United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.Z., Appellant

and

DEPARTMENT OF LABOR, MINE SAFETY & 

HEALTH ADMINISTRATION, Manchester, NH, 

Employer

__________________________________________

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Docket No. 19-1156

Issued: July 28, 2020

Appearances: Case Submitted on the Record

Marc J. Levy, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 26, 2019 appellant, through counsel, filed a timely appeal from an April 11, 2019 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case. 

ISSUE

The issue is whether appellant has met his burden of proof to establish a stress-related 

condition in the performance of duty, as alleged.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

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

in the prior appeal are incorporated herein by reference. The relevant facts are as follows.

On October 27, 2015 appellant, then a 38-year-old mine safety and health inspector, filed 

an occupational disease claim (Form CA-2) alleging that his life was threatened by a mine operator 

in 2014. He alleged that he developed seizures as a result of the continued threats on 

October 22, 2015.

An incident report dated October 22, 2015 revealed that, on that date, the fire department 

was dispatched to a hotel because appellant was having difficulty breathing. When they arrived 

appellant was noted to be staggering and staring off into space. His mental status improved and 

he reported that he was in town for his federal employment and that he had a history of seizures. 

Appellant had arrived at the hotel early, sat in the parking lot reading a book, and awoke in 

handcuffs, confused. The fire department transported him to the emergency department. On 

October 22, 2015 appellant was treated in an emergency room for seizure disorder by Dr. Amber 

Richards, a physician Board-certified in emergency medicine. 

On October 30, 2015 the employing establishment controverted appellant’s claim, noting 

that he had a seizure while on government travel. Appellant was sitting in his car at the hotel when 

he experienced the seizure. The employing establishment reported that he had a history of seizures 

and was on anti-seizure medication. As such, it argued that the seizure activity was not causally 

related to appellant’s employment.

Appellant subsequently submitted a copy of the Bill of Rights to the U.S. Constitution. He 

also provided a May 28, 2015 Maine newspaper article reporting that M.L., the mine operator he 

alleged was threatening him, was accused of reckless conduct with a firearm after he allegedly 

fired a gun at an all-terrain vehicle rider. Appellant provided internet comments from “Skidddah”

alleging that appellant had put his sand pit out of business. “Skidddah” had asserted that appellant 

had failed to inspect three other sand pits within the immediate area. He also asserted that 

inspectors would be met with resistance and noted, “I will protect my property with my 2nd

amendment right, to defend my 4th and 8th amendment rights.”

In development letters dated November 9, 2015, OWCP requested additional factual and 

medical evidence in support of appellant’s occupational disease claim from him and the employing 

establishment. It afforded both parties 30 days to respond.

Appellant submitted medical evidence regarding a September 16, 2014 motor vehicle 

accident in which he collided with a concrete barrier. He was apparently knocked unconscious 

and was diagnosed with unspecified concussion and postconcussive syndrome. On November 24, 

2014 appellant’s physician, Dr. Oscar G. Bernal, a Board-certified neurologist, noted that 

appellant had a petite mal seizure disorder in childhood and may have had a seizure three weeks 

prior while sitting in a parked car. On January 22, 2015 he noted that appellant has postconcussive 

syndrome and reported a medical history of grand mal seizure in 2015. 

 

3 Order Remanding Case, Docket No. 18-0428 (issued February 21, 2019).
3

In an undated report, appellant’s attending physician Dr. Dwight Smith, an osteopath, 

reported that appellant experienced a state of emotional distress since learning of a threat on his 

life from a mine operator in the state of Maine. Appellant reported his concerns over the lack of 

response by the employing establishment. He noted that the individual who threatened his life was 

also the subject of an investigation for shooting at a trespasser within the pit. Dr. Smith opined 

that emotional stress and lack of sleep could trigger grand mal seizures or generalized seizure 

attacks. He attributed appellant’s seizures on October 22, 2015 to his work activities. 

In a letter dated November 16, 2015, the employing establishment reported that appellant 

was never verbally threatened nor was a restraining order issued. A YouTube video was taken to 

the Federal Protection Service (FPS) and was determined not to be a threat.

Appellant responded to OWCP’s request for factual information on March 22, 2016. He 

asserted that he was claiming an emotional condition which led to seizure activity at his temporary 

duty station. Appellant asserted that the threat was made on social media on March 15, 2015 and 

that he reported the threat to his supervisor, R.D., who was also named in the threat. He alleged 

that the mine operator, M.L., admitted to using the screen name “Skidddah.” Appellant contended 

that M.L. continued to send letters to the employing establishment, but that, when appellant asked 

for these letters, the employing establishment reported that they had been removed. When he

returned to work, he alleged that the comments made by M.L. were well known and discussed by 

various mine operators during his inspections. Beginning October 27 and 28, 2015, the employing 

establishment performed a compliance assistance visit at M.L.’s mine which appellant asserted 

was in violation of employing establishment policy. Appellant alleged that the employing 

establishment decided to work with M.L. rather than follow required steps. He asserted that he 

experienced increased anxiety when starting inspections due to a lack of protection from 

harassment. Appellant asserted that the employing establishment removed all correspondence 

from M.L. and also removed appellant’s computer.

