United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Oakland, CA, Employer
__________________________________________

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

Docket No. 15-28
Issued: April 20, 2015

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 7, 2014 appellant filed a timely appeal from May 22, 2014 merit decisions of
the Office of Workers’ Compensation Programs. 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.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition in the
performance of duty; and (2) whether he sustained an emotional condition on December 18,
2012 in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY -- FILE NO. xxxxxx130
On December 19, 2012 appellant, then a 41-year-old claims examiner, filed an
occupational disease claim alleging that he sustained migraine headaches, irritable bowel
syndrome, gastroesophageal reflux disease (GERD), and aggravated psoriasis causally related to
factors of his federal employment. He attributed his condition to stress from filing charges with
the Federal Labor Relations Authority (FLRA) against the employing establishment and
resulting retaliation by supervisors and the union. Appellant related that the stress “increased the
severity of [his] service-connect[ed] disabilities.” He stopped work on December 19, 2012.
OWCP assigned the claim file number xxxxxx130.
In a letter dated December 6, 2012, appellant informed the FLRA that he had filed
charges against the employing establishment and the union. He stated:
“Yesterday, December 5, 2012, I was threatened by a union steward, Labrinia
McDougle, stating that she read the paperwork I gave Sidney Byrd the union
president regarding FLRA charges. She stated that I don’t know who I am
messing with and that I better watch my back coming to and from work because
she is from Oakland and knows people who can take care of problems like me.”
Appellant informed management of the incident and requested a transfer but it was
deferred pending an investigation.
In an e-mail dated December 5, 2012 to William Vallejos, his supervisor, appellant
related that Ms. McDougle threatened him after Mr. Byrd showed her documents. He related
that he felt afraid at work and requested assistance. In a December 6, 2012 response,
Mr. Vallejos informed appellant that the employing establishment was investigating the incident
and asked that he not have contact with Ms. McDougle. He asked if there were any witnesses to
the incident. Appellant replied that a couple of days ago the union representatives were behaving
in a way that was not professional. He indicated that there were probably not witnesses to the
incident with Ms. McDougle. Appellant stated, “I do not feel the environment is respectful or
dignified based on my experiences.” He questioned how Ms. McDougle could threaten people
with union support.
In an e-mail to Mr. Vallejos dated December 18, 2012, appellant related that James
England, a supervisor, followed him from the 14th floor to the 15th floor. On the 15th floor
Mr. England informed appellant that his break time was 9:30 a.m. Appellant did not know that
he had a break time. He asserted that Mr. England, who was not his supervisor, was
disrespectful in discussing the matter in front of coworkers. Appellant stated, “I would also like
to find out what is the status with the investigation for the threats on my life that took place at
work on December 5, 2012.” He advised that he did not feel safe at work.
In an e-mail dated December 19, 2012, appellant enclosed a statement from Scott Harlan,
who witnessed the incident with Mr. England.2 Mr. Harlan related that he and appellant were on
2

In an e-mail dated December 19, 2012, appellant indicated that he was filing a traumatic injury claim form to
obtain continuation of pay.

2

a break and talking about 7:30 a.m. on December 18, 2012. Mr. England walked by twice and
then on the third time around “appeared to chastise [appellant] about interrupting and accused
him of not being on an authorized break.” Mr. Harlan indicated that it was not professional for
Mr. England to criticize appellant in front of coworkers and noted that he was not appellant’s
supervisor. He stated, “I have witnessed on multiple occasions conversations being carried on
with no interruption. It seems as though the perception is that the intention is to pick upon
certain employees.”
In a December 19, 2012 e-mail message to William Pennerman, a manager, appellant
related that he had experienced three instances of retaliation after filing an FLRA complaint. On
December 5, 2012 a union shop steward threatened to kill appellant. The employing
establishment was investigating the incident and instructed him “to avoid contact with that
person until the investigation is completed.” On December 18, 2012 another incident occurred
which appellant reported to his supervisor and other managers. He was sick with a migraine
headache yesterday and Mr. Vallejos told him to fill out a form before going home. Appellant
believed that this was another instance of retaliation because no one else had to fill out the form.
By decision dated January 10, 2014, OWCP denied appellant’s occupational disease
claim under file number xxxxxx130. It found that he had not established any compensable
factors of employment.
On February 18, 2014 appellant requested reconsideration of the January 10, 2014
decision. He contended that his traumatic injury claim should be considered as part of his
occupational disease claim.
In a decision dated May 22, 2014, OWCP denied modification of its January 10, 2014
decision in file number xxxxxx130.
On appeal, appellant argues that his emotional condition claims are really one claim. He
asserts that he became disabled from employment due to the employing establishment engaging
in “prohibited personnel practices.”
FACTUAL HISTORY -- FILE NO. xxxxxx128
On December 19, 2012 appellant filed a traumatic injury claim alleging that on
December 18, 2012 he sustained migraine headaches, GERD, irritable bowel syndrome, and
psoriasis due to retaliation by a supervisor for filing FLRA charges for unfair labor practices.
OWCP assigned the file number xxxxxx128.
By letter dated January 16, 2013, OWCP advised appellant that the evidence was
insufficient to show that he experienced the alleged work incident. It noted that he had attributed
his injury to retaliation from his supervisors and the union from filing FLRA charges and
requested that he describe in detail the work factors that contributed to his illness. OWCP
further asked that appellant submit any findings regarding the FLRA allegations.
In response to OWCP’s request for additional information, appellant related that he had
submitted all documentation to Mr. Pennerman. He indicated that he was additionally enclosing
evidence showing that he experienced retaliation after filing his FLRA charge against the
3

employing establishment. Appellant submitted the December 2012 e-mail messages also
contained in file number xxxxxx130.
In a memorandum dated February 1, 2013, Mr. Vallejos advised appellant that he had not
properly requested leave for his absence beginning December 20, 2012. The supervisor
informed him that he should submit a proper leave request upon his return to work.
In an e-mail dated February 5, 2013, appellant asked Mr. Vallejos the “status of the
investigation regarding the threats posed by Labrina McDougal on December 4, 2012.” He
related that he felt uncomfortable at work. In a response dated February 11, 2013, Mr. Vallejos
related, “After a review of the events you reported on December 5, 2012, it was determined that
there was no evidence found indicating that a threat was made.” He noted that appellant had
indicated that there were no eyewitnesses and that “any investigation would prove inconclusive.
In the light of the absence of any additional information and/or witness statements, this matter is
considered closed.” Mr. Vallejos noted that he had moved appellant on December 6, 2012 to
another workstation.
On February 28, 2013 appellant advised that he should not have to fill out a Form SF-71,
a request for leave for approved absences, as it violated the regulations of OWCP and employing
establishment. He related that he was experiencing discrimination and harassment.
In response to OWCP’s request that appellant complete a questionnaire explaining in
detail the retaliatory actions to which he attributed his condition, on March 6, 2013 he advised
that OWCP should refer to e-mails and his FLRA charges for information.
In an undated statement received March 15, 2013, appellant related that he experienced
migraine headaches due to stress at work after filing charges with the FLRA. He stated, “I have
been a victim of retaliation and the constant stress of working around people who have been
allowed to threaten my life and well-being are becoming everyday problems.” Appellant advised
that stress from the hostile work environment and retaliation for filing FLRA charges also
aggravated his psoriasis.
By decision dated April 11, 2013, OWCP denied appellant’s claim that he sustained an
emotional condition on December 18, 2012 in the performance of duty. It found that he had not
established any compensable work factor related to the alleged December 18, 2012 incident.
On May 1, 2013 appellant requested an oral hearing. An OWCP hearing representative
attempted to hold a hearing on August 30, 2013; however, she stopped the hearing as a result of
conduct by appellant and his representative that she found inappropriate. On September 24,
2013 the Acting Chief of the Branch of Hearings & Review related that he had reassigned the
case to another hearing representative and that appellant would receive a telephone hearing. On
September 26, 2013 OWCP advised him that it had scheduled a telephone hearing for 12:00 p.m.
on October 30, 2013.
By decision dated November 13, 2013, OWCP found that appellant had abandoned his
request for a hearing. It determined that he had not called in for the scheduled hearing or
contacted OWCP to explain his failure to call for his hearing.

