United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.O., Appellant 

and 

SOCIAL SECURITY ADMINISTRATION, 

LOS ANGELES TELESERVICE CENTER, 

Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 15-357 

Issued: June 15, 2015 

Appearances: Case Submitted on the Record

William H. Brawner, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 24, 2014 appellant, through counsel, filed a timely appeal from an 

October 20, 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 on November 7, 2011 in the performance of duty causally related to factors of his 

federal employment. 

On appeal counsel asserts that, because the employing establishment violated appellant’s 

Weingarten rights and the human instincts doctrine, appellant established a compensable 

emotional condition. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On July 27, 2014 appellant, then a 49-year-old teleservice representative, filed a 

traumatic injury claim alleging that on June 12, 2014 he was required to be present at a meeting 

with his supervisor, and this caused anxiety, chest pain, respiratory distress, headache, and 

diminished feeling in his face. He was hospitalized overnight and this resulted in long-term 

emotional and physical consequences such that he could not return to work. 

By letter dated August 12, 2014, OWCP informed appellant of the evidence needed to 

support his claim. Appended to the letter was a note addressed to the employing establishment 

stating, “If the employee was treated at the employing establishment medical facility for this 

injury, the employing establishment must provide the treatment notes directly to OWCP.” 

In support of his claim, appellant submitted an affidavit indicating that on June 10, 2014 

his supervisor, Raymond Leung, called him for a discussion regarding performance. He 

requested union representation so the discussion was postponed until the next day, but that 

Mr. Leung was not available the next day. Appellant continued that on June 12, 2014 Mr. Leung 

interrupted him and told him to go to his cubicle to have the discussion which, appellant 

maintained, was code for a possible disciplinary action, so he again requested union 

representation. Mr. Leung refused and appellant claimed that was a violation of his Weingarten

rights.2 Appellant alleged that Mr. Leung criticized his work performance and implicitly 

indicated an adverse action against him, stating that Mr. Leung would lower appellant’s grade. 

He stated that he continued to ask for union representation, but it was refused. Appellant began 

to feel stress and his blood pressure was getting high. He told Mr. Leung that he was not feeling 

well and needed to go to the doctor. Appellant stated that he then went to urgent care for 

treatment, but was told that his supervisor refused to authorize treatment. He later went to an 

emergency room and was hospitalized overnight. 

Medical evidence includes reports from Glendale Memorial Hospital and Health Center 

dated June 12 and 13, 2014. Dr. Brigeli P. Westerband, a Board-certified internist, noted seeing 

appellant in the emergency department for a complaint of chest pain, weakness, and possible 

stroke. Dr. Mikhail Blinchik, a Board-certified internist, obtained an admission history and 

examined appellant. He noted that appellant’s symptoms began approximately two days prior. 

Examination findings included a left arm deformity, present since birth. Appellant was admitted 

with a diagnostic impression of chest pain, etiology unclear; weakness, rule out acute stroke. 

While hospitalized, he was seen by Dr. Onkarjit Marwah, Board-certified in internal medicine 

and cardiovascular disease, who noted appellant’s complaint of stress at work with shortness of 

breath, chest pain, and weakness of the right side of the face. Dr. Marwah discussed examination 

findings and diagnosed chest pain, hypertension, sinus tachycardia on electrocardiogram, 

shortness of breath, and stress. He ordered additional studies. 

On a discharge summary, Dr. Blinchik indicated that appellant was admitted on June 12, 

2014 and discharged on June 13, 2014. He noted that acute myocardial infarction was ruled out, 

 2

 The Weingarten decision gave employees the right to representation during an investigative interview when the 

employee had the reasonable belief that the interview could lead to discipline. N.L.R.B. v. Weingarten, Inc., 420 

U.S. 251 (1975). 
3

and that a stress test was normal. Dr. Blinchik reported that a computerized tomography scan of 

the brain showed no evidence of intracranial hemorrhage, no large vessel distribution ischemic 

changes, an old right frontal cortical infarction, and encephalomalacia. A carotid ultrasound 

showed no evidence of hemodynamically significant carotid arteries, and a magnetic resonance 

imaging (MRI) scan of the brain showed an old right cerebral infarct and no acute intracranial 

change. Discharge diagnoses were atypical chest pain, possibly related to anxiety attacks versus 

musculoskeletal; numbness and tingling sensation of perioral area and right arm, possibly due to 

anxiety attacks versus transient ischemic attack of the brain; old cerebrovascular accident in right 

frontoparietal lobe; hypertension; diabetes mellitus type 2; anxiety disorder; and weakness of the 

left arm from childhood that had not changed recently. Appellant was to follow-up with his 

primary care physician. 

In a report dated June 24, 2014, Dr. Edgar Agvanyan, Board-certified in family medicine, 

stated that a hostile work environment caused severe panic/anxiety attacks, and that appellant 

could not have contact with work supervisors or return to work. On August 22, 2014 he found 

that appellant’s altercation at work caused acute anxiety, acute stress reaction, and panic attacks.3

 

In reports dated September 10, 2014, Dr. Sara Epstein, a Board-certified psychiatrist, 

noted appellant’s description of employment events. She maintained that denying him union 

representation on June 12, 2014, continuing the discussion when appellant was stressed, and 

denying him basic medical care put appellant’s life in danger. Dr. Epstein diagnosed posttraumatic stress disorder; major depression; high, labile blood pressure; birth injury involving 

left upper extremity; and occupational, health, and financial stressors. She further indicated that 

a recent brain scan suggested two strokes, possibly as a direct result of the events of 

June 12, 2014. Dr. Epstein recommended psychotherapy and medication. She also 

recommended appellant be seen by a cardiologist and a neurologist, and have a repeat brain MRI 

scan study. Dr. Epstein advised that he could never return to his prior work unit. 

