United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Miami, FL, Employer
__________________________________________

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Appearances:
John Cavicchi, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 06-1145,
06-1184 & 06-1637
Issued: March 5, 2007

Case Submitted on the Record

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

JURISDICTION
On April 24, 2006 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated April 10, 2006 which was docketed as 06-1184; on
April 25, 2006 he filed a timely appeal from an Office decision dated April 14, 2006, docketed as
06-1145; and on July 12, 2006 he filed a timely appeal from Office decisions dated October 24,

2005 and June 29, 2006, docketed as 06-1637.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claims.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an emotional condition in the performance of duty causally related to factors of his
employment for the period April 5, 2002 through July 28, 2003; (2) whether he sustained an
emotional condition in the performance of duty causally related to factors of his employment for
the period July 29 through December 16, 2003; and (3) whether he met his burden of proof to
establish that he sustained an emotional condition in the performance of duty causally related to
factors of his employment for the period December 17, 2003 through July 23, 2005.
FACTUAL HISTORY -- DOCKET NO. 06-1184 -- ISSUE 1
On August 18, 2003 appellant, then a then a 53-year-old senior customs inspector
working a reduced schedule,3 filed a Form CA-2, occupational disease claim, alleging that he
sustained employment-related stress. He stopped work on July 28, 2003. In an attached
statement, appellant noted that he was fearful of two coworkers, Maria Tavel and Alice
O’Donnell, who talked back to him. He alleged that Diane Georges, his supervisor,
inappropriately accepted food from vendors who received special treatment and that he was
inappropriately counseled by Ms. Georges on July 23, 2003. Ms. Georges told appellant that she
had never had trouble before his arrival and that he was transferred because of his lawsuit.
Appellant also referenced a shooting that occurred at the employing establishment in 1999,4
which he alleged showed that Ms. Georges had previously had trouble. On July 24, 2003 he
called internal affairs to report fears for his physical safety because of Ms. O’Donnell’s open
hostility.
Appellant submitted copies of a request for leave under the Family and Medical Leave
Act (FMLA) for the period July 28 to October 13, 2003, a letter from John Casale, chief, trade
1

Docket No. 06-1184 is in reference to Office file number 062095290; Docket No. 06-1145 is in reference to file
number 062110183; and Docket No. 06-1637 is in reference to file number 062147919. File numbers 062095290
and 062110183 were combined by the Office on April 17, 2006. By order dated August 18, 2006, the Board granted
appellant’s request to consolidate these appeals. Appellant also has two claims for back injuries, adjudicated under
Office file numbers 062067229 and 062068673.
2

Appellant had a previous case before the Board. By decision dated January 12, 2005, the Board affirmed Office
decisions dated January 30 and May 25, 2004 which denied appellant’s claim that he sustained an emotional
condition through April 4, 2002. The Board found that appellant established a compensable factor, that his
supervisor committed administrative error by telephoning his mother’s physician, but determined that the medical
evidence of record did not contain a rationalized opinion attributing appellant’s condition to this factor. The law and
the facts of the previous Board decision are incorporated herein by reference. Docket No. 04-1591 (issued
January 12, 2005).
3

The record indicates that for nonemployment-related health reasons appellant worked a flexible schedule of 32
hours per week.
4

This was concluded to be a suicide.

2

operations, Miami Seaport, advising appellant that he needed to submit additional medical
evidence to support this leave request and materials regarding the 1999 shooting.
In a July 28, 2003 report, Dr. Daniel R. Collins, a psychiatrist, noted that appellant had
been under his care since April 2002. He described a very oppressive workplace and advised
that appellant’s symptoms had worsened and that he should stop work. In an FMLA form report,
Dr. Collins reiterated that appellant had been incapacitated since July 28, 2003. In an attending
physician’s report dated August 21, 2003, he diagnosed adjustment disorder with anxiety and
again found that appellant could not work. Dr. Collins checked the “yes” box, indicating that the
diagnosis was employment related, stating “exacerbation of symptoms followed his experiencing
specific upsetting and very stressful situations [and] events at work.” On August 29, 2003 he
advised that appellant would be totally disabled for three months.
Appellant returned to work on November 3, 2003. By letters dated November 6, 2003,
the Office requested that he furnish additional information and that the employing establishment
respond to his allegations. On November 15, 2003 appellant reported that his problems at work
began years previously when he first applied for FMLA.5 He complained about Jose Ramirez,
the port director, described the 1999 shooting and stated that on November 10, 2003 Joseph
Ward Cox, a coworker, inappropriately gave him instructions. Appellant contended that he had
been inappropriately denied a transfer to Nassau and complained that many of his coworkers did
not know what they were doing. He generally alleged that his dental problems were caused by
employment-related stress.6
By letter dated December 4, 2003, Mr. Ramirez responded to appellant’s allegations. He
noted that Ms. Georges had been appellant’s supervisor for the past nine months. Mr. Ramirez
opined that appellant’s fears regarding Ms. Tavel and Ms. O’Donnell were unfounded because
both individuals were responsible employees and that, when appellant complained that customers
were inappropriately bringing in food, this was immediately addressed. He explained that
inspectors have discretion regarding how to process transactions and that there was no evidence
of favoritism. Appellant was transferred from the Miami Seaport to the Miami Free Trade Zone
(FTZ) in April 2003 to assist in managing the workload and to provide proper service to the trade
community. He was accommodated for his nonemployment-related health condition and since
1999 his FMLA requests had been granted. Mr. Ramirez explained that appellant was initially
assigned to a special project which was completed with no problem and that, when he
complained about a new assignment, he was permitted to process in-bonds at his request. He
stated that appellant’s work was initially capably performed but that his behavior became
disruptive, noting that appellant would initiate altercations with the public and coworkers when
his supervisor was absent. Appellant’s complaints were mostly directed to female coworkers and
that complaints were filed against him because he refused to process customers’ papers. When
this was discussed at a meeting, appellant left work. Mr. Ramirez concluded that appellant
continually worked contrary to established procedures and opined that his stress was selfgenerated.

