United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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Appearances:
Ronald H. Tonkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-796
Issued: July 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 30, 2007 appellant filed a timely appeal from a November 13, 2006 merit
decision of the Office of Workers’ Compensation Programs that affirmed the denial of her
emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merit decision.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she developed
an emotional condition in the performance of duty.
FACTUAL HISTORY
On September 18, 2002 appellant, then a 59-year-old information receptionist, filed an
occupational disease claim alleging that she developed an emotional condition in the

performance of duty.1 Appellant stated that she experienced an “emotional reaction due to
employment injury,” and noted that she first became aware of her injury on June 13, 2002 and
first related it to her employment on June 27, 2002. She explained: “I was under such pain and
discomfort since the injury that I began to get frustrated, aggravated and depressed to think that I
would be revisiting the same feelings I once had during the original injury.” Appellant
experienced stress and frustration with the employing establishment’s processing of her prior
workers’ compensation claim. She stated: “I have been again denied life’s pleasures and the
ability to actively participate in all normal physical” activities. The employing establishment
reviewed the claim on July 12, 2004 and advised that appellant stopped work on June 6, 2002.
On May 6, 2005 the Office requested additional evidence concerning appellant’s claim.
By decision dated September 28, 2005, the Office denied appellant’s claim on the
grounds that she did not establish a compensable employment factor.
On October 20, 2005 appellant requested an oral hearing and submitted an April 26, 1996
statement about her job stress. She alleged that after injuring herself on the job, she dealt with
both physical pain from her injury as well as harassment from her supervisors, both “mentally
and verbally.” Appellant asserted that “their form of light duty” included isolating her from
other employees and that this caused her to experience “serious problems with my nerve
system.” She reported that she was not able to sleep at night and experienced a loss of appetite.
Appellant also stated that Dr. Charles K. Speller, an orthopedic surgeon, who was treating her for
her physical symptoms, noted her tremendous stress. She contended that the employing
establishment provided faulty information in connection with her other workers’ compensation
claims.
In an April 25, 1996 treatment note, Dr. Robert J. Bacon, Jr., a Board-certified urologist,
reported that appellant was diagnosed with major depression. Appellant also provided an
April 25, 1996 prescription for Valium from Dr. Bacon. In an August 27, 1996 report,
Dr. Speller, an orthopedic surgeon, noted that appellant experienced symptoms of pain and
numbness in her right hand. He reported: “There is no significant improvement in [appellant’s]
condition and she seems to continue to be under a lot of stress.” In an August 13, 1996 treatment
note, Pat Thompson, Ph.D., an employing establishment psychologist, indicated that appellant
sought counseling through the Employee Assistance Program.
Dr. Thompson noted:
“[Appellant] states she has experienced stress and states she has sought and been involved in
treatment outside the [employing establishment] for stress. [She] appears to have made some
improvements at this point.”
An oral hearing was conducted on August 29, 2006. Appellant testified that she
experienced job stress. She explained that she experienced stress when, while performing
1

Appellant had previously filed a traumatic injury claim, file number 162038319, which was accepted for right
hand contusion. In the course of her treatment for that injury, appellant’s physician requested authorization to refer
her for treatment for an emotional condition. In an August 13, 2002 letter sent in connection with claim number
162038319, the Office denied authorization for such a referral, as her claim had not been accepted for an emotional
condition. It requested that she provide additional information concerning any potential emotional condition she
may have developed in the performance of duty.

2

kitchen work, she was required to go in the freezer, a task which caused her to have breathing
difficulties. Appellant claimed that she dreaded this assignment because every time she was
assigned to work in the freezer, she had to be rushed to the emergency room. She stated that this
caused her to develop depression. Appellant testified:
“The things I went through on my job like never been sick before. They were
putting me in the area that I knew I had to work and I was suffering with knee
pains and stuff, wasn’t getting any help. Every time I filed a claim … [the
employing establishment] rejects it. So I mean I just went through a lot of stress.”
Appellant also testified that pain from her physical injuries was an additional cause of her
depression. She also experienced stress over the employing establishment’s decision to
terminate her employment. Appellant noted that she experienced additional stress and
depression over financial difficulties following her termination. Her friend, Leon Foster, also
testified regarding her characterization of her emotional state.
Following the hearing, appellant submitted an April 25, 1996 treatment note from
Dr. Thompson, who reiterated that appellant attended counseling through the Employee
Assistance Program.
The employing establishment responded to appellant’s testimony. Willie Turner, a
workers’ compensation program manager, asserted that appellant’s physicians had found her
capable of performing the duties of an information receptionist and did not mention a possible
emotional condition. In an October 6, 2006 statement Barbara Marshall, appellant’s former
supervisor, stated that she was not made aware of undue stress caused by appellant’s work or any
physician’s report regarding stress.
By decision dated November 13, 2006, the hearing representative affirmed the
September 28, 2005 denial of appellant’s emotional condition claim on the grounds that
appellant did not establish a compensable factor of employment.
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/her regular or specially assigned duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.2 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/her frustration from not being
permitted to work in a particular environment or to hold a particular position.3
2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).

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A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.5
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing a condition or disability the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and which 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.6 If a claimant does implicate a factor of
employment, the Office 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, the Office must base its decision on an
analysis of the medical evidence.7
ANALYSIS
The Board finds that appellant has not met her burden of proof in establishing that she
developed an emotional condition in the performance of duty. The record reflects that appellant
was diagnosed with depression. Appellant related her depression to several sources: general job
stress, stress from being asked to perform tasks in a freezer, harassment from supervisors,
frustration over the filing of her other workers’ compensation claims, her termination and pain
from a previous employment injury.
Appellant’s general allegations of job stress are insufficient to establish a compensable
employment factor. She cited only one specific example, the employing establishment’s
requirement that she perform tasks including going in the freezer. The Board has held that stress
or anxiety over an employee’s normal or specially assigned work duties may constitute a
compensable factor of employment.8 However, in the present case, appellant has not provided
sufficient information to establish a compensable employment factor. She alleged that working
in the freezer was detrimental to her physical health and that she was rushed to the emergency
room each time she was assigned to work in the freezer. However, she did not submit sufficient
evidence to corroborate her allegation. Moreover, appellant did not fully explain what her duties
were regarding the freezer, the dates she performed these duties, whether she was required to
work there for extended periods of time on whether she was assigned to the freezer at all during
her tenure as an information receptionist. As noted, she bears the burden of proving that she
4

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

5

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

6

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

7

Id.

8

See supra notes 2, 3.

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developed an emotional condition as a result of a compensable employment factor. This burden
includes the submission of detailed factual evidence and explanation concerning the incidents or
assignments she believes constituted a compensable employment factor.9 Appellant has
presented only vague allegations of general job stress and stress from being assigned to work in
the freezer. She has not submitted sufficient evidence to establish these allegations as
compensable factors.10
Appellant asserted that her supervisors mentally and verbally harassed her. To the extent
that disputes and incidents alleged as constituting harassment and discrimination by supervisors
are established as occurring and arising from appellant’s performance of her regular duties, these
could constitute employment factors.11 However, for harassment or discrimination to give rise to
a compensable disability under the Act, there must be evidence that harassment or discrimination
did in fact occur. Mere perceptions of harassment or discrimination are not compensable under
the Act.12 Appellant alleged that supervisors made statements that she believed constituted
harassment and discrimination, but she provided no corroborating evidence, such as witness
statements, to establish that the statements actually were made or that the actions actually
occurred.13 Appellant has not established her allegations of harassment.
Appellant also stated that she experienced stress due to the employing establishment’s
handling of her other workers’ compensation claims. The Board finds that these allegations
relate to administrative or personnel matters, which are unrelated to the employee’s regular or
specially assigned work duties and do not fall within the coverage of the Act.14 The Board has
held that the processing of compensation claims bears no relation to day-to-day or specially
assigned duties. Although the handling of a compensation claim is generally related to the
employment, it is an administrative function of the employer and not a duty of the employee and
not compensable absent evidence of error or abuse by the employer.15 The Board has also found
that an administrative or personnel matter may be considered to be an employment factor where
the evidence discloses error or abuse on the part of the employing establishment. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.16 Appellant asserted that the employing
establishment denied her claims and submitted faulty information to the Office. The employing
establishment denied these allegations and appellant did not provide evidence of incorrect
9

See supra note 5.

10

See, e.g. George Tseko, 40 ECAB 948 (1989).

