United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION AND CUSTOMS 

ENFORCEMENT, HOMELAND SECURITY 

INVESTIGATIONS, Camarillo, CA, Employer

__________________________________________

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Docket No. 20-1382

Issued: December 30, 2022

Appearances: Case Submitted on the Record

Daniel Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. MCGINLEY, Alternate Judge

JURISDICTION

On July 13, 2020 appellant, through counsel, filed a timely appeal from an April 7, 2020 

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

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

has jurisdiction over the merits of this case.

1

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

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

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

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

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

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

2

5 U.S.C. § 8101 et seq.
2

ISSUE

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

condition in the performance of duty, as alleged.

FACTUAL HISTORY

On January 21, 2017 appellant, then a 55-year-old supervisor, filed an occupational disease 

claim (Form CA-2) alleging that he developed cracked and chipped teeth due to work-related 

stress-induced grinding of his teeth due to factors of his federal employment. He explained that 

he did not know the exact date that the injury occurred, but that it developed between June 8 and 

December 14, 2016 with the first physical manifestation of his condition presenting on 

December 14, 2016. Appellant indicated that he first became aware of his condition on 

March 10, 2011 and realized its relation to his federal employment on December 14, 2016. He did 

not stop work. 

Dr. Harry T. Albert, a dentist, completed a note on January 11, 2017 in which he indicated 

that appellant had several failing crowns. Appellant reported that he was under a great deal of 

work-related stress and possibly clenching his teeth. In a report dated January 19, 2017,Dr. Albert 

noted that several of his teeth were severely fractured and required full coverage crowns. He 

opined that the tooth fractures could possibly be caused by clenching and grinding indicative of 

stress and thereby work related.

Appellant’s supervisor, J.K., reported in a January 25, 2017 e-mail that from May through 

December 1, 2016 appellant was using sick and annual leave continuously due to work-related 

shoulder surgery.3 He noted that he was unaware of any issues caused by work stress or any dental 

concerns during this time period.

In a February 7, 2017 development letter, OWCP informed appellant of the deficiencies of 

his claim. It requested additional factual and medical evidence from appellant, and provided a 

questionnaire for his completion. By separate development letter of even date, OWCP requested 

that the employing establishment provide additional information regarding appellant’s 

occupational disease claim, including comments from a knowledgeable supervisor regarding the 

accuracy of appellant’s statements. It afforded both parties 30 days to respond.

In a February 24, 2017 e-mailfrom the employing establishment, J.K. noted that he became 

appellant’s supervisor on August 15, 2016. He again reported that appellant used leave from 

April 2016 through December 1, 2016 and was able to complete his duties from December 1 

to 14, 2016.

On February 28, 2017 appellant completed the development questionnaire. He alleged that 

he was targeted for harassment by P.W. and K.K., his prior supervisors. On March 10, 2011 P.W. 

and K.K. fabricated false allegations of wrongdoing that were ultimately withdrawn and rescinded 

by legal agreement. P.W. and K.K. also harassed another agent which resulted in a fatal workplace 

3 Appellant has a previously accepted traumatic injury claim under OWCP File No. xxxxxx254 for incomplete 

rotator cuff tear or rupture of the left shoulder. He underwent left shoulder surgery on May 4, 2016. OWCP authorized 

wage-loss compensation from May 4 through November 30, 2016.
3

shooting in February 2012. Appellant alleged that his statement under oath, as well as his 

documentation, resulted in a finding of harassment by P.W. and K.K. against the other agent. As 

a result, he was subjected to further reprisals and constructive termination as all meaningful 

authority was stripped from his position. Appellant alleged that the Special Investigations Unit 

(SIU) of the employing establishment completed a report and had an investigative file which would 

verify his allegations.

Appellant filed Merit System Protection Board (MSPB) and Equal Employment

Opportunity Commission (EEO) complaints. He asserted that his actions were settled when the 

wrongful actions by the employer were rescinded and withdrawn. Appellant alleged that his 

supervisor perjured himself under oath. He asserted that harassment efforts commenced on 

March 10, 2011 in the form of fabricated and false allegations that were withdrawn and rescinded. 

Reprisals continued and overt and egregious acts of insubordination and misconduct by his 

subordinates and coworkers were overlooked or rewarded. Appellant was prohibited from acting 

and his reports were ignored.

