United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Canandaigua, NY, Employer

__________________________________________

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Docket No. 18-0484

Issued: September 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 3, 2018 appellant filed a timely appeal from an August 29, 2017 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2 

ISSUE

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

condition in the performance of duty.

 

1 5 U.S.C. § 8101 et seq.

2 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 20, 2018, 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. 18-0484 (issued July 20, 2018).
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as set forth in the prior Board decision are incorporated herein by reference. The relevant facts are 

as follows.

On January 9, 2013 appellant, then a 45-year-old lead police officer, filed an occupational 

disease claim (Form CA-2) alleging that he sustained high blood pressure due to the “anxiety and 

stress of the job.” He stopped work on January 2, 2013.

In a January 24, 2013 development letter, OWCP requested that appellant submit 

additional factual and medical evidence in support of his claim, including a detailed description of 

the implicated work factors and medical evidence describing his medical condition with an 

explanation of the cause of any such condition.

Appellant submitted a January 2, 2013 emergency room report in which an attending 

physician assistant reported blood pressure of 156/100 when he first arrived, and noted that it was 

136/88 after he had settled down for a while. The physician assistant diagnosed mild anemia and 

headache. In other notes from that visit, a registered nurse noted that appellant had a history of 

hypertension.

By decision dated May 29, 2013, OWCP denied appellant’s emotional condition claim 

because he failed to establish any compensable work factors and, therefore, did not establish an 

injury as defined under FECA. It noted that he only provided a vague and general statement that 

job-related stress caused his claimed medical condition.

By letter dated October 30, 2013 and received on November 7, 2013, appellant requested 

reconsideration of his claim and described the incidents and conditions at work which he believed 

caused a stress-related condition. He alleged that in late 2010, while suffering from bladder cancer 

caused by his military service, the employing establishment mishandled his request for a transfer 

to another position. Appellant asserted that he received his requested transfer to Canadaigua, NY, 

in August 2011, but was immediately transferred again to Rochester, NY, based on a false 

assertion by management that he did not have enough seniority to remain in the Canadaigua 

position. He alleged that this action was part of retaliatory and discriminatory actions that lasted 

for five months and that he was brought before an interview panel whose members attempted to 

discredit his character. In a written report, management officials allegedly called appellant

unprofessional and accused him of being a liar. Appellant indicated that, in early December 2011, 

during his yearly psychological evaluation he lost confidence in the ability and character of the 

civilian contractor carrying out the evaluation. During an early March 2012 evaluation, the 

civilian contractor misinterpreted a comment that appellant had made about a former supervisor’s 

propensity for violence and reacted as though appellant had made an “emotionally unstable 

remark.” Appellant indicated that the civilian contractor became visibly irate and requested that 

he leave the room so that he could speak to the police chief. He stated that he was wrongly removed 

from service the day after this evaluation, but that the civilian contractor denied that he was 

 

3 Docket No. 15-0297 (issued May 12, 2015).
3

responsible for removing him from service. Appellant was placed on administrative leave until 

March 14, 2012 when he was recommended for discontinued service. 

In his October 30, 2013 letter, appellant further alleged that between March and 

October 2012 he witnessed numerous criminal actions by employees and patients, but that 

management did not take steps to prevent such actions. He filed complaints with the Office of the 

Inspector General for the employing establishment concerning fraud, waste, and abuse, but the 

response of the factfinders was that the employing establishment was “not responsible for the 

actions of others.” Appellant’s promotion to the lieutenant rank in October 2012 had been 

improperly delayed by a human resources official who made remarks that made him feel 

uncomfortable. He alleged that after his promotion he was exposed to additional acts of retaliation 

by management and placed in hostile environments. In early January 2013, appellant experienced 

an emotional incident when he was abandoned at work after other officers called in sick and a 

police officer assigned to the union office was hostile toward him. Beginning January 23, 2013, 

he was wrongly placed on administrative leave for eight months, a situation which exacerbated his 

prostate and bone cancers. Appellant alleged that he was placed in a hostile work environment 

when he returned to work in August 2013, and that human resource officials stole his military 

health records from the mail. Also, a union member stated that appellant belonged in a secured 

unit for the mentally unstable. Appellant alleged that a number of employees who had harassed 

him had been removed from their jobs or were being investigated.4

Appellant submitted an October 15, 2012 letter to the chief of his workplace in which he 

asserted that management officials made misleading statements about his military-connected 

health issues, mental health, and fitness for duty. He was subjected to harassment and 

discrimination by these officials and the human resources office failed to notify him about 

opportunities for advancement. In a November 25, 2012 e-mail, appellant discussed a tort claim 

he filed with the Office of General Counsel of the employing establishment alleging that he 

received improper medical care for his bladder cancer from a physician who worked for the 

employing establishment.

