United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

CONTRACT AUDIT AGENCY, Littleton, CO, 

Employer

__________________________________________

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Docket No. 17-0284

Issued: February 7, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 November 20, 2016 appellant filed a timely appeal from a November 2, 2016 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 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.

ISSUE

The issue is whether appellant met his burden of proof to establish an occupational 

disease or illness due to factors of his federal employment.

 

1 Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). After exercising its discretion, by order dated July 5, 2017, the Board denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 17-0284 (issued July 5, 2017).

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On July 30, 2015 appellant, then a 32-year-old auditor, filed an occupational disease 

claim (Form CA-2) for both physical and emotional conditions he attributed to various alleged 

work-related incidents that occurred over a period of time. He provided a separate statement 

describing the alleged incidents and his claimed medical conditions. Appellant indicated that he 

first became aware of his claimed conditions on June 15, 2015, and first realized on July 1, 2015 

that they were caused or aggravated by factors of his federal employment. He did not stop work. 

On the same Form CA-2, appellant’s immediate supervisor, C.E., indicated that appellant

was never in nonwork or nonpay status, and that he had been assigned only nonaudit work due to 

his concerns. He advised that since appellant reported his claimed medical conditions, he had

performed this work at home per an existing telework program. C.E. noted that appellant agreed 

that the employing establishment was fully accommodating him at the present time. 

Appellant submitted a July 30, 2015 narrative statement in connection with his present 

occupational disease claim. He noted that, in early 2013, he was assigned to be the lead auditor 

for the accounting system of the National Ecological Observatory Network, Inc. (NEON) on 

behalf of the Office of the Inspector General (OIG) of the National Science Foundation (NSF), a 

politically sensitive assignment which included his production of an omnibus report dated

April 27, 2015.3 Appellant asserted that his audit revealed that NEON had illegally spent $1.8 

million dollars of taxpayer funds between 2005 and 2013 on alcoholic beverages, foreign travel, 

employee meals, gifts, and expenses for lobbying Congress. He indicated that two of his 

superiors, M.Q. and A.J., concurred with his findings, but that other senior officials, including 

A.B. and J.M., disagreed with his assessment, causing a major dispute about NEON’s actions. 

Appellant alleged that, in June 2014, the employing establishment, without legal authority,

removed his findings regarding NEON’s use of management fees from his report and sent a legal 

opinion to the NSF’s OIG indicating that NEON had not committed fraud. He contended that 

the employing establishment also obstructed his assignments in order to “teach” him to mind his 

superiors and, in A.B.’s words, convince him to not “rock the boat.” Appellant alleged that

management pressured him to withdraw original allegations, and that A.B. telephoned him and 

threatened him with termination if he persisted with his actions. He reported the claimed 

misconduct of NEON and the employing establishment to several authorities pursuant to the 

Whistleblower Protection Act, 5 U.S.C. § 2302, and 5 C.F.R. § 2635.101(b)(11).4

Appellant claimed that he was the first federal employee to take advantage of a change in 

the Whistleblower Protection Act to engage in whistleblower activities while on official time

with the full knowledge and consent of the employing establishment. He advised that between 

late 2014 and the present, he did not perform a single audit and was instead assigned, on an 

almost full-time basis, to assist in the investigations prompted by his whistleblowing. Appellant 

 

3 Appellant indicated that he started working for the employing establishment on February 27, 2012 as an auditor 

(0511-series) and that he was later promoted to senior auditor.

4 Appellant indicated that these authorities included multiple inspector generals, the U.S. Office of the Special 

Counsel (OSC), multiple congressional committees, and employing establishment officials. He provided a 

description of the provisions of 5 U.S.C. § 2302.
3

noted that a September 21, 2014 Wikipedia article named him as the source of the information 

provided to Congress and he indicated that the site was hacked with remarks about his mental 

status and fitness for employment. He asserted that Wikipedia moderators and the employing 

establishment’s OIG investigators verified that an employing establishment official perpetrated 

the hack, but that he and Congress had been unable to learn the identity of the official, despite 

making Freedom of Information Act (FOIA) requests. Appellant noted that, on September 25, 

2014, the employing establishment’s security office opened an investigation of him and alleged 

that, J.L., a security officer from that office, falsely accused him of making terroristic threats to

blow up the U.S. Capitol and threatened to revoke his security clearance eligibility. He asserted 

that J.L. made other false statements about him, including a statement that she was unaware he 

was a whistleblower.

5

 Appellant asserted that, around the time J.L. made her accusations, the 

employing establishment reduced his performance rating from its prior level without 

justification.

Appellant indicated that, in late 2014, his entire work team was involuntarily transferred 

to another office as a form of retaliation for his whistleblower activities, and that his new 

supervisors expressed hostility about his use of official time to pursue whistleblower activities. 

He indicated that he was summoned to Washington, DC in January and February 2015 to brief 

the House Committee on Science, Space, and Technology. Appellant noted that several actions 

resulted from the hearings, including the employing establishment’s revocation of NEON’s 

management fee and President Obama’s issuance of a directive on the use of management fees. 

He contended that these actions demonstrated complete acceptance of his findings regarding

NEON and he indicated that he prepared a whistleblower disclosure document, dated April 20, 

2015, which described his allegations of criminal acts by the employing establishment. 

Appellant noted that, between April 27 and June 30, 2015, he was relieved of his regular work 

duties due to his allegations and that management demanded his immediate return to work, an 

action which violated Generally Accepted Government Auditing Standards (GAGAS).

