United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Redmond, WA, Employer 

__________________________________________ 

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Docket No. 16-0161 

Issued: May 24, 2016 

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 2, 2015 appellant, through counsel, filed a timely appeal from a 

September 4, 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 has met her burden of proof to establish an emotional 

condition in the performance of duty due to factors of her federal employment. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts and circumstances included in 

the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal 

will be set forth. 

 1

 5 U.S.C. § 8101 et seq. 
2

On January 6, 2012 appellant, then a 51-year-old customer service supervisor, filed an 

occupational disease claim (Form CA-2) alleging major depression, panic attacks, and anxiety 

causally related to factors of her federal employment. She stopped work on December 12, 2011. 

In a January 11, 2012 statement, appellant related that she worked as a letter carrier since 

1984. She injured her elbow in 2002 and her shoulder in 2003. In 2008, appellant relocated to 

work as a supervisor. She experienced difficulties with a supervisor who used work time 

inappropriately and with the new postmaster, who changed her schedule and implemented 

policies that violated the union contract. In 2010, appellant alleged that the postmaster marked 

her absent without leave when her flight was cancelled after she had visited her terminally ill 

mother. 

In March 2011, appellant returned to work after her mother died and found that the office 

had relocated and she had 40 more employees to supervise. She contended that the employing 

establishment wanted her to work fewer hours with an increased workload. Rich Miele, a 

manager in charge of the operation, instructed appellant to manually fix express mail that had 

been scanned or delivered improperly. Appellant’s work location had poor results for delivering 

packages, so he ordered her to manually scan parcels so that the office could “get off the poor 

performers list.” She received calls from customers who were not getting their packages. 

Mr. Miele would give carriers a 1260 form and indicate that they ended the tour without 

overtime even if this was inaccurate. Appellant related, “I did this a few times because I was 

given a direct order to do so, but felt bad because it was wrong.” On November 23, 2011 she 

refused to change the times for the carrier who worked overtime. J.C., a fellow supervisor, took 

family and medical leave to which she was not entitled. Appellant was not comfortable breaking 

rules. She began to have attacks of stress and stated, “Part of what was causing my attacks was 

the notion that if I reported what I knew about my fellow supervisor, they could possibly lose 

their jobs.” 

In a statement dated February 27, 2012, Mr. Miele advised that appellant requested his 

assistance in 2010 because the postmaster, Harleynda Wilcox, had changed appellant’s work 

hours such that appellant could not easily attend Employees’ Assistance Program sessions. In 

August 2012, Ms. Wilcox indicated that carriers on the “no lunch” list could not work overtime. 

Appellant questioned Ms. Wilcox about this action in light of prior grievances, after which 

Ms. Wilcox changed appellant’s work schedule. In 2011, Mr. Miele became postmaster. He 

related that the employing establishment had “more work to do with fewer employees.” From 

March 2011 to January 2012, Mr. Miele was under pressure to have carriers finish by 5:00 p.m. 

He “gave direct orders to [appellant] to ensure that any employee who worked over 10 hours 

would fill out a 1260 stating their end tour time was 10 hours or less.” Mr. Miele asserted: 

“In July and August 2011, our office kept showing up on the poor performance 

list for scans for express mail and delivery confirmation packages. I tried 

everything I could think of to improve our performance, but nothing seemed to 

work. I finally gave direct orders to [appellant] that when she checked our 

express mail delivery and delivery confirmation labels at the end of the day, to fix 

any errors. That meant she would have to manually input false information so 

that we could get off the poor performer list. When [appellant] told me that she 

had been told not to do that by [a manager], I told her to still do it anyway. When 
3

she finally refused to do it anymore, I assigned that task to my morning 

supervisors.” 

Mr. Miele also ordered appellant in September and October 2011 to “falsely manually 

input any missing scans” on parcels not sorted before carriers left on their routes. In 

October 2011, he instructed her to enter time for J.C.’s absence as sick leave instead of annual 

leave because he “did not want to make any waves with [J.C.] and thought that someone else 

would tell her that she was not entitled to use that type of leave.” 

On February 29, 2012 appellant again described the actions to which she attributed her 

condition. She provided the dates from October through November 2011 that Mr. Miele had 

instructed her “to change carrier clock rings so our office did not show any penalty overtime.” 

By decision dated April 13, 2012, OWCP denied appellant’s claim, finding that she had 

not established any compensable employment factors. On May 11, 2012 appellant requested an 

oral hearing. 

