United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 15-1703
Issued: November 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 10, 2015 appellant, through counsel, filed a timely appeal from a March 26,
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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition in the performance of duty causally related to factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated December 12, 2014,
the Board set aside a December 12, 2013 OWCP decision finding that the medical evidence was
insufficient to establish that appellant sustained an emotional condition causally related to a
1

5 U.S.C. § 8101 et seq.

compensable work factor.2 The Board determined that a December 2, 2013 report from
Dr. Christiane Tellefsen, a Board-certified psychiatrist, was insufficient to resolve the issue of
whether appellant sustained an emotional condition as a result of the compensable employment
factors. The Board remanded the case for OWCP to obtain a supplemental report from
Dr. Tellefsen. The facts and circumstances as set forth in the prior decision are incorporated by
reference. The facts relevant to the instant appeal will be set forth.
In her initial report dated December 2, 2013, Dr. Tellefsen discussed appellant’s assertion
that she sustained osteoarthritis of the knees as a result of her work duties. She also noted that
she had a history of gastrointestinal issues resulting in a hospitalization in September 2012 and
esophageal surgery in December 2012. Appellant alleged that John Cox, her supervisor, flirted
with her and then harassed her after she told him to stop his inappropriate behavior. She had
difficulty finishing her route because of her knee condition. Appellant’s route increased from
800 mailboxes to 1,000 mailboxes and she received disciplinary action for taking too much time
to deliver mail. Dr. Tellefsen diagnosed an adjustment disorder with anxiety, psychological
factors affecting a physical condition, and achalasia. She found that appellant attributed many of
her physical symptoms to stress beginning in 2011. Dr. Tellefsen indicated that the statement of
accepted facts (SOAF) conflicted with appellant’s account of her work situation as it found that
Mr. Cox did not harass her or treat her unfairly. She attributed appellant’s adjustment disorder to
“adjusting to the work stress from a harassing boss, or the work stress from her worsening
physical condition leading to deteriorating work performance, and thus negative attention from
her boss.” Dr. Tellefsen opined that if appellant’s knee condition was related to employment
then “conceivably her work stress would be a complication of the arthritis.”
After the Board’s December 12, 2014 decision remanding the case, OWCP requested that
Dr. Tellefsen clarify whether appellant experienced an emotional condition due to the
compensable work factors. It advised that a condition was compensable if work factors
contributed in any way to the condition.
In a supplemental report dated February 26, 2015, Dr. Tellefsen again reviewed the
SOAF and noted that appellant had work limitations from nonemployment-related arthritis of
both knees. She related:
“My understanding of the information in the SOAF is that her knee arthritis is not
an accepted condition and that [the employing establishment] does not
acknowledge that any harassment occurred. [Appellant], on the other hand,
reports that her job delivering mail, with, at some point, a markedly increased
workload, led to the worsening of her knee pain. She said that this, in turn, led to
emotional distress when she was not able to complete her job as efficiently as she
had been able to prior to developing the arthritis. [Appellant] also reported that,
2

Docket No. 14-1043 (issued December 12, 2014). On April 6, 2012 appellant, then a 50-year-old letter carrier,
filed an occupational disease claim alleging that she sustained depression, stress, and headaches due to factors of her
federal employment. She stopped work on March 26, 2012. The Board determined that OWCP properly accepted
as compensable work factors that she was unable to complete her route in eight hours beginning in September 2011
and that she continued to work overtime after the employing establishment reduced her route in March 2012 because
of her knee condition.

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in part, as a result of this diminished efficiency related to the knee pain, she was
harassed by her supervisor. She had a separate issue with the supervisor
involving retaliation for rebuffed sexual harassment. That was not even
mentioned in the SOAF.
“In the summer of 2012 [appellant] developed symptoms of depression, what I
ultimately diagnosed as [a]djustment [d]isorder, in relation to all of these events
and the worsening pain and disability from her knees.
“As I stated in my original report, without verification from the [employing
establishment] that these stressful events were work related, I am unable to
formally connect her subsequent [a]djustment [d]isorder with her work. I do
think it is clear that a large part of her emotional distress stems from her
worsening physical condition and impairment from her osteoarthritis. That
arthritis, however, is not an accepted condition. Therefore, whatever psychiatric
fallout she had from this would also not be an accepted condition. Therefore,
there is no medical evidence that an accepted work factor contributed in any way
to her condition.”
Dr. Tellefsen indicated that appellant’s condition “was further complicated by what
appears to be a possibly unrelated gastrointestinal disorder for which she ultimately required
surgery later in 2012.” She concluded that the adjustment disorder was not related to the
compensable employment factors.
By decision dated March 26, 2015, OWCP denied modification of its October 5, 2012
decision. It found that Dr. Tellefsen’s opinion represented the weight of the evidence and
demonstrated that appellant did not have a diagnosed condition as a result of the compensable
work factors.
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 or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.3 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 or her frustration from not being permitted to work in a particular environment, or
to hold a particular position.4
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
3

5 U.S.C. § 8101 et seq.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

4

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

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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.5 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.6
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the claimant,8 must be
one of reasonable medical certainty9 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10
ANALYSIS
On prior appeal, the Board found that appellant had established as compensable work
factors that she was unable to complete her route in eight hours following a September 2011
route change and that, after the employing establishment reduced her route in March 2012 due to
her bilateral knee osteoarthritis, she still had to work overtime multiple evenings a week to
complete her route. The Board found that the December 2, 2013 report from Dr. Tellefsen was
insufficient to resolve the issue of whether appellant sustained an emotional condition. Upon
remand, OWCP specifically requested that the physician address whether compensable work
factors contributed in any way to her condition. Based on Dr. Tellefsen’s February 26, 2015
supplemental report, it denied appellant’s emotional condition claim.
The Board finds that Dr. Tellefsen’s opinion is sufficiently well rationalized to establish
that appellant did not sustain an emotional condition as a result of the accepted compensable
work factors. In her initial report dated December 2, 2013, Dr. Tellefsen discussed the history of
injury and the factors to which appellant attributed her condition. She diagnosed an adjustment
disorder with anxiety largely due to physical symptoms beginning in 2011 and harassment by her
supervisor. Dr. Tellefsen found that appellant’s adjustment disorder resulted from either
harassment or a declining physical condition causing decreased work performance. In a
supplemental report dated February 26, 2015, she noted that appellant attributed her stress to an
increase in knee pain such that she was unable to adequately perform her work duties as well as
harassment by her supervisor, Mr. Cox, due to her worsening work performance. Appellant also
5

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

6

Id.

7

John J. Montoya, 54 ECAB 306 (2003).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

Supra note 7.

10

Judy C. Rogers, 54 ECAB 693 (2003).

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related that Mr. Cox sexually harassed her and retaliated against her when she objected to the
harassment. Dr. Tellefsen attributed the majority of her emotional symptoms to her increased
knee osteoarthritis, which she noted was not accepted as employment related. She also indicated
that appellant experienced a gastrointestinal disorder. Dr. Tellefsen determined that her
adjustment disorder was unrelated to the compensable work factors. In reaching her conclusions,
she thoroughly discussed the statement of accepted facts as well as appellant’s description of the
work factors to which she attributed her stress-related condition. Dr. Tellefsen explained that her
condition resulted from stress as a result of a decline in her physical condition due to
nonemployment-related osteoarthritis. Her report is detailed, well rationalized and based on an
accurate factual background; consequently, it represents the weight of the evidence.11 Appellant,
therefore, has not met her burden of proof to establish an emotional condition as a result of the
compensable work factors.
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 met her burden of proof to establish an emotional
condition in the performance of duty causally related to factors of her federal employment.

11

See G.G., Docket No. 15-0985 (issued August 21, 2015); B.O., Docket No. 15-0385 (issued August 19, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the March 26, 2015 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, OFFICE OF THE
INSPECTOR GENERAL, NEW YORK FIELD
OFFICE, Hoboken, NJ, Employer
__________________________________________

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Appearances:
James K. Haney, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1253
Issued: November 23, 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 April 5, 2007 appellant filed an appeal of April 26, 2006 and March 2, 2007 decisions
of the Office of Workers’ Compensation Programs denying his occupational disease claim. The
March 2, 2007 decision also denied his request for subpoenas. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established that he sustained an emotional condition in the
performance of duty. On appeal, appellant asserts that the Office hearing representative abused
his discretion by allotting only one hour for the oral hearing, preventing appellant from calling
several witnesses. He also asserts that he did not have 30 days notice of the time and location of
the December 21, 2006 oral hearing as the November 20, 2006 notice was not mailed until
November 28, 2006 and not received by him until December 1, 2006.