5

See Docket No. 04-1591 (issued January 12, 2005).

6

Appellant also noted that he had filed a claim for a back injury.

3

In a December 14, 2003 report, Dr. Collins reported a history of a “pattern of
punishment” at the employing establishment. He diagnosed an anxiety disorder, stating that
appellant’s “obsessing got worse and anger continued to build” due to “perceived injustices.”
Dr. Collins advised that appellant had no emotional problems “until a series of very upsetting
events at work began to occur a few years ago,” continuing that appellant’s anger and anxiety
continued to increase to the point that appellant feared an attempt was going to be made on his
life. He concluded that appellant’s mental illness had a direct causal relationship to the “pattern
of harassment” at work.
By decision dated August 16, 2004, the Office denied the claim, finding that appellant
failed to establish a compensable factor of employment. On August 30, 2004 he requested a
hearing and on October 4, 2004 submitted subpoena requests for Mr. Casale, Mr. Ramirez,
Ms. Georges, Suzanne Gelber, Gerry O’Neill, John Breslin, Barbara Evans and Wilfredo Lopez.
In an undated decision, an Office hearing representative denied appellant’s subpoena requests.
At the hearing, held on March 21, 2005, appellant testified that since 1998 he had worked
part time because of kidney disease. He stated that he did not want to be transferred to the FTZ
in April 2003 and had complained to internal affairs that customers were bringing in food. In
July 2003, appellant took FMLA because of the 1999 shooting and did not return to work until
November 2003. He related that Mr. Cox berated him in front of customers on November 10,
2003 and that Ms. Georges inappropriately accused him of being disruptive.
Appellant submitted evidence including a police report regarding the 1999 shooting and
email correspondence between appellant and Ms. Georges dated July 23, 2003 regarding his
referral to the Employee Assistance Program (EAP). In a January 21, 2004 statement prepared
for appellant’s Equal Employment Opportunity (EEO) Commission claim, Ms. Georges related
that she had been appellant’s supervisor since April 2003. She described a meeting with
appellant held on July 23, 2003 in which she discussed an email complaint made against him by
a customer, noting that he became loud, hostile and accusatory. Ms. Georges urged him to call
EAP and told him that she would initiate the process. She stated that she had never had major
problems with employees until appellant’s arrival and that customers had complained about his
unprofessional attitude. Ms. Georges noted that inspectors were given discretion regarding the
processing of transactions and opined that appellant had no reason to be fearful of
Ms. O’Donnell or Ms. Tavel. She also related that Mr. Cox determined that appellant was
inappropriately processing a shipment prohibited at the FTZ and told appellant that the customer
would have to be sent to the Port of Miami. Ms. Georges investigated appellant’s complaints
about Ms. Tavel and Ms. O’Donnell and concluded that they were unfounded advising that
appellant inappropriately monitored other employee’s activities and was rude and disrespectful.
In an EEO Commission hearing testimony dated November 30, 2004, Ms. Georges
described appellant’s complaint regarding customers bringing food to the work premises and her
response. In an undated report, Dr. Collins noted that appellant’s report of various incidents that

4

occurred at work which he opined demonstrated a severe pattern of harassment. Appellant also
submitted an internet article dated December 15, 2004.7
By decision dated June 16, 2005, an Office hearing representative affirmed the
August 16, 2004 decision in Office file number 062095290. She advised the Office that, upon
the return of the case records, appellant’s claims should be doubled for administrative purposes.
On June 23, 2005 appellant, through counsel, requested reconsideration.8 In an August 19, 2005
decision, solely regarding file number 062095290, the Office denied modification of the June 16,
2005 decision. On August 30, 2005 appellant filed an appeal with the Board. By order dated
March 21, 2006, the Board remanded the case to the Office for reconstruction of the case record
to include Office file number 062110183, to be followed by de novo decisions on the merits of
the claims under both file numbers.9 Following remand, on April 10, 2006 the Office reissued
the August 19, 2005 decision, and on April 17, 2006 doubled file numbers 062095290 and
162110183, with the former being the master case.
FACTUAL HISTORY -- DOCKET NO. 06-1145 -- ISSUE 2
On November 20, 2003 appellant filed an occupational disease claim, alleging stress
caused by a continued policy of harassment and retaliation by management. On December 5,
2003 he filed a second occupational disease claim, alleging that on that day Ms. Georges
inappropriately called him at home and requested medical documentation for sick leave. In an
attached statement, appellant noted that he had been on sick leave for three days, and it was
employing establishment policy that he did not need a doctor’s certification until the fourth day.
He contended that the policies of Ms. Georges and her staff led to him being assaulted, that he
had been transferred in retaliation for an EEO claim, and that he was the subject of verbal abuse
and a hostile work environment. Appellant again alluded to the suspicious death in 1999.
Appellant filed a third occupational disease claim on December 16, 2003, alleging that
his stress was aggravated by management. In an attached statement, he alleged that on
November 26, 2003 he was assaulted by a customer, that coworkers did nothing and that the
incident was inappropriately investigated by Ms. Georges. Appellant further alleged that on or
about December 1, 2003 he asked a customer for identification because he perceived that she
received preferential treatment. He filed incident reports regarding the assault and the
preferential treatment and that Ms. Georges took offense with this and suspended his authority to
send incident reports.
In a January 21, 2004 statement, Ms. Georges noted that a counseling session was held on
November 20, 2003 regarding a written complaint made against appellant by a coworker. In her
7

