United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.M., II, Appellant 

and 

U.S. DEPARTMENT OF LABOR, WAGE & 

HOUR DIVISION, Falls Church, VA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0027 

Issued: July 5, 2017 

Appearances: Case Submitted on the Record

Michael Eisenberg, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 5, 2016 appellant, through counsel, filed a timely appeal from an April 8, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

 Pursuant to 

 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

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s April 8, 2016 decision was October 5, 2016. Since 

using October 7, 2016, the date the appeal was received by the Clerk of the Appellate Boards would result in the loss 

of appeal rights, the date of the postmark or other carrier’s date marking is considered the date of filing. The date of 

the other carrier’s date marking is October 5, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 
2

the Federal Employees’ Compensation Act3 (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 has established that he sustained an emotional condition in 

the performance of duty. 

FACTUAL HISTORY 

On June 30, 2014 appellant, then a 49-year-old wage and hour compliance specialist, 

filed an occupational disease claim (Form CA-2) alleging that he sustained anxiety, depression, 

and “generalized stress” in the performance of duty on or before December 5, 2011. He 

attributed the conditions to a “general pattern of harassment” at work. Appellant stopped work 

on June 27, 2012 and did not return. 

In a July 14, 2014 letter, OWCP notified appellant of the evidence needed to establish his 

claim, including a detailed description of the causative work factors, and a report from his 

attending physician explaining how and why those factors would cause an emotional condition. 

In response, appellant provided August 1, 2014 narrative statements, alleging that he 

sustained an emotional condition due to a pattern of supervisory harassment and discrimination, 

as follows: Supervisor L.B. discussed revoking appellant’s telework privileges as of 

December 5, 2011 when he returned from leave; L.B. stated during appellant’s December 15, 

2011 performance appraisal that he should not expect an excellent rating in the coming year; 

L.B. interfered with appellant’s participation in unspecified union activities on March 1, 2012; an 

“illegal” employee Performance Improvement Plan (PIP) issued on June 8, 2012 and rescinded 

August 23, 2012; having to return appellant’s work-issued laptop computer to the employing 

establishment on April 29, 2013 although it contained e-mails he believed relevant to his 

grievances; being contacted by the employing establishment on May 7, 9, and 23, 2013, while on 

leave, regarding a pending deposition in a case he had worked on in January 2011; the 

employing establishment speaking to appellant’s wife in May 2013 in an attempt to contact 

appellant about the deposition; and “inconsistent” letters of removal on unspecified dates. 

Appellant also generally alleged that supervisors L.B. and M.W. misinterpreted medical reports 

to deny his request for accommodations and remove him from his post. 

Appellant also submitted documents relating to the identified incidents. On April 30, 

2012 the employing establishment denied a grievance regarding use of official time, finding that, 

while a supervisor requested privileged information regarding the nature of appellant’s activities, 

he did not deny appellant’s request for official time. A June 8, 2012 PIP signed by himself and 

L.B., enumerated deficiencies in case management, timely submissions, support of employing 

establishment goals, internal and external customer service, professionalism, communication, 

and teamwork. L.B. sent appellant May 7 and 9, 2013 letters asking if he had documents relating 

to a case he worked on in January 2011, noting that a representative of the solicitor’s office 

spoke briefly with appellant’s wife in an attempt to contact appellant. On July 26, 2013 he 

 3

 5 U.S.C. § 8101 et seq. 
3

denied appellant’s request to work from home up to four days a week as the essential functions 

of his position involved onsite workplace investigations, and denied his request to change 

supervisors as there were no funded, vacant jobs available for his position description. 

In a May 30, 2014 letter, the employing establishment noted appellant’s continuous 

absence from work beginning June 27, 2012. It explained that Dr. Guillermo Brito, an attending 

licensed clinical psychologist, found that appellant’s requested accommodations of telework up 

to four days a week, and transfer to a different supervisor, were unnecessary. In February 2013, 

the employing establishment’s occupational health unit reviewed new reports from Dr. Brito and 

Dr. Alexa Andewelt, an attending Board-certified psychiatrist, and determined that appellant’s 

condition had worsened, with substantial limitations on his ability to interact with others. L.B. 

therefore denied appellant’s request for reasonable accommodations on July 26, 2013 as the 

medical evidence indicated that he was no longer able to perform the essential functions of his 

position. A January 8, 2014 discussion with appellant and his representative determined that 

appellant could no longer perform the essential functions of his position, as it was “endemic to 

[his unit’s] work to encounter resistance and hostility in dealing with [employing establishments] 

under investigation,” and to be able to discuss his job performance constructively with his 

supervisor. On July 1, 2014 the employing establishment proposed to remove appellant from 

employment, as Dr. Andewelt opined that appellant could no longer work. 