4

On November 21, 2013 appellant questioned why OWCP separated his traumatic injury
claim from his occupational disease claim.3
On February 19, 2014 appellant requested reconsideration. He questioned why OWCP
had not considered the medical reports in denying his claim. Appellant contended that e-mails
and FLRA documents showed that some incidents showing harassment and retaliation were
witnessed by third parties. He listed the managers who had harassed him. Appellant asked that
OWCP obtain information from the employing establishment regarding the incident between
himself and Mr. England. He indicated that he had a “copy of the fact finding and it shows that
Mr. England was acting on his own behalf and was not supposed to harass me or scold me in
front of my fellow employees; rather he was to report any ‘suspicious’ behavior to my supervisor
who knows my break time and my work projects.” Appellant referred OWCP to his Equal
Employment Opportunity (EEO) claim for additional information. He contended that the
employing establishment’s refusal to investigate the threat on his life was in retaliation.
Appellant asserted that his traumatic injury claim and occupational disease claim should be
considered together. He related that the employing establishment erred in requiring him to
submit a SF-71 form and that it constituted “discrimination based on disability.” Appellant
argued that, according to Board case law, the employee did not have the burden to show
harassment by his supervisor but that the injury occurred as a result of his supervisor’s actions.4
Appellant submitted a February 19, 2013 report of fact finding. The employing
establishment noted that on December 18, 2012 Mr. England, the early manager, “was instructed
by his manger Rachel Pennington to walk around the floors to determine if everyone is working
as they should be. [He] is to report anything found to the respective manager.” Mr. England saw
appellant talking at 6:15 a.m. on the 14th floor and again at 7:30 a.m. on the 15th floor. He asked
appellant why he was not at his desk and appellant responded that he was on a break.
Mr. England informed appellant that the other employees were “not on a break and that he
should leave the area.” The employing establishment discussed appellant’s allegation that
Mr. England followed him, did not know his break time, and acted in a disrespectful manner. It
noted that witnesses indicated that Mr. England “may have singled [appellant] out because they
do not recall [him] questioning other employees on any things.” Another coworker questioned
why appellant was on break just after arriving at work. The witnesses indicated that Mr. England
“showed that he was upset with [appellant] and spoke to [him] in a very disrespectful manner.”
The employing establishment concluded that Mr. England was following the instructions of his
supervisor and “conducting himself in accordance with those instructions.” It further found that
some employees did not understand the role of managers and the scope of taking breaks and
recommended informing all employees of scheduled lunches and breaks.
By decision dated May 22, 2014, OWCP denied modification of its April 11, 2013
decision.
3

Appellant also alleged that the hearing representative’s conduct was not professional and argued that he should
have more than two hours to present evidence.
4

Appellant cited Stanley Smith, 29 ECAB 652 (1978) and Lewis Leo Harms, 33 ECAB 897 (1982). The Board
has long held, however, that appellant must factually establish the occurrence of any alleged harassment. See M.D.,
59 ECAB 211 (2007); James E. Norris, 52 ECAB 93 (2000).

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On appeal, appellant argues that his two claims should be considered together. He notes
that in June 2014 the employing establishment removed him from employment. Appellant
contends that he was disabled due to the employing establishment’s prohibited practices.
LEGAL PRECEDENT -- FILE NOS. xxxxxx128 AND xxxxxx130
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 regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.5 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.7 However,
the Board has held that where the evidence establishes error or abuse on the part of the
employing establishment in what would otherwise be an administrative matter, coverage will be
afforded.8 In determining whether the employing establishment has erred or acted abusively, the
Board will examine the factual evidence of record to determine whether the employing
establishment acted reasonably.9
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.10 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.11 The issue is whether the claimant has submitted sufficient evidence
under FECA to establish a factual basis for the claim by supporting his or her allegations with

5

Supra note 1; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

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

7

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon.,
42 ECAB 556 (1991).
8

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

9

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

10

See Michael Ewanichak, 48 ECAB 364 (1997).

11

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

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probative and reliable evidence.12 The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in
fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by OWCP and the Board.13
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.14 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.15
ANALYSIS -- FILE NOS. xxxxxx128 AND xxxxxx130
Appellant filed an occupational disease claim alleging that he sustained migraines
headaches, irritable bowel syndrome, GERD, and an aggravation of psoriasis due to stress in the
performance of his federal employment. He also filed a traumatic injury claim for a stressrelated condition occurring on December 18, 2012. Before OWCP and on appeal, appellant
asserted that both claims should be considered together. He attributed his stress-related
condition to a result of a number of employment incidents and conditions. OWCP denied
appellant’s emotional condition claims as he had not established any compensable employment
factors. The Board must, therefore, review whether these alleged incidents and conditions of
employment are compensable employment factors under the terms of FECA. The Board notes
that appellant’s allegations do not pertain to his regular or specially assigned duties under
Cutler.16 Rather, he alleges error and abuse in administrative matters and harassment and
discrimination by managers and coworkers.
In Thomas D. McEuen,17 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
12

See James E. Norris, supra note 4.

13

Beverly R. Jones, 55 ECAB 411 (2004).

14

Dennis J. Balogh, 52 ECAB 232 (2001).

15

Id.

16

See Lillian Cutler, supra note 5.

17

See Thomas D. McEuen, supra note 7.

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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.18
Appellant maintained that a supervisor, Mr. England, acted abusively in reprimanding
him in front of coworkers on December 18, 2012 for talking instead of working. He maintained
that Mr. England followed him from the 14th floor of the building to the 15th floor and told him
that he was not on his break time. Appellant indicated that Mr. England was not his supervisor
and that he acted disrespectfully. The Board notes that disciplinary actions are administrative
functions of the employing establishment and not duties of the employee and, unless the
evidence discloses error or abuse on the part of the employing establishment, not compensable
employment factors.19 Mr. Harlan related that Mr. England twice walked by while he and
appellant talked, and on the third time told appellant that he was not on an authorized break. He
believed that Mr. England should not have criticized appellant as he was not his supervisor and
as in the past there had been conversations without interruptions. Mr. Harlan related that it
appeared that he was selecting appellant for discipline.
In a February 19, 2013 fact finding report, the employing establishment found that
Ms. Pennington had instructed Mr. England to walk around the floors, to make sure everyone
was working, and to report problems to the relevant manager. Mr. England saw appellant talking
at 6:15 a.m. on the 14th floor and at 7:30 a.m. on the 15th floor. The employing establishment
determined that Ms. England was following the instructions of his supervisor and acting within
the scope of the instructions. It further found that some employees did not understand the role of
managers. Appellant has not provided sufficient evidence of error or abuse by Mr. England in
telling him that he was not on break on December 18, 2012.
Appellant further alleged that the employing establishment erred in requiring him to fill
out a written form before requesting leave. Matters involving the use of leave are generally not
considered compensable factors of employment as they are administrative functions of the
employing establishment and not duties of the employee.20 Appellant has not submitted any
evidence showing error or abuse by management in requiring him to complete a form when
requesting leave and thus failed to establish a compensable employment factor.
Appellant further alleged that he experienced harassment and discrimination from
managers and coworkers in retaliation for filing an FLRA complaint. He maintained that on
December 5, 2012 Ms. McDougle told him to watch his back as she knew people who could take
care of him. Appellant also generally alleged that he experienced a hostile work environment. If
disputes and incidents alleged as constituting harassment and discrimination by supervisors and
coworkers are established as occurring and arising from the employee’s performance of his

18

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

19

See Lori A. Facey, 55 ECAB 217 (2004).