Appellant submitted a letter to Ms. Georges dated December 2, 2003 in Spanish, evidence related to his other
claims which will be discussed below, evidence pertaining to his request for a transfer in 1998, and pleadings
submitted in his EEO claim. In its January 12, 2005 decision, the Board determined that the denial of his requests
for a transfer prior to April 4, 2002 was proper administrative functions of the employing establishment. Supra
note 2.
8

He again submitted evidence regarding a 1998 request for a transfer. Supra note 6.

9

Docket No. 05-1887 (issued March 21, 2006).

5

EEO Commission hearing testimony on November 30, 2004, she explained that she was told by
Mr. Breslin in employee relations to call appellant for medical documentation and that, upon
learning that this information was incorrect, she apologized to appellant.
By letter dated April 23, 2004, the Office informed appellant of the evidence needed to
develop his claims. In an April 26, 2004 response, he stated that he had previously answered all
questions and wanted the claims consolidated.
In a September 15, 2004 decision, the Office denied the claim finding that appellant
submitted no evidence to show that the incidents occurred as alleged and had submitted no
medical evidence to show that he had a diagnosed condition. On September 20, 2004 appellant
requested a hearing and on November 26, 2004 submitted subpoena requests. As noted, an
Office hearing representative denied appellant’s subpoena requests.
At the hearing, held on March 21, 2005, appellant testified that, in late November 2003,
over a period of several days he asked a customer several times to move and that at one point she
jumped on a trash can, then lunged at him, hitting him and breaking his glasses. The customer
was thereafter arrested. Appellant testified that he was inappropriately called at home for
medical documentation and that Ms. Georges solicited complaints against him and accused him
of processing forged documents.
Appellant submitted a police report dated February 17, 2004. It described the
November 27, 2003 incident, noting that, when he ordered his assailant off a garbage can, she
jumped down and punched him on the chest, breaking his sunglasses. Appellant was not injured.
In an EEO statement dated March 18, 2004, Mr. Breslin, a human resource specialist at the
employing establishment, advised that in December 2003 he had either provided incorrect
information to Ms. Georges or she had misinterpreted what he stated regarding the medical
documentation appellant would need, noting that the contract stipulates that documentation is
needed after three days.
By decision dated June 16, 2005, an Office hearing representative affirmed the August 16
and September 15, 2004 decisions. Thereafter appellant resubmitted the undated report in which
Dr. Collins noted appellant’s report of various incidents that occurred at work, specifically
describing the assault when appellant’s sunglasses were broken. Dr. Collins concluded that these
events “exhibit a severe pattern of harassment at work, which is condoned and even encouraged
by his supervisors. The work-related harassment is so severe, in my expert opinion, it has
resulted in a direct and proximate cause of the worsening of [appellant’s] emotional and
psychiatric conditions.”
In a January 26, 2004 statement, Mr. Cox, a coworker, noted that he had occasionally
worked with appellant during the past 10 to 15 years. He stated that for several years he had
been designated the lead inspector in the supervisor’s absence. On November 10, 2003 Mr. Cox
observed appellant inappropriately discussing a personal shipment clearance with a customer,
noting that this was not done at the FTZ. He stated that he was neither abusive nor arrogant but
that appellant became angry, raised his voice and ordered Mr. Cox from his cubicle. Mr. Cox
stated that he apologized to the customer and explained that she should have been referred to the
seaport.

6

On September 2, 2005 appellant filed an appeal with the Board. As noted, the Board
remanded the case to the Office for reconstruction of the case record.10 Following remand, by
decision dated April 14, 2006, the Office found that appellant had not established fact of injury.
On April 17, 2006 it doubled file numbers 062095290 and 162110183, with the former being the
master case.
FACTUAL HISTORY -- DOCKET NO. 06-1637 -- ISSUE 3
On July 23, 2005 appellant submitted an occupational disease claim and stopped work
that day. On July 22, 2005 Dr. Collins advised that appellant was totally disabled. He
resubmitted the undated report from Dr. Collins who reported a history that on February 4, 2004
appellant was told not to leave his cubicle and that on November 17, 2004 he was accused of
forging documents. By letter dated September 6, 2005, the Office informed appellant of the
information needed to develop this claim and requested that the employing establishment
respond.
Appellant alleged that Mr. Ramirez continued to harass him, that false sexual harassment
charges had been placed again him and that he had been demoted from a GS-11 to a GS-3 and
ordered to deliver mail. On July 27, 2005 Mr. Ramirez approved appellant’s FMLA request for
the period July 21 through October 14, 2005; annual leave was approved for October 17 through
28, 2005 and sick leave for October 31, 2005.
By decision dated October 24, 2005, the Office denied the claim on the grounds that
appellant had not established a compensable factor. On April 3, 2006, through counsel, appellant
requested reconsideration, alleging that Ms. Georges falsely accused him and solicited
complaints about him, that the employing establishment refused to transfer him, that he was
falsely imprisoned, that offensive notes were left at his workspace, that he was falsely accused of
sexual harassment, that he was assaulted at work and that his coworkers expressed joy when he
was transferred. Appellant generally alleged that he worked in a hostile environment and that
Mr. Ramirez lacked credibility.
Appellant submitted a separation clearance with an attached statement dated November 1,
2005 in which he alleged that he was being forced to retire, stating that he had been continually
harassed by management. He also submitted a February 9, 2005 report of investigation
concerning Ms. O’Donnell’s complaint of sexual harassment filed against him which noted that
his supervisor, Mr. Lopez, had scheduled a meeting to discuss the allegations. In statements
dated July 15 and August 9, 2005 prepared for appellant’s EEO claim, Mr. Lopez noted that
from July to December 2004 he was appellant’s supervisor. He stated that he told appellant that
his transfer request was denied in December 2004 because of a pending investigation of
misconduct and not because of his EEO complaint. Mr. Lopez described a difference of opinion
between appellant and Mr. Cox at a meeting in February 2005 and asked for EEO mediation
regarding this incident and appellant’s additional complaints regarding Mr. Cox. He had no
knowledge of any solicitation of complaints against appellant and advised that appellant was
given a letter of warning on December 21, 2004 and that Ms. O’Donnell’s EEO complaint
10