6

 He

described why he felt that his whistleblower case had caused his physical and emotional 

problems, including anxiety, stress, insomnia, headaches, stomach cramps, obesity, malaise, 

fatigue, and esophoria.7 Appellant claimed that his coworkers avoided him and that management 

threatened him verbally and in writing with disciplinary action, including threatening him with 

termination in 2014 and 2015. He indicated that he was frustrated by the lack of meaningful 

work to perform while the whistleblowing issues were in the hands of investigators. Appellant

 

5 Appellant asserted that the temporal relationship between the public disclosure of his whistleblowing and J.L.’s 

accusations established a prima facie case of whistleblower reprisal in violation of 5 U.S.C. § 2302.

6 Appellant claimed that, on May 5, 2015, C.E. responded to his claims of GAGAS violations by management by 

improperly directing him to perform the critical work functions of his assigned position. The record contains a 

May 5, 2015 e-mail in which C.E. indicated that he had received an opinion from the employing establishment’s 

legal department that appellant’s performing his critical work functions would not violate GAGAS.

7 Esophoria is a condition causing a deviation of the visual axis of an eye toward that of the other eye after the 

visual fusional stimuli have been eliminated. Dorland’s Illustrated Medical Dictionary, 643 (30th ed. 2003). 

Appellant indicated that, between January 2013 and November 2014, his weight increased from 185 pounds to over 

265 pounds because the stress from work caused him to eat more and to exercise less. He reported that at present he 

weighed 230 pounds with a height of 5’11”.
4

requested that a formal assignment be made under the Rehabilitation Act to perform nonaudit

work on a full-time basis by teleworking at his residence.

8

Appellant also submitted a March 8, 2015 Notification of Personnel Action (Form SF-50) 

memorializing his position as an auditor at the GS-12/Step 2 level. In a July 2, 2015 e-mail to 

C.E., appellant made claims that were similar to those contained in his July 30, 2015 statement. 

In an August 13, 2015 letter, OWCP requested that appellant submit additional factual 

and medical evidence in support of his claim. It asked him to complete and submit an attached 

development questionnaire which posed various questions regarding his claimed employment 

factors. On August 13, 2015 OWCP asked the employing establishment to respond to

appellant’s claims.

Appellant submitted an August 25, 2015 narrative statement in response to OWCP’s 

development questionnaire. He repeated a number of his assertions regarding the audit of NEON 

and his whistleblower allegations against the employing establishment. OWCP’s questionnaire 

had asked about the findings of any grievance, Equal Employment Opportunity (EEO) 

complaint, or other action related to his claim, and appellant responded that he filed actions with 

several bodies, including the U.S. Merit Systems Protection Board (MSPB) and OSC, but that he 

did not currently know the specific status of these actions. He advised that his grandmother died 

in June 2015 and that his wife had a chronic, nonterminal illness, but asserted that he was able to 

cope with these circumstances and had no major source of stress or anxiety outside of his federal 

employment.

Appellant submitted a 179-page document dated April 27, 2015 in connection with his 

whistleblower activities. He alleged that retaliation from his whistleblowing activities resulted in 

a forced transfer and downgrade in his performance evaluation. Appellant claimed that the 

employing establishment committed fraud, gross mismanagement, gross waste of funds, abuse of 

authority, noncompliance with the terms of a grant agreement, intimidation of and retaliation 

against an informant, and reprisal against a protected whistleblower. He indicated that in April 

and May 2013 he prepared reports indicating fraud by NEON, but that upper management 

disagreed with his findings. Appellant provided a detailed description of instances between 2013 

and 2015 that he contacted individuals regarding his audit of NEON and he provided excerpts of 

laws he felt were violated. He alleged that he was illegally punished with negative performance 

evaluations, including a July 25, 2014 evaluation which he believed contained false statements to 

justify the downgrade. Appellant indicated that management initially allowed him to work a 

“gliding” schedule so that he could care for his chronically ill wife, but alleged that in 

February 2014 a superior, M.Q., wrongly accused him of sick leave abuse. He noted that he 

takes the generic form of Adderall and accused A.J. or M.Q. of going through the drawers of his 

work desk and opening his medication bottle. Appellant also asserted that A.J. and M.Q. made 

derogatory comments about him.

 

8 Appellant also requested that he receive special work equipment and be allowed official time during each 

workday to address his health issues, including 90 minutes to perform exercises designed to reduce his obesity and 

30 minutes to perform eye exercises to treat his esophoria. He requested that he receive these workplace 

accommodations until August 31, 2016.
5

Appellant submitted medical evidence in support of his claim. In a July 31, 2015 report,

Dr. Patrick Sharp, an attending Board-certified family practitioner and osteopath, advised that he 

had been appellant’s personal physician and that of his family for many years, and indicated that 

he had read appellant’s July 30, 2015 statement. He indicated that appellant presently suffered 

from anxiety which rose to the level of a medical condition and advised that he reached this 

conclusion based on appellant’s reported symptoms, including feeling nervous and powerless, 

experiencing malaise and fatigue, having a sense of impending danger, experiencing panic or 

doom related to his work at the employing establishment, sweating and trembling at work or 

while thinking about work, and having trouble concentrating or thinking about anything other 

than his worries related to work. Dr. Sharp advised that appellant had no previous history of 

anxiety prior to 2013 and noted that since 2013 he experienced a sudden occurrence of anxiety 

that seemed unrelated to life events outside of his work. Therefore, he concluded that the cause 

of appellant’s anxiety was his job duties and related events described in his July 30, 2015 

statement. Dr. Sharp further indicated that he concurred with appellant’s request that he receive 

workplace accommodations until August 31, 2016 or the date when the underlying 

whistleblower issues were resolved. 