20

See V.W., 58 ECAB 428 (2007); Judy L. Kahn, 53 ECAB 321 (2002).

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regular duties, these could constitute employment factors.21 The evidence, however, must
establish that the incidents of harassment or discrimination occurred as alleged to give rise to a
compensable disability under FECA.22 On February 11, 2013 Mr. Vallejos advised appellant
that there was no evidence that anyone threatened him on December 4, 2012 and found that
matter closed pending new evidence or witness statements. Appellant did not submit any factual
evidence in support of his allegations and thus failed to establish the factual basis of this
allegation.
Appellant also maintained that on December 12, 2012 Mr. England spoke to him in a
disrespectful manner when telling him that he was not on break. Verbal altercations and difficult
relationships with supervisors, when sufficiently detailed by the claimant and supported by the
record, may constitute factors of employment. This does not imply, however, that every
statement uttered in the workplace will give rise to coverage under FECA.23 In the February 19,
2013 report of fact finding, the employing establishment noted that some witnesses indicated that
Mr. England acted upset and spoke disrespectfully. A raised voice in the course of employment
does not, in and of itself, warrant a finding of verbal abuse.24 Appellant has not described what
Mr. England stated or explained why it would rise to the level of verbal abuse and thus has not
established a compensable work factor.
The Board finds that appellant has not met his burden of proof to establish a compensable
work factor in either his December 19, 2012 occupational disease claim or his claim for a
traumatic injury occurring on December 18, 2012.25
On appeal, appellant contends that he was disabled due to the employing establishment’s
prohibited practices. He has the burden of proof, however, to submit evidence supporting that he
sustained an emotional condition in the performance of duty.26
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of duty and has not established an emotional condition on December 18, 2012 in the
performance of duty.
21

Janice I. Moore, 53 ECAB 777 (2002).

22

Id.

23

Marguerite J. Toland, 52 ECAB 294 (2001).

24

P.D., Docket No. 13-1142 (issued August 16, 2013); Karen K. Levene, 54 ECAB 671 (2003).

25

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Hasty P. Foreman, 54 ECAB 427 (2003).
26

See Pamela D. Casey, 57 ECAB 260 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the May 22, 2014 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: April 20, 2015
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Peru, IN, Employer
__________________________________________

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

Docket No. 08-692
Issued: August 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 18, 2008 appellant filed a timely appeal from a nonmerit decision dated
January 2, 2008 which denied his request for reconsideration. He also timely appealed the
Office of Workers’ Compensation Programs’ merit decision dated November 1, 2007 which
terminated his wage-loss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate wage-loss
compensation effective November 1, 2007; and (2) whether the Office properly refused to reopen
appellant’s case for further review of the merits of his claim on the grounds that no new or
relevant evidence was submitted.
FACTUAL HISTORY
On September 7, 2006 appellant filed a traumatic injury claim alleging that on
September 7, 2006 he was driving a postal vehicle, lost control of the vehicle and rolled

numerous times sustaining fractures, contusions and internal injuries. His claim was accepted
for bilateral closed facture of the scapula, bilateral closed facture of the ribs, bilateral sprain of
shoulder and upper arm, subscapularis and other specified sites, bilateral joint derangement in
upper arms, pain in thoracic spine and pain in joint, lower right leg.
On September 26, 2006 appellant was terminated from his employment for administrative
reasons, specifically for being involved in two separate motor vehicle accidents during his
probationary period.
Appellant filed claims for compensation from October 23, 2006 to April 2, 2007 for
which he was paid on periodic and supplemental rolls.
On March 28, 2007 appellant had right shoulder arthroscopy with subacromial
decompression and open subscapularis repair with biceps tenodesis.
On May 23, 2007 appellant had a left shoulder arthroscopic subacromial decompression,
open subscapularis tendon repair and biceps tenodesis.
In a September 10, 2007 report, Dr. Brett F. Gemlick, a Board-certified orthopedic
surgeon, stated that appellant was six months status post right open subscapularis repair and four
months status post left open subscapularis repair, had completed formalized physical therapy and
was doing well. He found that appellant could return to work without restrictions.
On October 1, 2007 the Office issued a notice of proposed termination of wage-loss
compensation to appellant. It based its decision on Dr. Gemlick’s September 10, 2007 report.
The Office informed appellant that he had 30 days to submit additional evidence or arguments.
No response was received.
On October 21, 2007 appellant filed a schedule award claim.1
In a November 1, 2007 decision, the Office finalized the proposed decision to terminate
appellant’s entitlement to compensation benefits effective that date. It informed appellant that
the decision did not effect his entitlement to other benefits, including medical benefits for the
accepted conditions. The Office noted that appellant informed it that he had been working since
October 4, 2007 in a nonfederal employment position.
On December 20, 2007 appellant requested reconsideration. He argued that his
employment injuries from the employing establishment were prohibiting him from doing the jobs
he was used to doing, that he was having pain in the areas of the surgeries and that he had not
worked since November 21, 2007. Appellant also submitted a December 14, 2007 visit report
from Dr. Gemlick which noted that appellant was performing physical work at his job and
became very sore. Dr. Gemlick reported that appellant was released from his job when he could
not perform due to pain in both shoulders. He noted that he did not see any significant retearing

1

The Office has not issued a decision addressing the schedule award claim therefore the Board does not have
jurisdiction over the issue at this time.

2

upon physical examination. Dr. Gemlick also stated that appellant could not do the kind of job
he was used to doing.
In a January 2, 2008 nonmerit decision, the Office denied appellant’s reconsideration
request on the grounds that no new and relevant evidence was submitted or new legal arguments
presented to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3
The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.4
ANALYSIS -- ISSUE 1
The Board finds that the Office properly terminated appellant’s compensation benefits
effective November 1, 2007 on the grounds that he had no further employment-related disability.
On September 10, 2007 Dr. Gemlick reported that appellant was doing well and had reached
maximum medical improvement following his surgeries. He reported his findings on physical
examination and concluded that appellant was able to return to his regular work without
restrictions. On October 1, 2007 the Office issued a notice of proposed termination and
appellant was allowed 30 days to respond as required.5 No response was received.
On November 1, 2007 the Office terminated appellant’s entitlement to wage-loss
compensation benefits. The only medical evidence of record, from his treating physician,
Dr. Gemlick, substantiated that appellant could return to his regular work and therefore was no
longer disabled. There was no medical evidence of record that appellant was not able to return to
work. The Office properly relied on Dr. Gemlick’s report in finding that appellant’s disability
had ceased and that he was capable of returning to work without restrictions and therefore no
longer entitled to wage-loss compensation benefits.

2

Curtis Hall, 45 ECAB 316 (1994).

3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

20 C.F.R. § 10.5(f).

5

20 C.F.R. § 10.540(a).

3

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office’s regulations provide that the application for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.6
Section 8128(b) provides that, when an application for reconsideration does not meet at
least one of the three requirements enumerated under section 10.606(b)(2), the Office will deny
the application for reconsideration without reopening the case for review on the merits.7
Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary
value and does not constitute a basis for reopening a case.8 Likewise, evidence that does not
address a particular issue involved does not constitute a basis for reopening a case.9
ANALYSIS -- ISSUE 2
The Board finds that the Office improperly denied merit review. On December 20, 2007
appellant requested that the Office reconsider the termination of his wage-loss benefits. He
argued that his injuries from the employment incident were not allowing him to perform the jobs
that he was used to doing and that he stopped working completely on November 21, 2007.
Appellant also submitted a December 14, 2007 report from Dr. Gemlick who noted that appellant
could not perform his job due to pain in both shoulders and that he could not perform the kind of
job he was used to doing.
After the termination or modification of compensation benefits clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. In
order to prevail, appellant must establish by the weight of the reliable, probative and substantial
evidence that he or she had an employment-related disability which continued after termination
of compensation benefits.10
Appellant’s argument and Dr. Gemlick’s report attempt to establish that he had
continuing disability causally related to the accepted employment injury, after the termination of
his wage-loss compensation benefits. The new medical evidence submitted is relevant to this
issue and requires a merit review.