Appellant completed an additional undated narrative statement, and asserted that beginning 

in 2005 what he believed to be punitive work assignments were being disproportionately directed 

at him which resulted in work-related stress. He asserted that in 2010 his supervisor, P.W., 

harassed him because he held him accountable for the actions of other agencies and for statements 

made by others alleging that P.W. was not credible, could not be trusted, and had made numerous 

blatant misstatements regarding operations and criminal investigations. P.W. was transferred in 

2011, but attempted to impose discipline through an inaccurate letter of counseling dated 

March 10, 2011. Appellant alleged that through documentation and other evidence, he was able 

to establish that the allegations contained in the March 10, 2011 letter were false and the letter of 

counseling was removed. He further alleged that he was required to utilize a stressful and 

prolonged series of appeals to have the letter removed. Appellant asserted that P.W. and his 

second-line supervisor K.K. then increased harassment. He alleged that in February 2012 similar 

actions by P.W. and K.K. against another employee resulted in a fatal shooting in the Long Beach 

office. Appellant noted that as he had firsthand knowledge of what transpired, he was compelled 

to give a statement under oath and submit his documents and e-mails pursuant to a separate inquiry 

conducted by the SIU. He asserted that as a result of his participation in the SIU investigation, it 

rendered an adverse finding and issued a report on or about October 28, 2014. Appellant alleged 

that SIU warned him that reprisals and retaliation should be expected. He noted that he was denied 

awards for which he qualified, was denied credit for his extended time as an acting supervisor, and 

was denied promotions, while his subordinates were allowed to commit misconduct, 

insubordination, and unprofessional behavior.

Appellant asserted that a memorandum requesting waiver from firearms qualification was 

routinely filed for other agents out on extended leave, but was not filed for him. He noted that he 

was required to draft and submit the waiver request for his subordinates, but when he appeared to 

draft the waiver for himself, he was prohibited from doing so, and was placed on administrative

duties with his right to carry a firearm revoked. After requalifying, appellant’s authorization to 

carry a firearm was delayed over a month when other agents received instant authorization.

On February 14 and 21, as well as March 1, 2017, Dr. Michelle Conover, a clinical 

neuropsychologist, found that appellant’s level of stress was affecting his physical health. She

recommended that appellant stop work from February 14 to March 10, 2017.
4

In an undated report, Dr. Conover diagnosed chronic post-traumatic stress disorder (PTSD) 

and attributed this condition to the workplace shooting death of a coworker in February 2012, 

workplace harassment through a March 30, 2011 letter of counseling, and the rewarding of his 

subordinate who cursed him and physically threatened him over the telephone on December 11, 

2012, and again about a year and a half later. She also noted that when appellant alleged 

misconduct it was ignored.

Appellant provided additional documentation. On August 22, 2011 P.W. provided 

appellant with an August 19, 2011 counseling letter. He asserted that appellant failed to keep his 

chain of command accurately informed regarding a money laundering investigation. P.W. found 

that appellant made interagency agreements without approval, failed to keep him informed about 

the money laundering investigation, reported a need to travel to Korea, and improperly designated 

the case as “proof of concept.” Instead, he found that the basic investigative research was not 

conducted to identify the Los Angeles based target to warrant an undercover investigation.

P.W. determined that appellant failed to accurately portray his responsibilities with the 

High Intensity Financial Crime Area (HIFCA) investigation in 2011. He noted that appellant had 

informed him that he co-led the HIFCA task force and that five to seven police officers reported 

directly to him. Instead P.W. found that his Internal Revenue Service (IRS) counterpart had full 

operational command of the HIFCA, and that the officers reported to her.

P.W. asserted that appellant failed to cooperate with a Cyber Crimes Center (C3) 

international investigation. He found that the Immigration and Customs Enforcement unit chief, 

C.M., reported that appellant was unsupportive and difficult to work with causing unnecessary 

delays. P.W. determined that appellant’s on-going dispute with C3 on investigative techniques 

required his direct oversight so that federal search warrants could be quickly obtained.

Appellant responded on September 1, 2011 and provided 74 exhibits largely comprised of 

e-mails regarding the money laundering, HIFCA, and C3 investigations, which he asserted 

disproved P.W.’s allegations. In a May 19, 2011 letter, C.A. noted that nine officers had been 

cross-designated as customs officers and assigned to the employing establishment and the HIFCA 

task force with appellant as the contact. In a July 2011 e-mail,L.D., of the IRS, informed appellant 

that a meeting was needed to discuss the issues concerning misstatements by P.W. and the HIFCA.