Dr. Sharp further noted that appellant suffered from malaise and fatigue at levels that rose 

to medical conditions and posited that the malaise and fatigue conditions were due to the anxiety 

condition caused by the stress of his working environment. He advised that he was not aware of 

any events from appellant’s nonwork life prior to 2013 that would explain his current state of 

malaise and fatigue. Dr. Sharp noted that appellant participated in numerous physical activities 

prior to mid-2013, including soccer officiating, skiing, and biking, but that he has not routinely 

engaged in such physical activities since “the NEON engagement began falling apart in mid2013.” He concluded that appellant’s malaise and fatigue were directly and indirectly caused by 

his job duties and associated events as outlined in his July 30, 2015 statement. Dr. Sharp noted 

that appellant had suffered obesity (defined as body mass index greater than 30) with a weight of 

265 pounds and a body mass index of 36.4 as of December 1, 2014 and a weight of 229 pounds 

and body mass index of 31.5 as of June 27, 2015. He indicated that prior to 2013 appellant 

routinely maintained a weight of approximately 185 pounds with a body mass index of 25.4 for 

all of his adult life, and he noted that he was unaware of any events in appellant’s life that 

explained his extremely rapid weight gain in 2013 other than the events described in his July 30, 

2015 statement. Dr. Sharp opined that the primary causes of appellant’s rapid weight gain were 

his obsessive eating triggered by his anxiety and his sudden ceasing of routine exercise due to his 

malaise and lethargy. Therefore, he concluded that appellant’s job duties and related events as 

related in his July 30, 2015 statement were directly responsible for his weight gain and obesity. 

Dr. Sharp advised that appellant suffered from esophoria, a condition involving excessive 

inward turning of the eyes, which included periods of double vision when he could not see 

objects at any distance unless corrective lenses were worn. He advised that he was unaware of 

any events in appellant’s life that explained his esophoria other than his work beginning in mid2013 which involved almost no time away from use of his government-issued computer. 

Dr. Sharp acknowledged that appellant previously had esophoria, but asserted that he was fully 

cured of the condition prior to it recurring in mid-2013. He concluded that appellant’s esophoria 

beginning in mid-2013 was directly caused by his change in job duties at that time, along with 

associated events outlined in the July 30, 2015 statement, and specifically by his assignment to 

full-time office duty that necessitated spending long amounts of time in front of a computer 
6

screen at fixed distance.9 Dr. Sharp also found that appellant’s work-related anxiety and 

esophoria caused his headaches and that his work-related anxiety directly caused stomach 

cramps and indirectly caused him to over eat unhealthy foods, thereby leading to stomach aches. 

He also indicated that appellant’s insomnia was related to his work-related obesity and stomach 

aches. Dr. Sharp advised that appellant did not have frequent headaches, gastrointestinal 

distress, or insomnia prior to mid-2013 and that he was unaware of any events in appellant’s 

nonwork life that would explain the existence of these conditions.

Dr. Sharp concluded that appellant’s disabilities/medical conditions were precipitated, 

aggravated, and accelerated by the conditions of employment described in his July 30, 2015 

statement. He indicated that, regardless of the veracity of appellant’s whistleblower allegations, 

appellant’s working environment was not mentally or physically healthy and noted that his

reasonable perception of the hostility of the working environment, coupled with his reassignment 

to purely sedentary duties, directly caused the medical conditions described in the present report. 

Dr. Sharp felt that appellant’s proposed accommodation and course of treatment was the most 

efficient and medically sound methodology of returning him to the state of health he was in prior 

to being exposed to the unhealthy working conditions described in his July 30, 2015 statement. 

He advised that appellant needed to be given adequate time to perform his prescribed medicallynecessary exercises each day during working hours, so as not significantly infringe his personal, 

nonwork time. Dr. Sharp indicated that, if appellant received the requested accommodations, he 

could continue to perform the duties he was assigned, effective July 1, 2015, and, barring 

complications, could return to his regular auditor job by August 31, 2016 without restriction.

In an undated report, Dr. Sharp indicated that the document was produced in support of 

the claim appellant filed with OWCP.10 He provided a summary of some of the work incidents 

and conditions claimed by appellant in his July 30, 2015 statement. Dr. Sharp indicated that he 

had recommended that appellant undergo further psychological testing by a specialist to verify 

his diagnosis of anxiety, but that he had been reluctant to undergo such testing for fear that the 

employing establishment would use the results to terminate his employment. He indicated that 

he first diagnosed anxiety in mid-June 2015 and noted that all his medical conditions were rooted 

in this anxiety. Dr. Sharp discussed various accommodations appellant should have at work. He

posited that the only source of pressure for appellant’s rapid and profound physical and mental 

deterioration beginning in mid-2013 was “the alleged cover-up of the NEON audit results” and 

other audits committed by his superiors that he was attempting to blow the whistle upon, the 

threats made against him those same superiors, and his inability for most of the period, until 

Congress intervened, to do anything about either. Dr. Sharp concluded that the medical 

conditions claimed by appellant in conjunction with his Form CA-2 filed on July 30, 2015 were 

due to his employment with the employing establishment and “the unhealthy, hostile, and 

allegedly illegal working conditions he has been forced to operate under between mid-2013 and 

the present.”

 

9 Dr. Sharp noted that appellant spent more time in front of a computer screen than his coworkers would 

ordinarily spend.

10 Dr. Sharp indicated that he produced the report after OWCP sent appellant the August 13, 2015 development 

letter.
7

In a September 11, 2015 narrative statement, appellant’s immediate supervisor, C.E., and 

a regional director for the employing establishment, D.G., responded to appellant’s claims and 

contended that many of his statements were factually incorrect. They noted that they gave 

appellant work schedule accommodations and were liberal with his leave requests so he could 

care for his wife. The officials indicated that appellant’s time charges from November 2014 to 

June 2015 revealed that 43.6 percent of his time was spent outside of the office, either in 

telework or leave status.11 They noted that from October 1, 2014 to May 2, 2015, appellant spent 

630.50 hours, 52 percent of his total time, supporting congressional committees and carrying out 

whistleblowing activities with minimal supervision. The officials indicated that since July 1, 

2015 appellant had almost exclusively teleworked. They denied improper allegations of illegal 

threats of termination, and asserted that there was no evidence to support harassment, 

discrimination, or error and abuse in administrative issues. In particular, the officials noted that 

A.B. did not at any point threaten appellant’s employment. 

