United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Mill Valley, CA, Employer

__________________________________________

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Docket No. 21-0240

Issued: May 2, 2022

Appearances: Case Submitted on the Record

Wandra E. Evans, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 9, 2020 appellant, through his representative, filed a timely appeal from an 

October 21, 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 on August 2, 2017, as alleged.

FACTUAL HISTORY

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

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

as follows.

On August 4, 2017 appellant, then a 48-year-old carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on August 2, 2017 he sustained an emotional condition while in the 

performance of duty. He did not stop work. OWCP assigned the claim OWCP File No. 

xxxxxx851, which is currently before the Board.

4

In an accompanying statement, appellant indicated that, on the morning of August 2, 2017,

he informed C.C., his immediate supervisor, that he was not feeling well because of neck pain and 

numbness to his face. He asserted that C.C. informed him that he still had to deliver mail on street 

route 19. Appellant then informed two other supervisors that he was not feeling well and was told 

he could case mail and deliver his mail route later. He reported that, while he was casing mail,

C.C. came and stood behind him to observe him work, which made him very uncomfortable, 

nervous, and stressed. C.C. then asked appellant again to go out and deliver mail on route 19. 

Appellant indicated that, while he was on his lunch break, C.C. asked to speak to him after lunch, 

causing him to feel nervous and stressed that he had done something wrong. He asserted that, after 

lunch, he spoke with C.C. who informed him that he thought that appellant was emotionally 

unstable. Appellant became upset and angry and raised his voice to his supervisor. He then 

apologized to C.C. and explained that he did not know why this was happening, but h e would try 

and control himself.

In an August 2, 2017 statement, C.C. reported that, on that morning, appellant was notified 

that he was making scanner and clock ring errors because he was using an old route number to 

input the data. He maintained that route 32, appellant’s old assignment, had been eliminated a 

month before and that appellant was incorrectly using the old route number. C.C. reported that,

around 12:00 p.m., appellant returned to the employing establishment to take his lunch without 

completing his mail route delivery. At this time, he spoke to appellant regarding the matter. C.C. 

indicated that he gave appellant directions to set up the scanner correctly and use the new route 

number, and also informed appellant that he should not come back to the facility to take his lunch 

when he still had mail to deliver. Rather, appellant was advised to take his lunch break on his mail 

route. He then became upset, raised his voice, and began crying. Appellant yelled that he wanted 

3 Order Remanding Case, Docket No. 19-0482 (issued January 6, 2020).

4 The record reflects that appellant also filed a separate occupational disease claim (Form CA-2) on August 17, 

2017 for the same issue. That claim was then deleted by OWCP and combined with the instant claim. The record 

further reflects that appellant filed an additional occupational disease claim (Form CA-2) on April26, 2018, to which 

it assigned OWCP File No. xxxxxx062. That claim is not presently before the Board on this appeal. 
3

the same delivery route he was assigned the previous day. C.C. informed appellant that he was 

not given that assignment because he was not completing his route and brought back about half 

his assignment the day before. He informed appellant that it was not his decision to eliminate 

appellant’s prior route and that the decision was made between the employing establishment and 

the union.

In support of his claim, appellant submitted medical reports, commencing in May 2017, 

from Dr. Michael Hebrard, a Board-certified physiatrist.

In a September 11, 2017 development letter, OWCP notified appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence needed and provided a 

questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary 

evidence.

Appellant submitted additional medical evidence in support of his claim. In a March 7, 

2018 statement, C.C. asserted that he only gave legitimate instructions to appellant on August 2, 

2017 as part of his right to supervise appellant.

By decision dated March 27, 2018, OWCP denied appellant’s emotional condition claim 

because he did not establish fact of injury. It found that the evidence of record failed to establish 

that the August 2, 2017 incident occurred as alleged. OWCP also determined that there was 

insufficient medical evidence to establish a diagnosed condition causally related to the alleged 

incident. It concluded, therefore, that the requirements had not been met to establish an injury as 

defined by FECA.

On April 2, 2018 appellant, through then-counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. A hearing was held on September 14, 

2018 at which counsel and appellant provided further details regarding the claimed employment 

factors.

By decision dated November 28, 2018, OWCP’s hearing representative affirmed the 

March 27, 2018 decision, finding that the evidence of record failed to establish that the events of 

August 2, 2017 occurred as alleged. The hearing representative noted that, even if appellant were 

to establish that the events occurred as he described, he had not established that an incident rose 

to the level of error or abuse as he was describing supervisory or administrative actions which 

were at the discretion of his employer, which would not be compensable.

Appellant appealed to the Board and, by order dated January 6, 2020,5the Board set aside 

OWCP’s November 28, 2018 decision and remanded the case to OWCP for further development. 

The Board found that OWCP failed to set forth findings of fact and a clear statement of reasons in 

its denial of his emotional condition claim. The Board determined that OWCP did not make any 

factual findings regarding appellant’s specific allegations with respect to the events of August 2, 

2017 or otherwise provide proper findings regarding whether he established any compensable 

employment factors. The Board directed OWCP to make findings of fact regarding the 

5

Supra note 3.
4

employment events alleged by him and to issue a de novo merit decision regarding his emotional 

condition claim.

By decision dated April 23, 2020, OWCP denied appellant’s emotional condition claim

because he did not establish any compensable employment factors. It provided a detailed 

discussion of the claimed incidents and conditions in the workplace on August 2, 2017, but found 

that either they had not been factually established or that they would not be considered as occurring 

in the performance of duty.

On April 29, 2020 appellant, through then-counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review.