11

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

12

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

13

See William P. George, 43 ECAB 1159, 1167 (1992).

14

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
15

David C. Lindsey, Jr., 56 ECAB ___ (Docket No. 04-1828, issued January 19, 2005).

16

See Richard J. Dube, 42 ECAB 916, 920 (1991).

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information passed on to the Office or incidents in which Mr. Turner, the workers’ compensation
specialist who allegedly “denied” appellant’s claims, refused to file a claim on her behalf.
Appellant has not submitted sufficient evidence to establish that the employing establishment
committed error or abuse with respect to her previous workers’ compensation claims. The Board
finds that appellant has not established a compensable employment factor under the Act with
respect to these administrative matters.
Appellant asserts that she became depressed due to the termination of her employment.
However, the Board has held that frustration from not being permitted to work in a particular
environment or hold a particular position is not compensable under the Act.17 The employing
establishment stated that appellant’s physicians had indicated that she was capable of performing
full duty. The Board finds that appellant’s reaction to her separation from the employing
establishment is considered self-generated in that it results from her frustration in not being
permitted to work in a particular environment or to hold a particular position.18 As noted, an
administrative or personnel matter may be a compensable employment factor only when a
claimant establishes error or abuse on the part of the employing establishment.19 Appellant has
not presented evidence showing that the employing establishment erred or acted unreasonably
with regard to her termination. Accordingly, the Board finds that the circumstances of
appellant’s separation from the employing establishment are not a compensable employment
factor.
Finally, appellant alleged chronic pain from her employment injury as a source of stress
and depression. On appeal, appellant cited Arnold A. Alley, for the proposition that chronic pain
from an employment injury constitutes a compensable factor of employment. In Alley, the Board
held that the employee did establish a compensable factor of employment, namely, chronic pain
resulting from an employment injury, but did not establish that he developed an emotional
condition due to his chronic pain because he did not show causal relationship between his
chronic pain and the diagnosed emotional condition.20 While appellant correctly asserts that
chronic pain from an employment injury maybe a compensable factor of employment. She has
not submitted any medical evidence showing that she has chronic pain due to her employment
injury. Accordingly, the Board finds that she has not established chronic pain as a compensable
employment factor.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
developed an emotional condition in the performance of duty.

17

See Michael Thomas Plante, 44 ECAB 510, 515 (1993).

18

Tanya A. Gaines, 44 ECAB 923, 934-35 (1993).

19

See supra note 16.

20

Id.

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ORDER
IT IS HEREBY ORDERED THAT the November 13, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: July 12, 2007
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Philadelphia, PA, Employer
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___________________________________________ )
S.C., Appellant

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-956
Issued: November 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 26, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) decision dated January 5, 2012, which found that appellant
did not sustain an injury in the performance of duty. 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.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on September 1, 2011.
FACTUAL HISTORY
On September 1, 2011 appellant, then a 51-year-old letter carrier, filed a traumatic injury
claim alleging that he fell in a hole on that date and injured his right leg and the back of his head.
He stopped work on September 1, 2011 and returned on September 6, 2011. The employing
1

5 U.S.C. § 8101 et seq.

establishment noted that appellant “omitted” that he exited his vehicle “backwards.” It stated
that he could not see where he was going while stepping out.
By letter dated November 30, 2011, OWCP advised appellant that additional factual and
medical evidence was needed. It explained that the evidence was not sufficient to establish that
he sustained an injury while performing his work duties. OWCP noted that a physician’s opinion
was crucial to appellant’s claim and allotted 30 days to submit the requested information.
OWCP received treatment notes dated September 1 to 16, 2011 from Dr. David Yorio, an
osteopath, who diagnosed a sprain/strain, contusion to the right leg, head and right ribs. In
listing the history of injury, Dr. Yorio noted that appellant had pain in the affected areas after he
fell into a ditch when he exited his mail truck. Portions of the notes are illegible.
By decision dated January 5, 2012, OWCP denied appellant’s claim finding that the
evidence did not establish that the incident occurred at the time, place and in the manner alleged.
It noted that the employing establishment advised that he omitted the fact that he was coming out
of his vehicle backwards and could not see where he was stepping. OWCP further found that
there was no medical evidence that provided a diagnosis which could be connected to the events.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 timely filed within the applicable time
limitation period of FECA2 and that an injury was sustained in the performance of duty.3 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that the employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his subsequent course of
action.5 Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may cast doubt on an employee’s statements in determining whether he or she
has established a prima facie case.6 However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.7

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

Early David Seal, 49 ECAB 152 (1997); see Mary J. Coppolino, 43 ECAB 988 (1992).

6

Merton J. Sills, 39 ECAB 572, 575 (1988).

7

Thelma S. Buffington, 34 ECAB 104 (1982).

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When an employee claims that he sustained an injury in the performance of duty he must
submit sufficient evidence to establish that he experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. He must establish that such event,
incident or exposure caused an injury.8 Once an employee establishes that he sustained an injury
in the performance of duty, he has the burden of proof to establish that any subsequent medical
condition or disability for work, for which he claims compensation, is causally related to the
accepted injury.9
ANALYSIS
Appellant alleged that, on September 1, 2011, he fell into a hole on his route and
sustained an injury to his right leg and the back of his head in the performance of duty. OWCP
found that the September 1, 2011 incident did not happen at the time, place and in the manner
alleged because the employing establishment indicated that he omitted the fact that he was
coming out of his vehicle backwards and could not see where he was stepping. The fact that
appellant may have exited his vehicle backwards does not mean that the incident did not occur.
The Board notes that there is no evidence in the record to refute that he fell in a hole while
exiting his work vehicle as part of his duties. Appellant also promptly reported the incident.
There are no contradictory statements or evidence which refutes that the fall occurred on
September 1, 2011. The Board finds that the evidence of record is sufficient to establish the
September 1, 2011 incident occurred as alleged.
The medical evidence, however, is insufficient to establish the second component of fact
of injury, that the employment incident caused an injury. The medical evidence does not
establish that appellant exiting his vehicle and stepping into a hole on September 1, 2011 caused
injury. The record contains insufficient medical opinion explaining how the fall on September 1,
2011 caused or aggravated a diagnosed medical condition. Appellant provided treatment notes
from Dr. Yorio; but the physician did not provide a specific opinion addressing whether any
diagnosed condition was caused or aggravated by the incident of September 1, 2011. He
diagnosed a sprain/strain, contusion to the right leg, head and right ribs, but did not specifically
address causal relationship or address how the September 1, 2011 incident caused or aggravated
these conditions. Dr. Yorio’s September 1, 2011 treatment note gives a brief history of appellant
falling into a ditch as he exited his vehicle. He did not provide a narrative opinion on the issue
of causal relation. To the extent that this statement of history may be viewed as supporting
causal relationship, Dr. Yorio did not provide adequate rationale explaining his conclusion.10
These reports are of limited probative value and are insufficient to establish appellant’s claim.
On appeal, appellant described how he sustained his injury and questioned why his claim
was denied. The Board finds that the first component of fact of injury, the incident was

8

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
9

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of diminished probative value).

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established. The medical evidence is insufficient to establish his injury as Dr. Yorio did not
sufficiently address causal relation.
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 in establishing that he
sustained an injury in the performance of duty on September 1, 2011.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: November 6, 2012
Washington, DC

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Member, concurring:
The employer in this case controverted the claim imputing negligence to appellant in how
he performed his duties. It was noted that he exited from his vehicle backwards and could not
see where he was going. But negligence on appellant’s part is immaterial to coverage under
FECA unless it constitutes a form of deviation from the course of his employment or it is of a
kind specifically made a statutory defense under FECA.11 As noted by Professor Larson, the
basic test of coverage under workers’ compensation is the relation of the injury to the
employment with no reference to the personal merits of the parties.12
11

A. Larson, Workers’ Compensation Law, § 32.01 (2000).

12

Id.