Id.

7

against appellant was pending. In excerpts of Mr. Lopez’s EEO trial testimony on November 30,
2004, he stated that he was told by Mr. Casale that appellant’s 2003 request to transfer was not
granted because appellant was not going to be rewarded for his disruptive behavior.
In correspondence dated July 13 and 18, 2005, Barbara J. Evans, acting union president,
requested information from Greta Campos, assistant port director, regarding appellant’s recent
reassignment. In a July 20, 2005 affidavit, she alleged that, while appellant’s job classification
and pay had not changed, his reassigned duties were demeaning and he had not received proper
notice of the reassignment. Ms. Evans also stated that the fact that he was confined was illegal
and noted that this order was immediately rescinded. She further noted that she was told by a
FTZ customer that Ms. Georges asked if she had any complaints about appellant.
In a July 19, 2005 affidavit, Mr. Cox advised that both Ms. Georges and Mr. Lopez were
very even-handed supervisors who did not harass appellant. He opined that, for the past several
years, appellant had been a troublemaker and management had been too lenient with him.
Mr. Cox was not aware that Ms. Georges ever solicited complaints about appellant but knew that
complaints had been made about him and described a discussion he had with appellant on
April 7, 2004 regarding a door being left open. He noted that his relationship with appellant had
never been good and, although he knew that notes were found in appellant’s cubicle, did not
know who put them there. Regarding the February 2005 staff meeting, Mr. Cox voiced his
opinion that it was not appropriate for a part-time employee to review a full-time employee’s
work but was not derogatory. He stated that no one in management revealed appellant’s EEO
findings to him.
In a July 29, 2005 affidavit, Ms. O’Donnell noted that she had been a coworker with the
same supervisors since appellant started to work at the FTZ. She opined that appellant was given
preferential treatment, and that Ms. Georges did not solicit complaints against him. In 2003
Ms. O’Donnell wrote about an incident where she heard appellant yelling at Ms. Georges. In
November 2004, she filed a complaint about appellant’s disruptive behavior which was
witnessed by at least two coworkers. Ms. O’Donnell also stated that she received a letter of
reprimand for telling appellant to “f*** off” in 2004. She did not know who placed a note in
appellant’s cubicle and was unaware that a second note was found. Ms. O’Donnell did not find
Mr. Cox’s comments during the February 2005 meeting to be derogatory and was not told of
appellant’s EEO findings. She stated that appellant was loud and yells all day long.
Ms. O’Donnell stated that she was not encouraged to file a complaint against appellant and
concluded that it was appellant who created a hostile work environment due to his disruptive
behavior.
Ms. Georges provided an August 15, 2005 affidavit in which she stated that she
supervised appellant from April 2003 to August 2004 and had been named in numerous EEO
complaints filed by him. She was unaware of any reprisal for his EEO activity in denying
transfer requests in 2004 or 2005, noting that three employees had transferred during this period
but that this was at the director’s discretion. Ms. Georges advised that she tried to be fair and
impartial with appellant and that he was given a letter of reprimand for his unprofessional,
disrespectful and unwarranted behavior towards her and Mr. Cox. The letter of reprimand was
not initiated by her but by employee relations after an investigation and that she only shared
appellant’s EEO findings with Mr. Lopez, as he became appellant’s supervisor. Ms. Georges

8

was not a witness to the April 7, 2004 incident between appellant and Mr. Cox but advised
Mr. Cox not to speak to appellant. She held meetings regarding the notes placed in appellant’s
cubicle and did not know who placed them there. Ms. Georges advised that a customer had
complained that transactions were being processed with forged signatures. She misread the
employing establishment’s computer tracking screen and directed the complaint to appellant in
error. Upon realizing her mistake, Ms. Georges notified Mr. Lopez, appellant’s supervisor. In
excerpts from her November 29, 2004 trial testimony, she testified that she was not present at the
time of the assault and again explained the circumstances surrounding the notes found in
appellant’s cubicle noting appellant’s complaint about a flyer that had been posted on his bulletin
board.11 Ms. Georges had a meeting saying such actions would not be tolerated and held another
meeting after a second incident. At the second meeting, other employees voiced their belief that
appellant had placed the notices himself. Appellant also resubmitted the FMLA request form
from Dr. Collins, a copy of the medical report which was now dated March 19, 2005 and an
unsigned affidavit, from Mark Read.
By decision dated June 29, 2006, the Office found that appellant had not established that
he sustained an emotional condition in the performance of duty.
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his emotional condition.12 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.13
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,14 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.15
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.16 When an employee experiences
11

This was described as a notice that Wendy’s was hiring.