FACTUAL HISTORY
On August 3, 2005 appellant, then a 51-year-old special agent and law enforcement
officer, filed an occupational disease claim (Form CA-2) claiming that he sustained anxiety,
depression and insomnia in the performance of duty due to work factors from April 28, 2004 to
July 12, 2005.1 He attributed his condition to working under new management beginning in
April 2004. Appellant alleged that he was overworked as Debra Alexander, his supervisor,
asked him to work several cases in addition to a major fraud investigation. When he chose to
allocate nearly all of his time to the fraud case, Ms. Alexander criticized his case management in
an April 15, 2005 mid-year review. Appellant believed that being asked to work a regular case
load signified a lack of supervisory support for his work on the fraud case. He also felt that
Ms. Alexander and Jane Hughes, his second line supervisor, were not enthusiastic about the
guilty plea he obtained in the fraud case on June 8, 2005. Appellant asserted that, on July 11,
2005, Ms. Alexander harassed him by sending him an e-mail and speaking with him regarding
whether he could document additional monetary fraud in the case. He alleged that management
wanted him to fabricate a larger dollar amount. Appellant stopped work and sought medical
treatment on July 12, 2005.2
In an August 16, 2005 statement, Ms. Hughes explained that her lack of enthusiasm
regarding the guilty plea stemmed from a press release, prepared by another agency and not
involving appellant. She stated that the July 2005 discussions to ascertain the amount of the
fraud were a normal part of case development. Regarding appellant’s allegations of overwork,
Ms. Hughes explained that agents were required to work on multiple cases. The average case
load was 17 cases. As of September 28, 2004, appellant had two open cases in addition to the
fraud matter. As of December 10, 2004, he had five cases but worked only on the fraud case.
The large majority of cases assigned in April 2005 were immediately placed in closed-pending
status, requiring no further action. After an agent left in May 2005, appellant was assigned five
simple cases. As of July 11, 2005, he had 10 open cases, one of which could have been closed
immediately. In an August 16, 2005 e-mail, Ms. Alexander asserted that she did not set
appellant up for a bad year-end review.
In a September 29, 2005 letter, the Office advised appellant of the additional factual and
medical evidence needed to establish his claim. The Office requested that appellant submit a
detailed description of the employment factors that he believed caused or contributed to his
condition.
In an October 18, 2005 statement, appellant asserted that in her initial October 2003 staff
meeting, Ms. Hughes stated that she realized her management style would be different and that
“if any of you do n[o]t like it here you can quit and find another job, and I w[ill] n[o]t take it
1

On the claim form, appellant stated that he first became aware of his condition on April 28, 2004 and first
related it to work factors on July 12, 2005. His statements detail work events and his reactions to them occurring
from March 2004 through July 12, 2005. The Office adjudicated identified work incidents occurring from early
March 2004 through July 12, 2005.
2

In an August 16, 2005 statement, Todd J. Kowalski, one of appellant’s coworkers, noted that appellant felt
stressed while working on the fraud investigation.

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personally.” He experienced stress regarding his job security as he could not retire for four more
years.3 Appellant acknowledged that many cases assigned to him April 2005 were soon closed
or required no further action. He asserted that Ms. Hughes and Ms. Alexander undermined his
authority in the fraud case by assigning him additional cases and by deferring to postal managers.
Appellant stated that he did not wish to work on these “low potential” cases as he was
overworked and had to use a computerized database system. He was dismayed that others
viewed the fraud case as only one case among many others. Appellant contended that he should
have received a superior performance review.
In a March 7, 2006 e-mail, Ms. Alexander stated that in April 2004, appellant had only
one other open case in addition to the fraud investigation. She discussed the dollar loss with
appellant in July 2005 only to clarify the amount as his previous statements on the matter were
equivocal. Ms. Alexander needed to resolve these uncertainties to prepare a case report for her
superiors. At no time did she request that appellant fabricate evidence.4
By decision dated April 27, 2006, the Office denied appellant’s emotional condition
claim on the grounds that fact of injury was not established. The Office found that appellant
failed to establish any compensable factors of employment as he did not establish his allegations
of harassment and overwork as factual.
In a May 8, 2006 letter, appellant requested an oral hearing. In an August 14, 2006 letter,
appellant’s attorney submitted a list of possible witnesses.
Appellant returned to work on September 11, 2006 after being released by
Dr. Richard M. Sostowski, an attending Board-certified psychiatrist.
In an October 12, 2006 letter, the Office advised counsel that, due to the large number of
hearings to be held, no more than one hour would be allotted for the oral hearing. The Office
noted that it was unlikely that there would be sufficient time to take testimony from 11
witnesses. The Office suggested that appellant submit written witness statements and medical
reports. In a November 20, 2006 letter, the Office advised appellant’s attorney that the hearing
would be held on December 21, 2006.
In a December 5, 2006 letter, appellant’s attorney requested that the Office issue
subpoenas for Ms. Alexander, Ms. Hughes, Eugene Rear, retired supervisor, Michael Bentivigna
and Reijo Finnila, coworkers, and Edward Sinning, postal manager. Appellant also submitted
case tracking sheets and activity logs from April 14 to July 1, 2005 showing that he was assigned
10 cases in April 2005, 7 of which appear to have been closed within 60 days with no or little
further action. He also submitted July 10 and 11, 2005 e-mails between himself, Ms. Hughes
and another agent regarding increasing the dollar amount of loss in the fraud case. Appellant
explained that there was “insufficient proof to establish a larger amount.” He also submitted a
copy of his April 15, 2005 performance review, stating that he was a reliable worker but should
3

Appellant reiterated these contentions in January 25 and March 13, 2006 letters.

4

Appellant also submitted medical evidence, including psychiatric reports.
submitted a March 20, 2006 fitness-for-duty examination report.

3

The employing establishment

improve his timeliness and case management skills as he did little or no work on cases other than
the fraud investigation. Appellant also submitted medical evidence.
At the hearing, appellant newly alleged that in approximately March 2004, he reviewed
the fraud case with Nelson Chen, supervisor. He stated that Mr. Chen disagreed with his
assessment of a postal manager’s statements. Appellant then sought medical treatment for stress.
Two weeks later, he was transferred to Ms. Alexander. Appellant stated that, on June 30, 2005,
he was assigned to write a “talking points” memorandum in the fraud case. He noted that he
often prepared such memoranda, which named the individuals under investigation. Appellant
explained that he did not wish to write this memorandum as he disagreed with his supervisors’
decision to identify the parties under investigation. He then called an assistant U.S. attorney,
hoping that she would release him from the assignment. The assistant U.S. attorney allegedly
suggested that appellant obtain private legal counsel if he chose not to cooperate as he could be
terminated. Appellant asserted that he experienced stress.
Two of appellant’s coworkers also testified at the hearing. Mr. Bentivigna, a postal
inspector, who worked with appellant on fraud cases, testified that appellant’s workload was
heavy at times. Mr. Finnila, an investigative agent, corroborated that at Ms. Hughes’ initial staff
meeting in October 2003, she stated that she would not “be offended if we all left.” He testified
that appellant worked on other cases besides the fraud investigation. Mr. Finnila asserted that
appellant’s supervisors did not properly prioritize appellant’s workload. He corroborated
appellant’s account of multiple discussions with supervisors regarding the dollar amount lost in
the fraud case.
After the hearing, appellant’s attorney submitted a January 11, 2007 letter asserting that
the employing establishment committed administrative abuse in processing the claim by showing
Ms. Alexander a confidential psychiatric report. In a January 12, 2007 letter, he contended that
the hearing representative prejudiced appellant’s case by denying subpoenas and limiting the
hearing to one hour.
The employing establishment submitted comments to the hearing transcript on
January 23, 2007, contending that appellant was not overworked. The employing establishment
submitted appellant’s time sheets for April 17 to 20, 2004 and June 25 to July 8, 2005 indicating
that he worked little or no overtime. The employing establishment denied that appellant was
harassed or abused by management or asked to perform illegal acts. Appellant’s attorney
responded by January 29, 2007 letter, reiterating his arguments. He also submitted appellant’s
timeline of events.
By decision dated and finalized March 2, 2007, the Office hearing representative
affirmed the April 27, 2006 decision. He found that appellant failed to establish his allegations
of harassment and overwork as factual. The hearing representative found that appellant’s
reaction to the performance review was noncompensable, as performance appraisals are an
administrative function of the employing establishment and no error or abuse was shown. He
found that appellant’s dissatisfaction with the way his supervisors exercised their discretion was
noncompensable. The hearing representative found no evidence that any of the supervisory
actions were erroneous, abusive or illegal or that appellant was asked to perform unethical or
illegal acts. He found that management’s response to the June 2005 press release was not in the

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performance of duty as appellant had no role in preparing the release. The hearing representative
also found that appellant’s reaction to being asked to write the talking points memorandum was
self-generated, noting that he was not required to call the assistant U.S. attorney. He found that
appellant’s reaction to the handling of his compensation claim was noncompensable as this
concerned an administrative matter not in the performance of duty and no error or abuse was
shown. The hearing representative found that appellant’s attorney’s December 5, 2006 request
for subpoenas was not timely made.
LEGAL PRECEDENT -- ISSUE 1
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 the Federal Employees’ Compensation
Act.5 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 frustration from not being permitted to work in a
particular environment or to hold a particular position.6
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.7 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.8
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 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.9 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.10
5

5 U.S.C. §§ 8101-8193.

6

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
7

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

8

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

9

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

10

Id.