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In Rudolph Faires,13 the employee sustained injury when he accidentally drew his fingers
into a chain saw while performing his duties. His claim was denied by the Bureau of
Employees’ Compensation, predecessor of OWCP, for the reason that the injury did not arise in
the performance of duty as he had previously been warned concerning the use of power
equipment. The Board set aside the denial and remanded the case for further development. The
Bureau had not contended that the injury arose through misconduct on the part of the employee.
The Board noted:
“…The workmen’s compensation laws impose liability upon industry to take care
of its casualties without regard to fault or lack of fault of the employer, and
similarly give rise to a claim for compensation on the part of the injured employee
without regard to the employee’s fault, unless the injury was caused by conduct of
the employee amounting to the statutory bar of ‘willful misconduct.’”14
The Board further noted that disobedience of orders does not necessarily place an
employee outside the scope of employment, particularly in situations where the forbidden act
furthers the performance of the assigned duties and redounds to the employer’s benefit.15
In this case, appellant was performing the duties of his job as a letter carrier while on his
postal route, during his work shift and engaged in activities incidental to his employment. The
incident in question arose while he was in the course of his federal employment. The fact that
appellant may have been negligent at the time he stepped down from his postal vehicle would not
preclude coverage of his injury under FECA or take him from the performance of duty.

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

13

4 ECAB 649 (1952).

14

Id. at 650.

15

Id. The Board noted that the employer is not entitled under the liberal terms of workers’ compensation law to
invoke in avoidance of liability any doctrine of added risk or contributory fault, as at common law.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, LAFAYETTE
POST OFFICE, Norfolk, VA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-166
Issued: April 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 31, 2012 appellant, through his attorney, filed a timely appeal from a
September 11, 2012 schedule award 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.
ISSUE
The issue is whether appellant has established that he sustained a ratable impairment of
the left upper extremity.
On appeal, counsel asserts that OWCP’s September 11, 2012 decision is “contrary to fact
and law.”

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before October 1, 2008 appellant, then a 54-year-old letter
carrier, sustained a torn left rotator cuff due to carrying a satchel and heavy parcels in the
performance of duty.2
Dr. Patrick W. O’Connell, an attending Board-certified orthopedic surgeon, diagnosed a
left rotator cuff tear and left shoulder impingement on October 31, 2008.3 On November 6, 2008
he performed arthroscopic left rotator cuff debridement, repair of the left biceps tendon with
fixation and subacromial decompression with acromioplasty. Dr. O’Connell performed a second
arthroscopy on November 20, 2008 to remove a push-lock fixation anchor that had migrated out
of the shoulder joint. On March 17, 2009 he performed a closed manipulation of the left
shoulder under anesthesia to correct postsurgical arthrofibrosis. Dr. O’Connell submitted
progress reports through August 2009.
On December 15, 2010 appellant claimed a schedule award. In a December 21, 2010
letter, OWCP advised him of the evidence needed to establish his claim, including his
physician’s opinion that he had attained maximum medical improvement and an evaluation of
any permanent impairment utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). Appellant was afforded
30 days to submit such evidence.
By decision dated January 21, 2011, OWCP denied appellant’s schedule award claim on
the grounds that he did not submit medical evidence establishing maximum medical
improvement. Also, appellant did not provide an impairment rating. Counsel requested a
telephonic hearing, held May 10, 2011. At the hearing, appellant stated that he remained under
medical treatment for his left shoulder condition. He submitted additional medical evidence.
In a February 3, 2011 report, Dr. O’Connell noted performing a third arthroscopy and
subacromial decompression on appellant’s left shoulder. He also excised ossification of the
coracoacromial ligament and debrided a biceps tendon tear. Dr. O’Connell noted restricted left
shoulder motion and generalized rotator cuff weakness through May 2011. Appellant
participated in physical therapy through July 2011.
By decision dated and finalized July 13, 2011, an OWCP hearing representative affirmed
OWCP’s January 21, 2011 decision, finding that the medical evidence did not establish the
prerequisite criteria of maximum medical improvement. Additionally, appellant did not provide
an impairment rating.

2

OWCP initially denied the claim by decision dated July 7, 2009 on the grounds that causal relationship was not
established. Pursuant to a request for a telephonic hearing, by decision dated and finalized September 28, 2010, it
reversed its July 7, 2009 decision and accepted a torn left rotator cuff tear. OWCP also retroactively authorized the
November 6, 2008 left shoulder surgery.
3

A November 29, 2007 magnetic resonance imaging scan showed a full thickness tear of the left supraspinatus
tendon with two centimeters medial retraction, a large glenohumeral joint effusion, acromioclavicular arthrosis, a
subacromial spur and a possible superior labral tear.

2

In August 18 and December 22, 2011 letters, counsel requested reconsideration. He
submitted a July 5, 2011 report from Dr. Stuart J. Goodman, a neurologist, noting that appellant
had a “chronic permanent condition.” Dr. Goodman found that appellant had 13 percent
impairment of the left upper extremity due to weakness, restricted motion and biceps atrophy
according to Table 15.5 of the A.M.A., Guides, the Shoulder Regional Grid.4
In a July 21, 2011 report, Dr. O’Connell opined that appellant required additional
physical therapy and continued medication for ongoing left shoulder pain and weakness. On
September 19, 2011 he noted that appellant was still trying to increase his range of left shoulder
motion in physical therapy. Dr. O’Connell diagnosed a rotator cuff tear, left shoulder
impingement syndrome and a supraspinatus tendon sprain and strain. He stated that he would
reevaluate appellant’s condition in three months.
By decision dated September 11, 2012, OWCP denied appellant’s claim on the grounds
that the medical evidence did not establish that he had attained maximum medical improvement.
It found that Dr. Goodman did not find that the accepted left shoulder condition was permanent
and stationary.
LEGAL PRECEDENT
A claimant seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence.5
The schedule award provisions of FECA6 provide for compensation to employees sustaining
impairment from loss or loss of use of specified members of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of the OWCP.
For consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.7 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2008.8
A preliminary element for considering a schedule award is establishing that the claimant
has attained maximum medical improvement.9 The A.M.A., Guides explain that impairment
4

Dr. Goodman also found a one percent impairment of the left lower extremity due to an antalgic gait and
chronic discomfort. However, there is no claim of record for a left lower extremity injury or condition.
5

G.T., 59 ECAB 447 (2008).

6

5 U.S.C. § 8107.

7

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010).
9

J.D., Docket No. 12-481 (issued November 17, 2012).

3

should not be considered permanent until the clinical findings indicate that the medical condition
is static and well stabilized:
It is understood that an individual’s condition is dynamic. Maximal medical
improvement refers to a date from which further recovery or deterioration is not
anticipated, although over time there may be some expected change. Once an
impairment has reached maximum medical improvement, a permanent
impairment rating may be performed.10
ANALYSIS
OWCP accepted appellant’s claim for a left rotator cuff tear and subsequent surgery.
Appellant claimed a schedule award on December 15, 2010. OWCP advised him in a
December 21, 2010 letter of the necessity of submitting a medical opinion establishing that the
claimed condition had reached maximum medical improvement. By decisions dated January 21,
July 13 and September 11, 2012, it denied appellant’s schedule award claim on the grounds that
maximum medical improvement had not been reached.
In support of his schedule award claim, appellant submitted reports from Dr. O’Connell,
an attending Board-certified orthopedic surgeon, who performed four procedures on appellant’s
left shoulder, the last on February 3, 2011. Dr. O’Connell opined on July 21, 2011 that appellant
required continued medication and physical therapy due to ongoing left shoulder pain and
weakness. He stated on September 3, 2011 that appellant required additional physical therapy to
attempt to increase his left shoulder range of motion. Dr. O’Connell planned to reevaluate
appellant in three months. He prescribed additional physical therapy to improve appellant’s left
shoulder condition. Dr. O’Connell did not opine that appellant had already reached maximum
medical improvement. He, an attending neurologist, stated on July 5, 2011 that appellant had a
“chronic permanent condition,” but did not state that the condition had stabilized or was not
expected to improve. Dr. O’Connell did not find that appellant had attained maximum medical
improvement.
Appellant bears the burden of proof to establish his entitlement to a schedule award. The
Board finds that neither Dr. O’Connell nor Dr. Goodman opined that appellant had reached
maximum medical improvement. As this element is a condition precedent to consideration of a
schedule award, the Board finds that appellant has not met his burden of proof. The Board will
affirm OWCP’s September 11, 2012 decision.
On appeal, counsel asserts that OWCP’s September 11, 2012 decision is “contrary to fact
and law.” As stated, appellant did not submit medical evidence establishing that he attained
maximum medical improvement.

10

A.M.A., Guides 20, Table 201 (6th ed. 2009); Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not
payable until maximum medical improvement has been reached, meaning that the physical condition of the injured
member of the body has stabilized and will not improve further).