6

20 C.F.R. § 10.606(b)(2)(i-iii).

7

20 C.F.R. § 10.606(b)(2).

8

Helen E. Paglinawan, 51 ECAB 407, 591 (2000).

9

Kevin M. Fatzer, 51 ECAB 407 (2000).

10

Wentworth M. Murray, 7 ECAB 570 (1955).

4

As such the case will be remanded to whether appellant has established continuing
disability following the termination of his wage-loss compensation benefits.11
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective November 1, 2007. The Board finds that the Office improperly
issued a January 2, 2008 nonmerit decision and the case will be remanded for action consistent
with this decision.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 1, 2007 is affirmed and the decision dated January 2, 2008 is vacated
and remanded.
Issued: August 20, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

In the decision dated January 2, 2008, the Office noted that appellant could file a claim for recurrence of
disability if he had a spontaneous return of symptoms from a previous injury. Appellant’s allegations and the
medical evidence submitted however does not indicate a spontaneous recurrence of disability.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Forest Park, IL, Employer
__________________________________________

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

Docket No. 15-1359
Issued: November 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 3, 2015 appellant filed a timely appeal from a January 12, 2015 merit 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 established a left shoulder injury in the performance of
duty on May 13, 2013.
FACTUAL HISTORY
On May 17, 2013 appellant, then a 48-year-old casual mail handler, filed a traumatic
injury claim (Form CA-1) alleging that on May 13, 2013 she strained her left shoulder when
moving heavy trays of mail.
1

5 U.S.C. § 8101 et seq.

Appellant stopped work on May 13, 2013. She sought emergency treatment on May 14,
2013 from Dr. Scott C. Sherman, an attending physician Board-certified in emergency medicine,
who released appellant to restricted duty with minimal use of the left arm and no lifting more
than five pounds with the left arm. Dr. Sherman provided discharge instructions for repetitive
strain or traumatic injury.
Appellant was then followed by Dr. Kenneth M. Blair, an attending Board-certified
family practitioner, who provided a May 16, 2013 report noting appellant’s complaints of left
shoulder pain over several months, with a traumatic incident during the May 12 to 13, 2013 work
shift. On examination, Dr. Blair found limited active left shoulder motion, with 3/5 weakness.
He diagnosed “left shoulder pain related to her postal work” and prescribed physical therapy. In
May 23, 2013 reports, Dr. Blair noted that left shoulder active motion was severely limited. He
held appellant off work. Appellant underwent a physical therapy evaluation on June 3, 2013.
The employing establishment controverted the claim, asserting that appellant provided
conflicting accounts of how she injured her shoulder.
In a July 13, 2013 letter, OWCP advised appellant of the additional evidence needed to
establish her claim, including a detailed description of how she was injured, and her physician’s
explanation of how those work factors would cause the claimed left shoulder injury. It afforded
her 30 days to submit such evidence.
In response, appellant submitted June 18 and 26, 2013 reports from Dr. Blair, noting that
appellant’s left shoulder condition had improved with physical therapy. On July 26, 2013
Dr. Blair noted that appellant injured her left shoulder at work “when she was carrying a heavy
bag of mail.” The employing establishment terminated appellant “because she was no longer
able to perform her duties.” Dr. Blair prescribed additional physical therapy.
By decision dated October 3, 2013, OWCP denied the claim as fact of injury was not
established. It found that appellant did not submit a statement explaining what she was doing
when she was injured.
Appellant disagreed, and in an October 25, 2013 letter requested a telephonic hearing,
held before an OWCP hearing representative on March 21, 2014. At the hearing, she stated that
she injured her left shoulder when trying to lift a heavy tray of mail from a conveyor belt to a
postal container. As appellant turned away from the conveyor belt, the tray slipped and fell,
causing a “pop” in her left shoulder. She submitted additional medical evidence.
An October 29, 2013 magnetic resonance imaging (MRI) scan of the left shoulder
showed and a “small likely degenerative humeral cyst at the insertion of the infraspinatus
tendon” with no evidence of a rotator cuff tear.
In a May 21, 2014 letter, Dr. Blair noted treating appellant for left shoulder pain caused
by “turning with mail to toss it into a bin located on her left.” He referred her to an orthopedist.
Appellant experienced a recurrence of symptoms in February 2014, improved in March 2014.

2

By decision dated June 10, 2014, an OWCP hearing representative affirmed OWCP’s
October 3, 2013 decision. He found that appellant’s testimony was sufficient to establish the
May 13, 2013 incident as factual. However, the additional medical evidence was insufficient to
establish causal relationship.
In an October 8, 2014 letter, appellant requested reconsideration. In support of her
request, she submitted reports from Dr. Victor Romano, an attending Board-certified orthopedic
surgeon.2
On September 9, 2013 Dr. Romano provided a history of the alleged May 13, 2013 injury
and subsequent treatment. He noted that appellant was left-hand dominant. Dr. Romano
diagnosed persistent rotator cuff tendinitis of the left shoulder, with a small degenerative cyst at
the insertion of the infraspinatus tendon. In reports from October 28, 2013 to October 1, 2014,
he diagnosed a left rotator cuff tear, left rotator cuff tendinitis, and a possible superior labral
anterior to posterior (SLAP) lesion.3
By decision dated January 12, 2015, OWCP affirmed the June 10, 2014 decision, finding
that causal relationship was not established. It found that Dr. Romano did not explain how and
why the accepted May 13, 2013 incident would cause the diagnosed left shoulder conditions.
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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that he or she
actually experienced the employment incident that is alleged to have occurred.6 An employee
has not met his or her burden of proof of establishing the occurrence of an injury when there are
2

Appellant also submitted December 4, 2013 and August 6, 2014 reports from Dr. Romano which do not address
appellant’s left shoulder. OWCP returned the originals of these documents to appellant at her request.
3

In the diagnosis section of April 16 and July 3, 3014 reports, Dr. Romano diagnosed pathologies of the right
shoulder. However, as the evaluation was clearly titled “Physical Exam[ination] Left Shoulder,” the reference to the
right shoulder appear to be typographical errors.
4

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

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001).

3

such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.7
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.8
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medial 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.9
ANALYSIS
OWCP accepted that the May 13, 2013 incident occurred as alleged, but denied the claim
as the medical evidence did not establish a causal relationship between those factors and the
claimed left shoulder injury.
In support of her claim, appellant submitted a May 14, 2013 report from Dr. Sherman, an
attending physician Board-certified in emergency medicine, who noted work restrictions for the
left upper extremity but did not provide a definitive diagnosis or a clear history of injury.
Dr. Sherman’s opinion is therefore insufficient to meet appellant’s burden of proof.10
Dr. Blair, an attending Board-certified family practitioner, diagnosed a left shoulder
condition related to a heavy lifting incident during the May 12 to 13, 2013 work shift.
Dr. Romano, an attending Board-certified orthopedic surgeon, diagnosed persistent rotator cuff
tendinitis of the left shoulder and a left rotator cuff tear. He related appellant’s account of a
May 13, 2013 injury, but did not explain how and why the accepted incident would cause the
diagnosed conditions.
While Dr. Blair and Dr. Romano opined that the accepted May 13, 2013 incident caused
a left shoulder condition, they did not provide their medical reasoning to support this conclusion.
The physicians did not explain why dropping a heavy tray of mail while turning to lift it into a
container would cause left rotator cuff tendinitis or a rotator cuff tear. Because Dr. Blair and
Dr. Romano did not provide such rationale, their opinions are insufficient to establish causal
relationship in this case.11

7

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

8

Deborah L. Beatty, 54 ECAB 340 (2003).