12

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

13

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

14

28 ECAB 125 (1976).

15

5 U.S.C. §§ 8101-8193.

16

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

9

emotional stress in carrying out his employment duties and the medical evidence establishes that
the disability resulted from his emotional reaction to such situation, the disability is generally
regarded as due to an injury arising out of and in the course of employment. This is true when
the employee’s disability results from his emotional reaction to a special assignment or other
requirement imposed by the employing establishment or by the nature of his work.17
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.18 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.19
For harassment or discrimination to give rise to a compensable disability, 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. A claimant must establish a factual basis
for his or her allegations with probative and reliable evidence. A claimant must establish a
factual basis for his or her allegations with probative and reliable evidence20
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.21 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.22 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the

17

Lillian Cutler, supra note 14.

18

See Dennis J. Balogh, supra note 16.

19

Id.

20

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

21

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

22

Leslie C. Moore, supra note 12; Gary L. Fowler, 45 ECAB 365 (1994).

10

disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.23
ANALYSIS -- ISSUES 1 & 2
Regarding the first two issues in this case, appellant attributed his emotional condition to
a shooting that occurred at the employing establishment in 1999, his fear of two female
employees, that customers were inappropriately allowed to bring food to the workplace and were
then given preferential treatment. He alleged inappropriate counseling by his supervisor,
Ms. Georges, who also inappropriately called him at home for medical documentation.
Appellant described an improper transfer to the FTZ and that his requests for reassignment were
improperly denied. He was assaulted by a customer at the employing establishment on
November 27, 2003 and alleged a general pattern of harassment by management.
As a general rule, a claimant’s reaction to administrative or personnel matters falls
outside the scope of the Act.24 However, 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.25 The denial by the employing establishment of a request for a
different job, promotion or transfer is an administrative decision which does not directly involve
an employee’s ability to perform work duties, but rather constitutes an employee’s desire to work
in a different position.26 Reactions to disciplinary matters, such as a letter of reprimand, also
pertain to actions taken in an administrative capacity and are not compensable unless it is
established that management erred or acted abusively.27 Investigations are generally related to
the performance of an administrative function of the employer and not to the employee’s regular
or specially assigned work duties; a compensable factor of employment does not arise unless
there is affirmative evidence that the employer erred or acted abusively.28
The Board notes that appellant’s allegations regarding the 1999 suicide at the employing
establishment are not a compensable factor. He did not work at the FTZ at that time, and there is
no evidence of record of any wrongdoing on the part of personnel or management. There is no
evidence to establish that the employing establishment committed error and abuse regarding his
transfer to the FTZ and subsequent denials of reassignment. Mr. Ramirez explained that
appellant’s transfer to the FTZ was done to assist in the volume of the workload. Appellant has
presented no evidence that the denial of his requests for reassignment were error or abuse. An
employee’s frustration and depression resulting from an involuntary transfer are not
compensable,29 and dissatisfaction with holding a position in which he or she feels underutilized,
23

Dennis M. Mascarenas, 49 ECAB 215 (1997).

24

Roger Williams, 52 ECAB 468 (2001).

25

Dennis J. Balogh, supra note 13.

26

Ernest J. Malagrida, 51 ECAB 287 (2000).

27

See Sherry L. McFall, 51 ECAB 436 (2000).

28

Ernest S. Pierre, 51 ECAB 623 (2000).

29

Andrew J. Sheppard, 53 ECAB 170 (2001).

11

performing duties for which he or she feels overqualified or holding a position which he or she
feels to be unchallenging or uninteresting is not a compensable employment factor. A reaction to
such conditions and incidents at work is self-generated and results from frustration in not being
permitted to work in a particular environment or to hold a particular position.30
Appellant alleged that he was inappropriately counseled by Ms. Georges. An employee’s
complaints concerning the manner in which a supervisor performs his or her duties as a
supervisor or the manner in which a supervisor exercises his or her supervisory discretion fall, as
a rule, outside the scope of coverage provided by the Act.31 Disciplinary actions concerning an
oral remand, discussions or letters of warning for conduct pertain to actions taken in an
administrative capacity and are not compensable unless the employee shows management acted
unreasonably.32 Appellant submitted no evidence to support that he was improperly counseled.
To the degree that appellant is alleging that his FMLA leave request was not handled properly,
while the handling of leave requests is generally related to employment, it is an administrative
function of the employer and not a duty of the employee.33 It was reasonable for Mr. Casale to
request that appellant provide a medical report. Regarding the November 10, 2003 incident
between appellant and Mr. Cox, the evidence of record supports that Mr. Cox was reasonably
acting as a lead customs inspector in the absence of a supervisor and properly instructed
appellant regarding a prohibited transaction. Appellant has not established error or abuse in the
matters and they are not compensable factors of employment.
The record supports that Ms. Georges called appellant one day too soon requesting that
he submit medical evidence for sick leave. However, the Board finds that this did not constitute
harassment as alleged. The fact that Ms. Georges called EAP on appellant’s behalf was in line
with employing establishment policy. The Board finds that employing establishment
management handled his complaint regarding improper gifts of food properly. He presented no
evidence to show any customers received preferential treatment or to show that he should be
fearful of Ms. Tavel or Ms. O’Donnell.
Regarding appellant’s general allegation that he was harassed, the Board finds that he has
submitted insufficient evidence to establish his allegations. An EEO Commission complaint, by
itself, does not establish that workplace harassment or unfair treatment occurred.34 There is no
EEO Commission decision of record that is favorable to appellant.35 The issue is not whether the
30

Paul L. Stewart, 54 ECAB 824 (2003).