4

Appellant may request a schedule award or increased schedule award regarding the right
upper extremity, based on evidence of a new exposure or medical evidence showing progression
of an employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award under 5 U.S.C. § 8107
as the medical evidence does not establish that he has reached maximum medical improvement.
ORDER
IT IS HEREBY ORDERED THAT the September 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 26, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
DEPARTMENT OF THE ARMY, FORT
LEONARD WOOD, Nixa, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0184
Issued: January 19, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 3, 2016 appellant, through counsel, filed a timely appeal from May 24 and
October 21, 2016 merit decisions 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 failed to meet her burden of proof to establish an
emotional condition and an aggravation of a preexisting chronic fatigue syndrome condition in
the performance of duty.
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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances presented
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
Appellant, a 45-year-old clinical psychologist, filed an occupational disease claim (Form
CA-2) on April 17, 2013. She asserted that she became sick after flying to a work conference,
required a wheelchair to ambulate during the conference, and her health then continued to
deteriorate. Appellant also alleged that she developed chronic fatigue syndrome, fibromyalgia,
and dysautonomia due to employment factors, which resulted in anxiety and mood disorder, and
that the employing establishment refused to grant her requests for reasonable accommodations
for her chronic fatigue syndrome condition. She noted that she first became aware that these
conditions were caused or aggravated by her federal employment on October 1, 2012.
Appellant submitted copies of e-mails she sent to management in October and
November 2013 in which she stated that she was incapacitated due to chronic fatigue syndrome
and requested accommodations for her condition.
By development letter dated May 9, 2013, OWCP advised appellant that she needed to
submit factual and medical information in support of her claim. It asked her to describe in detail
the employment-related conditions or incidents which she believed contributed to her alleged
conditions, and to provide specific descriptions of all practices, incidents, etc., which she believed
affected her condition.
In response to OWCP’s May 9, 2013 developmental letter, appellant provided a narrative
statement, explaining that she had been diagnosed with chronic fatigue syndrome in 2006,
fibromyalgia in 2007, and dysautonomia in 2012. She advised that she was incapacitated due to
chronic fatigue syndrome, which resulted in her being bedridden and unable to work or perform
minimal activities of daily living for approximately one year. Appellant gradually recovered and
was eventually able to return to work and to normal activities. She was subsequently diagnosed
with anxiety disorder and mood disorder in 2012 due to a “general medical condition.” Appellant
advised that she attended a pain management conference in Washington, DC, August 7 to
10, 2012. She related that during her initial connecting flight from Chicago to Washington, DC
she began to experience weakness, fatigue, dizziness, shortness of breath, muscle pain, and felt
“flushed.” Appellant stated that her symptoms increased in intensity when she got off the plane
and worsened the next morning. She experienced great difficulty walking, had weakness in her
legs, and began to drastically curtail her activities. Appellant eventually was overcome by
exhaustion and weakness to the extent that she required the aid of a wheelchair.
Appellant reiterated that she experienced difficulties with the employing establishment in
receiving any type of accommodation for her disability due to chronic fatigue syndrome. She
asserted that management did grant one request for reasonable accommodation in late 2011, when
she requested to be placed on a weekly schedule of four 10-hour days so that she could attend
doctor’s appointments, rest, do some physical therapy, and lighten her workload to allow time at
the end of the day to perform administrative tasks. Appellant, however, did not consider this an
3

Order Remanding Case, Docket No. 14-1560 (issued December 21, 2015).

2

actual reasonable accommodation, since other staff members had flexible work schedules and
some were also put on 10-hour days. She further noted that she was required to sign a form stating
that if she missed work she would be taken off four 10-hour days and placed back on five 8-hour
days. In addition, appellant alleged that her husband and coworker, K.V., was taken off the
schedule for four 10-hour days because he missed work to care for her in late 2012. She alleged
that this caused her condition to worsen because she was deprived of transportation to doctor’s
appointments, causing her to miss several appointments. Appellant alleged that management was
punishing her and her husband for trying to deal with her disability, causing her to further fear for
her job. As such she worked when she probably should not have because she did not want to lose
her job.
Appellant asserted that the employing establishment denied all of her other requests for
reasonable accommodations based on her disability. She advised that, in September 2011, her
endocrinologist recommended a reduction from a 50- to 60-hour workweek to a normal 40-hour
workweek. Management, however, ignored this request. Appellant further alleged that
management denied her requests for telework as an option for part of her workday in September,
October, and November 2012. Management did not grant any telework until January 11, 2013,
after she had filed an Equal Employment Opportunity (EEO) grievance against the employing
establishment. Appellant stated that her request was granted, but she was only allowed five hours
of telework per week, which was not enough to complete her work.
Appellant further alleged that management granted her request to work four 10-hour days,
but she was given an increasingly heavy workload and took over many of the duties of the chief of
psychology when she deployed in late 2011, which forced her to increase her daily work hours
from 10 to 12 and caused her to take work home on the weekends. She asserted that in early 2012
she began to have episodes of flushing, tachycardia, high blood pressure, and gastrointestinal
problems along with the weakness and fatigue. Appellant alleged that she had to take time off
because of her health condition, to which management reacted with lectures by the department
chief about the importance of the missions in the department and how her absences affected the
missions of the department. She stated that she became fearful of losing her job so she only took
time off when she was so sick that she was absolutely unable to function or had to go to the
physician. Appellant further stated that she feared losing my job and began to miss more and more
days of work as her symptoms worsened.
In an August 28, 2012 report, Dr. Mark R. Ellis, a specialist in family medicine,
recommended that appellant be placed on family medical leave from August 28 to September 9,
2012 and work no more than 20 hours per week from September 9 to October 1, 2012. He
diagnosed chronic fatigue syndrome, thyroid dysfunction, and growth hormone deficiency.
In a December 30, 2012 report, Dr. Ellis advised that appellant was first diagnosed with
post-viral chronic fatigue syndrome by the Mayo Clinic in 2006 after a series of infections that
occurred after she had volunteered to go to New Orleans, LA after Hurricane Katrina. Appellant
was treated with occupational therapy, physical therapy, and medication management, which
stabilized in approximately 2008. Dr. Ellis opined that she had experienced periodic flare-ups
since the onset of her condition, which were typical of this condition. Appellant noted that she
experienced a relapse in August 2012 after attending two consecutive work-related conferences
and she required modification to her work schedule as she was recovering, but these modifications

3

were unsuccessful. Dr. Ellis reported that every time she regained some of her physical
functioning and health and would return to work, appellant would relapse due to work. In
December 2012, this condition became severe enough that she required home health care and had
to stop all work activities.
Dr. Ellis advised that in approximately February 2012 appellant began to experience
unexplained symptoms of tachycardia, blood pressure fluctuations, problems with temperature
regulation, dizziness, flushing, lightheadedness, near fainting, and gastrointestinal symptoms.
Appellant was diagnosed with dysautonomia due to these symptoms. She also experienced mood
and anxiety symptoms which resulted in diagnoses of mood disorder and anxiety disorder due to a
general medical condition. These symptoms included muscle weakness, fatigue, blurred vision,
tachycardia, flushing, blood pressure fluctuations, dizziness, difficulty eating, difficulty sleeping,
gastrointestinal symptoms, decreased stamina, decreased walking and balance problems, muscle
and joint pain, skin rashes, muscle twitching/fasciculation, difficulty with concentration and
memory, headaches, sore throat, lightheadedness, shortness of breath, anxiety, depression,
difficulty tolerating medications, and increased risk of side effects of medications.
Dr. Ellis advised that appellant was unable to exert the physical and mental energy
necessary to sustain extended periods of work activities and that overexertion exacerbated her
symptoms and led to relapses which made her unable to be at work on a consistent and reliable
basis. Appellant experienced difficulties reading, typing, concentrating, remembering, and
focusing which reduced her ability to interact with patients and perform administrative tasks.
Dr. Ellis reported that appellant was unable to sit for long periods of time. He opined that her
condition placed her at risk for falls. Dr. Ellis reiterated his diagnoses of chronic fatigue syndrome,
fibromyalgia, anterior pituitary disorder, dysautonomia, anxiety disorder, and mood disorder. He
restricted appellant to working no more than five hours per week from home.
In support of her claim, appellant submitted a June 2013 statement from her husband, K.V.,
who accompanied her during her August 8 to 10, 2012 trip to the Washington, DC conference.
K.V. corroborated that during the flight to Washington, with a layover in Chicago, appellant began
to feel weak, dizzy, and had increased muscle pain. He related that during the conference his
wife’s physical condition rapidly deteriorated to the extent that she needed a wheelchair to get back
and forth from the conference to the hotel as she began to feel extremely fatigued due to the flight
to the conference. K.V. related that upon her return to work appellant’s condition further
deteriorated and her physician ordered her to take time off from work and then to return to work on
a part-time basis only, until her condition had improved and she was able to assume more
responsibility. He advised that, initially, management agreed to this, but she was not given the
proper caseload and responsibilities which forced her to work longer days in order to finish her
work. K.V. stated that because the employing establishment did not accommodate her restrictions,
appellant’s health continued to decline. He asserted that on numerous occasions she attempted to
return to work because she was being pressured by management, which further affected her ability
to function. K.V. corroborated that when she became absent from the workplace on a more regular
basis she was met with lectures from the division chief about the importance of her being present
in the workplace and was further pressured to return to work. In addition, he asserted that the
employing establishment changed her pay card from using sick leave to a no pay status for a pay
period without telling her that was going to happen or why. K.V. alleged that the employing
establishment’s actions resulted in the deterioration of appellant’s condition. He asserted that had

