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. 16-1156 

Issued: October 21, 2016 

Appearances: Case Submitted on the Record

William H. Brawner, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 11, 2016 appellant, through counsel, filed a timely appeal from a March 15, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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 met his burden of proof to establish an emotional 

condition on November 7, 2011 in the performance of duty. 

On appeal counsel asserts that OWCP did not implement the Board’s mandate in its 

June 15, 2015 decision by its failure to properly develop the record and issue a proper de novo 

merit decision. He further asserts that the employing establishment violated the human instincts 

doctrine by delaying medical care. 

FACTUAL HISTORY 

This case has previously been before the Board. In a June 15, 2015 decision, the Board 

found the case not in posture for decision because OWCP did not request information from the 

employing establishment regarding appellant’s assertions.3 As described in the June 15, 2015 

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

traumatic injury claim (Form CA-1) alleging that on June 12, 2014 he was required to be present 

at a meeting with his supervisor, R.L., and this caused anxiety, chest pain, respiratory distress, 

headache, and diminished feeling in appellant’s face for which he was hospitalized overnight and 

resulted in long-term emotional and physical consequences such that he could not return to work. 

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

R.L. called appellant for a discussion regarding performance and that he had requested union 

representation, so the discussion was postponed until the next day, however, R.L. was not 

available then. He further related that on June 12, 2014 R.L. interrupted him and told him to go 

to his cubicle to have the discussion. Appellant claimed that this was code for a possible 

disciplinary action, so he again requested union representation, which R.L. refused in violation 

of Weingarten rights. He alleged that R.L. criticized appellant’s work performance and 

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

Appellant stated that he continued to ask for an union representative, which R.L. refused and 

appellant noted that he began to feel stress and his blood pressure was increasing. He continued 

that he told R.L. that he was not feeling well and needed to go to the physician. Appellant stated 

that he then went to urgent care for treatment, but was told that R.L. refused to authorize 

treatment and that later appellant went to an emergency room and was hospitalized overnight. 

Medical evidence included documentation from Verdugo Hills Medical Associates dated 

June 12, 2014 noting that R.L. would not authorize treatment. It also included reports from 

Glendale Memorial Hospital and Health Center dated June 12 and 13, 2014. Dr. Mikhail 

Blinchik, Board-certified in internal medicine, completed a discharge summary. He described 

appellant’s hospital course, noting that all tests were negative for acute changes, and that acute 

 3

 Docket No. 15-357 (issued June 15, 2015). 
3

myocardial infarction was ruled out.4

 Discharge diagnoses included atypical chest pain and 

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

an old cerebrovascular accident; hypertension; diabetes mellitus Type 2; anxiety disorder; and 

weakness of the left arm from childhood that had not changed recently. 

Additional medical evidence included reports from Dr. Edgar Agvanyan, Board-certified 

in family medicine, and Dr. Sara Epstein, a Board-certified psychiatrist, who advised that the 

altercation at work caused panic attacks, post-traumatic stress disorder, and depression. 

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 R.L. She maintained that many employees would not complete witness 

statements for fear of reprisal. L.M., a coworker, indicated that she witnessed the confrontation 

between appellant and R.L. She reported that she was unsure why the confrontation was taking 

place, but witnessed that appellant was becoming very agitated and stressed and that R.L. denied 

appellant’s request for union representation and to seek medical assistance. 

By decision dated October 20, 2014, OWCP denied the claim, finding that the June 12, 

2014 discussion did not establish error and abuse by the employing establishment. Appellant, 

through counsel, then appealed to the Board. In its June 15, 2015 decision, the Board found that 

the case was not in posture for decision because, as OWCP did not seek to obtain evidence by 

sending a development letter to the employing establishment, the case record was incomplete, 

and the Board could not render a fully informed decision.5

 The facts and circumstances set forth 

in the Board’s prior decision are incorporated herein by reference. 

Subsequent to the Board’s June 15, 2015 decision, by letter dated October 23, 2015 

OWCP requested that the employing establishment provide comments from a knowledgeable 

supervisor regarding the accuracy of appellant’s allegations and to discuss whether his position 

was stressful and whether there were performance or conduct problems. 

In a response dated November 12, 2015, R.L. disagreed with appellant’s allegations. He 

indicated that on June 10, 2014 he told appellant that he needed to have a routine discussion 

regarding his service observation and that the discussion was not intended to discipline appellant. 

R.L. related that he could not complete the discussion because appellant advised that he was not 

feeling well and wanted to go home, at which time he informed appellant that the discussion 

would continue at a later time. He continued that appellant was on leave on June 11, 2014 and 

that on June 12, 2014 he again told appellant that he did not intend to discipline him and that he 

would be notified of the need for union representation if the discussion might lead to disciplinary 

action. R.L. reported that appellant then walked away, yelling at him. He noted that, because 

appellant had not returned to work since June 12, 2014, a copy of appellant’s service observation 

 4

 The tests included a normal stress test. 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 scan of the brain showed an old right cerebral infarct and no acute intracranial change. 

5 Supra note 3. 
4

was given to the union on September 4, 2014. R.L. advised that there were no aspects of 

appellant’s job that could be perceived as stressful, noting that these duties involved answering 

telephone calls, and that he had no additional workload or projects. He related that appellant did 

not openly welcome constructive feedback or directions and consistently challenged 

management decisions, displayed an unpleasant demeanor, and was confrontational. R.L. 

concluded that appellant did not report that he was feeling pressured, overwhelmed, and/or 

stressed before June 12, 2014, and that, while he generally performed all required duties, his 

interpersonal skills did not meet expectations, and that he did not effectively communicate with 

management. 