31

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

32

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

33

James P. Guinan, 51 ECAB 604 (2000).

34

James E. Norris, supra note 20.

35

The Board notes that, with his appeals to the Board, appellant submitted new evidence regarding his EEO
claims. The Board cannot consider this evidence, however, as its review of the case is limited to the evidence which
was in the case record before the Office at the time it issued its final decision. 20 C.F.R. § 501.2(c); see Willie R.
Miller, 53 ECAB 697 (2002). Appellant may submit this evidence to the Office with a valid request for
reconsideration. 20 C.F.R. §§ 10.605-10.610.

12

claimant has established harassment or discrimination under EEO Commission standards.
Rather, the issue is whether the claimant has submitted sufficient evidence to establish a factual
basis for the claim under the Act by supporting his or her allegations with probative and reliable
evidence.36 The standards for harassment or discrimination as defined by the EEO Commission
do not represent the standard for claim adjudication under the Act, where the term harassment is
synonymous, as generally defined, with a persistent disturbance, torment or persecution, i.e.,
mistreatment by coemployees or supervisors.37 In this case, appellant has submitted insufficient
evidence to establish that management harassed him. These allegations do not rise to a
compensable factor.
Finally, the Board notes that newspaper clippings, medical texts and excerpts from
publications are of no evidentiary value in establishing the causal relationship between a claimed
condition and a claimant’s federal employment as such materials are of general application and
are not determinative of whether the specific condition claimed is related to particular
employment factors or incidents.38
The record establishes that appellant was assaulted by a customer on November 27, 2003
while in the performance of duty. This is a compensable factor of employment. The medical
evidence must therefore be analyzed.39 The relevant medical evidence includes reports from
appellant’s attending psychiatrist, Dr. Collins. In a July 28, 2003 report, Dr. Collins described an
“oppressive workplace” and advised that appellant should stop work. In an August 21, 2003
attending physician’s report, he diagnosed adjustment disorder with anxiety and again advised
that appellant could not work. Dr. Collins checked the “yes” box, indicating that the diagnosis
was employment related, stating “exacerbation of symptoms followed his experiencing specific
upsetting and very stressful situations [and] events at work.” On August 29, 2003 he advised
that appellant would be totally disabled for three months and in a December 14, 2003 report
stated that appellant provided a history of a “pattern of punishment” at the employing
establishment. Dr. Collins diagnosed an anxiety disorder, stating that appellant’s “obsessing got
worse and anger continued to build” due to “perceived injustices.” He advised that appellant had
no emotional problems “until a series of very upsetting events at work began to occur a few
years ago,” continuing that appellant’s anger and anxiety continued to increase to the point that
he feared an attempt was going to be made on his life. Dr. Collins concluded that appellant’s
mental illness was related to a “pattern of harassment” at work. In an undated report, he noted
appellant’s report of various incidents that occurred at work which, he opined, demonstrated a
severe pattern of harassment at work, specifically describing the assault when appellant’s
sunglasses were broken. Dr. Collins concluded that these events “exhibit a severe pattern of
harassment at work, which is condoned and even encouraged by his supervisors. The workrelated harassment is so severe, in my expert opinion, that it has resulted in a direct and
proximate cause of the worsening of [appellant’s] emotional and psychiatric conditions.”
36

James E. Norris, supra note 20.

37

Constance I. Galbreath, 49 ECAB 401 (1998).

38

Willie M. Miller, supra note 35.

39

See Dennis J. Balogh, supra note 13.

13

While Dr. Collins advised that appellant’s anxiety disorder was due to a pattern of
harassment at work, as noted, the Board finds that appellant also submitted insufficient evidence
to establish that he was harassed. Dr. Collins made reference to the one compensable factor of
employment in his undated report, but did not provide an explanation of how this factor caused
or contributed to appellant’s condition. The Board had long held that medical conclusions
unsupported by rationale are of diminished probative value and are insufficient to establish
causal relationship.40 Appellant has the burden of proof to establish that the conditions for which
he claims compensation were caused or adversely affected by his federal employment.41 Part of
this burden includes the necessity of presenting rationalized medical evidence, based on a
complete factual and medical background, establishing a causal relationship. An award of
compensation may not be based upon surmise, conjecture or upon appellant’s belief that there is
a relationship between his medical conditions and his employment. The Board finds that
Dr. Collins did not base his opinion on an accurate factual background as he generally accepted
appellant’s various allegations as established. Appellant has not submitted sufficient probative
medical evidence to establish that he sustained an emotional condition due to his federal
employment.
ANALYSIS -- ISSUE 3
The Board finds that appellant failed to establish a compensable factor of employment
regarding the third issue. He has contended that his transfer requests were improperly denied,
that Ms. Georges solicited complaints regarding him, that she falsely accused him of processing
forged documents, that he was falsely imprisoned in his cubicle, that offensive notes were placed
in his cubicle and that he was improperly charged with sexual harassment by Ms. O’Donnell.
Mr. Lopez explained that appellant was denied a transfer request because of a pending
investigation regarding his misconduct. As noted, as a general rule, a claimant’s reaction to
administrative or personnel matters falls outside the scope of the Act42 unless the evidence of
record discloses error or abuse on the part of the employing establishment.43 The denial by the
employing establishment of a request for a different job, promotion or transfer is an
administrative decision which does not directly involve an employee’s ability to perform work
duties, but rather constitutes an employee’s desire to work in a different position.44 In this case,
there is no evidence of error or abuse on the part of Mr. Lopez in this administrative matter.
Appellant also submitted no probative evidence that Ms. Georges solicited complaints
about him. The only evidence submitted by appellant in this regard is Ms. Evans’ report that a
customer stated to her that Ms. Georges asked her if she had any complaints about appellant.
Mr. Lopez and Mr. Cox stated that they were not aware that Ms. Georges solicited complaints.
This evidence is insufficient to establish this as a compensable factor of employment.
40