On May 17, 2011 appellant explained to P.W. that he had presented to HIFCA because he 

was looking for a “proof of concept” case for money services business (MSB) and that the IRS 

agreed and obtained special travel funding. On July 12, 2011 appellant noted that he would not be 

traveling to Korea. He also repeated that this was a “proof of concept” investigation. In a July 21, 

2011 e-mail, P.W. noted that all agreed that the case should be pursued and then hold high level 

meetings with the Korean Nation Police for MSB sweeps. On July 22, 2011 R.V., Assistant U.S. 

Attorney, questioned whether those meetings should take place. On July 25, 2011 L.D., IRS 

supervisor agent, determined that the IRS would not be traveling to Korea. In a previous July 25, 

2011 report, appellant’s coworker, M.S., noted that the IRS was pulling out of the planned 

coordination meeting in Korea, and informed R.V. of the changes including no large scale sweeps 

and no partnership with HIFCA in Korea.

On February 6, 2012 C.A. issued an official letter of reprimand as appellant had purchased 

computer equipment on his personal credit card for the C3 investigation. Appellant responded on 
5

March 1, 2017 grieving the February 6, 2012 letter of reprimand and asserted that use of his credit 

card did not violate policy as reimbursement of personal expenses by undercover operations was 

specifically provided in the employing establishment handbook.

The MSPB issued a mutual settlement agreement on April 17, 2013 in which the employing 

establishment purged all documents from appellant’s official personnel file including the 

August 19, 2011 letter of counsel and the February 6, 2012 letter of reprimand. It noted that the 

letters of discipline could not be used as a basis for future progressive disciplinary action and could 

not be referenced in any litigation, administrative or judicial proceedings.

On March 10, 2017 appellant provided a series of documents describing his difficult 

relationship with two subordinate employees, C.F., and C.O. He provided e-mails describing the 

interactions as well as disciplinary actions he proposed. 

By decision dated September 20, 2017, OWCP denied appellant’s emotional condition 

claim as contributing to the injuries to his teeth. It found that he had not substantiated a 

compensable factor of employment and noted that the MSPB decision did not establish error or 

abuse on the part of the employing establishment in issuing disciplinary actions. OWCP further 

noted that appellant had not established error or abuse by the employing establishment in an 

investigation. It noted that he had not established harassment by P.W. or K.K. or by his 

subordinates.

On September 19, 2018 appellant requested reconsideration of the September 20, 2017 

decision. He asserted that he developed PTSD due to the performance of his duties as a federal 

law enforcement officer and that harassment by his supervisors, P.W. and K.K. further aggravated 

this condition. Appellant attributed his PTSD to the workplace shooting incident. He asserted that 

there was an extremely traumatic shooting within his offices, that he was deeply involved, and that 

this shooting resulted in his diagnosis of PTSD. Appellant further contended that his e -mail 

exhibits established that the allegations in the two disciplinary letters were false regardless of the 

MSPB settlement agreement.

In a December 11, 2018 development letter, OWCP requested that the employing 

establishment respond to appellant’s specific allegations of harassment, punitive work 

assignments, and his participation in the investigation of the February 2012 workplace shooting. 

It afforded 30 days for a response. The employing establishment did not respond.

By decision dated January 25, 2019, OWCP denied modification of its prior decision.

On December 18, 2019 appellant submitted two newspaper articles regarding the 

workplace shooting. In an October 30, 2015 article, The Columbus Dispatch quoted appellant as 

the former supervisor of the shooter and noted that P.W. had killed the shooter. The article noted 

that the shooter’s firearm authorization had been briefly revoked while supervised by appellant 

due to prescription drug use and that appellant had objected to the reinstatement of his firearm 

authorization approved by P.W.

On December 24, 2019 appellant, through counsel, requested reconsideration.

By decision dated April 7, 2020, OWCP denied modification of its prior decisions. It found 

that appellant had not alleged his emotional condition was due to being interviewed for a 
6

newspaper article regarding the shooting incident of February 2012. OWCP further found that he

had not established error or abuse on the part of the employing establishment through the letter of 

counseling.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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.9 There are situations where an injury or illness has some 

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

of workers’ compensation.

10

 When an employee experiences emotional stress in carrying out his 

or her employment duties and the medical evidence establishes that the disability resulted from an 

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

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

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

employing establishment or by the nature of the work.11 

4

Supra note 2.