The officials further noted that appellant never raised his concerns about his coworkers to 

his supervisor, except on July 8, 2015 when he notified his supervisor about an errant instant 

message not intended for him.12 They indicated that his supervisor immediately counseled the 

coworker. The officials contended that appellant’s assigned tasks were productive and that there 

was no evidence to demonstrate the alleged management hostility or that the conflicts actually 

existed. They noted at no time did anyone threaten appellant’s employment status, nor had any 

personnel or disciplinary action been planned or taken. The officials asserted that the inquiry 

with the employing establishment’s security office was appropriate given appellant’s actual 

statements regarding the U.S. Capitol. An investigation disclosed that an employee did use 

federal resources to hack the Wikipedia entry appellant referenced, and that appellant provided a 

report of this investigation. The officials indicated that it was not a management official who 

carried out the Wikipedia modification, but noted that appellant was not entitled to know the 

employee’s name due to the individual’s privacy rights. 

In a December 21, 2015 decision, OWCP denied appellant’s occupational disease claim, 

as he had not identified any compensable factors of employment. It found that he failed to 

establish harassment, discrimination, and retaliation as a result of his whistleblower actions. 

OWCP further noted that appellant had not established management error or abuse in 

administrative matters.13

Appellant requested a hearing with a representative of OWCP’s Branch of Hearings and 

Review. Prior to a hearing being held, he submitted a December 28, 2015 statement in which he 

 

11 The officials addressed parts of the factual presentation of Dr. Sharp’s July 31, 2015 report. They indicated that 

appellant spent far less time in front of the computer than his coworkers, noting that he spent a considerable amount 

of time discussing issues in his supervisor’s office.

12 The message read, “I guess [appellant’s] been TW all week. He [i]s online but not in the office. Is he still not 

doing work b/c of his “independence?” 

13 OWCP indicated that appellant’s claim for an August 2, 2015 traumatic injury, assigned OWCP File No.

xxxxxx245, would be adjudicated separately. In 2015 appellant filed a traumatic injury claim (Form CA-1) alleging 

that, while refereeing a youth soccer match on August 2, 2015, he sustained a work injury when he ruptured his left 

Achilles’ tendon. File No. xxxxxx245 is not presently before the Board.
8

alleged that on June 14, 2013 a supervisor, J.M., yelled at him repeatedly in front of witnesses. 

Appellant claimed that M.Q. improperly ordered him not to talk with Congress or the media 

about NEON’s activities.

Appellant submitted a February 17, 2016 report from Dr. Sharp who indicated that his 

previously submitted July 31, 2015 report and undated report were partially based on 

communications with appellant by telephone or the Internet and on evaluations by local medical 

providers, including a fall 2014 evaluation by the University of Colorado Medical School Health 

and Wellness Center.14 Dr. Sharp indicated that, by mid-2013, appellant did not experience a 

material level of anxiety due to a minor car accident from which he had physically recovered by 

December 2012 or due to his wife’s chronic illness which was diagnosed in 2008. He indicated 

that appellant’s work environment was hostile and unhealthy primarily because he was constantly 

exposed to individuals whose interests were adverse to his own. Dr. Sharp noted that appellant had 

accused his entire chain of command of serious malfeasance, giving them ample reason to retaliate 

against him. He noted, “Therefore, even removing all of the allegations of administrative 

misconduct, whistleblower retaliation, or whistleblowing during official time from the table --

[appellant’s] working environment while performing his regular job duties (including both audit 

and nonaudit services) was and is inherently hostile and unhealthy so long as [appellant] was a 

material witness against other employees.” Dr. Sharp discussed which reasonable 

accommodations he felt appellant should be provided, including being able to telework outside the 

employing establishment’s workplace until at least August 31, 2016.

In a March 25, 2016 report, Dr. Lisa M. Griffiths, a clinical psychologist licensed in 

Colorado where she practiced, indicated that the purpose of her report was to discuss whether 

appellant had one or more qualifying disabilities as defined under the Rehabilitation Act and, if 

so, to determine which reasonable accommodations would be appropriate. She indicated that 

appellant met the criteria for a qualified disability under the Rehabilitation Act because he had a 

mental impairment that substantially limited one or more major life activities and that results in a 

substantial impediment to employment. Dr. Griffiths indicated that, if appellant was required to 

return to a work environment that was likely the cause of his stress and emotional reactivity, it 

had the potential to have an additional damaging effect on appellant’s mental health. The work 

environment in this case would certainly include any employing establishment office, likely any 

Department of Defense office, and possibly any Federal Government office. Dr. Griffiths noted 

that continuing to have appellant report to officials he has accused, or is accusing, of misconduct 

in his whistleblower disclosures was likely to have a detrimental effect on his mental health. 

Therefore, to the extent practicable, permitting appellant to report to employing establishment 

officials not currently or previously involved in his whistleblower activities was recommended.

During the hearing, held on August 23, 2016, appellant repeated a number of his 

assertions that the employing establishment retaliated against him for his whistleblower 

activities. He testified that in December 2015 he tape-recorded his superiors and that his 

supervisor wrongly suspended him from employment for five days in February 2016. Appellant 

indicated that he filed two claims with MSPB, but that the claims had not been resolved. He

 

14 The record does not contain any reports of the local providers referenced by Dr. Sharp, other than the 

March 26, 2016 report discussed below.
9

asserted that he charged 2,000 hours to the timekeeping code for whistleblowing. Appellant

testified that he resigned his federal employment in April 2014 and claimed that he was 

improperly forced to resign by management as a form of retaliation for his whistleblower 

activities.