Albert C. Brown, 52 ECAB 152 (2000); Jacquelyn L. Oliver, 48 ECAB 232 (1996).

41

See Calvin E. King, 51 ECAB 394 (2000).

42

Roger Williams, 52 ECAB 468 (2001).

43

Dennis J. Balogh, supra note 13.

44

Ernest J. Malagrida, 51 ECAB 287 (2000).

14

The record does not substantiate his complaint that Ms. Georges falsely accused him of
processing forged documents. Rather, she read a computer tracking screen in error and
forwarded to appellant an email containing a customer’s complaint. The mere fact that personnel
actions are later modified or rescinded does not, in and of itself, establish error or abuse on the part
of the employing establishment.45 The Board finds that the record does not establish appellant’s
allegation.
The evidence of record also shows that appellant was not demoted. While a transfer was
recommended and appellant complained that the new job duties were demeaning, he did not
accept this job. Rather he went on FMLA, took additional leave and then retired. An
employee’s frustration and depression resulting from an involuntary transfer are not
compensable.46 A reaction to such conditions and incidents at work is self-generated and results
from frustration in not being permitted to work in a particular environment or to hold a particular
position.47 The evidence in this case also does not support that appellant was falsely imprisoned
as Ms. Evans indicated that, while appellant was issued some notice of confinement, it was
immediately rescinded. There is no other evidence in this record concerning this allegation.
There is also no record to support that Mr. Cox acted abusively in a February 2005 meeting.
Appellant therefore did not establish these as factors of employment.
Finally, regarding appellant’s general allegation that he was subjected to a pattern of
harassment, as stated in the discussion of issues 1 and 2 above, he has submitted insufficient
evidence to establish that he was treated in a harassing manner. While he alleged that two notes
were inappropriately placed in his cubicle, the subject matter of these notes did not include a
racial epithet or other offensive language,48 and Ms. Georges immediately took action. The
Board therefore finds that these incidents do not establish harassment by the employing
establishment. As appellant failed to establish a compensable factor of employment regarding
this third issue, the Office properly did not address the medical evidence of record.49
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an employment-related emotional condition due to employment factors that occurred
during the period April 2, 2002 to July 23, 2005.

45

Paul L. Stewart, supra note 30.

46

Andrew J. Sheppard, 53 ECAB 170 (2001).

47

Paul L. Stewart, supra note 30.

48

See generally Frank B. Gwozdz, 50 ECAB 434 (1999).

49

Garry M. Carlo, 47 ECAB 299 (1996).

15

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs June 29, April 14 and April 10, 2006 and October 24, August 19 and
June 16, 2005 be affirmed.
Issued: March 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

16


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tulsa, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
No appearance, for the Director

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Docket No. 08-2038
Issued: February 13, 2009

Oral Argument January 8, 2009

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 25, 2008 appellant filed a timely appeal from the May 17 and December 3,
2007 merit decisions of the Office of Workers’ Compensation Programs, which denied
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the case.
ISSUE
The issue is whether appellant sustained a traumatic emotional injury in the performance
of duty on March 11, 2005.
FACTUAL HISTORY
On February 28, 2007 appellant, then a 54-year-old modified distribution clerk, filed a
claim alleging that she sustained an emotional injury on March 11, 2005. Her psychiatrist,
Dr. Mark A. Kelly, saw her that day and described what happened:
“This was a 3:00 p.m. appointment that was set up urgently due to the patient
being distressed at work by Randy [Cameron] and Lois [Oxley]. [Appellant]