Appellant also submitted medical evidence.4

 Dr. Brito noted on May 10, 2012 that 

appellant experienced stress after being assigned to a new supervisor. He diagnosed major 

depressive disorder, single episode, and panic disorder, due to a “problematic work 

environment.” Dr. Brito provided progress notes through July 21, 2013 noting extreme, 

increasing anxiety. 

In an October 12, 2012 report, Dr. Andewelt related appellant’s assertion that L.B. was 

jealous of appellant because junior investigators openly admired him. Appellant reiterated his 

allegations regarding the PIP and use of official time. Dr. Andewelt diagnosed depression and 

anxiety caused by “work stressors.” 

In a February 5, 2013 letter, Dr. Michelle Smith-Jeffries, a consulting physician to the 

employing establishment, noted that appellant had a long history of depression, anxiety, and 

panic attacks, well-controlled until June 2012 “after interacting with his supervisor.” She opined 

that his “ability to interact with others [was] substantially limited by [appellant’s] medical 

conditions.” Dr. Smith-Jeffries explained that, while increased telework might relieve some of 

appellant’s anxiety over his coworkers witnessing his panic attacks, additional medical evidence 

was necessary to make a final decision on his request for accommodations. 

In a letter received on September 25, 2014, the employing establishment explained that 

appellant was unable to perform his duties in accordance with expectations due to performance 

problems. Supervisor L.B. issued appellant a draft PIP on June 8, 2012 and he was given the 

 4

 Three practitioners diagnosed appellant with psychiatric conditions due to unspecified work-related stress: 

Dr. Ricardo Caldera, an attending Board-certified family practitioner, on May 29, 2012; Dr. Michael C. Trahos, an 

attending Board-certified family practitioner, on July 3, 2014; and Dr. Bernardo Hirschman, an attending Boardcertified psychiatrist and neurologist, on July 29, 2014. Appellant also provided reports from a counselor. 
4

opportunity to comment before the formal period began. Appellant worked sporadically through 

August 3, 2012, then stopped work and did not return. 

OWCP, in a June 29, 2015 decision, denied appellant’s claim finding that he had not 

established any compensable factors of employment. It found that the following factors were 

established, but not compensable: a December 5, 2011 discussion with L.B. about possible 

revocation of telework privileges; receiving a draft PIP on June 8, 2012; receiving a July 1, 2014 

notice of removal; not being allowed to participate in union business, but not denied official 

time; the employing establishment requiring appellant to turn in his work laptop on April 29, 

2013 as it contained official evidence about his assigned cases; and appellant’s receipt of a 

May 23, 2013 letter asking him either to testify at a deposition regarding an assigned case or 

provide medical evidence that he could not participate. OWCP found that the following 

incidents did not occur as alleged: remarks by L.B. on December 15, 2011 that appellant could 

not expect to receive a favorable performance rating; and appellant’s wife’s rights being violated 

when the employing establishment telephoned her on May 23, 2013 asking to speak to appellant 

about the deposition. 

In a June 25, 2015 letter appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. Counsel submitted a December 30, 

2015 brief asserting that all identified incidents were compensable as they occurred at work, and 

that the medical evidence established causal relationship. 

At the hearing, held December 30, 2015, counsel and appellant contended that the 

performance appraisal, PIP, and December 5, 2011 discussion regarding possible revocation of 

telework were in the performance of duty and should be considered compensable factors of 

employment. He argued that appellant’s emotional condition was also due to supervisory 

harassment, excessive supervision, and fear of losing his job. Appellant alleged that he had no 

difficulties at work prior to December 2011, when L.B. began to bully and menace him, criticize 

his job performance, discourage coworkers from speaking to him, prevented him from engaging 

in union activities, and threatened to revoke his telework privileges. 