In a September 5, 2014 statement, Charlotte Elmore, a union representative, advised that 

on June 12, 2014 she received several telephone calls from distressed employees concerning 

appellant’s meeting with Mr. Leung. She stated that many employees would not complete 

witness statements for fear of reprisal. Lily Monterroso, a coworker, stated that she witnessed 

the confrontation between appellant and Mr. Leung. She stated that she was unsure why the 

confrontation was taking place, but witnessed that appellant was becoming very agitated and 

stressed, and that Mr. Leung denied his request for union representation and to seek medical 

assistance. 

In an e-mail dated July 2, 2014, Eddie Taylor stated:4

 

“The Social Security Administration, in settlement of unfair labor practice 

charges filed by various Locals of the American Federation of Government 

Employees, agrees to provide those Locals with advance notice and the 

opportunity to be represented at any formal discussion between one or more 

 3

 Dr. Agvanyan also discussed orthopedic conditions, which are not at issue in this case. 

4

 The record before the Board does not further identify Mr. Taylor. 
4

representatives of the [employing establishment] and one or more employees in 

the unit or their representatives concerning any grievance or any personnel policy 

or practices or other general condition of employment.” 

In a pleading dated September 11, 2014, counsel maintained that appellant’s Weingarten

rights and the human instincts doctrine were violated on June 12, 2014.5

 

By decision dated October 20, 2014, OWCP denied the claim. It found that, while 

appellant had a discussion with his supervisor, Mr. Leung, on June 12, 2014, he did not establish 

error and abuse by the employing establishment in this administrative function. 

LEGAL PRECEDENT 

To establish his claim that he sustained a stress-related condition in the performance of 

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

emotional or stress-related 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 stress-related condition.6

 If a claimant does implicate a factor of employment, 

OWCP should then determine whether the evidence of record substantiates that factor.7 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.8

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,

9

 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.10 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 emotional reaction to a special assignment or other requirement imposed by the 

employing establishment or by the nature of the work.11 Allegations alone by a claimant are 

 5

 Counsel forwarded a copy of the decision N.L.R.B. v. Weingarten, Inc., supra note 2. 

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

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

8 Id.

9

 28 ECAB 125 (1976). 

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

11 Supra note 9. 
5

insufficient to establish a factual basis for an emotional condition claim.12 Where a claimant 

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

probative and reliable evidence.13 Personal perceptions alone are insufficient to establish an 

employment-related emotional condition.14

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.15 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.16 

ANALYSIS 

The Board finds that this case is not in posture for decision. Appellant attributed his 

stress-related condition to a meeting with his supervisor, Mr. Leung, on June 12, 2014. He 

submitted supportive statements and medical evidence. Other than a brief mention in a 

development letter OWCP sent appellant, stating that the employing establishment should 

forward medical information, OWCP did not request further information from the employing 

establishment. OWCP procedures, however, require that, in development of an emotional 

condition claim, it must obtain statements from witnesses, coworkers, and supervisors, among 

others, before it makes a determination of whether the incidents alleged by a claimant occurred 

and whether such incidents or factors constitute compensable factors of employment. The 

procedures specifically provide that, in certain types of claims, such as a stress claim, a statement 

from the employing establishment is imperative to properly develop and adjudicate the claim.17 

The Board has concurred that evidence from the employing establishment regarding specific 

allegations of error or abuse is critical to a proper adjudication of the claim.18

As OWCP did not seek to obtain evidence by sending a development letter to the 

employing establishment, the case record is incomplete, and the Board cannot render a fully 

informed adjudication.19

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

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

14 Roger Williams, 52 ECAB 468 (2001). 

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

16 Kim Nguyen, 53 ECAB 127 (2001). 

17 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7(a)(2) 

(June 2011). 

18 L.B, Docket No. 13-552 (issued November 21, 2013). 

19 See. B.D., Docket No. 14-1556 (issued December 10, 2014). 
6

Although it is a claimant’s burden to establish his or her claim, OWCP is not a 

disinterested arbiter but, rather, shares responsibility in the development of the evidence, 

particularly when such evidence is of the character normally obtained from the employing 

establishment or other government source. It shares responsibility to see that justice is done.20 

OWCP’s regulations provide that an employer who has reason to disagree with an aspect of the 

claimant’s allegation should submit a statement that specifically describes the factual argument 

with which it disagrees and provide evidence or argument to support that position.21 If the 

employer does not submit a written explanation to support its disagreement, OWCP may accept 

the claimant’s report of injury as established.22

In the absence of information from the employing establishment regarding the allegations 

in this case, the case will be remanded to OWCP to further develop the factual evidence and, 

thereafter, to make appropriate findings regarding appellant’s allegations. OWCP shall request 

that the employer address the assertions set forth in appellant’s statements and provide any 

relevant evidence to which it has access. Following this and such further development as 

deemed necessary, it should issue a de novo decision. 

CONCLUSION 

The Board finds this case is not in posture for decision and is remanded to OWCP to 

secure relevant evidence from the employing establishment necessary to properly adjudicate the 

claim. 

 20 R.E., 59 ECAB 323 (2008). 

21 20 C.F.R. § 10.117(a). 

22 Id. at § 10.117(b). 
7

ORDER 

IT IS HEREBY ORDERED THAT the October 20, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this decision of the Board. 

Issued: June 15, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board