United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.T., Appellant 

and 

GENERAL SERVICES ADMINISTRATION, 

PUBLIC BUILDING SERVICE, 

Kansas City, MO, Employer 

__________________________________________ 

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Docket No. 16-1578 

Issued: April 12, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 1, 2016 appellant, through counsel, filed a timely appeal from a June 13, 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 has established an aggravation of his preexisting anxiety 

disorder and the obsessive compulsive symptoms secondary to his Asperger’s syndrome causally 

related to the accepted compensable employment factors related to a fitness-for-duty 

examination on May 14, 2007. 

On appeal counsel contends that abundant psychological medical evidence has been 

provided establishing a causal relationship between appellant’s fitness-for-duty examination and 

the aggravation of his emotional condition. He further asserts that at a minimum, appellant has 

provided prima facie evidence for this claim. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts as set forth in the Board’s 

prior decisions are incorporated herein by reference. The facts relevant to this appeal are set 

forth below. 

On May 13, 2010 appellant, then a 51-year-old building maintenance specialist, filed a 

traumatic injury claim (Form CA-1) alleging that he sustained an aggravation of his preexisting 

anxiety disorder and the obsessive compulsive symptoms secondary to his Asperger’s syndrome 

as a result of being forced to attend a fitness-for-duty examination on May 14, 2007. The 

employing establishment advised that appellant was terminated from employment effective 

September 7, 2007. 

OWCP denied as compensable that the employing establishment referred appellant for a 

fitness-for-duty examination. It found that referral of an employee for a fitness-for-duty 

examination was an administrative matter and, absent error or abuse, it would not be found to be 

compensable. OWCP found no error or abuse in the referral as it found that it was not 

unreasonable for the employing establishment to refer appellant for a fitness-for-duty 

examination to determine his ability to work. 

OWCP did find two compensable factors associated with the fitness-for-duty 

examination. It accepted that, during the fitness-for-duty examination, appellant was touched by 

Dr. Robert Boesch, Board-certified in occupational medicine and the physician conducting the 

examination, and that appellant was required to provide a medical history to Dr. Boesch in 

conjunction with the examination. 

 In a decision dated December 20, 2012, the Board affirmed OWCP’s December 2, 2011 

decision denying appellant’s claim. The Board found that appellant had established two 

compensable employment factors relating to the May 14, 2007 fitness-for-duty examination, but 

that appellant had failed to meet his burden of proof to establish a causal relationship between 

the conditions for which compensation was claimed and the accepted compensable employment 

factors.3

 3

 Docket No. 12-1024 (issued December 20, 2012). 
3

This case came before the Board a second time and, in a decision dated December 18, 

2014, the Board again found that OWCP had properly determined, in a September 11, 2013 

decision, that appellant had not met his burden of proof to establish an aggravation of his 

preexisting conditions causally related to the two accepted compensable factors. Therefore, the 

Board found that modification of the prior decision was properly denied.4

On December 17, 2015 appellant again requested reconsideration. In further support of 

this request, appellant submitted a December 14, 2015 report from his treating clinical 

psychologist, Dr. Sean R. Evers. Dr. Evers had previously submitted numerous reports in 

support of appellant’s claim and noted that “[r]ather than reiterate the contents of these reports, I 

have attached copies of them to this letter. These reports were dated [August 23, 2006, 

January 26, 2010, June 1 and June 7, 2011, March 2, 2012, and July 23, 2013].5 In the 

December 14, 2015 report, Dr. Evers noted that appellant had been his patient since 

September 2005 and that appellant had been diagnosed with Asperger’s syndrome. He related 

that appellant’s symptoms become exacerbated when situations arise which force appellant to 

change his rituals and patterns or force him into behaviors. Dr. Evers noted that these situations 

include interpersonal contact. He explained that if appellant was pressured to perform outside 

his limitations his anxiety would spike and his obsessive compulsive traits would assert 

themselves with debilitating anxiety and episodic decompensation. Dr. Evers noted that 

appellant experienced significant anxiety and aggravation of his psychological condition as a 

direct result of the medical examination of May 14, 2007. Even though appellant indicated that 

Dr. Boesch acted in a professional manner, appellant found the “entire experience emotionally 

challenging.” He felt forced to attend the examination, he anticipated the difficulties traveling to 

the appointment, he reported being very anxious and disoriented in traveling to Dr. Boesch’s 

office, and he reported feeling “violated by the physical contact” required by the examination. 

Dr. Evers contended that “[t]his discomfort triggered an extended period of obsessive ruminating 

and anxiety.” 

Dr. Evers opined that on or about May 14, 2007 appellant experienced a psychological 

injury, that injury being an exacerbation of his anxiety disorder and the obsessive compulsive 

syndromes secondary to his Asperger’s syndrome. He determined that, based on his knowledge 

of appellant through his long-term psychotherapy, appellant’s condition was permanently 

aggravated by “conditions of employment the requirements to undergo the examination of 

May 14, 2009.” Dr. Evers reported that appellant’s psychological level of functioning declined 

from 60 to 35 from April 26, 2006 through May 2, 2012. As a result, he opined that based upon 

the progression of appellant’s illness, he never returned to his preinjury level of function. 

By decision dated March 10, 2016, OWCP determined that Dr. Evers’ December 14, 

2015 opinion failed to provide sufficient medical reasoning to establish a causal relationship 

between appellant’s preexisting psychological conditions and being touched by Dr. Boesch or 

being required to report his medical history to Dr. Boesch. Accordingly, OWPC denied 

modification of its prior decisions. 

