United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.V., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

MARCH AIR FORCE BASE, CA, Employer 

__________________________________________ 

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Docket No. 16-0182 

Issued: June 15, 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 November 10, 2015 appellant filed a timely appeal from an October 29, 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. 

ISSUE 

The issue is whether appellant met his burden of proof to establish an emotional 

condition causally related to factors of his federal employment. 

FACTUAL HISTORY 

On May 14, 2014 appellant, then a 48-year-old aviation enforcement agent, filed an 

occupational disease claim (Form CA-2) alleging that on April 8, 2014 he was placed in 

 1

 5 U.S.C. § 8101 et seq. 
2

administrative function due to his inability to perform his assigned law enforcement duties. He 

noted that he first became aware of his condition and its relation to his federal employment on 

April 8, 2014. The employing establishment advised that appellant was currently working 

administrative tasks due to his medical condition. It noted that he did not stop work, but his 

duties were changed. 

By letter dated May 29, 2014, OWCP notified appellant that the evidence of record was 

insufficient to establish his claim. It instructed him to complete a detailed questionnaire 

regarding the factual elements of his claim and advised him of the type of medical evidence 

needed. 

In an April 10, 2014 letter, the employing establishment informed appellant that his law 

enforcement status was suspended pending further review of his medical conditions. It noted 

that he was experiencing a number of physical ailments that limited his capacity to effectively 

and safely perform his assigned duties. Appellant was assigned to an administrative position. 

In an April 27, 2014 report, Dr. Daniel Camarillo, a family practitioner, advised that 

appellant had multiple medical problems including Hepatitis B, hypertension, coronary artery 

disease, type 2 diabetes, and a prior stroke. He noted that appellant had significant challenges 

that prevented him from performing the physical demands of his position and cognitive 

challenges as a result of his stroke. Dr. Camarillo recommended that appellant retire from the 

employing establishment. Appellant submitted several other diagnostic reports including stress 

echo studies and liver function tests 

In a June 10, 2014 response to the OWCP questionnaire, appellant advised that his stress 

began in 2005 with the closure of the Livermore Sector, Fresno Station. He noted that his 

reassignment to the Temecula Border Patrol Station, in a different part of California, disrupted 

his and his family’s lives and caused him stress. Appellant noted that he put in for many federal 

jobs in the Fresno area, but was denied a position. He indicated that either the stress of 

relocating or the stress of arresting illegal aliens contributed to him having a heart attack. 

Appellant noted that, in September 2008, he transferred to a less stressful job at the employing 

establishment where he had a stroke in February 2009. He noted that his stroke weakened his 

communication and writing skills. Appellant indicated that in a yearly evaluation he was told 

that he needed to improve his speaking and writing skills. He contended that he had been dealing 

with stress regarding his reduced language skills since his stroke. Appellant also noted that he 

was diagnosed with Hepatitis B in 2005, which resulted in a quick decline in his health which 

coupled with other stressful situations made him susceptible to other chronic diseases including 

type 2 diabetes, high blood pressure, stroke, and heart attack. 

On June 17, 2016 OWCP sent a letter of inquiry to the employing establishment asking a 

series of questions relative to his employment, abilities, and any accommodations given. In a 

response received August 15, 2014, appellant’s supervisor provided a statement indicating that 

he was unaware of appellant’s stress-related issues. He did state that appellants function post 

stroke was lacking and that college classes were made available to him. Further, the supervisor 

noted that there was never a request for accommodations. 
3

In an August 8, 2014 attending physician’s report (Form CA-20), Dr. Camarillo advised 

that appellant had several medical conditions including Hepatitis B, heart attack, type 2 diabetes, 

and speech deficits due to a stroke. When asked if the conditions were caused or aggravated by 

an employment activity he responded “no.” 

In a statement received January 20, 2015, inquired about the status of his claim. He 

advised that he filed an Equal Employment Opportunity (EEO) complaint against the employing 

establishment alleging that it retaliated against him following his stroke. 

In an undated letter to appellant, the employing establishment advised that it was closing 

the Livermore Sector where he worked, effective July 31, 2004 in order to more efficiently and 

effectively perform its mission. It advised that he was entitled to priority for any position with 

the employing establishment within in the local commuting area. 