By decision dated March 15, 2016, OWCP denied the claim. It found that a meeting took 

place on June 12, 2014 between appellant and R.L. and that appellant was denied union 

representation, but that, as the discussion was not disciplinary, appellant failed to establish error 

or abuse in this administrative function, and did not establish an injury in the performance of 

duty. 

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 

 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). 
5

results from his or her 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 insufficient to establish a factual basis for an emotional condition claim.12 Where the 

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 employing establishment 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 

Appellant has not alleged that his emotional condition was due to any specific job duties. 

Rather, his claim pertains to events that occurred on June 12, 2014. Appellant alleges that his 

supervisor, R.L., called him for a discussion regarding performance, and that, because appellant 

requested union representative, the discussion was postponed until the next day, but that R.L. 

was not available then. He continued that on June 12, 2014 R.L. interrupted appellant and told 

him to go to his cubicle to have the discussion which, appellant maintained, was code for a 

possible disciplinary action, so that he again requested union representation which R.L. refused 

in violation of Weingarten rights. Appellant alleged that R.L. criticized appellant’s work 

performance and implicitly indicated an adverse action against him, stating that R.L. would 

lower appellant’s grade. He stated that he continued to ask for union representation that was 

refused. Appellant began to feel stressed and that his blood pressure was getting high. He told 

R.L. that he was not feeling well and needed to go to the physician. Appellant stated that he then 

went to urgent care for treatment, but was told that R.L. refused to authorize treatment. He later 

went to an emergency room and was hospitalized overnight. 

The Board has held that, while verbal abuse may constitute a compensable factor of 

employment, not every statement in the workplace will be covered by FECA.17 A raised voice in 

the course of a conversation does not, in and of itself, warrant a finding of verbal abuse.18 In the 

 11 Supra note 9. 

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

18 C.T., Docket No. 08-2160 (issued May 7, 2009). 
6

case at hand, while L.M. indicated that she witnessed a confrontation between appellant and 

R.L., she did not identify the day or time in question or offer specific details of the conversation. 

Her statement is of diminished probative value. Thus, appellant did not submit sufficient 

evidence to substantiate that R.L. committed error on June 12, 2010 by yelling at appellant. 

Moreover, reprimands, counseling sessions, and other disciplinary actions are administrative 

matters that are not covered under FECA unless there is evidence of error or abuse.19 R.L. 

indicated that he told appellant that the discussion was not disciplinary, but a routine service 

observation. He related that appellant got upset and yelled at him and left work. Thus, the fact 

that a meeting was held would be considered an administrative matter and, in this case, there is 

insufficient evidence of error and abuse. 

Appellant also maintained that his Weingarten rights were violated on June 12, 2014 

because he requested union representation before the meeting, but R.L. denied his request. The 

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

when the employee has the reasonable belief that the interview may lead to discipline.20 There is 

no evidence of record to support that the June 12, 2014 meeting was any type of investigative 

interview or disciplinary matter, other than appellant’s perception that he would be disciplined. 

As noted above, R.L. explained that it to discuss a routine service observation. 

As to counsel’s argument that the human instincts doctrine was violated on June 12, 

2014, in his personal statement appellant merely indicated that he told R.L. that he was not 

feeling well and left. The record supports that an urgent care facility reported that R.L. refused 

to authorize treatment. Appellant related that when he was told this he left. While L.M. 

commented that she heard R.L. deny appellant’s request for medical assistance, this does not 

correspond with appellant’s rendition of the events. Under the human instincts doctrine, an 

employing establishment has the duty to make reasonable efforts to procure medical aid or other 

means of relief to an employee who becomes ill or injured on the job, and who as a result is 

helpless to provide for his or her own care. A failure, on the part of the employing 

establishment, to satisfy this duty may be sufficient to establish a causal connection between an 

employee’s condition and the employment if it is shown that such failure contributed to the 

condition for which compensation is claimed.21 The record does not support that appellant was 

helpless and unable to provide for his care. It appears from the record that he safely transported 

himself to the urgent care facility and the emergency room. There is nothing here to support that 

there was any action that would rise to the level contemplated by the human instincts doctrine.22 

Generally, complaints about the manner in which a supervisor performs his or her duties 

or the manner in which a supervisor exercises his or her discretion fall, as a rule, outside the 

scope of coverage provided by FECA. This principle recognizes that a supervisor or manager in 

general must be allowed to perform his or her duties and employees will, at times, dislike the 

 19 Andrew Wolfgang-Masters, 56 ECAB 411 (2005). 

20 N.L.R.B., v. J. Weingarten, 420 U.S. 251 (1975). 

21 J.W., Docket No. 11-1655 (issued May 18, 2012). 

22 Id. 
7

actions taken. Mere disagreement or dislike of a supervisory or managerial action will not be 

compensable, absent evidence of error, or abuse.23 

The Board also disagrees with counsel’s assertion that the March 15, 2016 OWCP 

decision does not constitute de novo review. Following the Board’s June 15, 2015 decision, 

OWCP requested information from the employing establishment, and this was provided. It 

reviewed the evidence of record, including R.L.’s report, and issued a decision on the merits of 

appellant’s claim on March 15, 2016. 

For the foregoing reasons, appellant has not established a compensable factor of 

employment under FECA and, therefore, has not met his burden of proof to establish that he 

sustained an emotional condition in the performance of duty. 

Finally, as appellant failed to establish a compensable employment factor, the Board need 

not address the medical evidence of record.24 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of the October 16, 2015 decision on the merits of his 

claim, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish an emotional 

condition on November 7, 2011 in the performance of duty. 

 23 Ernest J. Malagrida, 51 ECAB 287 (2000). 

24 Katherine A. Berg, 54 ECAB 262 (2002). 
8

ORDER 

IT IS HEREBY ORDERED THAT the March 15, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 21, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board