Following the hearing, a copy of the transcript was sent to the employing establishment

for review and comment. In a September 28, 2016 statement, the employing establishment’s 

deputy general counsel for ethics, employment, and administrative law indicated that appellant

failed to establish his allegations of any wrong-doing by management. Regarding appellant’s 

allegations of illegal actions by NEON, the deputy general counsel noted that NEON 

demonstrated poor judgement, but that this did not represent reportable noncompliance with 

contractual terms and Congress determined that NEON’s award and use of management fees was 

not illegal. The deputy general counsel denied that A.B. threatened appellant’s job. Regarding 

the allegation that A.J. and M.Q. went through his drawers and opened his medication bottles, 

the deputy general counsel noted there was no evidence this occurred. The security office’s 

concerns about appellant’s mental health were prompted by his statements to his peers regarding 

his desire to blow up the U.S. Capitol, and management took the appropriate action in response. 

Regarding the allegation that appellant was forcibly transferred and received a downgrade in his 

performance evaluation due to his whistleblowing, the deputy general counsel noted appellant

was not forcibly transferred, but all auditors were informed via e-mail that they had to rebalance 

workload. He denied that appellant’s performance ratings were improperly handled, noting he 

was rated exceeds/fully successful for the period ending June 30, 2012, and he received a fully 

successful on February 6, July 25, and September 30, 2014, and June 30, 2015.15

The deputy general counsel provided emails and statements from appellant’s superiors 

concerning some of appellant’s actions. In a January 6, 2015 e-mail to appellant, C.E. denied 

appellant’s allegation, made in a prior e-mail, that he prohibited him from talking to Congress. 

In a September 26, 2016 e-mail to C.E., M.Q. indicated that auditors told him that appellant had 

expressed his desire to blow up the U.S. Capitol, and he noted that he feared appellant might 

commit violence in the workplace. In a September 26, 2016 statement, A.B. asserted that she did 

not threaten appellant’s employment in that conversation, or at any other time. 

After the hearing appellant submitted additional documents in support of his claim. In a 

January 14, 2014 memorandum, an official from the employing establishment’s OIG indicated 

that it had been substantiated that an employing establishment employee admitted using his work

computer to make revisions to a Wikipedia entry about appellant. The record contains a list of 

the revisions to the Wikipedia article concerning appellant which indicates that the article was 

revised to refer to appellant using the terms “retard,” “psycho,” and “weirdo.” In documents 

from 2015 and 2016, appellant expressed his concerns regarding telework and other work 

accommodations.

Appellant also submitted a December 10, 2015 report of Dr. Neal L. Presant, a Boardcertified occupational medicine physician for the Department of Health and Human Services, 

 

15 The deputy general counsel provided copies of these evaluations. He also noted there were differences between 

appellant’s performance evaluations between 2012 and 2015 due to appellant’s going from a GS-11 to a GS-12, 

noting the GS-12 requirements were more complex. 
10

which is addressed to a reasonable accommodation advisor for the employing establishment. In

a December 10, 2015 report, Dr. Presant indicated that he had reviewed Dr. Sharp’s July 31, 

2015 report. Addressing the opinion expressed by Dr. Sharp in that report, Dr. Presant noted that 

it was reasonable to assume that appellant would be suffering from situational anxiety secondary 

to his dispute with the employing establishment and that he would have difficulty working in an 

office about which he had raised charges of impropriety. He indicated, however, that it remained 

unclear whether appellant had disability in the context of the Americans with Disabilities 

Amendment Act of 2008 and that he should see a mental health professional before a 

determination was made on disability. Dr. Presant noted that, while anxiety may be the likely 

cause of appellant’s malaise and fatigue symptoms, it would be important to perform a full 

medical investigation to determine whether a nonmental health condition is present. He advised 

that appellant’s weight condition was no worse than that of a substantial portion of the federal 

workforce and noted that esophoria was typically noted in childhood and was not 

characteristically linked to anxiety. Dr. Presant noted that appellant’s insomnia, headaches, and 

gastrointestinal distress were likely linked to the anxiety he was suffering secondary to his 

dispute with the employing establishment. He indicated that it would be useful to clarify

Dr. Sharp’s role in appellant’s care and to obtain medical records from him. Dr. Presant advised 

that it would be useful to obtain an evaluation from a mental health professional, including an 

opinion on appellant’s work limitations. 

In a November 2, 2016 decision, OWCP’s hearing representative denied appellant’s 

claim for work-related occupational conditions. She affirmed OWCP’s December 21, 2015 

decision as modified to reflect that appellant established two employment factors, but did not 

submit sufficient medical evidence to establish that he sustained a diagnosed condition due to the 

accepted factors. The hearing representative found that appellant established an employment 

factor with respect to the fact that he worked at least 2,000 on-the-clock hours on his 

whistleblower claim while under the protection of the whistleblower laws due to his allegations 

of fraud, waste, and abuse against the employing establishment NEON, NSF, and other agencies. 

She also found that appellant established an employment factor with respect to the fact that 

nonmanagement employee of the employing establishment improperly used federal resources to

modify a Wikipedia entry that referenced appellant. The hearing representative found, however,

that the reports of Dr. Sharp and Dr. Presant did not contain a rationalized medical opinion 

relating a diagnosed condition due to the accepted federal employment factors. She noted that

Ms. Griffiths was not a physician and that, as causal relation is a medical question that can only 

be resolved by medical opinion evidence, the report of such a nonphysician cannot be considered 

in adjudicating that issue.