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ANALYSIS -- ISSUE 1
In the present case, appellant alleged that he sustained anxiety and depression as a result
of employment incidents and conditions which the Office found to be noncompensable.
Therefore, the Board must review whether these alleged incidents and conditions are covered
employment factors under the terms of the Act.
Appellant asserted and Mr. Finnila corroborated that in her initial October 2003 staff
meeting, Ms. Hughes, appellant’s second line supervisor, stated that, as her management style
would be different from what the employees were used to, she would not be offended if the staff
quit. The Board finds that appellant has established as factual that Ms. Hughes made these
remarks. While verbal abuse in the workplace is compensable under certain circumstances, this
does not mean that all statements uttered in the workplace gives rise to coverage under the Act.11
In this case, the Board finds that, under the circumstances of this case, Ms. Hughes remarks were
a reasonable part of her introduction to her staff. They do not rise to the level of verbal abuse.
Appellant further alleged that Ms. Hughes’ remarks made him fear for his job. However,
disabling conditions resulting from an employee’s feeling of job insecurity are not compensable
under the Act.12
Appellant also attributed his condition, in part, to an April 15, 2005 performance
appraisal. Ms. Alexander, appellant’s supervisor, remarked that appellant needed to improve his
timeliness and case management skills as he did little work on cases other than the fraud
investigation. Appellant also asserted that his work on the fraud case deserved a higher rating.
However, performance appraisals are administrative and are not compensable unless error or
abuse is shown.13 The Board finds that the evidence does not establish any administrative error
or abuse in appellant’s performance appraisal. Appellant acknowledged that he refused to work
on assigned cases he felt were unimportant in comparison to the fraud case. Appellant has not
established a compensable employment factor in this regard.
Appellant attributed his emotional condition to alleged harassment by his supervisors
regarding the amount of monetary fraud in one of his investigations. Incidents of harassment by
supervisors and coworkers, if established as occurring and arising from the employee’s
performance of his or her regular duties, could constitute employment factors.14 For harassment
to give rise to a compensable disability under the Act, there must be probative and reliable
evidence that harassment or discrimination did in fact occur.15 Mere perceptions of harassment
are not compensable under the Act.16
11

Fred Faber, 52 ECAB 107, 109 (2000).

12

Lillian Cutler, supra note 6.

13

Beverly A. Spencer, 55 ECAB 501 (2004).

14

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

15

Marlon Vera, 54 ECAB 834 (2003).

16

Kim Nguyen, 53 ECAB 127 (2001).

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In support of his allegations of harassment, appellant provided statements and
Mr. Finnila’s testimony that his supervisors repeatedly asked in July 2005 if there was any basis
to increase the dollar amount lost in the fraud case. Ms. Alexander explained that these
discussions were necessary as appellant made equivocal statements which required clarification
before a final case report could be prepared. The Board finds that these discussions were
reasonable and the evidence does not reflect error or abuse. Appellant has not established a
compensable employment factor under the Act with respect to the claimed harassment.
Appellant also disliked the way his supervisors Mr. Chen, Ms. Alexander and
Ms. Hughes performed their supervisory duties. He criticized their communication with postal
managers and their decision to have him prepare a “talking points” memorandum naming the
implicated individuals. Appellant contended that management did not appreciate the importance
of the fraud case, such that they assigned him additional “low potential” cases. However, an
employee’s dissatisfaction with the way a supervisor performs duties or exercises discretion in
assigning work is not compensable absent error or abuse.17 In this case, Ms. Hughes and
Ms. Alexander explained that appellant was required to work on multiple assigned matters
although he was assigned fewer cases than other agents. Appellant stated that he had written
“talking points” memoranda before, indicating that he was capable of doing so in the fraud case.
The record does not demonstrate any error or abuse in the assignment of appellant’s work.
Appellant’s dissatisfaction with how his supervisors developed the fraud case is noncompensable
as it constitutes frustration from not being able to work in particular environment or to hold a
particular position.18
Appellant also attributed his condition to being overworked. The Board has held that a
heavy workload may be a compensable factor of employment if demonstrated by reliable,
probative evidence.19 Ms. Hughes explained that she assigned appellant fewer cases than other
agents. The additional cases were either simple or required little action. Appellant
acknowledged that many of his cases required no further action but that he did not wish to work
on them as they were “low potential.” The Board finds that, under the circumstances of this
case, appellant has not established that he was overworked. Rather, appellant expressed his
frustration at being assigned work in addition to the fraud investigation, which he viewed as his
most important assignment.
As set forth above, this reaction is a self-generated,
noncompensable frustration over not being able to work in a particular environment.20
Appellant also attributed his condition, in part, to management’s negative reaction to a
press release in the fraud investigation. The press release was unrelated to any of appellant’s
regularly or specially assigned duties. Therefore, the Board finds that appellant’s reaction is
noncompensable as it did not occur in the performance of duty.21
17

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

18

Cyndia R. Harrill, 55 ECAB 522 (2004).

19

Bobbie D. Daly, 53 ECAB 691 (2002); Sherry L. McFall, 51 ECAB 436 (2000).

20

Cyndia R. Harrill, supra note 18.

21

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

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Appellant also alleged that the employing establishment committed administrative error
or abuse by showing Ms. Alexander confidential medical records after she was no longer a
supervisor. He also asserted that an assistant U.S. Attorney advised him to retain counsel.
Appellant did not submit any evidence substantiating these assertions. Therefore, he has not
established these allegations as factual.
On appeal, appellant alleged that the Office did not mail the November 20, 2006 notice of
hearing until November 28, 2006, such that he did not receive 30 days notice of the
December 21, 2006 hearing as provided by section 10.617(b) of the Office’s implementing
regulations.22 The Board finds that appellant submitted no evidence, such as a postmark to
support his contention. Appellant also alleged that the Office hearing representative improperly
allotted only one hour for the oral hearing. Section 10.617(a) of the Office’s implementing
regulations provide, in pertinent part, that the hearing representative has “complete discretion to
set the … amount of time allotted for the hearing, considering the issues to be resolved.”23 The
Board notes that the Office advised appellant to submit written witness statements and exhibits.
Appellant called two witnesses at the hearing and submitted numerous exhibits. Under the
circumstances of the case, the Board finds that the hearing representative did not abuse his
discretion by limiting the oral hearing to one hour.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.24
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of the Act provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.25 The implementing regulations provide that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.26 In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.27 Section
22

20 C.F.R. § 10.617(b) provides, in pertinent part, that the Office hearing representative “will mail a notice of
the time and place of oral hearing to the claimant and any representative at least 30 days before the scheduled date.”
23

20 C.F.R. § 10.617(a).

24

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).
25

5 U.S.C. § 8126(1).

26

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

27

Id.

8

10.619(a)(1) of the implementing regulations provide that a claimant may request a subpoena
only as part of the hearings process and no subpoena will be issued under any other part of the
claims process.
To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
electronic marker or other objective date mark) after the date of the original hearing request.28
The Office hearing representative retains discretion on whether to issue a subpoena. The
function of the Board on appeal is to determine whether there has been an abuse of discretion.29
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment or actions taken which are clearly contrary to logic and probable deductions
from established facts.30
ANALYSIS -- ISSUE 2
In this case, appellant’s counsel requested an oral hearing on May 8, 2006. As discussed,
section 10.619(a)(1) provides that a subpoena request must be submitted in writing to the hearing
representative no later than 60 days following the request for a hearing.31 In a December 5, 2006
letter, appellant’s attorney requested that the hearing representative issue subpoenas for three
supervisors, one manager and two coworkers. The hearing representative properly found that the
request for subpoenas was untimely as it was not made within 60 days of the hearing request
dated May 8, 2006. Therefore, the Board finds that the hearing representative did not abuse his
discretion in denying appellant’s request for subpoenas.
CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition in the performance of duty. The Board further finds that the Office properly denied
appellant’s request for subpoenas.

28

20 C.F.R. § 10.619(a)(1).

29

See Gregorio E. Conde, supra note 26.

30

Claudio Vazquez, 52 ECAB 496 (2001); Martha A. McConnell, 50 ECAB 128 (1998).