9

Solomon Polen, 51 ECAB 341 (2000).

10

Id.

11

Id.

4

OWCP advised appellant by July 13, 2013 letter of the necessity of providing a narrative
report from her attending physician with medical rationale supporting causal relationship. As
appellant did not provide such evidence, OWCP’s January 12, 2015 decision denying the claim
is affirmed.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a left shoulder injury in the
performance of duty on May 13, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Program dated January 12, 2015 is affirmed.
Issued: November 4, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCING ACCOUNTING SERVICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 07-1074
Issued: March 21, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 6, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ December 14, 2006 and February 28, 2007 nonmerit decisions and
September 15, 2006 merit decision. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
refused to reopen appellant’s case for reconsideration of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 53-year-old accountant, filed a Form CA-2 claim for benefits based on a
stress-related condition on November 2, 2004. She indicated that she became depressed and
developed anxiety due to factors of her employment.

In a statement supporting her claim, appellant alleged that inadequate training, job
procedures and oral communication by management over a period of months caused job stress,
profound depression and anxiety. In the middle of January 2004, she transferred into the DECAEurope Accounting Branch. This was a new division created to perform accounting work
transferred from Germany. Appellant was given an opportunity to learn the accounting side of
DFAS along with learning new computer systems. She was seated in a four-person group of
cubicles, by herself, separated from the other accountants and financial specialists that had
transferred into the new division. Toward the end of January appellant attended training on the
Standard Financial System (STANFINS) computer system that they would be using to input their
work. The next week she received training pertaining to the DECA area. Appellant asserted that
the instructor providing this training was unable to answer questions regarding why this
information was valid, since this course was directed to the OCONUS side of accounting for
interfund transactions and they would be working on the OCONUS side of accounting for
interfund transactions. She further asserted that the instructor basically hurried through the
remaining information provided in the chapter covering interfund transactions.
In February 2004 when work began transferring in for the DECA-Europe program, also
known as OCONUS, two men from Germany arrived to help with the transition to the new
program and to provide additional training. Appellant alleged that the two Germans did not
provide her with any individual training on the interfund transactions during the duration of their
visit, although these two men individually assisted other employees who were being trained for
the same tasks. She stated that the only training she received occurred during two group
meetings; one of these lasted about 30 minutes and concerned the OCONUS transactions along
with other DFAS-Europe payroll transactions, which were assigned to a coworker, and another
which lasted for approximately one hour.
Appellant alleged that in March 2004 Greg Swonger, her supervisor, the Chief of DECA,
Europe Accounting Branch, passed by her desk and, without even stopping, told her that she
needed to get the interfund transactions processed. She subsequently advised him that she
needed help; however, he told her he was in the middle of something or had to attend a meeting
and would get back to her. Appellant stated, however, that when her supervisor was done with
those assignments he began helping other employees but did not get back to her. She stated that
this scenario was repeated several times, until he finally had a few minutes to spare and gave her
a demonstration of the new system. Appellant watched Mr. Swonger process an interfund billing
into the system; however, while he gave her screen prints of his input he did not explain the
process. The next day, realizing that he had submitted incorrect input, Mr. Swonger checked the
system. He cancelled his initial input and reprocessed the transaction into the system with a
different interfund bill due to the error he had made. However, that transaction also failed.
Mr. Swonger did not explain this process to appellant or why or how he determined that what he
had originally processed the day before was incorrect. The next day appellant checked the
transaction, saw it was processed but recognized that it contained an error code. She researched
the information from the report and from what she determined there should have been nothing in
the error code field. When appellant approached Mr. Swonger with the report he told her not to
worry about it but again he did not explain what had happened. She stated that she was confused
and frustrated and returned to her desk to work on something else.

2

In April 2004 before inputting the interfund transactions, appellant pulled and read all the
reference material she could find pertaining to the interfund process. She stated that she was
unable to find any desk procedures or any other reference material covering the OCONUS side
of interfund for guidance on processing the transactions into the STANFINS system. Appellant
then asked a coworker to help her. The coworker told her to ask Mr. Swonger and another
coworker for help. Since Mr. Swonger had not helped appellant with her problem, she
approached the other coworker, who told her that she could not help her with the nonretail
interfund transactions since she had never done them before. Appellant again asked
Mr. Swonger for help, but the same scenario that had occurred during the previous month
happened again; Mr. Swonger had time to spend working with and answering questions for
others but never got back to appellant. Finally, with the end of the month cutoff drawing near,
she again approached him for help. Mr. Swonger suggested that they go to see another coworker
who had transferred in from the German office, since she had worked on interfund transactions
while working in Germany. This coworker explained how she inputted the transaction but stated
that the relevant codes had always been provided to her by someone else. Mr. Swonger then told
appellant to pull an old report of interfund transactions that had been processed in the German
office and use the appropriations they had used; appellant then processed the information
gathered from the old report. The next day, the daily input report still showed error codes.
Again appellant approached Mr. Swonger and asked him why she was still getting error codes.
Again Mr. Swonger stated not to worry about the error codes. He further stated that the
STANFINS system was not designed to handle nonretail interfund transactions. Appellant stated
that she was beginning to feel stress and anxiety every time she had to work the interfund
transactions; she further stated that her work problems were affecting her health by this time.
She was a diabetic and suspected that her blood sugar levels were elevated based on the different
body signs she was experiencing.
In May 2004 appellant spent several hours searching for more information regarding the
OCONUS system and re-reading everything she found on interfund. Since no one else had been
able to help her, she decided to try something on her own. Appellant decided to use the
information from the old report, but use the fund code her coworker had told her they had always
used. According to the daily input report, some of the transactions she processed were rejected
and the one that had processed still contained error codes. Appellant felt that nothing she did
seemed to be working right and her stress and anxiety persisted. She consulted a physician, who
confirmed her suspicions regarding elevated blood pressure and blood sugar levels.
In June 2004 appellant decided she would use the instructions from the course she had
taken in January, even though other students had questioned whether the procedures were
correct. This did not work either; she still was receiving error codes after inputting into the
system. Appellant’s stress and anxiety were increasing, and she was beginning to experience
difficulty sleeping at night.
In July 2004 appellant decided to return to the methods by which Mr. Swonger had
instructed her a few months before, notwithstanding her doubts as to whether this method would
work. She stated that, while she was engaged in this procedure, a coworker walked up from
behind her and watched what she was doing. In the middle of processing one of the transactions,
this coworker spoke up and told appellant that her procedures were incorrect and that she needed
to delete all of the transactions she had inputted into the system. She then walked away without