A hearing was held on October 25, 2012. Appellant’s counsel attributed appellant’s 

condition to management instructing her to manipulate data to meet standards, as confirmed by 

Mr. Miele. 

In a report dated November 12, 2012, Dr. David P. Shaw, a Board-certified psychiatrist, 

noted that appellant was “repeatedly asked to bend or to break the rules, or to overlook someone 

else ignoring the rules and guidelines.” He related that Mr. Miele advised appellant to manually 

input inaccurate data, and that managers used work time for personal business, misrepresented 

vacation days, and changed her schedule when she was on vacation. Appellant had an additional 

40 employees when she returned to work in March 2011 after the death of her mother. She 

addressed angry complaints from customers because packages were not delivered. Dr. Shaw 

diagnosed moderate major depression, anxiety disorder with panic attacks, and post-traumatic 

stress disorder and found that she could no longer perform her usual work. He attributed 

appellant’s condition, in part, to work stressors that occurred during the course of her usual 

employment. 

In a decision dated January 2, 2013, an OWCP hearing representative set aside the 

April 13, 2012 decision. She found that appellant had established as compensable work factors 

that in July and August 2011 Mr. Miele instructed her to fill out 1260 forms indicating that 

carriers worked 10 hours or less even if they worked more than 10 hours and to fix errors in 

Express Mail delivery. In October and November 2011, Mr. Miele told appellant to falsely 

change scans on express mail. The hearing representative concluded, “Therefore, I find that 

[appellant] has established [employing establishment] error or abuse in July, August, September, 

and October 2011, when Mr. Miele directed [her] to input false information regarding inputting 

carrier time, scanning express mail delivery, delivery confirmation, and [J.C.’s] [Family Medical 

Leave Act (FMLA)].” She instructed OWCP to prepare a statement of accepted facts (SOAF) 

describing the compensable and noncompensable work factors and refer appellant for a second 

opinion examination. 
4

In a January 18, 2013 SOAF, OWCP listed as compensable factors of employment that 

Mr. Miele told her to change scans on express mail and carrier clock rings, instructed her to hand 

out 1260s, and advised her to allow J.C. to take leave under FMLA when it was not warranted. 

On February 6, 2013 OWCP referred appellant to Dr. Douglas Robinson, a Boardcertified psychiatrist, for a second opinion examination. 

In a report dated February 28, 2013, Dr. Robinson discussed appellant’s work history and 

the factors to which she attributed her condition. He also described the work stressors that 

occurred outside of work, including a custody dispute over grandchildren. Dr. Robinson 

diagnosed recurrent major depressive disorder, panic disorder with agoraphobia, and some 

obsessive-compulsive personality traits. He found that the compensable work factors “did not 

directly cause, aggravate, precipitate, or accelerate the identified psychiatric disorders.” 

Dr. Robinson opined that appellant’s condition occurred one year or more before the events of 

October 2011 and found that she had not adjusted to her transfer to a new work location. He 

noted that she did not sustain panic disorder and recurrent depression until “significant personal 

stressors.” Dr. Robinson determined that appellant’s personality caused her to see incidents as 

illegal or wrong doing. He found that the SOAF did not establish her allegations against her 

supervisor and thus it was “unclear whether her perceptions are valid and if such behaviors 

represented a violation or some form of illegal activity.” 

By decision dated April 25, 2013, OWCP denied appellant’s emotional condition claim, 

finding that the weight of the medical evidence established that she did not sustain any condition 

as a result of the accepted employment factors. 

On April 30, 2013 appellant, through her counsel, requested a review of the written 

record.2

 

In a report dated May 20, 2013, Dr. Shaw diagnosed a single episode of moderate major 

depression, anxiety disorder with panic attacks, and post-traumatic stress disorder. He noted that 

appellant’s supervisor instructed appellant to ignore or break the rules. Dr. Shaw opined that 

“work factors have certainly contributed to [appellant’s] emotional condition. Her family, 

personal and occupational history, and perhaps her genetic vulnerability, rendered her unable to 

cope with and conflicted over requirements to violate [employing establishment], and union 

rules.” 

By decision dated November 5, 2013, an OWCP hearing representative affirmed the 

April 25, 2013 decision. She found that the opinion of Dr. Robinson represented the weight of 

the evidence and established that appellant had not established a causal connection between the 

compensable work factors and her psychiatric condition. 