LEGAL PRECEDENT

An employee seeking benefits under FECA16 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that the injury was sustained while in the performance of duty as 

alleged, and that any disability and/or specific condition for which compensation is claimed are 

 

16 Supra note 2.
11

causally related to the employment injury.17 To establish fact of injury, an employee must 

submit evidence sufficient to establish that he or she experienced a specific event, incident, or 

exposure occurring at the time, place, and in the manner alleged.18 An employee must also 

establish that such event, incident, or exposure caused an injury.19 These are the essential 

elements of each and every compensation claim regardless of whether the claim is predicated 

upon a traumatic injury or an occupational disease.20

OWCP regulations define the term “[o]ccupational disease or illness” as a condition 

produced by the work environment over a period longer than a single workday or shift.21 To 

establish that an injury was sustained in the performance of duty in an occupational disease 

claim, an employee must submit the following: (1) medical evidence establishing the presence 

or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence 

or occurrence of the disease or condition; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the employee.22

The medical evidence required to establish causal relationship generally is rationalized 

medical opinion evidence.23 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 established employment factors.24

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 or her regular or specially assigned duties or to a requirement imposed 

by the employment, the disability comes within the coverage of FECA.25 On the other hand, the 

disability is not covered where it results from such factors as an employee’s fear of a reduction-

 

17 5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

18 J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007). 

19 Id.

20 R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

21 20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of 

Claims, Chapter 2.800.2b (June 2011).

22 D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41 

ECAB 345 (1989).

23 F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

24 P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

25 28 ECAB 125 (1976).
12

in-force or his or her frustration from not being permitted to work in a particular environment or 

to hold a particular position.26

ANALYSIS

Appellant alleged multiple conditions due to factors of his federal employment. The

Board must initially review whether these alleged factors are compensable under the terms of 

FECA. The Board notes that an aspect of appellant’s claims pertains to his regular or specially 

assigned duties under Lillian Cutler.

27

 

The record shows that, between late 2014 and mid-2015 appellant spent the majority of 

his work hours working on his whistleblower claims against employing establishment officials, 

NEON, NSF, and other agencies. He performed this work while on the clock for his job with the 

employing establishment and under the protection of whistleblower laws. The Board finds that 

OWCP properly determined that this work constituted a compensable employment factor as it 

was directly related to his specially assigned duties.28

Appellant alleged that the employing establishment committed wrongdoing with respect 

to his work assignments, performance evaluations, workplace transfers, disciplinary actions,

investigations, leave requests, and requests for work accommodations. 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.29 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.30 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.31

Appellant did not substantiate any error or abuse committed by the employing 

establishment with respect to these administrative and personnel matters. In particular, with 

respect to the assignment of work duties, appellant claimed that his immediate supervisor, C.E., 

violated GAGAS by directing him to perform the critical work functions of his assigned position. 

 

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

27 See supra note 24.

28 Id. OWCP indicated that it had been established that appellant spent at least 2,000 hours working on his 

whistleblower claim. It did not identify the documents on which it based its figure and the precise number of hours 

that appellant worked on his whistleblower claim remains unclear from the record.

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

ECAB 556 (1991).

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

31 Ruth S. Johnson, 46 ECAB 237 (1994).
13

However, he did not establish his assertions in the regard.32 Assigning work and monitoring 

performance are administrative functions of a supervisor.33 Mere dislike or disagreement with 

certain supervisory actions will not be compensable absent error or abuse on the part of the 

supervisor.34 Appellant provided no probative evidence to support that management committed 

any error or abuse with respect to his work assignments.35

Appellant alleged that on December 3, 2013 management accused him of violating the 

dress code and ordered him to change clothing when there was no such policy. The Board has 

held that disciplinary matters such as letters of warning and notices of suspension are 

administrative actions and are not compensable, unless it is established that the employing 

establishment erred or acted abusively in its administrative capacity.36 Appellant did not provide 

any corroborative evidence to support his allegation that the employing establishment committed 

error or abuse in disciplining him with respect to this or any other matter.37 He noted that on 

September 25, 2014 the employing establishment’s security office opened an investigation of 

him, and that a security officer, J.L., accused him of being mentally unfit for government service

because he made terroristic threats to blow up the U.S. Capitol. Appellant indicated that J.L.

threatened to revoke his security clearance eligibility, and alleged that management entirely 

fabricated these allegations. The employing establishment noted that its response to appellant’s 

threats to blow up the U.S. Capitol were entirely appropriate given that coworkers had reported 

that the threats were in fact made. The employing establishment retains the right to conduct 

investigations if wrongdoing is suspected.38 Generally, investigations are related to the 

performance of an administrative function of the employer and are not compensable factors of 

employment unless there is affirmative evidence that the employer either erred or acted 

abusively in the administration of the matter.

39

 Appellant submitted no corroborative, probative 

 

32 The record contains a May 5, 2015 e-mail in which C.E. indicated that he had received an opinion from the 

employing establishment’s legal department that appellant’s performing his critical work functions would not violate 

GAGAS.

33 Beverly R. Jones, 55 ECAB 411, 416 (2004).

34 T.C., Docket No. 16-0755 (issued December 13, 2016).

35 Appellant expressed his frustration with the lack of meaningful work he did for the employing establishment. 

The Board has held that an employee’s belief that his or her work is not meaningful constitutes frustration from not 

being permitted to work in a particular environment and is not compensable. See L.J., Docket No. 12-0558 (issued 

October 4, 2012). Therefore, appellant’s dislike for his work duties does not constitute a compensable employment 

factor.