Following the hearing, appellant provided a July 3, 2012 memorandum from L.B. 

rescinding the June 8, 2012 PIP, but noted that he was not demonstrating an acceptable level of 

job performance. 

In an April 8, 2016 decision, an OWCP hearing representative affirmed the June 29, 2015 

decision, finding that appellant had not established any compensable employment factors. She 

noted that he did not attribute the claimed emotional condition to the performance of his job 

duties, but to administrative functions of performance appraisals, telework status, and use of 

employing establishment computer equipment. The hearing representative found that appellant 

did not establish error or abuse regarding administrative matters and that there were no final 

grievance decisions of record that indicated wrongdoing by supervisors. She further found that 

he failed to establish any incidents of supervisory harassment, noting that he did not submit 

witness statements or other corroboration of his allegations. 
5

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. On the other hand, the 

disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or 

to hold a particular position.5

To establish an emotional condition in the performance of duty, appellant must submit 

the following: (1) medical evidence stabling that he has an emotional or psychiatric disorder; 

(2) factual evidence identifying employment factors or incidents alleged to have caused or 

contributed to the condition; and (3) rationalized medical opinion evidence establishing that the 

identified compensation employment factors are causally related to the emotional condition.6

 

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

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

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

deemed compensable factors of employment and are to be considered by a physician, when 

providing an opinion on causal relationship and which working conditions are not deemed 

factors of employment and may not be considered.7

 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.8

 

Administrative and personnel matters, although generally related to the employee’s 

employment, are administrative functions of the employing establishment rather than the regular 

or specially assigned work duties of the employee and are not covered under FECA.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, 

 5 See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 

28 ECAB 125 (1976). 

6 D.C., Docket No. 16-1870 (issued May 19, 2017); George H. Clark, 56 ECAB 162 (2004). 

7 See Charles D. Edwards, 55 ECAB 258 (2004); Norma L. Blank, 43 ECAB 384 (1993). 

8 Lori A. Facey, 55 ECAB217 (2004); Norma L. Blank, id. 

9 See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, supra note 5. 

10 See William H. Fortner, 49 ECAB 324 (1998). 
6

the Board will examine the factual evidence of record to determine whether the employing 

establishment acted reasonably.11

For harassment or discrimination to give rise to a compensable disability under FECA, 

there must be probative and reliable evidence that harassment or discrimination did in fact 

occur.

12 Mere perceptions of harassment, retaliation or discrimination are not compensable 

under FECA.13 

ANALYSIS 

Appellant has not attributed his emotional condition to the performance of his regular or 

specially assigned duties as a wage and hour investigator under Cutler.

14 Rather, this case is 

based on his allegations of administrative error or abuse in performance evaluations, supervisory 

communications, and requests for reasonable accommodations, and a general pattern of 

supervisory harassment. On July 14, 2014 OWCP advised appellant of the type of evidence 

needed to establish his claim. Appellant provided statements regarding his allegations, copies of 

performance appraisals and correspondence regarding requests for reasonable accommodation, 

and medical evidence. OWCP denied the claim on June 29, 2015, finding that he failed to 

establish any compensable factors of employment. On April 8, 2016 an OWCP hearing 

representative affirmed the June 29, 2015 decision. The Board must evaluate if appellant 

established error or abuse that would bring the administrative matters under coverage of FECA, 

or if he established a pattern of harassment as alleged.

Appellant attributed his claimed emotional condition to a December 5, 2011 performance 

appraisal and a subsequent June 8, 2012 PIP. Performance appraisals and the monitoring of an 

employee’s work performance are administrative matters not within the performance of duty.15 

Appellant also contended that the PIP was “illegal” as it was issued on June 8, 2012, but 

rescinded on August 23, 2012. However, the Board has held that the mere fact that an 

administrative action is later modified or rescinded does not, in and of itself, establish error or 

abuse.16 Appellant has not otherwise provided evidence showing that the employing 

establishment erred or acted abusively in these matters. Therefore, he has not established a 

compensable employment factor regarding the performance appraisal or PIP.