 2

 By letter dated March 26, 2013, appellant’s counsel challenged Dr. Robinson’s report, noting that he questioned 

the occurrence of the accepted compensable work factors. On May 29, 2013 he submitted a February 19, 2005 letter 

indicating that due to a work injury appellant was giving up her bid position and becoming an unassigned regular. 
5

Appellant appealed to the Board. In a decision dated July 3, 2014, the Board set aside the 

November 5, 2013 OWCP decision denying her emotional condition claim.3

 The Board noted 

that OWCP accepted as compensable work factors that appellant’s supervisor, Mr. Miele, 

committed error and abuse when he instructed appellant to improperly input scans on Express 

Mail, told her to place a coworker on sick leave, and required her to indicate on 1260 forms that 

letter carriers worked less than 10 hours. The Board found that Dr. Robinson’s opinion was not 

based on the SOAF as he determined that she had not established her allegations of misconduct 

by her supervisor. The Board remanded the case for OWCP to prepare a SOAF clearly 

describing the compensable work factors and to further develop the medical evidence.4

On July 17, 2014 OWCP prepared an updated SOAF. It accepted as compensable work 

factors that, in October and November 2011, Mr. Miele made appellant alter scans on Express 

Mail and delivery packages and ordered her to change clock rings to avoid overtime penalties. 

OWCP also indicated that, in November 2011, he erroneously told her to hand out 1260 forms to 

carriers out after 6:00 p.m. Mr. Miele further told appellant to give J.C. leave under FMLA to 

which she was not entitled. 

By letter dated July 17, 2014, OWCP requested that Dr. Robinson review the amended 

SOAF and explain whether appellant had a diagnosed condition causally related to the accepted 

work factors. 

In a supplemental report dated August 26, 2014, Dr. Robinson related: 

“The potential new events occurred in October and November 2011, well after the 

onset of [appellant’s] psychiatric symptoms. The current SOAF also indicates 

that events not a factor of employment include many of the other stressors that 

[she] cited. That some additional events have been found to be compensable 

factors of employment does not alter any of the opinions, including the opinions 

set forth in the last paragraph in response to the first question. 

“I find the totality of evidence persuasive that [appellant’s] condition is related to 

factors independent of her employment.” 

He concluded that appellant’s emotional condition was not directly related to the compensable 

factors of her employment as identified as accepted events that are factors of employment in 

SOAF. 

By decision dated September 30, 2014, OWCP denied appellant’s claim finding that 

Dr. Robinson’s opinion constituted the weight of the medical evidence and established that she 

did not have an emotional condition as a result of compensable work factors. 

On October 22, 2014 appellant’s counsel requested a telephone hearing. 

 3

 Docket No. 14-0433 (issued July 3, 2014). 

4

 The Board found that appellant had not established as compensable work factors that her schedule changed 

unreasonably, that she was forced to give up a bid position, that she was overworked, or that she had to deal with 

angry customers. 
6

At the telephone hearing, held on June 18, 2015, appellant’s counsel asserted that 

Dr. Robinson had not provided any rationale for his opinion and did not address whether her 

condition was indirectly related to work factors by aggravation or acceleration.5

 

By decision dated September 4, 2015, the hearing representative affirmed the 

September 30, 2014 decision. 

On appeal appellant’s counsel notes that the hearing representative who issued the 

September 4, 2015 decision was the same one who issued the prior decision remanded by the 

Board. He asserts that SOAF minimizes the compensable work factors by describing them as 

showing error by the employing establishment rather than error and abuse. Counsel also 

maintains that Dr. Robinson’s report is not reasoned or based on the SOAF. He further argues 

that the physician did not use the proper standard of causation in finding appellant’s condition 

not directly related to employment. Counsel maintains that the case should be referred to a new 

second opinion examiner in accordance with OWCP’s procedures. 

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 regular or specially assigned duties or to a requirement imposed by the 

employment, the disability comes within the coverage of FECA.6

 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 frustration from not being permitted to work in a particular environment or to hold 

a particular position.7

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.8

 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 

 5

 In a statement dated June 18, 2015, appellant’s counsel maintained that Dr. Robinson’s supplemental report was 

not rationalized and did not apply the proper causation standard. 

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

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

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

record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of 

the medical evidence.9

 

Causal relationship is a medical issue, and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.10 The opinion of the 

physician must be based on a complete factual and medical background of the claimant,11 must 

be one of reasonable medical certainty12 explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the claimant.13

OWCP’s procedure manual provides as follows: 

“When the [district medical adviser], second opinion specialist or referee 

physician renders a medical opinion based on a SOAF which is incomplete or 

inaccurate or does not use the SOAF as the framework in forming his or her 

opinion, the probative value of the opinion is seriously diminished or negated 

altogether.”14 

ANALYSIS 

On prior appeal, the Board found that Dr. Robinson, an OWCP referral physician, failed 

to rely on the SOAF in reaching his conclusion that the diagnosed conditions of recurrent major 

depressive disorder, panic disorder with agoraphobia, and obsessive-compulsive personality 

traits were unrelated to employment as he inaccurately found that appellant had not established 

her allegations of unethical or illegal acts by her supervisor. The Board remanded the case for 

OWCP to clarify the SOAF and further develop the medical evidence. 