In a February 19, 2015 statement, Raul Diaz, a former coworker of appellant, advised that 

he has known appellant since 1997. He noted that appellant’s position as the acting patrol agent 

in charge was stressful. Mr. Diaz indicated that the Fresno Sector closed causing employees to 

be relocated. He alleged that although the employing establishment stated that employees would 

have priority for positions that opened in the area, appellant was not hired and was forced to 

relocate to Temecula. Mr. Diaz advised that appellant had to leave his family behind for a year, 

eventually moving his family to Temecula after failing to secure a position in Fresno. He noted 

that, following a stroke, appellant related that his supervisors and coworkers were messing with 

him, questioning him on his actions at work, making fun of his speech, and passing around 

drawings to make fun of him. Mr. Diaz also indicated that appellant’s gun and credentials were 

taken from him with no explanation which caused him more stress. 

In a February 25, 2015 statement, Steven Munoz, appellant’s former coworker, advised 

that he worked with appellant at the Border Patrol Station in Fresno. He noted that when the 

Livermore Section was closed, agents were given 30 days to either uproot from their established 

homes or risk losing their jobs. Mr. Munoz indicated that this caused appellant a great deal of 

stress given the fact that his wife would have to leave her job, he would have to sell his home, 

and his children would have to leave school. He noted that appellant began to deteriorate 

physically and mentally as he missed his family when he relocated to Temecula. Mr. Munoz 

advised that appellant sustained a heart attack and then transferred to a different division of the 

employing establishment where he later had a stroke and was diagnosed with diabetes. He noted 

that appellant suffered both mentally and financially due to the closure of the Livermore Sector. 

By decision dated June 2, 2015, OWCP denied the claim because the evidence of record 

failed to establish that appellant sustained an emotional condition due to compensable work 

factors. 

On July 27, 2015 appellant requested reconsideration. In a July 27, 2015 statement, he 

advised that he was stress free in his position until 2004 when he was told that he had three 

months to move to Temecula because the Livermore section was being closed. Appellant noted 

that he had to spend a year away from his family while in Temecula. He advised that in tested 

possible for Hepatitis B, which was accepted as work related. Appellant indicated that his 

position required him to deal with dead bodies, smugglers, and accidents. He contended that he 
4

continued to suffer from stress in his position, which caused high blood pressure eventually 

leading to a heart attack in 2007. Appellant noted that he moved to the air and marine side of the 

employing establishment, but his stress grew resulting in a stroke, which reduced his critical 

thinking skills. He alleged that he was belittled, bullied, and verbally abused by supervisors and 

coworkers. Appellant also alleged that his HIPAA rights were violated when a supervisor spread 

around the office that he was losing his skills. 

By decision dated October 29, 2015, OWCP denied modification of its prior decision. 

On appeal, appellant argues that the allegations he made were truthful and that it would 

be impossible for him to produce the evidence required. 

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.2

 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.3 

To establish a claim that he or she sustained an emotional or stress-related condition in 

the performance of duty, an employee must submit: (1) factual evidence identifying employment 

factors or incidents alleged to have caused or contributed to the condition; (2) medical evidence 

establishing that he or she has an emotional or stress-related disorder; and (3) rationalized 

medical opinion evidence establishing that the identified compensable employment factors are 

causally related to the condition. If a claimant implicates a factor of employment, OWCP should 

determine whether the evidence of record substantiates that factor. Allegations alone are 

insufficient to establish a factual basis for an emotional condition claim and must be supported 

with probative and reliable evidence. If a compensable factor of employment is established, 

OWCP must then base its decision on an analysis of the medical evidence.4

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.5

 However, 

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

 2 Supra note 1; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976). 

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

4 G.S., Docket No. 09-764 (issued December 18, 2009). 

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

ECAB 556 (1991). 
5

employing establishment in what would otherwise be an administrative matter, coverage will be 

afforded.6

 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.7

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

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.8

 A claimant must 

establish a factual basis for his or her allegations with probative and reliable evidence. 