3

explaining how to correct her work. This made appellant even more confused because she
believed that this coworker’s advice contradicted what Mr. Swonger had told her regarding these
transactions. Soon after this Mr. Swonger approached appellant and told her not to worry about
processing the interfund transactions that month because Karl, an employee from Germany,
would be arriving in August to “straighten out” these transactions. In addition, Karl would bring
a report that contained problems from previous interfund transactions that she had processed.
This resulted in more stress; appellant also began to experience chest pains. She also was
reporting for work in an exhausted state due to her inability to sleep.
In August 2004 Karl arrived from Germany. He brought a report indicating that
approximately one and a half pages of transactions that had posted to the wrong ledger account
and needed to be backed out to the STANFINS system. With Karl’s help, appellant was able to
make reversals of these transactions in time to meet her end of the month deadlines. She stated,
however, that her stress and anxiety persisted because she only had one month to get all the
previously processed interfund transactions corrected and reprocessed correctly prior to
September 28, 2004, along with all of the other unfinished work on her desk.
In the middle of September 2004 DECA headquarters called Mr. Swonger, stating that
the APC code that they were using was wrong and that none of the interfund transactions should
be posted to the APC code. Appellant stated that she had been told to use this APC code in
August, based on Karl telling them that all the interfund billings were for surcharges. However,
based on his telephone call with DECA headquarters, Mr. Swonger was now contradicting Karl’s
advice and advising his employees that the interfund billings were not surcharges. Appellant
stated that this incident caused her stress level to soar to the extent that she was now having
anxiety chest pains all the time. She stated that she was so emotionally stressed that she felt like
her chest was going to explode. Appellant related that she was now going to have to reverse all
of the interfund transactions she had processed in August and the beginning of September.
DECA headquarters did offer to provide the correct appropriation lines as she could send them a
copy of one of the interfund bills she received. She provided them with a copy of a few of the
billings. By this time, appellant related, every day she went to work, till the end of September,
she was completely stressed out, constantly experiencing anxiety chest pains, and exhausted
from a lack of sleep, and feeling overwhelmed because she knew she needed to try to get as
much done as possible. She had to force herself to focus and comprehend what she was working
on. Appellant became so confused with so many transactions being processed in and out of the
system that she was having trouble figuring out what still needed to be corrected. She stated that
she became increasingly anxious and stressed because she needed to close and reverse all of the
incorrect transactions back out of the system by the end of September. When September 28,
2004, the last day, arrived, appellant processed everything that she had researched that needed to
be backed out of the system, along with processing some of the interfund billings that DECA
headquarters had provided her. The next morning when she pulled the reports to check her work
from the previous day, she saw that the transactions she had processed using the information the
DECA headquarters had provided had been rejected. At that point appellant was totally
defeated, feeling that no one could provide her with the correct information to do her job
correctly. She felt completely dysfunctional and could not even remember what she had tried to
work on that day or how she even got through the day.

4

On September 30, 2004 appellant felt that she had to force herself to go to work. When
she sat down at her desk, before beginning work, she began crying uncontrollably, as she had
reached the point where she could no longer control her stress and anxiety; she felt that she had
to remove herself from the workplace. Appellant forced herself to go to the division chief to tell
her she needed to go home. She has not returned to work since that day, as she believed herself
no longer able to tolerate the job-related stress.
In a statement dated November 9, 2004, Mr. Swonger rebutted appellant’s allegations.
He stated:
“[Appellant] joined our staff in January 2004 understanding this to be a new
workload for DFAS Columbus. The workload for DECA-Europe transferred to
DFAS Columbus beginning February 2004. The entire staff worked diligently to
learn and successfully accomplish this new workload. While the transition of a
new workload can be a stressful event, we do not concur with [appellant’s]
statements indicating her depression is a direct result of job stress and inadequate
support received by her employer. [Appellant] was provided with the same
amount and quality of support received by the entire transition team, as outlined
below. Additionally, we promote a team concept within the branch that
encourages open communication and dialogue to educate while resolving workrelated issues. As with any workload transfer, we experienced system problems
and confusing workload issues. The staff worked as a team to prioritize and
resolve these issues based on impact to the mission.
“Training: Prior to the transition, [appellant] received official classroom training
for STANFINS Data Query, STANFINS nonretail accounting, and STANFINS
DECA specific retail accounting. This training is the same type of training used
by the organization from which the workload transferred. This training provided
[appellant] and the entire staff with the basic tools necessary to begin work in
DECA Accounting. All members of the staff were provided web sites, access to
the STANFINS user manual, flowcharts, and other various forms of
documentation to assist with researching DECA accounting issues. In addition,
[appellant] was provided the Standard Operating Procedures for resale interfund,
local purchase contracts, Vendor Credit Memorandums, and TBO transactions.
Also, she received the eportal location to obtain the CCAS training manual, a
hardcopy DLA customer service handbook, and the MILSBILLS interfund
regulation.
“In February and August 2004, representatives from DFAS-Europe were onsite to
assist us. All employees were encouraged to ask for assistance specific to their
areas of responsibility. Since [appellant] did not communicate any problems, her
supervisor arranged a meeting in August to discuss the nonretail interfund issues.
After this meeting, [appellant] communicated to her supervisor she felt more
comfortable with the process.
“As illustrated above, [appellant] was provided assistance in various aspects of
her job. Additionally, she was provided names of subject matter experts in

5

various areas within our organization.... In addition, the staff received contacts at
the DFAS-Europe storefront and at DECA-Europe. It seems, based on
[appellant’s] statement that she did not consider reference material, personal
contacts or contact with her supervisor to be adequate, however, the quality was
excellent. While her supervisor may have been busy with other issues when
[appellant] approached him, he did follow up when he had the time to devote his
attention to her questions.”1
Mr. Swonger noted that the area in which appellant was experiencing difficulties,
nonretail interfund billings, constituted only a small portion of her job duties. He listed a number
of other job duties appellant was charged with, including retail interfund bills, retail unmatched
disbursements on the accounts payable file, local purchase control problem instruments, working
in CCAS reports for two appropriations, receiving transactions by others from the control
section, issuing accordingly and ensuring they are processed in a timely fashion, and processing
corrections initiated by the customer. Mr. Swonger indicated that appellant was very successful
in the majority of her other job duties, and received favorable performance evaluations and
awards as well as compliments from customers for her responses to their issues.2 He stated:
“[Appellant] did not make us aware of her stress issue until September 30, 2004
when she brought it to the attention of her Division Chief, Barbara Crawford.
During this discussion, [appellant] indicated that she has had a history of
depression for some time. She stated that she was struggling with her depression
currently due to certain situations in her life. [Appellant] indicated her stress was
exacerbated by her concerns over her job performance and that her mother’s
periodic health problems were also a major contributor to her emotional state. At
this time, [appellant] was reassured by Ms. Crawford about her performance and
approved for leave for the remainder of the week in order to try to resolve her
emotional issues.”
In regard to appellant’s assertion that she was isolated from the other employees,
Mr. Swonger stated that she worked in the same area as her coworkers and her supervisor. When
he received notice of appellant’s claim that her depression was work related he offered her a
change of position, but she declined the offer. He enclosed copies of the standard job
descriptions for appellant’s position. Mr. Swonger indicated that the employing establishment
reviewed appellant’s time slips and determined that her work comprised far less overtime and
compensatory time than other employees in the group. He stated that her time slips also
indicated that she worked a full day on only two of the months closing dates since January and
frequently used leave.

1

The employing establishment submitted copies of email correspondence between management and appellant
and between management and other personnel indicating that management had been supportive of appellant and
similarly situated employees during her transition to the new program.
2

The record contains copies of appellant’s performance ratings for May 1, 2003 to April 30, 2004, exceptional,
exceeded all elements; May 1 to December 28, 2003, exceptional, exceeded all elements; and May 1, 2004 to
April 30, 2005, exceeded all elements, fully successful.