On remand, OWCP prepared an updated SOAF indicating that appellant had established 

as error that in October and November 2011 Mr. Miele made her change scans on Express Mail 

and delivery packages and ordered her to change clock rings to avoid overtime penalties. It 

further set forth that in November 2011 Mr. Miele erroneously told her to hand out 1260s to 

carriers out after 6:00 p.m. He additionally required that appellant approve J.C.’s leave under 

FMLA to which she was not entitled. In his February 27, 2012 statement, however, Mr. Miele 

indicated that he had told her as early as July and August 2011 to manually input inaccurate 

information on scans. He had also instructed supervisors to alter overtime forms during an 

unspecified period from March 2011 to January 2012 and told appellant in October 10, 2011 to 

approve J.C.’s leave under FMLA. 

 9 Id.

10 John J. Montoya, 54 ECAB 306 (2003). 

11 Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001). 

12 Supra note 10. 

13 Judy C. Rogers, 54 ECAB 693 (2003). 

14 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600(3) 

(October 1990). 
8

OWCP requested that Dr. Robinson review the July 17, 2014 SOAF and address whether 

appellant had a diagnosed condition caused or aggravated by compensable work factors. On 

August 26, 2014 Dr. Robinson discussed the compensable work factors set forth in the SOAF 

and noted that the incidents occurred in October and November 2011, significantly later than the 

start of appellant’s psychiatric condition. He opined that appellant’s condition was “not directly” 

related to the compensable work factors. Dr. Robinson, however, had based her report on an 

incomplete SOAF as it had not identified the proper time frames for the compensable factor. 

Consequently, the basis for his conclusion that her psychiatric condition was unrelated to work 

factors as it had begun well before the occurrence of the compensable work factors in 

November 2011 is based on an inaccurate history.15 As discussed on prior appeal, if an OWCP 

referral physician fails to utilize the SOAF in forming his opinion, or relies on an incomplete or 

inaccurate SOAF, the probative value of the report is diminished or negated.16 As the SOAF 

provided to Dr. Robinson did not accurately provide the dates of the compensable work factors, 

his report fails to resolve the issue of whether appellant sustained an emotional condition in the 

performance of duty. 

Additionally, as noted by appellant’s counsel, Dr. Robinson’s finding that compensable 

work factors did not directly cause her condition is insufficient to negate causal relationship. 

Board precedent provides that it is not necessary to provide a significant contribution of factors 

of employment to establish causal relationship. If the medical evidence revealed that a work 

factor contributed in any way to appellant’s condition, such condition is employment related.17

Once OWCP undertakes to develop the medical evidence further, it has the responsibility 

to do in a manner that will resolve the relevant issues in the case.18 As it has requested 

clarification from Dr. Robinson, but did not receive an adequate response, it should refer 

appellant on remand to another referral physician.19 OWCP should also prepare an accurate 

SOAF setting forth the dates of the compensable work factors. After such further development 

as deemed necessary, OWCP should issue an appropriate decision. 

CONCLUSION 

The Board finds that the case is not in posture for decision. 

 15 Medical opinions based on an incomplete or inaccurate history are of little probative value. See Douglas M. 

McQuaid, 52 ECAB 382 (2001). 

16 See supra note 14. 

17 See R.L., Docket No. 11-115 (issued June 14, 2011). 

18 See Melvin James, 55 ECAB 406 (2004). 

19 OWCP’s procedures provide, “When OWCP undertakes to develop the evidence by referring the case to an 

[OWCP]-selected physician, it has an obligation to seek clarification from its physician upon receiving a report that 

did not adequately address the issues that OWCP sought to develop.... Only if the second opinion physician does 

not respond, or does not provide a sufficient response after being asked, should the [claims examiner] request 

scheduling with another physician.” Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and 

Evaluating Medical Evidence, Chapter 2.810.9(j) (June 2015). 
9

ORDER 

IT IS HEREBY ORDERED THAT the September 4, 2015 decision of the Office of 

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

consistent with this opinion by the Board. 

Issued: May 24, 2016 

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