Grievances and EEO complaints, by themselves, do not establish that workplace harassment or 

unfair treatment occurred.9

 The issue is whether the claimant has submitted sufficient evidence 

under FECA to establish a factual basis for the claim by supporting his or her allegations with 

probative and reliable evidence.10 The primary reason for requiring factual evidence from the 

claimant in support of her allegations of stress in the workplace is to establish a basis in fact for 

the contentions made, as opposed to mere perceptions of the claimant, which in turn may be fully 

examined and evaluated by OWCP and the Board.11 

ANALYSIS 

Appellant filed an occupational disease claim alleging that he sustained an emotional 

condition as a result of being transferred to a new duty location. He also cited being denied for a 

position in the Fresno area, being placed on administrative duty, retaliation after a stroke, 

bullying, and a violation of his HIPAA rights. OWCP denied appellant’s emotional condition 

claim, finding that he failed to establish any compensable employment factors. The Board must 

therefore initially review whether these alleged incidents and conditions of employment are 

covered employment factors under the terms of FECA. Appellant alleged that he experienced 

stress as result of his job duties including dealing with dead bodies, smugglers, and accidents. 

He failed to submit factual evidence identifying particular tasks on specific dates to which he 

attributes his emotional condition. The Board finds that this claim is vague and lacking in detail 

and therefore it does not allege a compensable factor of employment. The Board notes that 

appellant’s allegations do not sufficiently identify specific work factor or conditions to implicate 

work factors under Cutler.

12

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

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

8 See Michael Ewanichak, 48 ECAB 364 (1997). 

9 See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997). 

10 See James E. Norris, 52 ECAB 93 (2000). 

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

12 See supra note 3. 
6

Appellant alleged that the closing of the Livermore Section and his subsequent change in 

duty station caused him stress. Although the handling of job transfers and the management of 

work assignments and schedules are generally related to the employment, they are administrative 

functions of the employing establishment and not duties of the employee.13 An employee’s 

emotional reaction to administrative or personnel matters taken by the employing establishment 

is not covered under FECA absent a finding of error or abuse by it as such matters pertain to 

procedures and requirements of the employing establishment and do not bear a direct relation to 

the work required of the employee.14 The Board finds that appellant has not presented any 

evidence of error or abuse in the part of the employing establishment with respect to its handling 

of the above-noted administrative and personnel matter.15 

Appellant also alleged that the employing establishment failed to hire him for several 

positions that would have allowed him to stay in the Fresno area. He submitted a letter from the 

employing establishment that indicated that he was entitled to priority for any position within in 

the local commuting area. However, the Board has held that conditions resulting from the desire 

for a different job, promotion, or transfer are not compensable.16 As noted, frustration from not 

being permitted to work in a particular environment is not compensable.17

In a response to OWCP on August 14, 2014 appellant’s supervisor indicated that he was 

unware of appellant’s stress issues. As such no request for accommodation was requested. 

Appellant’s supervisor noted that appellant’s post stroke was lacking, but he performed all tasks 

assigned. 

Appellant submitted an April 10, 2014 letter from the employing establishment notifying 

him that he was being placed on administrative duty due to physical ailments that limited his 

capacity to effectively and safely perform his assigned duties. He contended that this caused him 

stress. The letter indicated that appellant admitted that his physical ailments did in fact limit his 

capacity to perform his duties. Furthermore, he submitted an April 27, 2014 report where 

Dr. Camarillo recommended that he retire from the employing establishment due to his multiple 

health conditions. The Board has held that the manner in which a supervisor exercises his or her 

discretion falls outside the coverage of FECA. This principal recognizes that supervisors or 

managers 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.18 There is insufficient 

evidence to show that appellant’s supervisor acted unreasonably toward appellant with regard to 

 13 L.C., 58 ECAB 493 (2007). 

14 See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991). 

15 See Charles D. Edwards, 55 ECAB 258 (2004); Linda K. Mitchell, 54 ECAB 748 (2003); James E. Norris, 52 

ECAB 193 (2000). See also Andrew J. Sheppard, 53 ECAB 170 (2001) (an employee’s frustration and depression 

resulting from an involuntary transfer are not compensable). 

