United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.H., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Washington, DC, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 17-1295

Issued: November 22, 2017

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

JURISDICTION

On May 25, 2017 appellant, through counsel, filed a timely appeal from a March 15, 

2017 merit decision of the Office of Workers’ Compensation Programs. 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.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

ISSUE

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

condition in the performance of duty.

FACTUAL HISTORY

On September 3, 2015 appellant, then a 61-year-old management and program analyst,

filed an occupational disease claim (Form CA-2) alleging that she had insomnia, heightened 

anxiety, headaches, elevated blood pressure, and other conditions aggravated by a hostile work 

environment. She claimed that she first became aware of her conditions and their relationship to 

her federal employment on August 12, 2015.

In a September 22, 2015 letter, OWCP informed appellant of the deficiencies of her claim 

and requested that she provide additional evidence.

In a statement received October 21, 2015, appellant noted having worked at the 

employing establishment since 1988 and having had a subarachnoid hemorrhage in 2007 which 

caused a disability. She alleged that on February 20, 2015 she learned that a coworker, S.D.,

threatened her with physical harm. Appellant related that a different coworker informed her of

the threat. She claimed that since receiving this threat she had been discriminated against due to 

her age and disability by her supervisor, D.K. Appellant met with D.K. on February 23, 2015 

about the threat, but she declined to reveal the name of the informant as requested by D.K. On 

February 24, 2015 she requested reasonable accommodation due to the threat and her resulting 

anxiety and inability to work at her workstation. D.K. denied the request because she refused to 

identify the informant. Appellant claimed that D.K. inferred that her conduct led S.D. to threaten 

her or discuss threats directed towards other people. She related that D.K. told her that she had 

created a hostile work environment and counseled appellant regarding such conduct. D.K. noted 

that she overheard appellant discussing the threats with another employee. Appellant advised

that she told coworker, K.L., her attorney, and the mayor’s office about the threat. On 

February 23, 2015 a coworker informed her that D.K. referenced her mental capacity. 

On February 24, 2015 appellant again requested reasonable accommodation from D.K. 

D.K., on February 25, 2015, removed her from a maxi-flex schedule and monitored her on a 

straight eight-hour time schedule due to the workload. Appellant asserted that the workload had 

nothing to do with flexibility related to an alternate work schedule (AWS), which she had been 

on for seven years. She noted that none of her team members, all younger than her, had received 

an eight-hour work restriction. 

On February 24, 2015 appellant informed D.K. and Dr. T., D.K.’s supervisor, that she 

had an appointment for medical testing on February 25, 2015. She claimed that D.K. still 

scheduled a deliverable due at the time of her appointment. D.K. cited appellant for a 

performance issue for being late on the deliverable. Appellant claimed that this demonstrated 

discrimination and a hostile work environment created by D.K. She noted instances where 

younger coworkers were allowed to work at home due to medical conditions. 
3

On March 4, 2015 appellant had a headache and requested telework which D.K. denied, 

stating that she could not telework while sick. On March 3, 2015 she met with D.K. and Dr. T. 

about a performance plan. D.K. showed appellant an August 2014 memorandum regarding her 

conduct. On March 10, 2015 she informed appellant that, even though she declined to sign the 

performance plan, it still went into effect on the day she presented the plan to her. D.K. stated 

that appellant had the same plan as the rest of the staff and it had not changed.

On March 9, 2015 D.K. had assigned appellant to draft a telework policy. Appellant 

asserted that a contractor instructed D.K. to give her this assignment and that D.K. had not 

received similar instructions for younger team members’ assignments. She contended that her 

March 9, 2015 request to be reassigned was ignored. On March 3, 2015 appellant e-mailed D.K. 

about an agency agreement with the union regarding her removal from an AWS. She related 

that, on several occasions, she asked D.K. for the same opportunities afforded to other 

employees, such as telework and changing her work hours, to no avail. Appellant noted that 

there was a snowstorm on March 5, 2016 and that on March 6, 2015 D.K. denied her telework 

request despite an Office of Personnel Management (OPM) policy allowing a two-hour delayed 

arrival, telework, or unscheduled leave. She maintained that her work environment became very 

hostile after she told D.K. about the threat. Appellant asserted that D.K. took sides with the 

person who made the threat and the person who told her about the threat. She sought a remedy 

that included the return of all of her annual leave used during the snowstorm and a monetary 

buyout or reassignment.