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 April10, 2019); see T.O.,Docket No. 18-1012 (issued 

October 29, 2018); see 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

5 U.S.C. §§ 8101-8193.

10 G.R., Docket No. 18-0893 (issued November 21, 2018). Robert W. Johns, 51 ECAB 136 (1999).

11 Supra note 4.
7

Allegations alone by a claimant are insufficient to establish a factual basis for an emotional 

condition claim.12 Where the claimant alleges compensable factors of employment, he or she must 

substantiate such allegations with probative and reliable evidence. 13 Personal perceptions alone 

are insufficient to establish an employment-related emotional condition.14 A disabling condition 

resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a person 

injury sustained in the performance of duty within the meaning of FECA. Thus disability is not 

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

when it results from such factors as an employee’s frustration in not being permitted to work in a 

particular environment or to hold a particular position.15 

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. 16 Where the evidence 

demonstrates that the employing establishment either erred or acted abusively in discharging its 

administrative or personnel responsibilities, such action will be considered a compensable 

employment factor.17 A claimant must support his or her allegations with probative and reliable 

evidence. 

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. 18 

Mere perceptions of harassment are not compensable under FECA. 19

OWCP’s procedures provide: 

“An employee who claims to have had an emotional reaction to conditions of 

employment must identify those conditions. The [claims examiner] must carefully 

develop and analyze the identified employment incidents to determine whether or 

not they in fact occurred and if they occurred whether they constitute factors of the 

employment. When an incident or incidents are the alleged cause of disability, the 

[claims examiner] must obtain from the claimant, agency personnel and others, 

such as witnesses to the incident, a statement relating in detail exactly what was 

[stated] and done. If any of the statements are vague or lacking detail, the 

12 B.O., Docket No. 17-1986 (issued January 18, 2019).

13 Id.

14 M.R., Docket No. 18-0305 (issued October 18, 2018).

15 Supra note 10.

16 Charles D. Edwards, 55ECAB 258 (2004).

17 Kim Nguyen, 53 ECAB 127 (2001). Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 

566 (1991).

18 S.B., Docket No. 18-1113 (issued February 21, 2019).

19 Id.
8

responsible person should be requested to submit a supplemental statement 

clarifying the meaning or correcting the omission.”

20

OWCP’s regulations provide that an employing establishment who has reason to disagree 

with an aspect of the claimant’s allegation should submit a statement that specifically describes 

the factual argument with which it disagrees and provide evidence or argument to support that 

position.21 Its regulations further provide in certain types of claims, such as a stress claim, a 

statement from the employing establishment is imperative to properly develop and adjudicate the 

claim.22

ANALYSIS

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

Appellant attributed his condition, in part, to participating in an investigation by the 

employing establishment into a workplace shooting. He contended that the shooting caused his 

PTSD. Appellant further attributed his emotional condition to harassment and discrimination by 

management and his subordinates, and to administrative actions taken by the employing 

establishment.

OWCP, in development letters dated February 7, 2017 and December 11, 2018, requested 

that the employing establishment provide comments from a knowledgeable supervisor regarding 

the accuracy of appellant’s allegations. The employing establishment did not respond to these 

requests.

The Board finds that it is unable to make an informed decision in this case as the employing 

establishment did not respond to OWCP’s requests for information.23 As discussed, OWCP’s 

procedures provide that, in emotional condition cases, a statement from the employing 

establishment is necessary to adequately adjudicate the claim.24

Although it is a claimant’s burden of proof to establish his claim, OWCP is not a 

disinterested arbiter, but rather, shares responsibility in the development of the evidence, 

particularly when such evidence is of the character normally obtained from the employing 

establishment.25

20 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.17(j) (July 1997);

G.K., Docket No. 20-0508 (issued December 11, 2020); S.L.,Docket No. 17-1780 (issued March 14, 2018).

21 20 C.F.R. § 10.117(a); G.K., id.; D.L., Docket No. 15-0547 (issued May 2, 2016).

22 Supra note 20at Chapter 2.800.7(a)(2) (June2011).

23 G.K., supra note 20; G.I., Docket No. 19-0942 (issued February 4, 2020); V.H., Docket No. 18-0273 (issued 

July 27, 2018).

24 Supra note 20.

25 R.A., Docket No. 17-1030 (issued April16, 2018); K.W., Docket No. 15-1535 (issued September 23, 2016).
9

The case will accordingly be remanded for OWCP to further develop the evidence. On 

remand, OWCP shall request that the employing establishment provide a detailed statement and 

relevant evidence and/or argument regarding appellant’s allegations. Following this and any 

necessary further development, it shall issue a de novo decision regarding whether he has 

established an emotional condition in the performance of duty.26

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 7, 2020 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: December 30, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

26 G.K., supra note 20.