In January 24 and May 6, 2013 e-mails to the then Secretary of the employing 

establishment, appellant asserted that a human resources manager at the employing establishment 

subjected him to sexual advances and that management illegally removed him from active service.

He generally alleged that he was subjected to harassment after he began working at the employing 

establishment.

In a May 24, 2013 statement, a coworker described a meeting on that date with a 

supervisor, a union official, and several others. He asserted that a supervisor called appellant 

“crazy” and “nuts” and stated that he “could easily be a patient [in 3 Building].” The supervisor

also stated that appellant was “certifiable” and that coworkers felt unsafe around him. In a June 19, 

2013 e-mail to the director of the employing establishment, appellant alleged that an unspecified 

person used vulgar language to tell him to shut up when he was contacted regarding his return to 

duty. He indicated that management officials subjected him to harassment, retaliation, 

 

4

In a separate undated statement, appellant generally alleged that he had suffered numerous acts of discrimination, 

harassment, hostility, false accusations and “administrative/managerial harassing actions.”
4

discrimination, sexual harassment, privacy violations, civil rights violations, and unfounded 

accusations.

Appellant submitted several medical reports of Dr. Aurelian Niculescu, an attending 

Board-certified psychiatrist, including an October 8, 2013 report in which he diagnosed major 

depressive disorder, generalized anxiety disorder, and anxiety disorder with mixed features of 

panic disorder and agoraphobia. Dr. Niculescu posited that these conditions were aggravated by 

appellant’s being placed on administrative leave at work.

By decision dated June 9, 2014, OWCP denied appellant’s emotional condition claim 

because he failed to establish any compensable employment factors. It found that he had not 

submitted sufficient corroborative documentation, such as witness statements or grievance 

findings that documented his claims of harassment, discrimination, and other acts of wrongdoing 

by the employing establishment.

Appellant appealed his case to the Board and, by decision dated May 12, 2015,5it affirmed 

OWCP’s June 9, 2014 decision. The Board found that appellant failed to meet his burden of proof 

to establish an emotional condition in the performance of duty because he failed to establish any 

compensable employment factors.

On May 10, 2016 appellant requested reconsideration of his emotional condition claim. 

Appellant submitted a November 20, 2014 letter from the chief of police in Canandaigua 

who indicated that appellant advised him on January 13, 2013 that he was required to work a tour 

of duty and that he found out upon arriving for the tour of duty that no other officers had arrived 

for duty.

In a May 18, 2015 statement, a coworker advised that on many occasions he had witnessed 

“the misconduct the employing establishment has done to [appellant].” He indicated that on one 

occasion he witnessed appellant in a panic after coming out of meeting where the director of the 

employing establishment threatened his career and livelihood. 

In a May 19, 2015 statement, a former coworker indicated that appellant suffered from 

investigations into his complaints which caused him stress and prevented him from performing his 

assigned duties at work.

Appellant submitted an undated statement in which he provided additional details about 

incidents and conditions at work between mid-2010 and late-2013 that he believed caused his 

claimed emotional conditions. He also submitted new reports of Dr. Niculescu from periodic 

treatment sessions in 2015.

By decision dated August 4, 2016, OWCP denied appellant’s claim for an employmentrelated emotional condition. It found that appellant failed to establish a compensable employment 

 

5 See supra note 3.
5

factor, noting that the witness statements he submitted lacked sufficient detail to establish a 

compensable employment factor. 

On May 31, 2017 appellant requested reconsideration of OWCP’s August 4, 2016 

decision. 

Appellant submitted a May 17, 2016 statement in which an employee of the employing 

establishment indicated that on May 14, 2016 another employee advised him that appellant was 

suspected of making a bomb threat via telephone against the employing establishment premises. 

In a statement from August 2016, another employee of the employing establishment discussed 

May 2016 bomb threats via telephone against the employing establishment premises, but he did 

not mention appellant’s name. Appellant also submitted an August 14, 2015 report from an

attending physician, a January 26, 2017 report from an attending social worker, and a May 23, 

2017 report from an attending nurse practitioner. 

By decision dated August 29, 2017, OWCP denied modification of its August 4, 2016 

decision, noting that appellant failed to establish a compensable employment factor.

LEGAL PRECEDENT

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

somehow related to an employee’s employment. There are situations where an injury or an illness 

has some connection with the employment, but nevertheless does not come within the concept or 

coverage of workers’ compensation. Where the disability results from an employee’s emotional 

reaction to his or her regular or specially assigned duties or to a requirement imposed by the 

employment, the disability comes within the coverage of FECA.6 On the other hand, the disability 

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

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

particular position.7

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

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

adversely affected by employment factors.8 This burden includes the submission of a detailed 

description of the employment factors or conditions which he or she believes caused or adversely 

affected a condition for which compensation is claimed, and a rationalized medical opinion 

relating the claimed condition to compensable employment factors.9

In cases involving emotional conditions, the Board has held that, when working conditions 

are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory 

function, must make findings of fact regarding which working conditions are deemed compensable 