31

20 C.F.R. § 10.619(a)(1).

9

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated and finalized March 2, 2007 and dated April 26, 2006 are
affirmed.
Issued: November 23, 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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND STATIONS,
Cherry Point, NC, Employer
__________________________________________

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

Docket No. 13-2155
Issued: September 2, 2014

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 September 23, 2013 appellant filed a timely appeal of an August 27, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his claim for continuing
compensation. The Board also has jurisdiction over a March 29, 2013 decision. 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 OWCP properly terminated appellant’s wage-loss and
medical compensation benefits effective August 30, 2012 on the grounds that no residuals from
the work injury remained; and (2) whether appellant is entitled to continuing compensation
benefits for an accepted medical condition after August 30, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 23, 1985 appellant, then a 40-year-old public affairs officer, injured his low
back when he slipped on the threshold of a door causing him to fall and twist his back. OWCP
accepted the claim for lumbosacral sprain and displacement of a lumbar intervertebral disc, left
at L4.
Appellant received wage-loss benefits.
He underwent lumbar surgery on
October 20, 1986. OWCP placed appellant on the periodic compensation rolls.
In April and June 2011 the employing establishment performed an investigation of
appellant who was filmed walking, standing, bending, carrying a leaf blower and performing
clean-up activities around his home.
Appellant’s treating physician, Dr. Gary Heck, a Board-certified internist, reported on
August 5, 2011 that appellant had spinal stenosis, chronic lumbar instability and dorsolumbar
scoliosis. He noted that appellant’s low back was deteriorating and unstable with grossly limited
range of motion in his lumbar spine and was unable to sit or stand for more than a few minutes at
a time. Dr. Heck concluded that appellant had a permanent and disabling injury to his lumbar
spine, and from associated complications that resulted from that injury. He opined that it would
be inadvisable to return appellant to a work setting because of the unstable nature of his low back
and left leg.
On November 15, 2011 OWCP provided Dr. Heck with a copy of the surveillance video
for review. It requested that he address the nature and extent of disability between appellant’s
current condition and the August 23, 1985 work injury.2
In a December 19, 2011 response, Dr. Heck stated that appellant had residuals of atrophy
of left leg, limp with left leg, chronic weakness of left leg and had reached maximum medical
improvement. Appellant also had chronic documented atrophy of the left leg and continued on
multiple medications for pain. Dr. Heck found that appellant was not a viable candidate for a job
which required careful analysis of sensitive material given appellant’s multiple medications. He
indicated that appellant’s use of chronic mediations, including narcotics, would preclude him
from the multiple duties outlined in the July 25, 2011 job offer and he was unable to participate
in vocational rehabilitation.
In a February 1, 2012 report, Dr. William A. Somers, a Board-certified orthopedic
surgeon and second opinion physician, reviewed the medical records of file; statement of
accepted facts; a copy of the video surveillance dated April 22 and June 23, 2011; and a copy of
the July 25, 2011 job offer. He noted that the only radiographic record was a cervical spine
magnetic resonance imaging (MRI) scan of December 2011. Dr. Somers noted that appellant
reported having polio between the age of three and four and listed examination findings, which
included antalgic gait on the left, tender to palpation over the midline in the L4 and L5 and about
the sciatic nerve in the left buttock regions and visible atrophy in the left thigh and leg region.
He stated, “I wonder whether any of this could be related to his old polio.” Dr. Somers opined
2

Appellant was copied on this request to Dr. Heck. On November 23, 2011 he requested copies of the
investigative reports and associated pictures. By letter dated January 5, 2012, OWCP forwarded copies of the
investigative video to appellant. See J.M., 58 ECAB 478 (2007).

2

that work-related sprain of lumbosacral region and intervertebral disc have not resolved, that
appellant had not reached maximum improvement and that vocational rehabilitation was not
indicated for someone of the age of 66.
On March 14, 2012 OWCP requested that Dr. Somers’ clarify his opinion regarding the
cause of appellant’s atrophy and weakness in his left leg and thigh. In a March 21, 2012 report,
Dr. Somers noted that he could not say whether the polio or the work injury caused the muscle
weakness and atrophy, as it could be a combination of the two. After reviewing the July 25,
2011 job offer, he opined that appellant was capable of working four hours a day for up to a year
with sedentary work limitations. Dr. Somers advised that the video surveillance showed
appellant engaging in a sedentary level of physical activity.
OWCP determined that a conflict in medical opinion arose between Dr. Heck and
Dr. Somers with regard to appellant’s disability status and work capacity. It referred appellant
for an impartial medical examination to Dr. Ralph A. Summers, a Board-certified orthopedic
surgeon.
In a June 28, 2012 report, Dr. Summers noted the history of injury as reported by
appellant, which included his statement that he had an injury to his left knee with left knee
reconstruction 25 or 30 years prior. Appellant also reported seeing an urologist for pain into his
scrotum and genital area. The urologist opined that the pain might be a radicular type of pattern
from his lower back. Dr. Summers reviewed the medical records of file, the statement of
accepted facts; a copy of the April 22 and June 23, 2011 video surveillance; the July 25, 2011 job
offer and presented examination findings. Appellant had a slow and methodical gait in the
examination room, in contrast to his gait when he was observed walking down the hallway and
out of the building following his examination. On examination, there was atrophy of the left leg
and pain with Waddell’s rotation testing of the spine. Deep tendon reflexes were 2/4 and
bilaterally equal at the patellar tendon and Achilles tendon with positive straight leg raising on
the left side at 45 degrees of extension. Dr. Summers found that appellant’s left leg atrophy was
related to his history of polio and prior left leg surgery and that the difference in appellant’s gait
while unobserved versus during the examination, suggested symptom magnification. He also
noted that appellant’s subjective complaints of balance trouble were not demonstrated in the
video surveillance. Dr. Summers opined that appellant had recovered from the accepted workrelated sprain of lumbosacral joint ligament and displacement of lumbar intervertebral disc left at
L4 with no restrictions on sitting, standing, walking or driving, and that he could perform the
date-of-injury job, as it was sedentary. He stated that the reason for his opinion was provided in
the MRI scan reports, which failed to demonstrate any additional herniated disc, arthritis or
impingement of neural structures. Dr. Summers stated that any continued complaints related to
appellant’s underlying preexisting degenerative disc disease.
On July 24, 2012 OWCP notified appellant that it proposed to terminate his
compensation benefits based on the impartial opinion of Dr. Summers. Appellant was provided
30 days to submit additional evidence or argument.
By decision dated August 30, 2012, OWCP terminated appellant’s compensation for
medical benefits and wage loss effective that day. It found that the special weight of the medical
opinion evidence rested with the opinion of Dr. Summers, the impartial medical specialist, who

3

found that there were no residuals from the work injury and appellant could perform his date-ofinjury job with no restrictions.
Appellant requested an oral hearing with an OWCP representative, which was held
telephonically on January 10, 2013. He resubmitted reports previously of record.
In a September 13, 2012 report, Dr. Timothy Garner, a Board-certified neurosurgeon,
advised that he examined appellant and reviewed records provided by appellant, which
demonstrated that multiple physicians supported his long-standing disability. He opined,
“Suffice it to say, that it is my opinion that he suffered an injury in 1985 that was subsequently
surgically treated from which he never fully recovered.” Dr. Garner also noted that he agreed
with Dr. Heck’s “multiple assessments of this man’s continued disability” as well as Dr. Somers’
characterization of his disability in the February 2012 evaluation. He concluded that appellant
was disabled from his date-of-injury job and would not be able to return to work.
By decision dated March 29, 2013, an OWCP hearing representative affirmed the
August 30, 2012 termination decision. The hearing representative found that the weight of the
medical opinion rested with the impartial specialist, Dr. Summers, who provided a well-reasoned
opinion based upon the available medical records, the statement of accepted facts and findings
on examination. The hearing representative further found that appellant failed to meet his
burden of proof to establish that he had ongoing disability causally related to the work injury as
Dr. Garner’s report was insufficient to overcome the special weight accorded the impartial
specialist.
In a May 8, 2013 letter, appellant requested reconsideration. He contended that
Dr. Garner’s medical report supports the continuing difficulties he experiences daily as a result
of the workplace injury. Appellant submitted a duplicate copy of his May 25, 2012 letter and an
April 9, 2013 letter.
In an April 22, 2013 report, Dr. Garner stated that he last saw appellant on
September 13, 2012. Appellant had long-standing disability from his original injury and was not
able to return to work in his original date-of-injury position. He reviewed with appellant the
history of work injury and medical treatment received. Appellant voiced complaints about the
impartial medical specialist’s examination. Dr. Garner noted that appellant’s symptoms, which
were described as pain in the back, left hip and radiating pain into the left leg; pain in the
testicular region (left side), which his urologist found due to neurological problems from his
back. He had difficulty with coughing, sneezing, riding, sitting or prolonged periods of time, and
ongoing pain since his original diagnosis and surgery. Dr. Garner stated that it appeared
appellant had a herniated disc removed at L4 and L5 in the mid-eighties and that appellant has
tried to avoid further fusion surgery. Appellant showed all the signs of having a nerve root
problem in his back. On examination, there was generalized atrophy of the left leg. Dr. Garner
noted that appellant had multiple pictures of his left leg at various stages in his life without
evidence of atrophy. He stated appellant’s examination and history was that of someone with
either an acute back problem or a chronic injury from which he did not recover. Dr. Garner
thought appellant was more likely in the latter category than the former, but he did not have any
recent studies of appellant’s lumbar spine. Appellant could have developed a more acute
problem in recent months accounting for his significant ongoing pain. Dr. Garner opined that it