4

she been given the opportunity, and had her physician’s recommendations been followed by
management, she would not have been unable to work at this time.
In a June 6, 2013 report, Dr. Julie A. Warren, Board-certified in psychiatry and neurology,
advised that she was treating appellant for symptoms of anxiety and depression due to anxiety
disorder and mood disorder. She advised that her mental health symptoms of anxiety and
depression were the direct psychological effects of a medical condition and not the result of a
mental disorder. Appellant had a history of recurrent major depression which was successfully
managed until approximately late 2011 to early 2012, at which time she began to exhibit symptoms
of anxiety. Dr. Warren, however, opined that her symptoms were very atypical for anxiety and did
not resemble her usual anxiety presentation.
Appellant reported having symptoms of anxiety which included tachycardia, shortness of
breath, dizziness, flushing, muscle weakness, fatigue, difficulty sleeping, difficulty eating,
difficulty performing activities of daily living, problems with memory and concentration, blurry
vision, muscle twitching, pain, and neuropathy. She also reported stressors related to difficulty
with her employer in regards to reasonable accommodations for her condition, time off work, fears
of losing her job, and problems with her husband being allowed to take family medical leave
without retaliation. Dr. Warren reiterated that appellant was experiencing symptoms similar to
anxiety and depression, but that they were related to a medical condition and did not result from a
mental health condition. She opined that these symptoms were worsened by the continued stress
of appellant’s position, long work hours, pressure to return to work before her health had
improved, and lack of support and accommodations by her employer. Dr. Warren advised that
appellant was disabled and unable to work.
In a report received by OWCP on June 14, 2013, Dr. Ellis reiterated his previous findings
and conclusions. He advised that appellant had experienced extended periods of successful
remission of symptoms in the past and believed that she would gradually be able to return to her
previous level of functioning due to successful treatment of dysautonomia. Dr. Ellis opined that
accommodating appellant’s restrictions would assist in preventing deterioration of her condition
and allow her to perform her jobs. He opined that these accommodations would increase
productivity and decrease fatigue, weakness, symptom exacerbation, and potential relapses.
Dr. Ellis advised that, with appropriate treatment and accommodations in her work
environment, relapses could be minimized or prevented. He noted that appellant was performing
at a very high level in her job until late August 2012, at which time she sustained a significant
setback in her health, from which she had struggled to recover. Dr. Ellis opined that what
happened since August 2012 was most likely due to her undiagnosed and untreated
dysautonomia. He advised that there was medical evidence to suggest that excessive travel and
travel by airplane exacerbated dysautonomia. Additionally, the untreated dysautonomia likely
contributed to appellant’s inability to fully recover from the setback she experienced and
exacerbated her symptoms associated with chronic fatigue syndrome. Dr. Ellis opined that, with
continued treatment and a gradual return to work with reasonable accommodations in her work
environment, she would be able to return to her previous level of functioning.
Appellant submitted a June 14, 2013 statement in which she reiterated that management
had systematically denied her requests to accommodate her chronic fatigue syndrome. She

5

attached e-mails between herself and her supervisor requesting accommodations for her chronic
fatigue syndrome and a request to increase her weekly telework hours due to her condition.
Appellant alleged that the e-mails supported her assertion that the employing establishment
refused to accommodate her chronic fatigue syndrome condition. She asserted that her
supervisor did not want her to work off-site. Although management reported that there was a
vacancy created by her absences, appellant asserted that she could have performed many of her
duties with the reasonable accommodations requested at the beginning of her relapse. She
alleged that management’s warnings to her about not meeting missions and being reprimanded
for her absences made her fear for her job and caused her to push herself when she should have
been working on healing, resulting in her condition worsening substantially.
In a letter received by OWCP on June 18, 2013, appellant indicated that because she had
received notice that management was proposing that she be terminated due to her medical
inability to perform her duties, she resigned for medical reasons. She noted that she was unable
to perform her duties due to her disability. Appellant wanted to continue in her employment, but
management refused to keep her employed, wanted her removed, and continued to harass her
until it became so unbearable that she had to resign to protect her health from further
deterioration.
In a memorandum dated August 16, 2013, the employing establishment controverted
appellant’s claim. W.C., the employing establishment’s director of psychological health,
contended that appellant’s poor compliance with her physician’s recommendations, her
voluntarily extending her psychological status with requested travel, and her noncompliance with
agency accommodations potentially exacerbated her physiological condition. Specifically, he
noted that appellant and her husband voluntarily chose to drive from their home in Springfield,
MO on a daily basis to the hospital at Fort Leonard Wood, a distance of 93 miles each way,
despite her history of chronic fatigue syndrome. This caused appellant to appear in a fatigued
state by the time she arrived for her daily duty status as chief of the outpatient behavioral health
department. W.C. denied appellant’s allegation that she was forced to work more than 40 hours
per week to fulfill her work requirements. Rather, appellant chose to work additional hours of
her own volition and management had advised her to adhere to a normal work schedule on
several occasions. When she was accommodated with half-day schedules, appellant chose to
extend her hours. W.C. asserted that he denied her request to telework for part of her workday in
September, October, and November 2012 because she was experiencing difficulty concentrating,
functioning, and delivering the appropriate time to her required tasks. Furthermore, her
supervisory position was classified as a non-telework position due to both supervisory and direct
practice requirements. W.C. further contended that appellant was requested to physically
relocate within the department to accommodate a mission requirement for a new child and
adolescent clinic area. It was determined that the new office would not hinder appellant in
completing tasks or exacerbate any physical difficulties. It was facilitated with a significant
window and an ergonomic request to include a new desk. W.C. also contended that the
employing establishment consistently met appellant’s requests for reasonable accommodations.
Appellant could not be realigned to a nonsupervisory position or simply trade positions with
another nonsupervisory psychologist “noncompetitively” due to her disability status. She was
allowed to work all requested work schedules, including half-days. Appellant was also permitted
an exception to the policy for telework to complete several administrative/training weekly tasks
at home for three to five hours. W.C. asserted, however, that this uniquely facilitated
6

