supervisor or manager must be allowed to perform their duties and that 

employees will, at times, disagree with actions taken. Mere disagreement with or dislike of 

actions taken by a supervisor or manager will not be compensable absent evidence establishing 

error or abuse.22 For harassment or discrimination to give rise to a compensable disability, there 

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

fact, occur.23 Mere perceptions of harassment or discrimination are not compensable under 

FECA.24 A claimant must substantiate allegations of harassment or discrimination with 

probative and reliable evidence.25 Unsubstantiated allegations of harassment or discrimination 

are not determinative of whether such harassment or discrimination occurred.26 A claimant must 

 20 David C. Lindsey, Jr., 56 ECAB 263, 269 (2005). 

21 Robert Breeden, supra note 12. 

22 S.M., Docket No. 09-2290 (issued July 12, 2010); Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004). 

23 K.W., 59 ECAB 271, 276 (2007); Robert Breeden, supra note 12. 

24 M.D., 59 ECAB 211, 216-17 (2007); Robert G. Burns, 57 ECAB 657, 661 n.14 (2006). 

25 J.F., 59 ECAB 331, 339 (2008); Robert Breeden, supra note 12. 

26 G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616, 620 (2005); 

Penelope C. Owens, 54 ECAB 684, 686 (2003). 
8

establish a factual basis for his or her allegations of harassment or discrimination with probative 

and reliable evidence.27

The Board finds that there are no compensable factors falling within the performance of 

duty as alleged by appellant because each of her allegation has been disputed by conflicting 

witness statements regarding the events of February 23 and 27, 2012. 

OWCP provided clear explanations in establishing that its prior acceptance of the claim 

was erroneous, and as such, properly rescinded its acceptance. It explained that the factual basis 

of appellant’s claim was not established due to conflicting witness statements. Therefore, 

OWCP presented sufficient evidence to rescind acceptance of her claim. 

CONCLUSION 

The Board finds that OWCP has met its burden of proof to rescind acceptance of 

appellant’s claim for aggravation of hypertension. 

ORDER 

IT IS HEREBY ORDERED THAT the May 28, 2015 decision Office of Workers’ 

Compensation Programs is affirmed. 

Issued: August 4, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 27 Robert Breeden; supra note 12; Beverly R. Jones, 55 ECAB 411, 416 (2004).