By decision dated May 13, 2016, OWCP denied appellant’s emotional condition claim. It

found that he had not provided the necessary factual information to support his allegations of 

threats or harassment by M.L. OWCP noted that appellant did not provide any documentation of 

threatening letters from M.L. It concluded that he had not provided sufficient factual evidence to 

establish that M.L. threatened his life and, thus, there was no factual basis for his claim.

The employing establishment subsequently provided several letters from M.L. On 

November 25, 2013 M.L. contested two safety citations. He alleged that there were two sand pits 

in his town that had never had an employing establishment inspector. M.L. asserted that he was 

bitter. On February 26, 2014 he protested two fines and further asserted that he would no longer 

allow inspectors on his property. M.L. noted that other sand pit operators in the area were not 

inspected and cited. In an undated letter addressed to “whoever runs this terrorist organization,”

he, alleged that he had been bullied and mentioned appellant by name. M.L. alleged that the 

employing establishment was terrorizing him and threatened to come to the employing 

establishment and demand answers. He disagreed with the paperwork required and asserted all he 

had received was “Just fines from you terrorist [p****s]!” M.L. mentioned the fine from appellant 

as a consequence of standing on a concrete block while greasing his machine and asserted that 

appellant made it seem that he was standing on a 10-story building. M.L. concluded, “One last 

time, if I don’t get a response from you real soon I will take a day off from my other job and drive 

to your office, and do what I have to do! I will defend and protect my rights and property at any 
4

cost!” He signed this note, “[M.L.,] one pissed off son of a [b***h]!!!!” In a final note, M.L. 

again asked why he was inspected and fined while the other sand pits in his town were not.

On March 24, 2015 appellant’s supervisor, R.D., contacted the FPS regarding an online 

threat that he became aware of in the previous week. He noted that FPS did not feel that the 

information posted was a direct threat. In an e-mail dated November 17, 2015, appellant’s 

supervisor discussed the result of the compliance assistance visit with M.L. on 

November 12, 2015. He noted that the meeting was concluded with a handshake and M.L.’s 

agreement to comply with the notices issued on January 27, 2015.

R.D., appellant’s supervisor, also noted that appellant had performed inspections on M.L.’s 

mine on July 17, 2013 which included citations and orders with no adverse comment.

In an e-mail dated May 24, 2016, M.T., the area commander of the FPS, noted reviewing 

the materials from M.L., and opined that these comments did not reach the level of a direct threat 

and would not be considered to meet the threshold for assaulting, resisting, or impeding federal 

employees.

On June 10, 2016 appellant requested reconsideration of the May 13, 2016 decision. He 

provided statements from witnesses who had read some portion of the letters from M.L. and found 

them to be threatening. Appellant submitted a statement asserting that the comment from 

“Skidddah” or M.L. was placed on March 10, 2015 and that he became aware of the comment in 

late March or early April 2015. Immediately, upon seeing the comment, he felt threatened. 

Appellant was confident that M.L. made the remark, found that the tone was extreme anger, and 

noted that M.L. referenced protecting his property and his right to bear arms. He alerted his 

supervisor, R.D., who was also mentioned in the comment. R.D. then alerted the FPS. M.L. 

continued to contact the employing establishment through telephone calls and letters. Appellant 

identified the undated letter from M.L. as delivered to the employing establishment in late 

September 2015. He noted that, in October 2015, R.D. informed him that the employing 

establishment had decided to engage in a compliance assistance visit with M.L. rather than taking 

legal action against him. Shortly, thereafter, appellant experienced what he and his physicians 

believed was a stress-induced seizure event on October 22, 2015.

The employing establishment responded on July 18, 2016 and noted that M.L. contacted 

the employing establishment by telephone on two occasions, neither of which were aggressive.

By decision dated October 14, 2016, OWCP denied modification of the May 13, 2016 

decision, finding that appellant had not established a compensable factor of employment as causing 

or contributing to his diagnosed emotional condition. 

On October 28, 2016 appellant requested reconsideration of the October 14, 2016 merit 

decision. He resubmitted the information provided by the employing establishment as well as 

additional medical evidence. Appellant again provided the undated letter from M.L. He also 

submitted e-mails from R.D. noting that he had provided a copy of M.L.’s photograph on 

September 29, 2015 and included the article concerning M.L. firing a gun on September 28, 2015.

By decision dated August 18, 2017, OWCP denied appellant’s request for reconsideration 

on the merits pursuant to 5 U.S.C. § 8128(a). It found that he had not submitted any new and 

relevant evidence in support of his request for reconsideration.
5

Appellant appealed to the Board on December 26, 2017. In a February 21, 2019 order, the 

Board set aside the August 18, 2017 decision, finding that OWCP’s delay in issuing a decision 

regarding his October 28, 2016 request for reconsideration effectively precluded him from 

appealing OWCP’s most recent merit decision to the Board. The Board remanded the case to 

OWCP for a merit decision.