accommodation only endured for several days as she could not do the administrative telework
due to her fatigue issues. In addition, he noted that when appellant’s Family and Medical Leave
Act (FMLA) leave was exhausted, the employing establishment granted her request for advanced
sick leave until she also exhausted all the advanced sick leave. At that point management
suggested that appellant elect to retire on medical disability, which she did. Lastly, W.C.
asserted that appellant did not inform management that she required a wheelchair until after her
return from the Washington, DC conference in August 2012, and that failure could have
predisposed her to chronic fatigue syndrome complications.
In an August 20, 2013 memorandum, management’s human resources specialist also
rebutted appellant’s allegations. He asserted that appellant falsely stated that she had asked for
help filing workers’ compensation forms and was ignored. The specialist asserted that he had
personally helped appellant file a Form CA-2, which he forwarded to her supervisor for their
portion to be completed. When her supervisor completed the form on April 29, 2013, the
supervisor returned his portion and the form was immediately uploaded into the disability record
system.
By decision dated August 29, 2013, OWCP denied appellant’s claim, finding that she
failed to establish a compensable factor of employment.
By letter dated September 10, 2013, appellant, through counsel, requested an oral
hearing, which was held on March 31, 2014. In a statement dated September 7, 2013, appellant
asserted that her claim was for a physical illness, not a mental illness or stress condition, and that
her mental health symptoms were the direct physiological consequence of her physical diseases.
She asserted that OWCP considered her case as a purely psychological case and did not address the
issues related to her physical conditions such as chronic fatigue syndrome and dysautonomia,
which were worsened by her flight to Washington, DC in August 2012 and by walking in
blistering heat while in Washington, DC for the conference.
In an October 18, 2013 report, Dr. Ellis advised that appellant experienced a worsening of
her chronic fatigue syndrome symptoms in the summer of 2012, which coincided with a period of
intense work activity exposing her to air travel, extreme heat, and long working hours. He reported
that a substantial body of medical literature concerning chronic fatigue syndrome showed a link
between environmental factors and worsening of the condition. These factors included changes in
sleep schedule, mental or physical overexertion, excessive stress, and air travel. Dr. Ellis further
advised that, based on his clinical assessment of appellant, on February 15, 2012, he had
recommended a complete leave of absence from work from May 20 to September 9, 2012, and a
maximum schedule of 20 hours per week from September 9 to October 1, 2012. He opined that
appellant’s intense work stressors had resulted in a significant worsening of her condition and that
these measures were medically necessary. Dr. Ellis advised that, based on his treatment of
appellant over several years, it was clear that the disability caused by her condition was severe and
longstanding.
Appellant submitted numerous e-mails, witness statements from coworkers dated
September and October 2013, and a copy of an Equal Employment Opportunity (EEO) grievance
she filed against the employing establishment on the basis of her physical disability. Her
coworkers attested to her strong work ethic, her dependability, her competence, and her desire to

7

regularly work long hours, including overtime, as needed in order to accomplish her work goals
and the mission of her department.
By decision dated May 22, 2014, an OWCP hearing representative affirmed the August 29,
2013 decision. She noted that appellant’s claim was predicated on her contentious relationship
with the employing establishment and that the medical evidence emphasized her stress caused by
its failure to accommodate her with telework as she wished. OWCP’s hearing representative found
that there was limited evidence that any compensable factor, such as overwork or travel, was the
cause of any condition present. She concluded that there was ample evidence that appellant’s fear
of losing her job, and her husband’s was the basis for her filing the claim.
Appellant appealed to the Board. By order dated December 21, 2015,4 the Board vacated
OWCP’s May 22, 2014 decision, finding that it failed to contain adequate findings of fact and
reasoning. The Board, therefore, remanded the case to OWCP for a proper decision to include
findings of fact and a clear, precise statement regarding the basis for the decision.5
In a February 9, 2016 decision, an OWCP hearing representative affirmed the May 22,
2014 decision. She found that the following incidents did not occur as alleged: (1) that the
employing establishment ignored her physician’s requests for a 40-hour workweek or half days;
(2) that appellant was verbally reprimanded for missing work “more than once”; (3) that the
employing establishment made numerous clerical/administrative errors and did not properly
assist appellant in filing the instant claim; (4) that management told appellant to move closer to
her duty station, which was a financial burden to her; (5) that management violated her privacy
by citing her approval for social security disability in paperwork regarding her proposed
removal; (6) that management consistently retaliated against appellant and her husband for her
filing a claim; (7) that appellant’s resignation form was coded incorrectly, resulting in an
overpayment; (8) that appellant was required to attend the Washington, DC training as it was
both necessary for her position and not provided by her employer onsite; (9) that appellant was
unaware that air travel could exacerbate her chronic fatigue syndrome condition; and (10) that
W.C. made it clear she should be working whatever hours it took or she “would be looking for
another job.” OWCP’s hearing representative found that the following incidents did not occur
within the performance of appellant’s duties: (1) that appellant’s flexible schedule could be
revoked as necessary by her employer; (2) that appellant was not allowed to take time off from
work to accommodate her medical issues; (3) that appellant was not permitted to work a flexible
schedule, frequently causing her husband to wait at work for her to finish so he could transport
her; (4) that management considered her missing work a problem, which resulted in reprimands
and punishment; (5) that management refused her telework requests in September and
October 2012, ignored a November 2012 request for telework, and reduced telework requested
on December 6, 2012 to only five hours per week on January 11, 2013; (6) that appellant’s
advanced sick leave approval was characterized as an “accommodation”; (7) that management
encouraged appellant to resign; and (8) that appellant had issues with her pay due to issues with
her leave status. OWCP’s hearing representative accepted as factual that she may have worked

4

Id.

5

Supra note 3.

8

more than 40 hours per week, but found that she was not directed to do this and did this
voluntarily to exceed her performance standards.
OWCP’s hearing representative accepted one incident as having occurred within the
performance of duty: that appellant volunteered for and attended a work conference in
Washington, DC which required her to fly on August 7, 2012 and return on August 10, 2012.
She found, however, that appellant did not submit medical evidence sufficient to establish that
her travel in August 2012 resulted in a compensable condition and/or disability. The hearing
representative found there was no concrete explanation as to how plane travel, exposure to heat,
and overwork contributed to the worsening of her chronic fatigue syndrome. She found that
Dr. Ellis did not provide any concrete basis for his opinions, merely citing vague studies, nor did
he discuss the effect of her contentious personnel relationships to either condition after noting
that noncompensable stressors contributed to them. The hearing representative further noted that
Dr. Warren reported a flare-up of appellant’s symptoms requiring treatment in late 2011 or early
2012, not August 2012. She, therefore, found that appellant failed to meet her burden of proof to
provide well-rationalized medical evidence supporting that the accepted factor of employment
caused or aggravated any of her diagnosed medical conditions.
By letter dated and received February 23, 2016, counsel requested reconsideration of the
February 9, 2016 decision. He submitted a February 17, 2016 report cosigned by Drs. Ellis and
Warren in which these physicians emphasized their agreement that two factors contributed to the
worsening of appellant’s chronic fatigue syndrome: working more than 50 hours per week in
2011, and traveling to a training session that exposed her to high temperatures. Counsel argued
that there was no contrary medical evidence in the file and that, at a minimum, OWCP should
refer the case for a second opinion. He noted that when an employee seeks compensation for a
work-related condition, there is no requirement to prove that employment factors made a
significant contribution to the development of the condition. Rather, if the medical evidence
demonstrates that a work factor contributed in any way to the employee’s condition, then the
condition is considered employment-related for workers’ compensation purposes.
Drs. Ellis and Warren noted in their February 17, 2016 report that OWCP’s hearing
representative found that they differed in opinion regarding whether various factors contributed
to the worsening of appellant’s chronic fatigue syndrome. However, they noted that there were
multiple factors that each physician listed as contributing to appellant’s condition, all of which
resulted in appellant experiencing physical or emotional stress contributed to the aggravation of
her chronic fatigue syndrome. Drs. Ellis and Warren opined that appellant’s working long hours
and traveling to a training session that exposed her to high temperatures contributed to the
worsening of her chronic fatigue syndrome. Dr. Ellis reiterated his opinion that appellant had
experienced a worsening of chronic fatigue syndrome symptoms in the summer of 2012,
coinciding with a period of intense work activity which exposed her to air travel, extreme heat,
and long working hours. Drs. Ellis and Warren concurred that her long work hours contributed
to the worsening of her chronic fatigue syndrome and that the effects of air travel and exposure
to extreme heat contributed to the worsening of appellant’s condition.
Drs. Ellis and Warren opined that the scientific community is in agreement that stress
worsens chronic fatigue syndrome. They opined that stressful situations, both physical and
mental, cause the body to try to produce cortisol. When a person with chronic fatigue syndrome