4

was very likely that appellant has degenerative change and segmental instability and needed
spinal fusion. He stated that, even with a fusion, appellant would not be able to return to his job.
Dr. Garner opined that appellant continues to suffer long lasting effects and disability from the
1985 work injury that subsequently required surgery. He noted that further study of appellant’s
lumbar spine was needed.
By decision dated June 10, 2013, OWCP denied modification of its March 29, 2013
decision. It found that Dr. Garner’s opinion was insufficient to overcome the special weight of
the medical evidence accorded to Dr. Summers.
In a July 17, 2013 letter, appellant requested reconsideration. He argued that the medical
evidence reflected that his injury had not resolved. Appellant submitted a June 20, 2013 MRI
scan that showed postoperative changes at L4-5 with a probable small subarticular disc
protrusion that may impinge the traversing left L5 nerve. Significant epidural fibrosis was noted
in that region. Degenerative changes were noted at other levels without neural impingement.
In a July 11, 2013 report, Dr. Garner reviewed the MRI scan and advised that it showed
some spurring and scarring at L4-5 on the left and maybe a little ruptured disc pushing on his L5
nerve root. This was an anatomical substrate for the problems of which appellant had
complained through the years. Dr. Garner stated that, given the degree of mechanical back pain
that appellant had, it would not be adequate to fix this pathology. He opined that a lumbar fusion
would be necessary, but appellant was not ready to pursue surgery. Dr. Garner opined that
appellant has ongoing disability from a problem that started in 1985 and which never really
changed. He stated that appellant now has documented an anatomical substrate for that
continued pain and that the only operation possible to fix it would be a lumbar fusion.
By decision dated August 27, 2013, OWCP denied modification of its June 10, 2013
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, it may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.4
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5
Section 8123(a) of FECA provides in pertinent part: If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.6 In situations where
3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

5 U.S.C. § 8123(a).

5

there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.7
ANALYSIS -- ISSUE 1
OWCP terminated appellant’s wage-loss compensation and medical benefits based on the
June 28, 2012 report of Dr. Summer. It determined that there was a conflict in the medical
opinion between Dr. Heck, appellant’s treating physician, and Dr. Somers, the second opinion
physician, with regard to appellant’s disability status and work capacity. Dr. Somers found that
appellant was capable of returning to modified part-time work while Dr. Heck determined that
appellant was totally disabled. In order to resolve the conflict, OWCP properly referred
appellant, pursuant to section 8123(a) of FECA, to Dr. Summers, a Board-certified orthopedic
surgeon, for an impartial medical examination.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits as Dr. Summers’ June 28, 2012 report is
insufficiently rationalized to support that he had no further residuals or disability due to his
accepted employment injury.
Dr. Summers attributed appellant’s problems to his preexisting degenerative condition
and the left leg atrophy to his history of polio and prior left leg surgery. The Board finds that he
did not provide sufficient medial reasoning in support of his determination that appellant had no
further employment-related residuals or disability.8 While Dr. Summers noted that appellant did
not exhibit objective evidence of the accepted work injuries, he failed to provide an explanation
as to why the accepted work-related injuries have resolved. He did not identify any preexisting
back disease or cite any medical evidence in the file to support his opinion that appellant’s
accepted conditions have resolved. Dr. Summers also fails to provide any objective evidence or
medical rationale as to why the left leg atrophy was the result of polio early in his life and
unrelated to appellant’s work injury. While he concluded that the L4 accepted condition had not
progressed based on MRI scan findings, Dr. Summers failed to specify the MRI scan results he
relied upon or explain the comparison baseline that was used to support his conclusion that no
additional herniation, arthritis or impingement existed. The record reflects that appellant had
exploratory surgery at L5-S1 in 1985 and a hemilaminectomy and discectomy at L4-5 in 1986.
However, Dr. Summers barely acknowledged these procedures and does not offer an opinion as
to whether appellant’s back surgery is related, in whole or in part, to the accepted conditions and,
if related, whether there is any remaining impairment. While he notes that appellant went to an
urologist, he failed to explain whether appellant’s diagnosis is related or unrelated to the
accepted back injury. Dr. Summers further fails to explain why the video surveillance was
dispositive on the questions of maximum medical improvement, ability to work and medical
restrictions. He failed to comment on the various conditions that appellant has and to provide a
well-rationalized opinion on whether such conditions are related to appellant’s work injury and,
7

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

8

See Elaine Sneed, 56 ECAB 373 (2005).

6

if related, whether there is any remaining impairment. Accordingly, Dr. Summers’ opinion that
the accepted conditions have resolved without residuals and that appellant has no remaining
disability is of little probative value. Accordingly, his opinion is insufficient to meet OWCP’s
burden of proof to terminate appellant’s wage-loss compensation and medical benefits.9
In light of the Board’s disposition of this case, the second issue concerning appellant’s
entitlement to continuing compensation for an accepted medical condition after August 30, 2012
is moot. Appellant’s arguments on appeal also will not be addressed.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and medical benefits effective August 30, 2012.
ORDER
IT IS HEREBY ORDERED THAT the August 27, June 20 and March 29, 2013
decisions of the Office of Workers’ Compensation Programs are reversed.
Issued: September 2, 2014
Washington, DC

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

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

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

9

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, New York, NY,
Employer
__________________________________________

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

Docket No. 08-1747
Issued: April 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 12, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 4, 2008 merit decision concerning his entitlement to Office
compensation from September 7, 1992 to June 4, 2000. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant received proper compensation for the period September 7,
1992 to June 4, 2000.
FACTUAL HISTORY
This is the seventh appeal before the Board. In the first appeal,1 the Board issued a
decision on July 23, 1998 which reversed an August 11, 1995 Office decision on the grounds that

1

Docket No. 96-778 (issued July 23, 1998).

it improperly terminated appellant’s compensation because he refused an offer of suitable work.2
The Board determined that the Office failed to establish that the modified special agent position
offered to appellant by the employing establishment was suitable. In the second appeal,3 the
Board issued a decision on May 6, 2002 reversing the Office’s June 2, 2000 decision on the
grounds that it improperly reduced appellant’s compensation effective June 5, 2000 based on his
capacity to earn wages as a retail store manager. In a decision dated November 25, 2003, the
Board set aside the Office’s September 24, 2002 decision and remanded the case for further
development of the evidence.4 The Board found that the Office did not provide adequate
findings and reasoning for its determination regarding the amount of compensation to which
appellant was entitled for periods between September 1992 and June 2000.
In the fourth appeal,5 the Board issued a decision on February 3, 2005 which set aside the
March 9, 2004 Office decision.6 The Board again found that the Office did not provide adequate
findings and reasoning for its determination regarding the amount of compensation to which
appellant was entitled for periods between September 1992 and June 2000. It noted that a proper
calculation of appellant’s compensation initially required the compilation of accurate figures for
his base salary, locality pay, New York City retention pay, administrative uncontrollable
overtime (AUO) pay, Sunday pay, holiday pay and night differential pay. However, the Office
did not provide any description of those amounts it had determined to be accurate and suitable
for inclusion in its calculations.
In a fifth appeal,7 the Board issued a decision on August 10, 2006 which set aside the
December 16, 2005 decision of the Office. The Board again found that the Office did not
provide adequate findings and reasoning for its determination regarding the amount of

2

On December 29, 1987 appellant, then a 30-year-old special agent, sustained employment-related subluxations
at C3-4, T10-11 and L4-5, and cervical, thoracic and lumbar strains. On May 21, 1991 he sustained employmentrelated sciatica, myalgia, myositis, and thoracic and lumbar sprains. Appellant stopped work for various periods and
received disability compensation from the Office. He sustained recurrences of disability on December 20, 1991 and
August 18, 1992, which were accepted as related to the May 21, 1991 employment injury. Beginning July 12, 1997,
appellant began working as a manager in an Athlete’s Foot Shoe Store which he operated. He indicated that he did
not earn any income in this position after December 31, 1998.
3

Docket No. 00-2334 (issued May 6, 2002).