36 Sherry L. McFall, 51 ECAB 436, 440 (2000).

37 During the hearing held on August 23, 2016, appellant testified that in December 2015 he tape recorded his 

superiors and that his supervisor wrongly suspended him from employment for five days in February 2016. The 

record does not contain a copy of this disciplinary action and there is no indication that management committed 

error or abuse with respect to this matter. Appellant also claimed that a superior, M.Q., improperly ordered him not 

to talk with Congress or the media about NEON’s activities. However, he did not establish error or abuse with 

respect to this administrative action.

38 Linda K. Mitchell, 54 ECAB 748 (2003).

39 Sandra F. Powell, 45 ECAB 877, 888 (1994).
14

evidence to support any error or abuse on the part of the employing establishment regarding this 

matter. 

Appellant filed claims with OSC and MSPB with respect to some of the above-described 

administrative and personnel matters. However, the record does not contain a final decision 

relating to any of these claims. The Board finds that appellant has not established a compensable 

employment factor with respect to administrative and personnel matters.

Appellant claimed that his supervisors and coworkers subjected him to harassment and 

discrimination. To the extent that disputes and incidents alleged as constituting harassment and 

discrimination by supervisors and coworkers are established as occurring and arising from 

appellant’s performance of his regular duties, these could constitute employment factors.40 

The Board notes that OWCP properly accepted one instance of harassment when an 

employing establishment employee hacked a Wikipedia article referencing appellant and altered 

it to make derogatory comments about him.41

With respect to appellant’s other claims of harassment and discrimination, the employing 

establishment denied that appellant was subjected to harassment or discrimination and appellant 

has not submitted sufficient evidence to establish that he was harassed or discriminated against 

by his supervisors. Most of appellant’s harassment and discrimination claims related to his 

assertion that management retaliated against him for his whistleblowing activities. The 

employing establishment repeatedly denied appellant’s allegations of retaliation and appellant

failed to provide probative corroborating evidence to support that the claimed retaliation 

occurred. Appellant asserted that he was subjected to multiple improper threats of termination 

by superiors, including one made in a telephone call by A.B., but he did not provide any 

evidence to support these assertions. He resigned his federal employment in April 2014 and

claimed that he was improperly forced to resign by management as a form of retaliation for his 

whistleblower activities. However, appellant provided no factual documentation to support his 

assertion that the employing establishment forced him to resign. The Board has held that 

unfounded perceptions of harassment do not constitute an employment factor.42 Mere 

perceptions are not compensable under FECA and harassment can constitute a factor of 

employment if it is shown that the incidents constituting the claimed harassment actually 

occurred.43 Appellant has not submitted evidence showing that he was subjected to harassment 

or discrimination in the form of retaliatory acts for his whistleblower activities. Appellant filed 

 

40 David W. Shirey, 42 ECAB 783, 795-96 (1991).

41 The Board has held that the use of an epithet, which is derogatory in nature, can constitute harassment and 

discrimination under FECA. See Felix Flecha, 52 ECAB 268, 273 (2001). An employing establishment OIG 

official indicated that it had been substantiated that an employee used a work computer to make revisions to the 

Wikipedia entry about appellant. The article was revised to refer to appellant using the terms “retard,” “psycho,”

and “weirdo.” The record reveals that precise identity of the offending employee could not be revealed for privacy 

reasons, but a management official indicated that it was a coworker of appellant rather than a superior.

42 See F.K., Docket No. 17-0179 (issued July 11, 2017). 

43 See id.
15

claims with OSC and MSPB with respect to his claims that the employing establishment 

retaliated against him, but the record does not contain a final decision from any of these claims.

Appellant alleged that on June 14, 2013 a supervisor, J.M., yelled at him repeatedly in 

front of witnesses. He provided no witness statements or probative evidence to support his 

allegation. An employing establishment official noted that on July 8, 2015 appellant notified his 

supervisor about an errant instant message he received that was not intended for him.44 

Appellant has not established that this incident constitutes harassment because the message was 

not intended for him and he has not shown that the contents of this single message would rise to 

the level of harassment under FECA.45 He alleged coworkers avoided him and suggested that 

this constituted a form of harassment. The Board has previously addressed the circumstance in 

which a claimant alleged that avoidance by coworkers contributed to a claimed medical 

condition and has noted that such an assertion must be established by the evidence of record.46 

Appellant has not submitted evidence establishing that coworkers avoided him, let alone that 

such avoidance rose to the level of harassment, and his allegation in this regard must be 

considered a noncompensable desire to work in a particular environment.47 

For these reasons, appellant has not established a compensable employment factor under 

FECA with respect to his claims of harassment and discrimination, other than the above-noted 

alteration of the Wikipedia entry referencing him.

Appellant has established compensable employment factors with respect to the hours he 

spent working on his whistleblower claims and the alteration of the Wikipedia page referencing 

him. However, his burden of proof is not discharged by the fact that he has established an 

employment factor which may give rise to a compensable disability under FECA. To establish his 

occupational disease claim for an emotional condition, appellant must also submit rationalized 

medical evidence establishing that he has an emotional or psychiatric disorder and that such 

disorder is causally related to the accepted compensable employment factor.48

Appellant submitted several reports of Dr. Sharp, an attending physician, but these reports 

did not contain a rationalized medical opinion relating a specific medical condition to the accepted 

employment factors. In a July 31, 2015 report, an undated report (produced shortly July 31, 2015), 

and a February 17, 2016 report, Dr. Sharp indicated that appellant developed anxiety due to being 

exposed to a hostile work environment, abusive conduct by management with respect to his 

 

44 The message read, “I guess [appellant’s] been TW all week. He [i]s online but not in the office. Is he still not 

doing work b/c of his “independence?” 