6

In a December 29, 2004 report, Dr. Michael Chan, Board-certified in family practice,
noted that appellant had endured an emotionally abusive 30-year marriage. He related that
appellant had received nonspecific, inaccurate and sparse communication and direction during
her OCONUS training. Because of these factors, she was unable to complete this segment of her
work assignment. Dr. Chan advised that appellant’s inability to complete this portion of her
assignment and the prolonged stress she endured in her office environment caused a relapse of
major depression, recurrent and severe. He stated:
“Prior to this relapse, she had been stabilized on Effexor. This relapse manifested
itself in the following manner: poor concentration, erratic sleeping patterns, high
blood sugars [due to her diabetes], anxiety, depressive moods and chest pains. In
addition to the above symptoms, [appellant’s] relapse has put an inordinate
amount of strain on her current marriage. She believes that what she wants and
needs is ‘unimportant,’ therefore, she hesitates to communicate fully with her
husband and children. This causes misunderstandings in her marriage.”
By decision dated February 4, 2005, the Office denied appellant’s claim on the basis that
she failed to establish any compensable factor of employment and thus fact of injury was not
established.
On March 2, 2005 appellant requested an oral hearing, which was held on June 28, 2006.
In a report dated February 9, 2005, Dr. Sarah Jonaus, Board-certified in internal medicine
stated:
“[Appellant] has been a patient of this clinic for many years. She was first
diagnosed with depression in 1994, and was stable until October 2004. At that
time, [appellant] had fairly acute and significant worsening of her anxiety and
depression. This was due to changes that occurred at work as well as social
stressors at home with her family. Unfortunately, at that time she was unable to
function well, and I did advise her to take some time off of work to facilitate her
recovery. Since that time, [appellant] has required multiple changes in
medication including increasing her dose of Effexor and use of benzodiazepines
including both Xanax and Ativan. She was evaluated at M[oun]t Carmel East
hospital for profound depression and has been treated in group therapy as well as
private therapy and evaluations by a psychiatrist. Because of her profound
depression, the patient was unable to work.
“In addition to causing significant mental strain, [appellant’s] worsening
depression and anxiety also affected her diabetic control. During the time of her
increased anxiety and depression, [appellant’s] blood sugars were elevated and
much more difficult to control as was her blood pressure.”
Appellant submitted a statement describing her previous mental health history, which was
received by the Office on March 24, 2005. She indicated that she was not diagnosed with
depression until her late twenties and was prescribed medication to help her control the
depression. At the age of 29, in 1980, appellant attempted suicide by taking an overdose of anti-

7

depressant medication. In 1994 she was prescribed Prozac by a physician who was treating her
for diabetes. Appellant stated that through her treatment with Prozac and years of psychiatric
treatment she was able to terminate her 29-year marriage in 1998. She continued to take Prozac
until 2003, when she switched to Effexor at the behest of Dr. Jonaus.
Appellant submitted a March 1, 2005 statement in which she challenged statements made
by Mr. Swonger and reiterated her previous allegations regarding her difficulties in the
OCONUS training program.
At the hearing, appellant reiterated her allegations that she received inadequate training
and inadequate procedures when she assumed her duties with the nonretail interfund, OCONUS
program. She reviewed her history of psychiatric problems, indicating that she had previously
been on medication for depression and panic attacks, stemming from her previous marriage, had
attempted suicide in 1980 at the age of 29, and had periodically missed days from work due to
depression. Appellant stated that she had been able to work until August 2004 when she began
experiencing panic attacks, chest pains, flare-up in her diabetes condition, and insomnia as the
end of the fiscal year approached and the pressure on her intensified. She asserted that she
constantly thought about her work ethic, even when she was at home. Appellant testified that
she feared that she was not serving her DFAS customers in a competent manner or adhering to
the employing establishment’s accounting principles. She acknowledged that the employing
establishment offered her a transfer to another position; however, she stated that they did not
offer her this position until October 2004, after she had stopped working due to her alleged
emotional condition.
In a statement dated July 11, 2006, Mr. Swonger disputed appellant’s testimony that the
STANFINS system was incapable of handling the nonretail interfund transactions and that
appellant did not receive adequate on-site training and support. He acknowledged that there
were some system problems and workload issues, as with any workload transfer; however, he
reiterated that he advised appellant that these errors were not a problem. Mr. Swonger stated that
he contacted personnel who inputted nonretail interfund transactions at DFAS-Rome, obtained
their advice and inputted a sample transaction, which they reviewed to validate the following day
to see if it processed correctly. If they were not processed correctly, they would reverse the
erroneous transaction and try it again. Mr. Swonger said that personnel arrived from Germany in
August 2004 to help with the transitional problems -- he noted that they also used the
STANFINS system -- and reiterated that the majority of appellant’s workload was not related to

8

the nonretail interfund bills. He also reiterated that appellant’s lack of ability to input these
interfund bills was not held against her on her appraisal.3
In a July 11, 2006 statement, Ms. Crawford, the former division Chief of DECA
Accounting, stated that appellant came into her office at the end of September and told her she
was very stressed and wanted to go home.
Appellant indicated that she suffered from
depression and was having difficulty coping at work and was experiencing stress caused by her
mother’s health problems. Ms. Crawford stated that she was unaware of appellant’s depression
prior to that conversation. She advised that when appellant returned to work she communicated
more about her illness and they rearranged her duties so that she no longer had to deal with
nonretail interfund transactions.4
By decision dated September 15, 2006, an Office hearing representative affirmed the
February 4, 2005 Office decision.
By letter dated November 9, 2006, appellant requested reconsideration.
By decision dated December 14, 2006, the Office denied appellant’s application for
review on the grounds that it neither raised substantive legal questions nor included new and
relevant evidence sufficient to require the Office to review its prior decision.
By letter dated January 24, 2007, appellant requested reconsideration.
Appellant submitted a January 17, 2006 report from Janet Clark, Ph.D, in psychology,
who noted that appellant was involved in a dysfunctional marriage from 1969 to 2000 in which
she received minimal emotional support from her husband. This led to a total loss of self3

In a statement dated August 15, 2006, appellant’s coworker, Barbara Figurski, stated:
“I wanted to write and tell the frustrations we encountered when we first started our jobs in
DECA-Europe.
“I personally was very frustrated because the help we had available didn’t know a lot of the
procedures. The people who did know the procedures were not willing to help because the jobs
we held were a higher grade than theirs. I cannot blame anyone in particular because I’m sure
they did what they could for me. Our supervisor even apologized for not spending more time with
us.
“Problems also arose because [appellant] and I came from jobs that were totally alien to the DECA
procedures and most of the others in DECA-Europe had worked in the United States DECA before
they transferred. We had used completely different computer programs, processes, etc. I can say
that if I was not as mentally strong as I was, I many have had a similar outcome as [appellant].
“As far as working with [appellant], I thought she was not treated well when she got sick. I heard
rumors that they were looking for ways to fire her and even heard the rumor that it was going to
happen. I was aware of her processing work and having to reverse it and do it again as a trial and
error thing. I heard her blamed for not getting something done which wasn’t her job in the first
place. I understand her outcome now and wished I had done more to help while she was here.”

4

Appellant submitted an August 18, 2006 statement which disputed the July 11, 2006 statements from
Mr. Swonger and Ms. Crawford.

9

esteem, including a suicide attempt in 1980. Dr. Clark related that appellant began to experience
physical problems in 1992, which were diagnosed as symptoms of diabetes in 1993. As noted
earlier, appellant was prescribed Prozac in 1994 and was diagnosed as having major depression
in 1994.
Dr. Clark further noted that appellant experienced increased stress around
September 2004, the point when her work-related problems culminated, due to her mother’s
deteriorating health.
Dr. Clark related that appellant experienced irritability, sleeplessness, lack of contact with
other family members, low energy level, mood swings, crying spells and feelings of hopelessness
and helplessness. She diagnosed major depression, recurrent, severe; panic disorder with
agoraphobia, deferred, obsessive-compulsive features. Dr. Clark noted that appellant returned to
work in January 2005, but attempted suicide in June 2005. She concluded:
“It is my opinion that [appellant’s] disability is directly related to her employment
as accountant [with the employing establishment] as is typical of people who are
accountants, [appellant’s] personality characteristics include perfectionism,
devotion to work and productivity and overconscientiousness. When [appellant]
was unable to perform her job correctly, this placed a great deal of stress on her.
She attempted to solve the problem through a number of means, but she had no
experience and inadequate training in this specific area, so that she was still
unable to complete her job assignment with nonretail interfund transactions. Over
time, she felt more and more stressed, leading to her emotional “breakdown” and
her inability to function at work. Following return to work, she remained stressed
and soon relapsed, which led to an inability to perform job duties and a suicide
attempt.... There are major disruptions in recreation and relationships as a
function of her psychological difficulties and self-esteem is low. She is unable to
work.”
By decision dated February 28, 2007, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.5 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.6

5

See Debbie J. Hobbs, 43 ECAB 135 (1991).