4

Docket No. 03-135 (issued November 25, 2003).

5

Docket No. 04-1042 (issued February 3, 2005).

6

By decision dated March 9, 2004, the Office determined the amount of compensation to which appellant was
entitled between September 1992 and June 2000. It found that it properly calculated adjustments in pay for the
period September 7, 1992 to July 11, 1997, but errors were made in the calculations for the periods July 12, 1997 to
December 31, 1998 and January 1, 1999 to June 4, 2000 and that further adjustments in pay were due to appellant.
Therefore, it issued checks to appellant in the amounts of $4,817.14 and $2,802.68 to account for these errors.
7

Docket No. 06-556 (issued August 10, 2006).

2

compensation to which appellant was entitled.8 In the sixth appeal,9 the Board issued a decision
on February 4, 2008 which set aside the December 14, 2006 decision of the Office.10 The Board
found that the Office properly determined that appellant’s pay rate calculations should be based
on the pay he received effective August 18, 1992, the date of his second recurrence of disability,
and that the Office properly determined that his pay effective August 18, 1992 for pay rate
purposes was $1,481.85.11 However, the Office’s evaluation of the compensation appellant
received between September 1992 and June 2000 was incomplete. The Office needed to apply
the formula derived from Albert Shadrick,12 to determine appellant’s loss of wage-earning
capacity.13 The Board remanded that case to the Office for further development regarding the
amount of compensation appellant was entitled to receive between September 1992 and
June 2000. The facts and the circumstances of the case are set forth in the Board’s prior
decisions and are incorporated herein by reference.
On remand the Office obtained a document from the Social Security Administration
(SSA), entitled “Itemized Statement of Earnings,” which indicated that appellant earned
$18,264.96 of income in 1992 and $9,232.80 of income in 1995 from the employing
establishment and $19,000.00 of income in 1997 and $14,000.00 of income in 1998 from PJSC
Inc. A recurrence of disability form annotated by the employing establishment on September 16,
2002, added to the record on May 23, 2008, noted that appellant stopped working for the
employing establishment on August 18, 1992 and last received pay on September 7, 1992.14
In a June 4, 2008 decision, the Office explained its payment of compensation to appellant
for the period September 7, 1992 to June 4, 2000. Regarding the period September 7, 1992 to
July 11, 1997, he previously received compensation benefits for this period based on a weekly
pay rate of $1,339.52. Appellant received $264,450.55 for this period as documented in a
printout added to the record on March 18, 2002. Appellant’s compensation for the period
8

The Office indicated that it had calculated appellant’s adjusted weekly pay rate for determining pay rates by
using figures derived from his pay on August 18, 1992, the date of his second recurrence of disability. It stated that
appellant’s pay was higher on August 18, 1992 than on December 20, 1991, the date of his first recurrence of
disability.
9

Docket No. 07-562 (issued February 4, 2008).

10

In the December 14, 2006 decision, the Office concluded that the proper figure for appellant’s pay on
August 18, 1992 was $1,481.85 and asserted that it had paid appellant correct amounts of compensation for periods
between September 1992 and June 2000.
11

Although the record contains some references to August 19, 1992 as the date the $1,481.84 pay rate became
effective, the actual date it became effective is August 18, 1992.
12

5 ECAB 376 (1953).

13

In particular, the Board noted that it was unclear how much money appellant earned between September 7,
1992 and June 4, 2000.
14

In an August 5, 1999 letter added to the record on May 23, 2008, the employing establishment indicated that
appellant did not return to work after August 18, 1992 and that he was removed from the employing establishment
rolls on April 25, 1995. The Office indicated that it appeared that the monies received in 1995 represented leave
owed to appellant at the time he was removed from the employing establishment rolls.

3

September 7, 1992 to July 11, 1997 was recalculated using the proper weekly pay rate of
$1,481.84, effective August 18, 1992. The Office found that he should have received
$292,381.64 in compensation for this period. Appellant was issued a supplemental check in the
amount of $27,931.09 on September 6, 2002.15 The Shadrick formula was not applied for the
period September 7, 1992 to July 11, 1997 as appellant had no earnings during this period.16
The Office also explained its payment of compensation to appellant for the period
July 12, 1997 to December 31, 1998. It stated that appellant had a weekly pay rate of $1,481.84
for this period and that he earned $19,000.00 in 1997 and $14,000.00 in 1998 as documented by
the SSA earnings document received on April 1, 2008. The Office concluded that, based on
actual earnings, appellant had a wage-earning capacity of $429.37 per week.17 The current pay
during this period for the job held when injured (GS-13, Step 1) was calculated to be $1,753.08
per week.18 The Office applied the Shadrick formula to calculate appellant’s loss of wageearning capacity for the period July 12, 1997 to December 31, 1998.19 Appellant was entitled to
receive $72,973.00 in compensation for the period July 12, 1997 to December 31, 1998 but
initially had received only $58,173.07 for this period. The Office noted that appellant had
initially received a lesser amount because errors had been made in previous applications of the
Shadrick formula.20 It indicated that these mistakes were discovered in 2002 and 2004 and
supplemental checks were issued to appellant. The Office issued appellant a check in the amount
of $9,982.79 on September 6, 2002 and a $4,817.14 check on March 12, 2004 for a total
supplemental amount of $14,799.93.
Regarding the period January 1, 1999 to June 4, 2000, the Office found that appellant
previously received compensation benefits for this period based on a weekly pay rate of
$1,339.52. Appellant received $86,221.14 for this period. The Office indicated that appellant’s
compensation for the period January 1, 1999 to June 4, 2000 was recalculated using the proper
weekly pay rate of $1,481.84, effective August 18, 1992 and concluded that he should have
15

In performing its calculation, the Office applied consumer price index (CPI) increases and the 75 percent rate
for claimants with qualifying dependents.
16

The Office attached documents memorializing its calculations and its supplemental payments to appellant.

17

In reaching this conclusion, the Office stated, “Your actual weekly earnings were computed as follows. You
earned $19,000.00 (1997) and $14,000.00 (1998). This was documented both by W2 and SSA-581 forms (received
April 1, 2008). $19,000.00 plus $14,000.00 = $33,000.00. $33,000.00 x 7 days/week divided by 538 days (from
July 12, 1997 to December 31, 1998) = $429.37 per week for the period July 12, 1997 to December 31, 1998.” The
record reflects that on July 12, 1997 appellant began working as a manager in an Athlete’s Foot Shoe Store which he
operated.
18

This figure was comprised of the sum of $59,163.00 (base salary), $5,413.41 (locality pay), $9,318.17 (New
York City retention pay); $16,144.10 (AUO pay (base salary plus locality pay times 25 percent), $476.74 (night
differential pay); $399.69 (Sunday pay) and $244.93 (holiday pay) divided by 52 weeks. These amounts were
derived from documents produced in August 2001.
19

The Office applied CPI increases and the 75 percent rate for claimants with qualifying dependents.

20

The Office realized in September 2002 that it had used $1,339.52 for the weekly pay rate rather than the proper
figure of $1,481.84 and realized in March 2004 that it had used $429.37 for appellant’s weekly wage-earning
capacity rather than the proper figure of $355.64.

4

received $92,565.77 in compensation for this period. It issued appellant a supplemental check in
the amount of $6,344.63 on September 6, 2002.21 The Office later discovered that health
insurance premiums should not have been deducted from appellant’s compensation for the period
January 1, 1999 to June 4, 2000 as he did not have health insurance coverage during this period.
Therefore, it issued appellant a supplemental check for $2,802.69, the amount of the premiums,
on March 12, 2004. The Shadrick formula was not applied for the period January 1, 1999 to
June 4, 2000 as appellant had no earnings during this period. The Office concluded that these
calculations showed that appellant was not entitled to any additional compensation for the period
September 7, 1992 to June 4, 2000.
LEGAL PRECEDENT
Section 8105(a) of the Federal Employees’ Compensation Act provides: “If the disability
is total, the United States shall pay the employee during the disability monthly monetary
compensation equal to 66 2/3 percent of his monthly pay, which is known as his basic
compensation for total disability.”22 Section 8101(4) of the Act defines “monthly pay” for
purposes of computing compensation benefits as follows: “[T]he monthly pay at the time of
injury, or the monthly pay at the time disability begins, or the monthly pay at the time
compensable disability recurs, if the recurrence begins more than six months after the injured
employee resumes regular full-time employment with the United States, whichever is
greater....”23
The formula set forth in Shadrick,24 is used to calculate a claimant’s wage-earning
capacity. The calculation involves obtaining figures for adjusted weekly pay rate (per 5 U.S.C.
§ 8101(4)); current rate of pay for the job held when injured, and current actual earnings. The
wage-earning capacity percentage is obtained by dividing current actual earnings by the current
rate of pay for the job held when injured. The wage-earning capacity amount is calculated by
multiplying the current rate of pay for the job held when injured times the wage-earning capacity
percentage. The loss of wage-earning capacity figure is then obtained by subtracting the wageearning capacity amount from the current rate of pay for the job held when injured. Finally, the
compensation rate is obtained by multiplying the loss of wage-earning capacity figure times
either 2/3 (no dependents) or 3/4 (one or more dependents) per 5 U.S.C. §§ 8105 and 8110.
ANALYSIS
In a February 4, 2008 decision, the Board determined that the Office properly determined
that appellant’s pay rate calculations should be based on the pay he received effective August 18,
21

The Office applied CPI increases and the 75 percent rate for claimants with qualifying dependents.