In an October 20, 2015 report, Dr. Phyllis J. Mayo, a licensed psychologist, noted several 

work incidents reported by appellant. The incidents included the alleged threat of bodily harm 

by a coworker, hostile treatment and denial of her requests for reasonable accommodation by 

D.K. and T.B., appellant’s new supervisor, and assignment of work. Dr. Mayo also noted that 

appellant was subjected to daily instances of scrutiny, criticism, and judgment. She provided 

examination findings and diagnosed persistent moderate depressive disorder with panic attacks. 

Dr. Mayo noted that appellant attributed her panic attack symptoms to her hostile work 

environment. 

In a July 29, 2016 decision, OWCP denied appellant’s claim for an emotional condition. 

It found that she had not established any compensable employment factors. OWCP also found 

that the evidence of record did not contain a medical diagnosis in connection with the claimed 

incidents. 

On August 12, 2016 appellant, through counsel, requested a telephone hearing with an 

OWCP hearing representative. The hearing was held on December 28, 2016. Following the 

hearing, appellant submitted a January 7, 2016 letter from Dr. Mayo in which she restated her 

diagnosis of persistent moderate depressive disorder with panic attack. She advised that 

appellant could return to work on January 8, 2016.

Appellant also submitted an April 8, 2015 medical excuse letter in which

Dr. Uzochukwu W. Unegbu, a family practitioner, indicated that appellant was under his care for 

a chronic condition that required cognitive behavioral therapy. He advised that she was unable 

to function well in a noisy environment and requested accommodation of her needs at work.
4

In a March 15, 2017 decision, an OWCP hearing representative affirmed the July 29, 

2016 decision. She found that appellant had not established any compensable employment 

factors.

LEGAL PRECEDENT

A claimant has the burden of proof to establish by the weight of the reliable, probative,

and substantial evidence that the condition for which he or she claims compensation was caused 

or adversely affected by factors of his or her federal employment.3 To establish an emotional 

condition in the performance of duty, a claimant must submit: (1) factual evidence identifying 

employment factors or incidents alleged to have caused or contributed to his or her condition; 

(2) medical evidence establishing that he or she has an emotional or psychiatric disorder; and 

(3) rationalized medical opinion evidence establishing that the identified compensable 

employment factors are causally related to his or her emotional condition.4

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.5 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.6

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 FECA7 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.8 

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.9

 

3 Pamela R. Rice, 38 ECAB 838 (1987).

4

See Donna Faye Cardwell, 41 ECAB 730 (1990).

5

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

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

7

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

ECAB 556 (1991).

8

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

9 Ruth S. Johnson, 46 ECAB 237 (1994).
5

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.10 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 

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

the medical evidence.11

ANALYSIS

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

condition causally related to factors of her federal employment. The Board notes that she did not 

attribute her emotional condition to the performance of her regular or specially assigned duties, 

as an ammunition quality assurance specialist, under Lillian Cutler.

12

 Rather, appellant has 

attributed her emotional condition to being harassed as she was verbally threatened with physical 

harm by a coworker and discriminated by her supervisor, D.K., based on her age and disability, 

after appellant informed D.K. about the alleged threat.

Harassment by supervisors and coworkers, including physical threats and verbal abuse, if 

established as occurring and arising from the performance of work duties, can constitute a 

compensable work factor.13 A claimant, however, must substantiate allegations of harassment

with probative and reliable evidence.14 The Board finds that the factual evidence of record fails 

to support appellant’s allegations of a physical threat. While appellant noted that a coworker 

informed her about the alleged physical threat, she did not submit a witness statement from the 

coworker to corroborate her allegation.15 Accordingly, appellant has not established her 

allegation that she was threatened with physical harm by a coworker.