45 See generally C.T., Docket No. 08-2160 (issued May 7, 2009) (finding that some statements may be considered 

abusive and constitute a compensable factor of employment, but that not every statement uttered in the workplace 

will be covered by FECA). Appellant alleged that other incidents constituted harassment but he did not establish 

that they actually occurred. He did not establish that A.J. and M.Q. went through his drawers and opened his 

medication bottles, or that they made derogatory comments about him.

46 Linda C. Kennedy, Docket No. 04-0874 (issued July 27, 2004).

47 See supra note 25.

48 See M.D., 59 ECAB 211 (2007); William P. George, 43 ECAB 1159, 1168 (1992).
16

whistleblower activities, and the employing establishment’s threat to unfairly discipline him. He 

then posited that appellant suffered a number of physical conditions as a result of this anxiety, 

including obesity, fatigue/malaise, insomnia, headaches, and gastrointestinal problems. However, 

for the reasons noted above, the evidence of record does not substantiate appellant’s allegations of 

retaliatory and abusive conduct by management as reported by Dr. Sharp. Therefore, his opinion 

on causal relationship with respect to appellant’s anxiety and the several denoted physical 

conditions is of limited probative value because it is not based on a complete and accurate factual 

history.49

With respect to appellant’s esophoria, Dr. Sharp asserted that this preexisting condition was 

aggravated by the hours that appellant spent working on his computer. Although he has arguably 

implicated appellant’s regular duties as aggravating his esophoria, Dr. Sharp’s opinion regarding 

this condition is of limited probative value because he did not provide a rationalized medical

opinion establishing causal relationship between esophoria and specific employment factors.50 

Dr. Sharp did not present objective findings on physical examination or diagnostic testing of 

appellant’s esophoria or provide a rationalized medical explanation of how his work duties could 

have aggravated this condition. His opinion on appellant’s esophoria is of limited probative value 

for the further reason that it is not based on a complete and accurate factual basis.51 Dr. Sharp 

indicated that his opinion was based on the fact that appellant was required to watch a computer 

screen for longer periods than other employees, but this assertion has not been established by the 

evidence of record.52

The Board further notes that there is no indication that Dr. Sharp examined appellant 

around the time he produced the above-described reports and this circumstance further reduces the 

probative value of his reports.

53

 For the above-described reasons, the Board finds that Dr. Sharp’s 

reports to not contain a rationalized medical opinion relating the claimed conditions to the specific 

accepted employment factors in the present case and they are not sufficient to establish appellant’s

claim for multiple occupational conditions.

In his December 10, 2015 report, Dr. Presant, a physician employed by the Department of 

Health and Human Services, generally indicated that it would be reasonable to assume that 

appellant suffered from situational anxiety secondary to his dispute with the employing 

 

49 See supra note 23.

50 See supra notes 22 and 23.

51 See supra note 23.

52 In a September 11, 2015 statement, two employing establishment officials indicated that appellant spent far less 

time in front of the computer than his coworkers, noting that he spent a considerable amount of time discussing 

issues in his supervisor’s office.

53 See generally Melvina Jackson, 38 ECAB 443 (1987) (finding that the absence of a physical examination by a 

physician may affect the weight to be a given medical report). In his reports, Dr. Sharp noted that, to a large extent, he 

based his assessment of appellant’s emotional and physical condition on the July 31, 2015 statement appellant 

produced in connection with the present claim. He indicated that he communicated with appellant at times by 

telephone and computer, but he did not identify the instances he did so and the bases of his descriptions of appellant’s 

emotional and physical condition remain unclear.
17

establishment. However, his report is of limited probative value on the relevant issue of this case 

because he did not provide a clear, rationalized medical opinion that appellant’s claimed medical 

conditions were related to the two specific accepted employment factors.

54

 Dr. Presant’s report is 

of limited probative value for the further reason that he did not examine appellant.

55

 Therefore, his 

opinion would not be sufficient to establish appellant’s claim.

Appellant submitted a March 25, 2016 report of Dr. Griffiths, a licensed clinical 

psychologist.

56

 Although Dr. Griffiths made reference to appellant’s need to stay away from the 

employing establishment workplace, which she called the “likely” cause of his diagnosed 

conditions, her report is of limited probative value on the relevant issue of this case because she 

did not provide a clear opinion, supported by medical rationale, that appellant sustained a 

claimed condition due to either of the specific employment factors accepted in this case.57

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 did not meet his burden of proof to establish an 

occupational disease or illness due to factors of his federal employment.

 

54 See Y.D., Docket No. 16-1896 (issued February 10, 2017).

55 See supra note 52. Dr. Presant’s report was produced in the context of determining whether appellant needed 

special accommodation. There is no indication that he was asked to provide an opinion on the cause of appellant’s 

physical and emotional conditions.

56 In its November 2, 2016 decision, OWCP indicated that this report did not constitute medical evidence because it 

was not produced by a physician within the meaning of FECA. Under FECA, the report of a nonphysician does not 

constitute probative medical evidence and section 8101(2) of FECA provides that the term physician includes 

surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners 

within the scope of their practice under State law. See 5 U.S.C. § 8101(2); R.S., Docket No. 16-1303 (issued 

December 2, 2016). OWCP did not adequately explain its determination that Dr. Griffiths was not a physician under 

FECA and the Board notes that she would qualify as a physician under FECA and her report would be considered 

medical evidence. See generally Federal (FECA) Procedure Manual, Part 3 -- Medical, Overview, Chapter 3.100.3a 

(October 1990) regarding the definition of a clinical psychologist. See also Ruthie M. Johnson, Docket No. 05-0822 

(issued September 7, 2005).

57 D.R., Docket No. 16-0528 (issued August 24, 2016).
18

ORDER

IT IS HEREBY ORDERED THAT the November 2, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 7, 2018

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