16 Charles E. McAndrews, 55 ECAB 711 (2004). 

17 See supra note 4. 

18 Linda J. Edwards-Delgado, 55 ECAB 401 (2004). 
7

placing him on administrative duty.19 Appellant also alleged that he experienced stress as a 

result of being told that he needed to improve his speaking and writing skills in a performance 

appraisal. The Board has held that an unsatisfactory performance rating, without more, is 

insufficient to provide coverage under FECA.20 Although the performance rating is related to 

the employment, it is an administrative function of the employing establishment, not a duty of 

the employee. There is no evidence of error or abuse by the employing establishment with 

respect to this incident. 

Appellant alleged that his coworkers and supervisor were verbally abusive and bullied 

him regarding his speech following his stroke. The Board has recognized the compensability of 

physical threats or verbal abuse in certain circumstances. This does not imply, however, that 

every statement uttered in the workplace will give rise to coverage under FECA.21 The Board 

finds that appellant has not sufficiently identified particulars of any events in which he alleges 

verbal abuse.22 

To the extent that appellant alleges that he was harassed or discriminated against, the 

Board has held that, 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. Unsubstantiated allegations of harassment or 

discrimination are not determinative of whether such harassment or discrimination occurred. To 

establish entitlement to benefits, a claimant must establish a factual basis for the claim by 

supporting his allegations with probative and reliable evidence.23 Appellant submitted a 

statement from Mr. Diaz, a former coworker, who contended that appellant told him that his 

supervisors and coworkers were messing with him, questioning him on his actions at work, 

making fun of his speech, and passing around drawings to make fun of him. There is no 

corroborating evidence to establish that appellant’s supervisors and coworkers actually engaged 

in this conduct. Mr. Diaz’ statement is not specific as to precise time and place and it is based on 

information told to him by appellant, as opposed to any firsthand knowledge. 

The record also indicates that appellant filed an EEO complaint. However, evidence that 

the employee filed a grievance or EEO complaint against the employing establishment does not, 

by itself, establish that workplace harassment, discrimination, or unfair treatment occurred.24 

 19 Furthermore, management of work assignments and schedules are administrative functions of the employing 

establishment and not duties of the employee. See supra note 13. 

20 Thomas D. McEuen, 41 ECAB 387 (1990), reaff d on recon., 42 ECAB 556 (1991). 

21 See Charles D. Edwards, supra note 15. 

22 See Joe M. Hagewood, 56 ECAB 479 (2005) (while witness statements agreed that the supervisor and appellant 

argued, the statements did not contain a detailed account of what was stated. Without a detailed description of the 

specific statements made, a compensable employment factor was not established). 

23 F.H., Docket No. 13-294 (issued April 12, 2013). 

24 See Charles D. Edwards, supra note 15 (grievances and EEO complaints, by themselves, do not establish that 

workplace harassment or unfair treatment occurred). 
8

Appellant has not provided any evidence to support that any specific adverse findings were made 

against the employing establishment with regard to the claimed incidents at issue. 

Appellant alleged that his supervisor violated his HIPAA rights when he spread around 

the office that appellant was losing his skills. There is no evidence to establish that appellant’s 

supervisor spread appellant’s private medical information. As explained, a claimant must 

establish a factual basis for the claim by supporting his allegations with probative and reliable 

evidence.25

On appeal, appellant argues that the allegations made were truthful and that it would be 

impossible for him to produce the evidence required. As explained, it is the claimant’s burden to 

provide factual evidence to substantiate his claim. Furthermore, even when an allegation is 

accepted as true it still may not amount to a compensable work factor within the meaning of 

FECA. Appellant has not established any compensable work factors as a cause of his claimed 

conditions. As such the Board does not need to evaluate the probative value of the medical 

evidence submitted in support of the claim.26

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. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish an emotional 

condition causally related to compensable factors of his employment. 

 25 F.H., Docket No. 13-294 (issued April 12, 2013). 

26 See Lori A. Facey, 55 ECAB 217 (2004). 
9

ORDER 

IT IS HEREBY ORDERED THAT the October 29, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 15, 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