9

experiences stressful situations, the body continues to try and make cortisol to keep the body
working under stress, which leads to adrenal fatigue. Drs. Ellis and Warren advised that adrenal
fatigue and its concomitant low production of cortisol, and a number of other regulatory
hormones, exacerbates chronic fatigue syndrome, which was what occurred with appellant based
on their clinical examinations. Both physicians opined that appellant felt stress in trying to meet
her professional obligations and her working more than 50 hours per week, caused an
aggravation of her chronic fatigue syndrome, which was worsened by her air travel and exposure
to high temperatures in 2012.
By decision dated May 24, 2016, OWCP denied modification of its February 9, 2016
decision. It found that Drs. Ellis and Warren failed to explain how air travel on August 7 and 10,
2012 caused stress and that, although they did explain that appellant experienced stress while
working more than 50 hours per week, this was not accepted as a compensable factor of
employment. OWCP reviewed weather data for Washington, DC from August 7 to 10, 2012 and
found that Drs. Ellis and Warren did not specify dates and times of exposure to extreme heat and
high temperatures which they described as contributing to appellant’s chronic fatigue syndrome.
It therefore found that appellant did not establish that she was actually exposed to high
temperatures for any specific date or period of time. OWCP modified the one accepted
compensable factor of employment, deleting the portion which found that it was warm when she
attended the August 2012 conference.
By letter dated and received June 17, 2016, appellant, through counsel, requested
reconsideration of the May 24, 2016 decision. With her reconsideration request, appellant
submitted a narrative statement, in which she described how her exposure to heat during her
work conference aggravated her chronic fatigue syndrome. She advised that when she arrived in
Washington, DC on August 7, 2012 at approximately 1:00 p.m., the high temperature was 105
degrees. Appellant alleged that she was exposed to the heat for approximately 20 to 30 minutes
while walking from the airport terminal to get a taxi, putting luggage into the taxi, taking luggage
out of the taxi at the hotel, and walking from the taxi to the hotel. On August 8, 2012 the first
day of her conference, the high temperature was 110 degrees. Appellant walked approximately
3/4 mile from her hotel to the conference in the morning, a 20-minute walk, and then walked
back to her hotel in the afternoon. She noted that the return trip took over an hour because she
had to stop and rest so many times because of the extreme heat and because she was sick.
Appellant also walked 30 minutes to one hour to a restaurant that evening to eat dinner. She
later took a cab to a medical supply store to buy a wheelchair. The next day of the conference,
August 9, 2012, when the high temperature was 86 degrees, appellant’s husband pushed her in
her wheelchair. Appellant was also pushed in her wheelchair that evening for 30 minutes to one
hour to eat dinner during which she was exposed to the heat for approximately 65 to 95 minutes.
The high temperature on this day was 86 degrees. Appellant stated that on the final day,
August 10, 2012, when the high temperature was 89 degrees, she flew home and noted that she
would have been outside on this day similar to the day of arrival. She asserted that on extremely
hot and humid days it was often oppressive even indoors with the air conditioning running.
In a June 10, 2016 report, Dr. Ellis clarified his opinion with regard to appellant’s chronic
fatigue syndrome. He reiterated that working more than 40 to 50 hours per week contributed to
the aggravation of her chronic fatigue syndrome and that appellant’s chronic fatigue syndrome is
a physical condition. Dr. Ellis opined that the impact that air travel, the exposure to heat, and

10

working long hours had on her was physical and was related to adrenal fatigue. He explained
that when a person with chronic fatigue syndrome is exposed to situations that cause physical
and/or mental stress, a situation in which the body would normally produce the adrenal stress
hormone cortisol to keep the body working, it will cause an over-taxing of the adrenal system
and result in an aggravation of the individual’s chronic fatigue syndrome. Dr. Ellis advised that
air travel is a stressful activity for many individuals, involving uncertainty, waiting in long lines,
making sure everything is packed, arriving on time for the flight, etc. He opined that travelrelated stress has a greater effect on people who have been diagnosed with a psychological
condition and compromised by chronic fatigue syndrome, such as appellant.
Dr. Ellis reviewed appellant’s statement regarding her exposure to heat during her
August 2012 business trip and opined that, based on the figures she cited, she endured
temperatures above 100 degrees on August 7 and 8, 2012. He advised that her exposures to very
hot temperatures would be expected to tax her adrenal system, result in the production of
cortisol, aggravate her chronic fatigue syndrome, and impact the regulation of her body
temperature. Dr. Ellis concluded that appellant had an already overtaxed adrenal system and
when her body attempted to create more cortisol in response to the heat, it caused additional
adrenal insufficiency resulting in an aggravation of her chronic fatigue syndrome.
By decision dated October 21, 2016, OWCP denied modification of the May 24, 2016
decision. It did not accept her account of being exposed to heat at the levels she alleged in her
June 2016 statement, nor did it accept her account of events on August 7, 2012. OWCP found
that it was not credible that, in the presence of her husband, and given her alleged condition, she
would perform a taxi driver’s function of placing luggage in the taxi at the airport and removing
it at the hotel. It further found that appellant did not establish the distances she allegedly walked
from the airport terminal to the taxi and from the taxi to the hotel. OWCP asserted that it was
not credible that she walked 3/4 mile for 20 minutes to the conference in the morning, and then
walked or was assisted by her husband for approximately one hour on the return trip in the
evening given her description of her condition the prior evening, particularly when taxi service
was available.6 It also found that Dr. Ellis’ opinion in his June 10, 2016 report was based on
exposure times and circumstances that had not been established or accepted. OWCP determined
that his opinion did not establish a causal relationship between accepted work factors and the
diagnosed condition based on a complete and accurate factual and medical background.
LEGAL PRECEDENT
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,7 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.8 There are situations where an injury or
6

OWCP rejected appellant’s argument that she did not use taxis because it was not a reimbursable expense. It
further noted that she received per diem for the conference and the information packet provided for her conference
indicated that public transportation was available.
7

Lillian Cutler, 28 ECAB 125 (1976).

8

Supra note 2

11

illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.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 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 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is insufficient to constitute a
personal 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.11
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.12 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.13 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.14
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.15 Workers’ compensation law does not
apply to each and every injury or illness that is somehow related to an employee’s employment.16
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.17 Where
the disability results from an employee’s emotional reaction to his or her regular or specially

9

See Robert W. Johns, 51 ECAB 136 (1999).

10

Supra note 2.

11

Id.

12

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

13

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
14

Roger Williams, 52 ECAB 468 (2001).

15

20 C.F.R. § 10.5(q).

16

L.D., 58 ECAB 344 (2007).

17

A.K., 58 ECAB 119 (2006).

12

assigned duties or to a requirement imposed by the employment, the disability comes within the
coverage of FECA.18
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.19
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.20 The claimant has the burden of proof
to submit rationalized medical evidence establishing that her claimed conditions were causally
related to the accepted compensable employment factors.21
ANALYSIS
On appeal counsel argues that OWCP did not give adequate consideration to the evidence
presented and that it erred in not finding that appellant established a compensable work factor
based on being forced to work excessive hours, engaging in extensive travel, and being exposed
to heat. He contended these factors resulted in the development of her chronic fatigue syndrome
and her emotional conditions. Counsel also contended that OWCP erred in finding that her
assertion that she was exposed to hot temperatures during the August 2012 conference was not
credible. He asserts that Dr. Ellis provided a detailed explanation of how appellant’s proven
exposures contributed to the aggravation of her chronic fatigue syndrome.
The Board notes initially that OWCP adjudicated this case as one based on both an
emotional condition and one for a physical condition, her preexisting chronic fatigue syndrome.
Appellant has alleged that she was exposed to stressful conditions which aggravated her diagnosed
chronic fatigue syndrome and has provided medical evidence to support this allegation. OWCP
has accepted one factor of employment: flying to and attending a work conference in Washington,
DC from August 7 to 10, 2013. Because appellant was performing her regularly assigned duties
while traveling, the Board notes that this established work factor is related to her regular or
specially assigned duties under Lillian Cutler.22 It is uncontested that appellant established a
compensable factor of employment with respect to her traveling to a conference in August 2012.

18

Trudy A. Scott, 52 ECAB 309 (2001); supra note 7.

19

Robert Breeden, 57 ECAB 622 (2006).

20

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

21

See D.R., Docket No. 16-0605 (issued October 17, 2016); see also A.V., Docket No. 15-1394 (issued
December 22, 2015).
22

See supra note 7.