6

See Ruth C. Borden, 43 ECAB 146 (1991).

10

The initial question is whether appellant has established factors of employment that
contributed to her alleged emotional condition or disability. Where the disability results from an
emotional reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Act.7 On the other hand, disability
is not covered where it results from an employee’s fear of a reduction-in-force, frustration from
not being permitted to work in a particular environment or to hold a particular position, or to
secure a promotion. Disabling conditions resulting from an employee’s feeling of job insecurity
or the desire for a different job do not constitute a personal injury sustained while in the
performance of duty within the meaning of the Act.8
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she sustained stress in the performance of her duties as an
accountant pertaining to her transition to the new OCONUS computer system, involving the
inputting of nonretail transactions, and her monthly and yearly quotas. The Board has held that
emotional reactions to situations in which an employee is trying to meet his or her position
requirements are compensable.9 As appellant has related that her emotional condition was
aggravated by the requirements of her work as an accountant, she has established a compensable
factor of employment. Appellant’s supervisor, Mr. Swonger, acknowledged that there were
problems with the OCONUS system transition and that appellant required assistance from him
and from other employees on several occasions. The reports from Drs. Jonaus and Chan
indicated that appellant experienced increasing anxiety, self-doubt, hopelessness and crying
spells related to stress at work since being transferred to a new position in January 2004. These
physicians noted that she felt overwhelmed, stressed and concerned about her ailing mother, who
had recently undergone open heart surgery. Dr. Jonaus diagnosed depression and anxiety and
released appellant from work. Dr. Chan stated that appellant experienced poor concentration,
erratic sleeping patterns, high blood sugar level due to her diabetes, anxiety, depressive moods
and chest pains. He noted that she had endured an emotionally abusive 30-year marriage and
had developed a major depression condition, for which she had been prescribed Effexor.
Dr. Chan advised that appellant’s problems with completing her assignments and the prolonged
stress she endured in her office environment caused a relapse of major depression, recurrent and
severe.
The Board finds that appellant has established a compensable factor of employment
under Cutler. Appellant therefore has established a prima facie claim for compensation. The
Board further finds that the reports from Drs. Jonaus and Chan are sufficient to raise an inference
of causal relationship between appellant’s emotional condition and her accepted employment
factor to require further development of the medical evidence. The physicians attribute an
aggravation of her condition, in part, to the work requirements of her position. Furthermore,
7

Lillian Cutler, 28 ECAB 125 (1976).

8

Id.

9

See Lillian Cutler, supra note 4.

11

appellant’s psychologist, Ms. Clark, opined that appellant’s difficulties in performing her job
duties regarding nonretail interfund transactions led to an aggravation of her emotional
condition. For this reason, the case will be remanded to the Office for further development of
the claim.10
As to the other allegations raised, the Board finds that appellant has submitted
insufficient evidence to establish compensable factors of employment. An employee’s emotional
reaction to an administrative or personnel matter is not covered under the Act, unless there is
evidence that the employing establishment acted unreasonably.11 In the instant case, appellant
has presented no evidence that the employing establishment acted unreasonably or committed
error with regard to the incidents of alleged unreasonable actions involving administrative or
personnel matters on the part of the employing establishment. 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 the Act.12 Appellant has not submitted sufficient evidence to support her
allegations that the employing establishment ignored her requests for assistance, gave her
incorrect and contradictory instructions, imposed an unusually heavy workload and issued
unreasonable deadlines. She asserted that she received insufficient training and guidance from
management in transitioning to the OCONUS system and inadequate responses to her requests
for assistance. However, these complaints were rebutted by the statements from Mr. Swonger,
who indicated that appellant underwent the same training procedures as other employees in her
group and had access to the same training resources and means of assistance. The memoranda
and letters from Mr. Swonger and other management personnel indicated that appellant, along
with other employees, experienced difficulties in working out the inevitable glitches entailed by
transitioning to a new system, but that the majority of its employees eventually adjusted and
adapted to the new procedures. The employing establishment demonstrated that it made efforts to
assist appellant with her transition and that she was given sufficient time to complete her work
assignments. Mr. Swonger and Ms. Crawford also indicated that appellant was assisted by other
employees who were knowledgeable in the OCONUS program.
While Mr. Swonger
acknowledged that he had been busy during one or two of the times when appellant approached
him for assistance, he asserted that he endeavored to get back to appellant and address whatever
concerns she may have had. In addition, while appellant asserted that she felt extreme pressure
due to the errors she encountered while attempting to use the new system, her persistent inability
to successfully input nonretail, interfund transactions, and the pressure to meet quotas and
deadlines, the record indicates that the employing establishment sought to reassure appellant that
10

In light of the Board’s decision to set aside the September 15, 2006 decision of the hearing representative, it
need not consider the December 28, 2006 and February 28, 2007 nonmerit decisions. However, the Board notes that
the Office did not consider Dr. Clark’s January 17, 2006 report, submitted by appellant with her request for
reconsideration, in its February 28, 2007 decision. This report provided an extensive, thorough review of the
evolution of appellant’s emotional condition and constituted probative evidence of how this condition may have
been aggravated or contributed to by her work environment in August and September 2004. The Board therefore
instructs the Office, on remand, to consider this report along with any other medical evidence adduced prior to the
issuance of its de novo decision.
11

See Alfred Arts, 45 ECAB 530, 543-44 (1994).

12

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

12

it had anticipated errors and problems with the transition. Mr. Swonger produced evidence that
management was understanding and supportive of appellant and had tried to assuage her
concerns over the errors and difficulties in adjusting to the new system. He also demonstrated
that he had attempted to tailor appellant’s work requirements and standards to whatever
difficulties she was experiencing. Ms. Swonger also stated that management had repeatedly
indicated to appellant both verbally and in writing that it wanted to work with her in addressing
performance issues. Appellant also has not established that she was subjected to unreasonable
demands in setting performance guidelines for her. Thus, these actions on the part of
management did not constitute a factor of employment.
Regarding appellant’s allegation that she developed stress due to the uncertainty of her
job duties and her insecurity about maintaining her position, the Board has previously held that a
claimant’s job insecurity is not a compensable factor of employment under the Act.13 Finally, in
regard to appellant’s assertion that she was isolated from the other employees at the worksite, the
employing establishment indicated that she worked in the same area with her coworkers and her
supervisor.
Accordingly, appellant has presented no evidence that the employing establishment acted
unreasonably or committed error with regard to these incidents of administrative managerial
functions. A reaction to such factors did not constitute an injury arising within the performance
of duty; such personnel matters were not compensable factors of employment in the absence of
agency error or abuse.
On remand, the Office should prepare a statement of accepted facts and further develop
the medical evidence as appropriate. After such development as deemed necessary, the Office
shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

13

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

13

ORDER
IT IS HEREBY ORDERED THAT the September 15, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed in part, and set aside and remanded in part, for
further action in conformance with this decision.
Issued: March 21, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14