Appellant also asserted that he experienced stress due to the denial of his request for 

reasonable accommodation and proposed rescission of his telework privileges on 

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

12 Marlon Vera, 54 ECAB 834 (2003). 

13 Kim Nguyen, 53 ECAB 127 (2001). 

14 See supra note 5. 

15 T.C., Docket No. 16-0755 (issued December 13, 2016); Donney T. Drennon-Gala, 56 ECAB 469 (2005). 

16 See Michael Thomas Plante, 44 ECAB 510 (1993); Richard J. Dube, 42 ECAB 916 (1991) (reduction of a 

disciplinary letter to an official discussion did not constitute abusive or erroneous action by the employing 

establishment). 
7

December 5, 2011. These matters pertain to his desire to work in particular environment, and do 

not constitute compensable factors of employment.17

Additionally, appellant alleged that the claimed emotional condition was due, in part, to 

being made to turn in his work computer on April 29, 2013. The record indicates that the 

computer was the property of the employing establishment. This is an administrative matter 

regarding the provision of equipment needed to accomplish assigned tasks. Appellant has not 

demonstrated that it was unreasonable to be asked to return the computer nearly one year after he 

had stopped work on June 27, 2012. Therefore, he has not established a compensable 

employment factor in this regard. 

With regard to appellant’s allegation that supervisor L.B. denied his request for official 

time to perform unspecified union activities on March 1, 2012, the Board has adhered to the 

principle that union activities are personal in nature and are not considered to be within the 

course of employment.18 While there is a recognized exception to the general rule, in that 

employees performing representational functions which entitle them to official time are in the 

performance of duty, this did not occur in this case as the April 30, 2012 grievance denial 

demonstrates that L.B. did not deny a request for official time.19 

Appellant also attributed the claimed emotional condition to a pattern of supervisory 

harassment. The Board finds that he has not submitted probative evidence corroborating his 

allegations of harassment. Appellant did not provide witness statements or other documentation 

supporting any instance of harassment or disparate treatment. The absence of clear 

documentation diminishes the validity of his contentions in this case. As he has not substantiated 

his allegations with probative evidence, appellant has not established a compensable employment 

factor under FECA with respect to the claimed harassment.20

The Board finds that appellant has not established any compensable factor of 

employment. Therefore, the Board will not address the medical evidence.21

On appeal, counsel reiterates that the employing establishment committed error or abuse 

in its administration of leave matters, assignment of telework, performance appraisals, PIP, and 

letter of proposed removal. As found above, appellant did not establish error or abuse regarding 

these matters. He newly alleged that the PIP demanded overwork as described in T.J.,

22 but did 

not specify any period of overwork or any improper tasks. Additionally, counsel argues that 

appellant’s supervisors did not have the authority under the Americans with Disabilities Act23 to 

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

18 Jimmy E. Norred, 36 ECAB 726 (1985). 

19 L.D., Docket No. 15-0706 (issued May 9, 2016). 

20 See supra note 13. 

21 Margaret S. Krzycki, 43 ECAB 496 (1992). 

22 Docket No. 10-1116 (issued February 14, 2011). 

23 42 U.S.C. § 12112(b)(5-7). 
8

review medical evidence regarding appellant’s ability to perform his job. The Board notes, 

however, that the employing establishment consulted Dr. Smith-Jeffries in this matter. 

Additionally, Board has held that disability criteria pursuant to other statutory schemes are not 

binding on OWCP or the Board with respect to whether the individual is disabled under FECA.24

Counsel also contends that appellant’s account of L.B.’s December 5, 2011 statement that 

he should not expect a favorable appraisal the following year should be accepted as factual, 

because he reported his condition promptly and obtained extensive medical treatment.25 

However, those factors are not dispositive. As noted above, appellant submitted no 

corroboration of his account of events. 

Finally, counsel argues that the medical evidence was sufficient to establish causal 

relationship. However, as appellant did not establish a compensable factor of employment, it 

was not necessary for OWCP and hence, the Board to address the medical evidence with regard 

to causal relationship. 

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 not established that he sustained an emotional 

condition in the performance of duty. 

 24 See Stephen R. Lubin, 43 ECAB 564 (1992); Hazelee K. Anderson, 37 ECAB 277 (1986). 

25 Counsel cited to Charles B. Ward, 38 ECAB 667 (1987); A.B., Docket No. 14-0522 (issued November 9, 

2015); D.B., 58 ECAB 464 (2007); Samuel J. Chiarella, 38 ECAB 363 (1987). 
9

ORDER 

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

Compensation Programs dated April 8, 2016 is affirmed. 

Issued: July 5, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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