 

6 Lillian Cutler, 28 ECAB 125 (1976).

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

8 Pamela R. Rice, 38 ECAB 838, 841 (1987).

9 Effie O. Morris, 44 ECAB 470, 473-74 (1993).
6

factors of employment and are to be considered by a physician when providing an opinion on 

causal relationship, and which working conditions are not deemed factors of employment and may 

not be considered.10 If a claimant does implicate a factor of employment, OWCP should then 

determine whether the evidence of record substantiates that factor. When the matter asserted is a 

compensable factor of employment and the evidence of record establishes the truth of the matter 

asserted, OWCP must base its decision on an analysis of the medical evidence.11

ANALYSIS

Appellant alleged that he sustained an emotional condition as a result of a number of 

employment incidents and conditions. OWCP denied his emotional condition claim because he 

had failed to establish any compensable employment factors. The Board must, thus, initially 

review whether these alleged incidents and conditions of employment are compensable 

employment factors under the terms of FECA. The Board notes that appellant’s allegations do not 

pertain to his regular or specially assigned duties under Cutler.

12

 Rather, appellant has alleged 

error and abuse in administrative matters and harassment and discrimination on the part of his 

supervisors.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s June 19, 2014 decision because the Board 

has already considered this evidence in its May 12, 2015 decision and found that it failed to 

establish a compensable employment factor. Findings made in prior Board decisions are res 

judicata absent any further review by OWCP under section 8128 of FECA.13

Appellant has alleged that the employing establishment committed wrongdoing with 

respect to administrative/personnel matters, including its investigation into suspicions that he made 

a bomb threat to the employing establishment premises. 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.14 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.15 In determining whether the employing establishment has erred 

 

10 See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

11 Id.

12 See supra note 6.

13 See B.R., Docket No. 17-0294 (issued May 11, 2018).

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

556 (1991).

15 William H. Fortner, 49 ECAB 324 (1998).
7

or acted abusively, the Board will examine the factual evidence of record to determine whether the 

employing establishment acted reasonably.16

The Board finds that appellant did not substantiate any error or abuse committed by the 

employing establishment and therefore he did not establish a compensable employment factor with 

respect to administrative or personnel matters. Appellant submitted a May 17, 2016 statement in 

which an employee of the employing establishment indicated that on May 14, 2016 another 

employee advised him that appellant was suspected of making a bomb threat via telephone against 

the employing establishment premises. However, this statement does not provide any indication 

that the employing establishment committed error or abuse in connection with its investigation of 

appellant. The record does not contain the findings of a complaint or grievance showing that 

management committed error or abuse with respect to any administrative or personnel matter.17

Appellant has alleged that supervisors 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.18 The Board has held that 

unfounded perceptions of harassment do not constitute an employment factor.19 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.20 

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

respect to the claimed harassment and discrimination.21 Appellant has not submitted probative 

evidence establishing such harassment or discrimination. In a May 18, 2015 statement, a coworker 

advised that on many occasions he had witnessed “the misconduct the employing establishment

has done to [appellant].” He indicated that on one occasion he witnessed appellant in a panic after 

coming out of a meeting where the director of the employing establishment threatened his career 

and livelihood. The Board notes that these statements do not establish harassment or 

discrimination by management given its lack of specific details. For example, the coworker did 

not describe the nature of the “misconduct” to which appellant was subjected or the specific threats 

made to appellant’s career and livelihood. In fact, it is unclear from the statement whether the 

 

16 Ruth S. Johnson, 46 ECAB 237 (1994).

17 Appellant submitted a November 20, 2014 letter from the chief of police in Canandaigua who indicated that 

appellant advised him on January 13, 2013 that he was required to work a tour of duty and that he found out upon 

arriving for the tour of duty that no other officers had arrived for duty. In a May 19, 2015 statement, a former coworker 

indicated that appellant suffered from unspecified investigations into his complaints which caused him stress and 

prevented him from performing his assigned duties at work. However, these statements lack sufficient detail to

establish any wrongdoing by management with respect to administrative matters.

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

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

20 See id.

21 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).
8

coworker actually witnessed the comments ostensibly made by the director of the employing 

establishment or whether he heard them on a secondhand basis from appellant.22

For these reasons, appellant did not establish any compensable employment factors. Given 

the Board’s finding on the factual aspect of her case, it is unnecessary to consider the medical 

evidence of record.23

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

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607. 

CONCLUSION

The Board finds that appellant has failed to meet his burden of proof to establish an 

emotional condition in the performance of duty.

ORDER

IT IS HEREBY ORDERED THAT the August 29, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 7, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

22 See S.B., Docket No. 09-1654 (issued July 14, 2010).

23 See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992) (finding that it is not necessary to consider the medical 

evidence of record if a claimant has not established any compensable employment factors).