22

5 U.S.C. § 8105(a). Section 8110(b) of the Act provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
23

5 U.S.C. § 8101(4). In an occupational disease claim, the date of injury is the date of last exposure to the
employment factors which caused or aggravated the claimed condition. Patricia K. Cummings, 53 ECAB 623,
626 (2002).
24

See supra note 12.

5

1992, the date of his second recurrence of disability, and that the Office properly determined that
his pay effective that date was $1,481.85.25 The Board further found, however, that the Office’s
evaluation of the correctness of the compensation appellant received between September 7, 1992
and June 4, 2000 was incomplete and that the Office needed to apply the Shadrick formula to
determine appellant’s loss of wage-earning capacity.26 The Board remanded that case to the
Office for further development regarding the amount of compensation appellant was entitled to
receive between September 1992 and June 2000.
The Office obtained additional documentation on remand and issued a June 4, 2008
decision which provided further explanation of how it calculated appellant’s compensation
between September 7, 1992 and June 4, 2000. It concluded that it had already paid appellant all
compensation to which he is entitled for this period. The Board has carefully reviewed the
Office’s explanation of its compensation calculations and payments to appellant for the period
September 7, 1992 and June 4, 2000 as well as the documents presented by the Office to support
these calculations and payments. The Board finds that the Office provided adequate explanation
and documentation for its compensation calculations and payments and that appellant is not
entitled to any additional compensation for the period September 7, 1992 to June 4, 2000.
The Board finds that the Office also provided adequate rationale and documentation to
support its compensation payments for the period September 7, 1992 to July 11, 1997. The
Office noted that appellant previously received compensation benefits for this period based on a
weekly pay rate of $1,339.52. Appellant received $264,450.55 for this period as documented in
a printout added to the record on March 18, 2002. The Office stated that appellant’s
compensation for the period September 7, 1992 to July 11, 1997 was recalculated using the
proper weekly pay rate of $1,481.84, effective August 18, 1992, and that he should have received
$292,381.64 in compensation for this period. The record reflects that appellant was
appropriately issued a supplemental check in the amount of $27,931.09 on September 6, 2002.
The Office properly indicated that the Shadrick formula was not to be applied for the period
September 7, 1992 to July 11, 1997 as appellant had no earnings during this period.27
The Office also paid proper compensation for the period January 1, 1999 to June 4, 2000.
It found that appellant previously received compensation benefits for this period based on a
weekly pay rate of $1,339.52 and he received $86,221.14 for this period. The Office stated that
appellant’s compensation for the period January 1, 1999 to June 4, 2000 was recalculated using
the proper weekly pay rate of $1,481.84. It concluded that he should have received $92,565.77
in compensation for this period. The Office appropriately issued appellant a supplemental check
in the amount of $6,344.63 on September 6, 2002. It later discovered that health insurance
premiums should not have been deducted from appellant’s compensation for the period
January 1, 1999 to June 4, 2000 as he did not have health insurance coverage during this period.
The Office appropriately issued appellant a supplemental check for $2,802.69 (the amount of the
25

See supra note 23 and accompanying text.

26

See supra note 24 and accompanying text. In particular, the Board noted that it was unclear how much money
appellant earned between September 7, 1992 and June 4, 2000.
27

The Office attached documents memorializing its calculations and its supplemental payments to appellant. It
applied the 75 percent rate for claimants with qualifying dependents.

6

premiums) on March 12, 2004. It found that the Shadrick formula was not to be applied for the
period January 1, 1999 to June 4, 2000 as appellant had no earnings during this period.
The Board finds that Office provided adequate rationale and documentation to support its
compensation payments for the period July 12, 1997 to December 31, 1998. The Office was
correct in indicating that the Shadrick formula should be applied for this period as appellant had
earnings between July 12, 1997 and December 31, 1998. It correctly noted that appellant had a
weekly pay rate of $1,481.84 for this period and that the current pay during this period for the
job he held when injured (GS-13, Step 1) was $1,753.08 per week.28 The Office properly
concluded that, based on actual earnings, appellant had a wage-earning capacity of $429.37 per
week during this period.29 It also properly calculated other aspects of the Shadrick formula
which were derived from these above-described figures, including the wage-earning capacity
percentage, wage-earning capacity amount and the wage-earning capacity loss.30 The Office
properly indicated that it had corrected prior errors and issued appropriate supplemental checks
such that appellant received $72,973.00, the entire amount to which he was entitled for the
period July 12, 1997 to December 31, 1998.31 On appeal, appellant argued that he was entitled
to a greater amount of compensation but he did not provide adequate support for this argument.32
CONCLUSION
The Board finds that appellant received proper compensation for the period September 7,
1992 to June 4, 2000.

28

The Office properly applied cost-of-living increases in making this calculation.

29

In reaching this conclusion, the Office stated, “Your actual weekly earnings were computed as follows. You
earned $19,000.00 (1997) and $14,000.00 (1998). This was documented both by W2 and SSA-581 forms (received
April 1, 2008). $19,000.00 plus $14,000.00 = $33,000.00. $33,000.00 x 7 days/week divided by 538 days (from
July 12, 1997 to December 31, 1998) = $429.37 per week for the period July 12, 1997 to December 31, 1998.”
There is no indication that appellant’s actual wages between July 12, 1997 and December 31, 1998 did not fairly and
reasonably represent his wage-earning capacity. See 5 U.S.C. § 8115(a); Floyd A. Gervais, 40 ECAB 1045,
1048 (1989).
30

The Office applied the 75 percent rate for claimants with qualifying dependents.

31

The Office realized in September 2002 that it had used $1,339.52 for the weekly pay rate rather than the proper
figure of $1,481.84 and realized in March 2004 that it had used $429.37 for appellant’s weekly wage-earning
capacity rather than the proper figure of $355.64. To rectify these errors, it issued appellant a check in the amount
of $9,982.79 on September 6, 2002 and a $4,817.14 check on March 12, 2004.
32

Appellant argued that his earnings during the relevant period were not as high as reported by the Office, but he
did not provide adequate support for this argument. The Board notes that most of appellant’s calculations fail to
acknowledge that his compensation must be paid at a 75 percent rate (for a claimant with at least one dependent).
See supra note 22 and accompanying text.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 4, 2008 decision is affirmed.
Issued: April 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2065
Issued: September 2, 2008

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 August 8, 2007 appellant filed a timely appeal from an August 23, 2006 decision of
an Office of Workers’ Compensation Programs’ hearing representative who 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 merits of the appeal.
ISSUE
The issue is whether appellant sustained an emotional condition while in the performance
of duty.
FACTUAL HISTORY
On June 10, 2005 appellant, then a 53-year-old sales associate, filed a claim alleging that
she sustained stress due to her federal employment. She noted that she first realized her
condition was due to her employment on January 23, 2004 when she met with a therapist. The
record reflects that appellant stopped work on May 13, 2005. Her supervisor advised that she
had previously complained of family-related stress and controverted the claim.