4

On remand, by decision dated April 11, 2019, OWCP denied modification of the 

October 14, 2016 decision, again finding that appellant has not established that his life was directly 

threatened and, therefore, has not established a compensable factor of employment.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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 filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 

employment injury.5 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6

To establish an emotional condition in the performance of duty, a claimant must submit: 

(1) factual evidence identifying an employment factor or incident alleged to have caused or 

contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or 

she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion 

evidence establishing that the accepted compensable employment factors are causally related to 

the diagnosed emotional condition.7

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

somehow related to an employee’s employment. In the case of Lillian Cutler,

8

the Board explained 

that there are distinctions as to the type of employment situations giving rise to a compensable 

emotional condition arising under FECA. There are situations where an injury or an illness has 

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

coverage of workers’ compensation.9 When an employee experiences emotional stress in carrying 

out his or her employment duties and the medical evidence establishes that the disability resulted 

from an emotional reaction to such situation, the disability is generally regarded as due to an injury 

arising out of and in the course of employment. This is true when the employee’s disability results 

 

4

Id.

5 A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

6 20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); T.O., Docket No. 18-1012 (issued 

October 29, 2018); Michael E. Smith, 50 ECAB 313 (1999).

7 S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014); 

Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).

8 28 ECAB 125 (1976).

9 G.R., Docket No. 18-0893 (issued November 21, 2018).
6

from his or her emotional reaction to a special assignment or other requirement imposed by the 

employing establishment or by the nature of the work.10 

Perceptions and feelings, alone, are not compensable. To establish entitlement to benefits, 

a claimant must establish a basis in fact for the claim by supporting his or her allegations with 

probative and reliable evidence.11 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.

12

ANALYSIS

The Board finds that the case is not in posture for decision.

OWCP denied appellant’s emotional condition claim, finding that he had not established a 

compensable employment factor. The Board must, therefore, initially review whether the alleged 

incidents and conditions of employment are covered employment factors under the terms of FECA. 

Regarding appellant’s allegation that M.L. threatened him, the Board has recognized that 

verbal and written threats when sufficiently detailed by the claimant and supported by evidence, 

may constitute compensable employment factors.13 In the instant case, appellant provided copies 

of internet comments establishing that M.L. wrote that inspectors would be met with resistance

and that he would protect his property rights with his right to bear arms. The employing 

establishment also provided letters from M.L. in which he asserted that he would no longer allow 

inspectors on his property, that appellant had bullied and harassed him, and that the employing 

establishment was terrorizing him. M.L. further asserted that he was going to drive to the 

employing establishment and defend and protect his rights and property “at any cost” and “do what 

[he] had to do.” 

The Board finds that M.L.’s verbal and written statements rise to the level of a credible 

bodily threat directed at appellant.14 Appellant has established with corroborating evidence that 

specific verbal and written threats were made against him.

15

 The Board has recognized the 

compensability of threats, when the factual aspects of such claimed threats are established.16

 

10 G.G., Docket No. 18-0432 (issued February 12, 2019).

11 D.W., Docket No. 19-0449 (issued September 24, 2019); supra note 9. 

12 V.R., Docket No. 18-1179 (issued June 11, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

13 J.W., Docket No. 17-0999 (issued September 4, 2018).

14 See M.R., Docket No. 17-1803 (issued February 8, 2019) (finding that a statement made directly to the claimant 

that he would be “among the nonliving” was a credible bodily threat directed at the claimant).

15 But see M.F., Docket No. 17-1649 (issued July 20, 2018) (verbal disagreements without a specific bodily threat 

did not sufficiently affect the conditions of employment to constitute a compensable factor of employment).

16 See C.O., Docket No. 07-1290 (issued December 6, 2007) (defacing a time card with KKK was a compensable 

factor of employment.); but see Leroy Thomas, III, 46 ECAB 946, 954 (1995) (a joking threat was not compensable).
7

For the foregoing reasons, the Board finds that appellant has established a compensable 

factor of employment under FECA. OWCP did not analyze or develop the medical evidence given 

its finding that there were no compensable employment factors. The case will therefore be 

remanded to OWCP for this purpose.17 After any further development as deemed necessary, it 

shall issue a de novo decision on the issue of whether appellant has a stress-related condition due 

to the compensable factor of his federal employment.

CONCLUSION

The Board finds that the case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the April 11, 2019 decision of the Office of Workers’

Compensation Programs is set aside and remanded for further proceedings consistent with this 

decision of the Board.

Issued: July 28, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

17 K.A., Docket No. 14-0017 (issued August 4, 2014); Robert Bartlett, 51 ECAB 664 (2000).