Appellant submitted an undated statement in which he indicated that on August 2, 2017

C.C. attempted to rush appellant into driving his postal vehicle on the streets when it was not safe 

for appellant to do so due to his neck pain and facial numbness. He noted that he told C.C. that he 

was doing what was best, but C.C. responded that his best was not enough and that appellant had 

to pick up his work pace.

During the hearing held on August 6, 2020 appellant testified that his shop steward filed a 

grievance against the employing establishment on his behalf, but that he did not “get any result.”

By decision dated October 21, 2020, OWCP’s hearing representative affirmed the 

April 23, 2020 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA6 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.7 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. 8

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 

6

Supra note 2.

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

8

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).
5

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

the diagnosed emotional condition.9

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. 10 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.11 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, it must base its decision on an analysis of the medical evidence.12

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish an emotional 

condition in the performance of duty on August 2, 2017, as alleged.

Appellant alleged that he sustained an emotional condition due to various incidents and 

conditions at work on August 2, 2017. Therefore, the Board must initially review whether these 

alleged incidents and conditions are compensable factors under the terms of FECA. The Board 

notes that appellant’s claim does not directly relate to hisregular or specially assigned duties under 

Lillian Cutler.

13

 Rather, appellant primarily claimed that C.C., his immediate supervisor,

committed error and abuse with respect to various administrative/personnel matters on 

August 2, 2017. He also claimed that C.C. subjected him to harassment and discrimination on that 

date.

With respect to administrative or personnel matters, appellant claimed that C.C. committed 

wrongdoing on August 2, 2017 by mishandling his work assignments and wrongly scrutinizing 

and criticizing his actions and demeanor. He asserted that C.C. improperly instructed him to 

deliver mail on street route 19 despite the fact that he had advised C.C. that he was not feeling 

well. Appellant asserted that, while he was on his lunch break, C.C. asked to speak to him after 

lunch, causing him to feel nervous and stressed that he had done something wrong. He claimed 

9

See 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).

10 Lillian Cutler, 28 ECAB 125 (1976).

11 A.E., Docket No. 18-1587 (issued March 13, 2019); GregorioE. Conde, 52 ECAB 410 (2001).

12 Id.

13 See Lillian Cutler, supra note 10.
6

that, after lunch, he spoke with C.C. who informed appellant that he thought appellant was 

emotionally unstable. 

The Board has held that 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 also 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 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 has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. There is no indication that he obtained a 

final determination from an administrative body showing that management committed error or 

abuse.17 Although appellant expressed dissatisfaction with the actions of C.C., the Board has held 

that mere dislike or disagreement with certain supervisory actions will not be compensable absent 

error or abuse on the part of the supervisor.18 The Board notes that C.C. explained that he only 

gave legitimate instructions to appellant on August 2, 2017 as part of his right to supervise him. 

Appellant has not substantiated error or abuse committed by C.C. in the above-noted matters and, 

therefore, he has not established a compensable employment factor with respect to administrative 

or personnel matters.

Appellant also alleged that C.C. committed harassment and discrimination on 

August 2, 2017. He claimed that, while he was casing mail, C.C. came and stood behind him to 

observe his work, which made him very uncomfortable, nervous, and stressed. Appellant asserted 

that C.C. unreasonably attempted to rush him into driving his postal vehicle on the streets when it 

was not safe for him to do so because of his neck pain and facial numbness. He indicated that he 

told C.C. that he was doing was best, but alleged that C.C. responded that his best was not enough 

and that he had to pick up his work pace. 

To the extent that, disputes and incidents alleged as constituting harassment are established 

as occurring and arising from an employee’s performance of his or her regular duties, these could 

constitute employment factors.19 The Board has held that unfounded perceptions of harassment 

14 T.L., Docket No. 18-0100 (issued June 20, 2019); MatildaR. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 

41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).

15 M.S., Docket No. 19-1589 (issued October 7, 2020); WilliamH. Fortner, 49 ECAB 324(1998).

16 J.W., Docket No. 17-0999 (issued September 4, 2018); RuthS. Johnson, 46 ECAB 237 (1994).

17 Appellant indicated that he had filed a grievance against the employing establishment regarding the events of 

August 2, 2017, but there is no final decision in the case record showing that error and abuse actually occurred. See 

M.R., Docket No. 18-0304 (issued November 13, 2018). 

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

19 D.B., Docket No. 18-1025 (issued January23, 2019); David W. Shirey, 42 ECAB 783, 795-96(1991).
7

do not constitute an employment factor.20 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.21

Appellant, however, did not submit corroborative evidence in support of his allegations 

regarding harassment and discrimination. He did not submit witness statements or other 

documentary evidence demonstrating that the alleged harassment and discrimination occurred as 

alleged.22 Appellant has not established that the claimed actions and statements of C.C. rose to 

the level of harassment or discrimination.23 He did not submit the final findings of any complaint 

or grievance made with respect to these matters, such as an Equal Employment Opportunity 

Commission complaint or a grievance filed with the employing establishment. Therefore, 

appellant has not established a compensable employment factor with respect to the claimed 

harassment and discrimination.

As the Board finds that appellant has not established a compensable employment factor, it 

is not necessary to consider the medical evidence of record.24

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 met his burden of proof to establish an emotional 

condition in the performance of duty on August 2, 2017, as alleged.

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

21 See id.

22 See B.S., Docket No. 19-0378 (issued July 10, 2018).

23 L.C., Docket No. 20-0461 (issued June 2, 2021); 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).

24 See B.O., Docket No. 17-1986 (issued January 18, 2019)(finding that it is not necessary to consider the medical 

evidence of record if a claimant has not established any compensable employment factors). See also Margaret S. 

Krzycki, 43 ECAB 496, 502-03(1992).
8

ORDER

IT IS HEREBY ORDERED THAT the October 21, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 2, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board