 4

 Docket No. 14-390 (issued December 18, 2014). 

5

 The Board notes that there were no additional reports attached to Dr. Evers’ letter. 
4

LEGAL PRECEDENT 

Worker’s compensation law does not apply to each and every injury or illness that is 

somehow related to employment. In the case of Lillian Cutler,

6

 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.7 

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.8 In contrast, a disabling condition resulting from an employee’s 

feelings of job insecurity per se is insufficient to constitute a personal injury sustained in the 

performance of duty within the meaning of FECA. Thus disability is not covered when it results 

from an employee’s fear of a reduction-in-force nor is disability covered when it results from 

such factors as an employee’s frustration in not being permitted to work in a particular 

environment or to hold a particular position. 

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.9 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.10 

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.11

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether a fact of injury has been established. A 

fact of injury determination is based on two elements. First, the employee must submit sufficient 

evidence to establish that he actually experienced the employment incident at the time, place, and 

in the manner alleged. Second, the employee must submit sufficient evidence, generally only in 

the form of medical evidence, to establish that the employment incident caused a personal injury. 

 6

 28 ECAB 125 (1976). 

7 See Robert W. Johns, 51 ECAB 136 (1999). 

8 Supra note 3. 

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

ECAB 556 (1991). 

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

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

An employee may establish that the employment incident occurred as alleged, but failed to show 

that his or her condition relates to the employment incident.12 

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

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

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

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the employee.13

ANALYSIS 

OWCP accepted as compensable factors of employment that on May 14, 2007 appellant 

was touched by Dr. Boesch during the course of a fitness-for-duty examination and that appellant 

was required to provide a medical history to Dr. Boesch.14 The issue is whether these accepted 

compensable factors of employment aggravated appellant’s preexisting anxiety disorder or the 

obsessive compulsive symptoms secondary to Asperger’s syndrome. 

The Board, in its previous decision dated December 20, 2012, had already reviewed the 

reports of Dr. Evers dated January 26, 2010 and June 7, 2011. It had also reviewed the report 

dated July 23, 2013 in its December 18, 2014 decision.15 Therefore, regarding these reports, the 

issue is res judicata.

16 

The only new medical report before the Board in this appeal is the December 14, 2015 

report of Dr. Evers. In that report, Dr. Evers indicated that appellant experienced significant 

anxiety and aggravation of his psychological condition as a direct result of his medical 

examination of May 14, 2007. He noted that appellant was very anxious and disoriented in 

traveling to the appointment, that he felt violated by the physical contact, and this triggered an 

extended period of obsessive ruminating and anxiety. Dr. Evers noted that as a result of this 

examination, appellant’s preexisting anxiety disorder and the obsessive compulsive symptoms 

secondary to his Asperger’s syndrome were permanently aggravated. He noted a decline in his 

psychological function and noted that appellant never returned to his preinjury level of function. 

Although Dr. Evers’ report suggests that one of the compensable employment factors, being 

touched by Dr. Boesch, caused an aggravation of his preexisting conditions, he has failed to 

adequately explain with medical rationale how this touching, in connection with the fitness-for-

 12 Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989). 

13 Id.; see Gary J. Watling, 52 ECAB 278 (2001). 

 14 See Raymond H. Schultz, Jr., 23 ECAB 25 (1971) (Schwartz, Chairman, dissenting) the Board found that the 

requirement to undergo a fitness-for-duty psychiatric examination was a compensable factor of employment. 

15 The record does not include reports referenced by Dr. Evers dated August 23, 2006, June 1, 2011, or 

March 2, 2012. 

16 See J.V., Docket No. 14-0788 (issued October 19, 2015); see also D.S., Docket No. 14-0012 (issued 

March 18, 2014). 
6

duty examination which appellant has consistently described as completely professional, could 

have caused an aggravation of the underlying preexisting conditions, causing disability.17 

Furthermore, Dr. Evers suggested that activities over the period from April 26, 2006 

through May 2, 2012 were responsible for a progression of appellant’s illness. This contradicts 

appellant’s argument that the accepted employment incident of touching by Dr. Boesch in a 

professional medical examination on May 14, 2007 was responsible for decompensation of 

appellant’s underlying conditions.18 

Dr. Evers has also failed to relate the requirement of appellant to provide a medical 

history to Dr. Boesch to any aggravation of his preexisting conditions. A medical report that 

does not provide an opinion on causal relationship is of little probative value.19 Dr. Evers also 

failed to address any other factors in appellant’s life which could have caused the decline in 

appellant’s emotional conditions during the period 2006 through 2012. The Board notes that the 

mere fact that work factors produced pain or discomfort revelatory of an underlying condition 

does not raise an inference of an employment relationship.20 

The Board finds that appellant failed to establish that the accepted employment factors of 

being touched by Dr. Boesch during the fitness-for-duty examination and being required to 

provide a medical history to Dr. Boesch aggravated his preexisting anxiety disorder and the 

obsessive compulsive symptoms secondary to his Asperger’s syndrome. 

CONCLUSION 

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

of his preexisting emotional condition causally related to a May 14, 2007 fitness-for-duty 

examination. 

 17 See K.S., Docket No. 16-0404 (issued April 11, 2016) (the opinion of a physician must be based on a complete 

factual and medical background of the claimant, must be one of reasonable medical certainty, and must be supported 

by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific 

employment factors identified by the employee). 

18 Id. 

19 See L.M., Docket No. 14-973 (issued August 25, 2014). 

20 See Wilbur D. Starks, 23 ECAB 85 (1971). 
7

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 13, 2016 is affirmed. 

Issued: April 12, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board