On June 28, 2005 the Office requested that appellant submit additional information in
support of her claim. It requested that she provide a description of those factors in her
employment giving rise to her condition and a medical report from an attending physician
providing an opinion on causal relationship.
In response, appellant advised that she had been under continual stress as of January 2004
due to intimidation in front of customers and coworkers. She stated that some coworkers made
comments relating to her emotional stability which hindered her ability to receive fair treatment
by her supervisors. Appellant alleged that, after returning to work following medical leave, she
was verbally harassed by an interim manager she had never met.
In a medical note dated June 29, 2005, Dr. Debora L. Ferguson, an attending psychiatrist,
listed nine treatment dates commencing February 21, 2005. She advised that appellant felt
stress, overwhelmed and became tearful. Dr. Ferguson diagnosed an adjustment disorder
(mixed), stating appellant’s condition was exacerbated by work conditions due to a lack of
cooperation with supervision and human resources.
On July 15, 2005 Myra Smith, appellant’s supervisor, responded to the claim advising
that appellant had confided that she was stressed due to caring for her husband and a
granddaughter. She noted that in April 2004, a conflict arose between appellant and a coworker.
On May 13, 2005 a meeting was held with appellant to discuss her whereabouts on that day.
Ms. Smith noted that appellant became ill, stating that she asked to go home. Appellant had just
returned to work after having been off for approximately 30 days. Ms. Smith stated that there
were no staffing shortages and no extra demands were made of appellant. She noted that
appellant was supervised in a unit headed by a T6 but felt she did not have to comply with the T6
even after being given instructions by Ms. Smith. Appellant had exhausted all sick and annual
leave and was currently on leave without pay.
In a September 21, 2005 decision, the Office denied appellant’s claim. It found that she
had not established any compensable work factors.
On October 15, 2005 appellant requested an oral hearing which has held on
June 20, 2006. At the hearing, she alleged interactions with her supervisor and coworkers which
constituted harassment. Appellant became upset when Ms. Smith wrongly insisted that she had
given appellant an order by telephone on March 17, 2004 which she had not followed. She
alleged that Ms. Smith only acknowledged that she had not talked to appellant on March 17,
2004 after verifying it with appellant’s coworker. Appellant complained about her treatment by
Joyce Noland, a T6 coworker, but that was done. She related that Ms. Noland made the
comment that appellant “seek some help.” Appellant alleged that, when there were errors in
counting the money from the retail stock at the end of the day, “[r]ather than admit that the
money is wrong, then you know, making insulting remarks.” She discussed her problems
concerning Ms. Noland with Ms. Smith, who allegedly responded, “well, why don’t you just kill
each other.”
When appellant returned to work on May 11, 2004, Ms. Noland informed her that she had
to attend a retraining class on the May 13, 2004. However, when she went to attend the class,
she discovered no class was being held. That same day, Ms. Smith and Tory Wilson, an interim

2

manager, discussed appellant’s attendance with her in her cubicle and not in a more private area.
Appellant felt harassed because she had just returned to work and Ms. Wilson “just started
talking about my attendance.” She alleged that on or about December 20, 2005 Ms. Smith
directed her to go back to work while she was on official break and in the ladies room.
Appellant stated that there had been an investigation during 2004 regarding a conflict she had
with another employee. Allegedly, Ms. Nolan accused appellant of hitting her with a chair in her
cubicle. Appellant stated that Ms. Noland had commented that she needed to get help and had
creating chaos in the workplace. She alleged that Ms. Noland ranted at her while she was trying
to explain credit card policy to a customer. Appellant testified that she felt overworked and
stressed as the office was understaffed.
In a July 17, 2006 note submitted after the hearing, Dr. Ferguson stated that appellant had
experienced a lack of support from human resources and her supervisors. She noted that, upon
appellant’s return to work, on the second day she was told to go to a retraining course that did
not exist. This lead to appellant taking additional medical leave for treatment of anxiety and
depression related to an unprofessional work environment.
In an August 23, 2006 decision, an Office hearing representative affirmed the
September 21, 2005 denial of appellant’s claim. He found that appellant did not submit
sufficient evidence to support her allegations of harassment or administrative error.
LEGAL PRECEDENT
To establish that she sustained an emotional condition in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that she has an emotional
or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to her condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to her
emotional condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In Lillian Cutler,2 the Board explained that
there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under the Federal Employees’ Compensation Act.3 There are
situations where an injury or illness has some connection with the employment but nevertheless
does not come within coverage under the Act.4 When an employee experiences emotional stress
in carrying out 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 an emotional reaction to a special assignment or other requirement
1

Leslie C. Moore, 52 ECAB 132 (2000).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Robert W. Johns, 51 ECAB 137 (1999).

3

imposed by the employing establishment or by the nature of the work.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 her frustration from not being permitted to work in a particular environment or to
hold a particular position.6
In emotional condition claims, 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
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. 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
As a general rule, an employee’s emotional reaction to administrative or personnel
actions taken by the employing establishment is not covered because such matters pertain to
procedures and requirements of the employer and are not directly related to the work required of
the employee.8 An administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment.9
An employee’s frustration from not being permitted to work in a particular environment or to
hold a particular position is not compensable.10 Similarly, an employee’s dissatisfaction with
perceived poor management is not compensable under the Act.11
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Mere perceptions of harassment or discrimination are not
compensable under the Act. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. Rather, the issue is
whether the claimant under the Act has submitted sufficient evidence to establish a factual basis
for the claim by supporting her allegations with probative and reliable evidence.12

5

Lillian Cutler, supra note 2.

6

Kim Nguyen, 53 ECAB 127 (2001).

7

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

8

Felix Flecha, 52 ECAB 268 (2001).

9

Kim Nguyen, supra note 6.

10

Barbara J. Latham, 53 ECAB 316 (2002).

11

Robert Breeden, 57 ECAB 622 (2006).

12

James E. Norris, 52 ECAB 93 (2000).

4

ANALYSIS
Appellant alleged an emotional condition due to various factors arising in her
employment as a sales associate. Primarily, she alleged instances of harassment and unfair
treatment by her coworkers and supervisors. The Office denied appellant’s claim, finding that
she did not submit sufficient evidence to support her allegations as factual. The Board must
review her allegations to determine whether they are supported by the evidence of record.
Appellant made general allegations of being overworked as her office was understaffed.
However, she did not provide sufficient details pertaining to the nature of the work she
performed or of the occasions when her office was understaffed. Ms. Smith responded to
appellant’s allegations, noting that there were no staffing shortages at the employing
establishment and that no extra demands had been placed on appellant. The evidence of record
does not establish any compensable factor of employment under Cutler.
With her claim, appellant stated generally that he had been under continual stress since
January 2004 due to intimidation by her coworkers and customers. She indicated that coworkers
had made comments which constituted verbal abuse, but only identified a comment by
Ms. Noland that appellant should “seek help” and alleged Ms. Smith had responded to her
complaints concerning Ms. Noland by stating “why don’t you just kill each other.” Other than
attributing these comments to her supervisor and coworker, appellant did not submit sufficient
details as to the identity of any other coworkers making insulting remarks as alleged or when
such instances took place. The Board has recognized the compensability of verbal abuse when
sufficiently detailed by the claimant and supported by the evidence of record. However, this
does not imply that every statement uttered in the workplace will give rise to compensability
under the Act.13 The evidence submitted by appellant is not sufficient to establish that the
comments she attributed to Ms. Smith or Ms. Noland were, in fact, made. Appellant alleged that
when accounting errors were made from the retail stock, insulting remarks were made. Without
an adequate description of the time and place of such comments or supporting evidence such as
witness statements, the evidence of record does not support a finding of verbal abuse. Similarly,
she has not established that Ms. Smith gave erroneous directions to her in a March 17, 2007
telephone call.
Appellant noted that she was off work from March 24 to May 12, 2004 and alleged that,
upon her return to work, she was informed by Ms. Noland to attend a retraining course that did
not take place. Later that day, Ms. Wilson and Ms. Smith had a discussion with appellant
concerning her attendance at her cubicle, which she felt was too public. She also contended that
Ms. Noland had hassled her while appellant was working with customers. Appellant stated that
she did not feel that she needed to be retrained and that her supervisors were harassing her for
recent time off work. The Board has held that an employee’s unsubstantiated allegations of
harassment or discrimination are not determinative of whether such incidents occurred. A
claimant must substantiate a factual basis for her allegations with probative and reliable
evidence.14 Ms. Smith responded to appellant’s allegation, noting that all employees had
13

Peter D. Butt, Jr., 56 ECAB 117 (2004).

14

See Ronald K. Jablanski, 56 ECAB 616 (2005).

5

received appropriate training by their managers and supervisors. Issues such as training, the
assignment of work or the discussion of personnel matters are administrative functions of the
employer unrelated to the regular or specially assigned duties of the employee. An employee’s
emotional reaction to an administrative or personnel action is not covered absent evidence of
error or abuse on the part of her supervisor.15 Appellant has not submitted sufficient evidence to
establish that her managers or supervisors erred or were abusive towards her in any
administrative actions. As noted, her allegations in writing and in testimony at the hearing lack a
detailed description of the actions taken by her supervisors which would support a finding of
error or abuse. The fact that Ms. Smith may have directed appellant to return to work on
December 20, 2005 has not been demonstrated as constituting abuse. In providing instructions to
an employee, a supervisor is performing an administrative function. The Board has held that an
employee’s mere disagreement with or dislike of the actions taken by a supervisor or manager
will not be found compensable absent evidence of record establishing error or abuse.16 Again,
no statements from any witnesses were submitted to substantiate appellant’s allegations
concerning harassment at work as factual.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition arising out of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 2, 2008
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
15

See David C. Lindsey, Jr., 56 ECAB 263 (2005).

16

See Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

6