13

Appellant’s burden of proof is not discharged by the fact that she has established an
employment factor which may give rise to a compensable disability under FECA. To establish her
claim for an emotional condition, she must also submit medical evidence establishing that she has
an emotional or psychiatric disorder and that such disorder is causally related to the accepted
compensable employment factor.23
Appellant submitted numerous reports from Drs. Ellis and Warren in support of her claim.
Dr. Ellis diagnosed chronic fatigue syndrome in an August 28, 2012 report in which he
recommended that appellant be placed on family medical leave from August 28 to September 9,
2012 and work no more than 20 hours per week from September 9 to October 1, 2012. He advised
in a December 30, 2012 report that appellant was initially diagnosed with post-viral chronic fatigue
syndrome in 2006. Appellant was treated with occupational therapy, physical therapy, and
medication management and her condition stabilized in approximately 2008. Dr. Ellis reported
that appellant experienced periodic flare-ups of her condition, most notably in August 2012 after
attending two consecutive work-related conferences. Appellant also experienced mood and
anxiety symptoms which resulted in diagnoses of mood disorder and anxiety disorder due to a
general medical condition. Dr. Ellis advised that appellant was unable to exert the physical and
mental energy necessary to sustain extended periods of work activities and noted that overexertion
exacerbated her symptoms and led to relapses which made her unable to be at work on a consistent
and reliable basis. In his February 25, 2013 report, Dr. Ellis diagnosed anxiety disorder and mood
disorder in addition to chronic fatigue syndrome. He reiterated his opinion regarding chronic
fatigue syndrome and its relationship to stress caused by factors of employment in several
subsequent reports, as noted above. Dr. Warren diagnosed recurrent major depression, anxiety
disorder, and mood disorder and noted symptoms of anxiety and depression which were related to
a general medical condition in her June 6, 2013 report.
In their February 17, 2016 report, Drs. Ellis and Warren summarized their findings. They
noted that there were multiple employment factors which resulted in her experiencing physical or
emotional stress, which contributed to the aggravation of her chronic fatigue syndrome.
Drs. Ellis and Warren opined that appellant’s working long hours and traveling to a training
session that exposed her to high temperatures contributed to the worsening of her chronic fatigue
syndrome. Dr. Ellis reiterated his opinion that appellant had experienced a worsening of chronic
fatigue syndrome symptoms in the summer of 2012, coinciding with a period of intense work
activity which exposed her to air travel, extreme heat, and long working hours. Drs. Ellis and
Warren concurred that her long work hours contributed to the worsening of her chronic fatigue
syndrome and that the effects of air travel and exposure to extreme heat contributed to the
worsening of appellant’s condition. They referenced the consensus opinion in the scientific
community that stress worsens chronic fatigue syndrome. Drs. Ellis and Warren explained the
process as follows: stressful situations, both physical and mental, cause the body to try to
produce cortisol and when a person with chronic fatigue syndrome experiences stressful
situations, the body continues to try and make cortisol to keep the body working under stress,
which leads to adrenal fatigue. Drs. Ellis and Warren advised that adrenal fatigue and its
concomitant low production of cortisol and a number of other regulatory hormones, exacerbates
chronic fatigue syndrome and this had occurred with appellant based on their clinical
23

See William P. George, 43 ECAB 1159, 1168 (1992).

14

examinations. As appellant experienced stress in trying to meet her professional obligations and
from working more than 50 hours per week, this caused an aggravation of her chronic fatigue
syndrome, which was worsened by her air travel and exposure to high temperatures in
Washington, DC in 2012.
Dr. Ellis essentially reiterated the above findings and conclusions in his June 10, 2016
report. He advised that the impact that air travel, exposure to heat, and working long hours had
on appellant was physical and caused an overtaxing of her adrenal system and resulted in an
aggravation of her chronic fatigue syndrome. Dr. Ellis noted that air travel is a stressful activity
for many individuals, involving uncertainty, waiting in long lines, ensuring everything is packed,
arriving on time for the flight, etc. He opined that in a person diagnosed with a psychological
condition, as well as compromised by chronic fatigue syndrome, travel-related stress has a
greater effect. In addition, Dr. Ellis reviewed appellant’s statement regarding her exposure to
heat during her August 2012 business trip and opined that, based on the figures she cited, she
endured temperatures above 100 degrees on August 7 and 8, 2012. He advised that her
exposures to very hot temperatures would be expected to further tax her adrenal system, resulting
in the production of cortisol, which aggravated her chronic fatigue syndrome and impacted the
regulation of her body temperature. Dr. Ellis concluded that appellant had an already overtaxed
adrenal system and when her body attempted to create more cortisol in response to the heat, it
caused additional adrenal insufficiency resulting in an aggravation of her chronic fatigue
syndrome.
The Board finds that the reports from Drs. Ellis and Warren are consistent in indicating
that appellant sustained an emotional condition and aggravated a preexisting chronic fatigue
syndrome due to an accepted work factor, her August 2012 plane trip to a work conference, and
are not contradicted by any medical or factual evidence of record. In addition, OWCP indicated
in its May 24, 2016 decision that a weather website confirmed that the temperatures for
Washington, DC on August 7 and 8, 2012 were well above 100 degrees on both dates. Thus it
erred in deleting the portion of the accepted employment factor stating “it was warm when she
attended.” Drs. Ellis and Warren provided a thorough explanation and clinical analysis of how
traveling on a plane and being exposed to extreme heat can cause stress and aggravate chronic
fatigue syndrome. It is unnecessary to prove a significant contribution of employment factors for
the purpose of establishing causal relationship.24 The Board finds that these reports raise an
uncontroverted inference between appellant’s diagnosed conditions and the accepted work factor
and are sufficient to require OWCP to further develop the medical evidence and the case
record.25
Appellant has also alleged that she needed to work overtime and was subjected to stressinducing deadlines in order to meet her professional guidelines. If established, these elements
relate to her job duties under Lillian Cutler26 and would be compensable employment factors.
The Board finds that appellant has not submitted sufficient evidence supporting her allegations
24

See Richard E. Simpson, 55 ECAB 490 (2004).

25

See Robert A. Redmond, 40 ECAB 796, 801 (1989).

26

Supra note 7.

15

that she was overworked or that she was required to work overtime. Without evidence
substantiating these allegations, appellant has failed to meet her burden of establishing a
compensable factor of employment under Lillian Cutler.
In Thomas D. McEuen27 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employer and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the facts surrounding the administrative or personnel
action established error or abuse by employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.
Appellant asserted that management refused her requests to reduce her work hours and
change to a more flexible schedule. These allegations were rebutted by W.C., who denied
appellant’s allegation that she was forced to work more than 40 hours per week and stated that
she chose to work additional hours and did not accede to management’s recommendations to
operate on a normal work schedule. The Board finds that these allegations relate to
administrative or personnel matters, unrelated to the employee’s regular or specially assigned
work duties and do not fall within the coverage of FECA.28 The managerial conduct and actions
of W.C. toward appellant involved administrative functions which, absent agency error or abuse,
were not compensable. The Board has held that an employee’s dissatisfaction with perceived
poor management constitutes frustration from not being permitted to work in a particular
environment or to hold a particular position and is not compensable under FECA.29 Appellant
has presented no evidence that the employing establishment acted unreasonably or committed
error with regard to these incidents of administrative managerial functions.
Appellant has provided no substantiation for her allegations sufficient to establish alleged
error or abuse in an administrative action under McEuen. The Board has held that an emotional
condition related to stress from situations in which an employee is trying to meet the
requirements of her position are compensable.30 Appellant did not provide any evidence that the
employing establishment acted in an abusive or unreasonable manner in setting performance
guidelines for her. She has not submitted evidence indicating that the employing establishment

27

See Thomas D. McEuen, supra note 13; supra note 7.

28

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
29

Donna J. DiBernardo, 47 ECAB 700, 703 (1996).

30

See M.D., 59 ECAB 211 (2007).

16

imposed an unusually heavy workload and unreasonable deadlines.31 Appellant did not submit
any evidence to substantiate that any of her work assignments were in error or were abusive.32
The case will be remanded to OWCP for further evidentiary development regarding the
issue of whether appellant experienced stress, sustained an emotional condition, and aggravated a
preexisting chronic fatigue syndrome condition due to an accepted work factor, her August 2012
plane trip to a work conference. OWCP should prepare an amended statement of accepted facts,
to include the fact that she was exposed to extremely hot temperatures during her August 2012
trip, and obtain a second opinion on this matter. After such development of the case record as
OWCP deems necessary, it shall issue an appropriate de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish an emotional condition and an aggravation of preexisting
chronic fatigue syndrome in the performance of duty. The case is remanded to OWCP for
further development.

31

Georgia F. Kennedy, 35 ECAB 1151 (1984).

32

In prior OWCP decisions, appellant raised the issue of whether management made reasonable accommodations
for her medical restrictions, in addition to numerous other allegations considered by OWCP. OWCP found that
these allegations did not establish any additional, compensable factors of employment. These allegations were not
raised by appellant in the decisions over which the Board has jurisdiction and are not at issue in the instant decision.

17

ORDER
IT IS HEREBY ORDERED THAT the October 21 and May 24, 2016 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: January 19, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

18