The Board also finds that appellant’s allegations of discrimination by D.K. have not been 

established. Appellant contended that her requests for reasonable accommodation due to her 

anxiety about the threat and inability to work at her workstation, and her failure to be reassigned

were due to appellant’s refusal to identify the employee who told her about the alleged threat. 

She claimed that in denying her request to telework due to a headache, D.K. stated that she could 

 

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

11 Id.

12 Supra note 4.

13 T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006); Charles D. Edwards, 55 ECAB 

258 (2004).

14 C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

15 See Joel Parker, Sr., 43 ECAB 220 (1991) (the Board held that a claimant must substantiate allegations of 

harassment or discrimination with probative and reliable evidence).
6

not telework while sick. Appellant noted instances wherein her younger coworkers were allowed 

to telework due to their medical conditions. She indicated that D.K. denied her request to 

telework due to a snowstorm on the day prior to her request despite OPM regulations that 

allowed a two-hour delayed arrival, telework, or unscheduled leave under these circumstances. 

Appellant further claimed that D.K. blamed her conduct for the employee’s threat against her and 

other employees and the creation of a hostile work environment because appellant had discussed 

the threat with a coworker. She related that D.K. sided with the employee who made the alleged 

threat. Appellant noted that during a meeting, D.K. showed her an August 2014 memorandum 

regarding her conduct and that a coworker informed her that D.K. had commented about 

appellant’s mental capacity. Appellant asserted that D.K. removed her from an AWS and placed 

her on a straight eight-hour work schedule due to the workload despite an agreement between the 

employing establishment and union regarding removal from the work schedule and despite the 

fact that younger members on her team were not being placed on this same schedule. She

alleged that D.K. assigned her a task on the same day that she had a medical appointment and 

subsequently cited her late performance on the assignment. Appellant questioned why a 

contractor instructed D.K. to give her an assignment to draft a telework policy since the 

contractor had never instructed D.K. to give assignments to younger team members. She noted 

that despite her refusal to sign a performance plan it went into effect. Appellant related, 

however, that D.K. told her that she received the same performance plan as the rest of the staff 

and it was no different from her previous one. 

Appellant’s allegations regarding the denial of her requests for reasonable 

accommodation16 and reassignment,17 leave usage,18 change in duty shift,

19 assignment of 

work,20 disciplinary matters,

21 and issuance of a performance plan22 relate to administrative or 

personnel management actions. Administrative and personnel matters, although generally 

related to employment, are administrative functions of the employer rather than the regular or 

specially-assigned work duties of the employee. For an administrative or personnel matter to be 

considered a compensable factor of employment, the evidence must establish error or abuse on 

the part of the employer.23 Appellant has not submitted any evidence to substantiate that these 

management actions were anything more than an ordinary tension between a manager and an 

employee and are insufficient to prove error and abuse. 

 

16 James P. Guinan, 51 ECAB 604, 607 (2000); John Polito, 50 ECAB 347, 349 (1999).

17 James W. Griffin, 45 ECAB 774 (1994).

18 See Lori A. Facey, 55 ECAB 217 (2004); Judy L. Kahn, 53 ECAB 321 (2002).

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

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

21 C.T., Docket No. 08-2160 (issued May 7, 2009).

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

23 Thomas D. McEuen, supra note 7.
7

The Board finds that appellant has not established a compensable employment factor. 

Thus, it is unnecessary to address the medical evidence of record.24

On appeal counsel contends that OWCP’s decision is contrary to fact and law. For the 

reasons stated above, the Board finds that counsel’s arguments are not substantiated.

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 failed to meet her burden of proof to establish an 

emotional condition in the performance of duty.

ORDER

IT IS HEREBY ORDERED THAT the March 15, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 22, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

 

24 Garry M. Carlo, 47 ECAB 299 (1996). See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).