talked of clocking in on time, that she came in and had eye contact with Randy,
but that he said nothing at that point. She described that later, as she went about
her routine and setting up her machine, when it was about set up he came and told
her not to do that, but to do another machine, that they were not going to work
that one.
[Appellant] indicated she would undo what she had done.
[Mr. Cameron] directed her not to do that. [Appellant] indicated with her method,
that nobody else went by her method, she needed to do it that way.
[Mr. Cameron] got Lois to assist him. [Appellant] told the patient that Randy was
the boss in that area and pressed her to comply. She was directed to do inefficient
type work on another machine.”
Appellant told Dr. Kelley that she sensed it could be retaliation. She also sensed that it
could be a setup by the two, Mr. Cameron and Ms. Oxley, to cause her problems. Appellant
indicated that she spoke loudly, so there were other witnesses. She stated that, after the incident,
people came to her and told her they might be setting her up (to be fired). Appellant recalled
another employee once going over Ms. Oxley’s head and ending up experiencing retaliation.
She told Dr. Kelly that might be what was going on. Dr. Kelley reported that appellant
developed stomach distress, was upset and sick. Appellant told him, “My stomach was on fire.”
On February 28, 2007 Dr. Kelley reported that appellant was traumatized by this incident.
Appellant stated that, when Mr. Cameron and Ms. Oxley ganged up on her, they made
her feel like a trapped animal. She stated that Ms. Oxley growled at people and talked harshly to
them. Mr. Cameron, she stated, just stood there and laughed about it. Appellant described her
reaction:
“I did not like feeling trapped with no way out. Everyone does not respond the
same to similar situation. I supposed my borderline personality disorder made me
respond the way I did. I got sick at my stomach, I suppose because I was trying to
keep from doing what I was feeling inside me to do. I wanted to fight, but I could
not, it was like I was caged, trapped. All of this occurred on March 11, 2005.”
In a decision dated May 17, 2007, the Office denied appellant’s claim for compensation.
It found that she failed to establish a compensable factor of employment.
Following an oral hearing on September 19, 2007, an Office hearing representative issued
a decision on December 3, 2007 affirming the denial of appellant’s claim. The hearing
representative found that appellant’s reaction to a supervisor’s instructions was not a
compensable factor of employment absent evidence of error or abuse.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.1
Workers’ compensation does not cover each and every illness that is somehow related to the
employment. When an employee experiences emotional stress in carrying out her employment
1

5 U.S.C. § 8102(a).

2

duties or has fear and anxiety regarding her ability to carry out her duties, and the medical
evidence establishes that the disability resulted from her emotional reaction to such situation, the
disability is generally regarded as due to an injury arising out of and in the course of
employment. By contrast, there are disabilities having some kind of causal connection with the
employment that are not covered under workers’ compensation because they are not found to
have arisen out of employment, such as when disability results from an employee’s fear of a
reduction-in-force or frustration from not being permitted to work in a particular environment or
to hold a particular position.2
Workers’ compensation does not cover an emotional reaction to an administrative or
personnel action unless the evidence shows error or abuse on the part of the employing
establishment.3 It is well settled that an employee’s reaction to supervisory instructions is not a
compensable factor of employment in the absence of error or abuse.4 Further, the Board has
generally held that being spoken to in a raised or harsh voice does not in itself constitute verbal
abuse or harassment.5
In general, allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim.6 In claims for a mental disability attributed to work-related stress,
the claimant must submit factual evidence in support of his or her allegations of stress from
harassment or a difficult working relationship. The claimant must specifically delineate those
factors or incidents to which the emotional condition is attributed and submit supporting factual
evidence verifying that the implicated work situations or incidents occurred as alleged. Vague or
general allegations of perceived harassment, abuse or difficulty arising in the employment is
insufficient to give rise to compensability under the Act. Based on the evidence submitted by the
claimant and the employing establishment, the Office is then required to make factual findings
which are reviewable by the Board. The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in

2

Lillian Cutler, 28 ECAB 125 (1976).

3

Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566, 572-73 (1991).

4

Reco Roncaglione, 52 ECAB 454 (2001) (disagreement with the associate warden held not compensable,
whether viewed as a disagreement with supervisory instructions or as perceived poor management); Robert Knoke,
51 ECAB 319 (2000) (where the employee attributed his emotional injury to the manner in which his supervisor
spoke to him about undelivered mail, the Board found that a reaction to the instruction itself was not compensable,
as work assignments given by supervisors in the exercise of supervisory discretion are actions taken in an
administrative capacity, and as such, are outside the coverage of the Act); Frank A. Catapano, 46 ECAB 297 (1994)
(supervisory instructions, with which the employee disagreed, held not compensable in the absence of evidence of
managerial error or abuse); Rudy Madril, 45 ECAB 602 (1994) (where the employee questioned his supervisor’s
instructions to move from belt number five to belt number six and unload mail, and became upset because he felt he
was being pushed and picked on, the Board found that the incident was not a compensable factor of employment).
5

Beverly R. Jones, 55 ECAB 411, 418 (2004).

6

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).

3

fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by the Office and the Board.7
ANALYSIS
Appellant attributes her emotional reaction on March 11, 2005 to an incident that is not
generally covered by workers’ compensation. Although the incident occurred at work, it was not
the performance of her assigned duties that traumatized her. Appellant was traumatized by
supervisors directing her to follow certain instructions. As the Board noted earlier, an
employee’s reaction to supervisory instructions is not a compensable factor of employment in the
absence of error or abuse.8
Appellant argued that there was a confrontation with her supervisors on March 11, 2005.
She stated that Mr. Cameron and Ms. Oxley surrounded her, confronted her in a confined space,
and this caused her to flashback to a traumatic childhood incident. However, there is no
evidence to support appellant’s description of how Mr. Cameron and Ms. Oxley treated her on
that date.
Appellant has submitted no independent evidence, such as a statement from a witness, to
establish that Mr. Cameron and Ms. Oxley treated her abusively on March 11, 2005.9 Because
allegations alone are insufficient to factually establish error or abuse, the evidence in this case
does not support a compensable factor of employment. It is established that Mr. Cameron gave
appellant an instruction and, with Ms. Oxley’s assistance, impressed upon her the importance of
following directions. It is not established, by the evidence submitted, that the parties treated
appellant erroneously or in an abusive manner. For this reason, the Board will affirm the Office
decisions denying benefits.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she sustained a
traumatic emotional injury in the performance of duty on March 11, 2005.

7

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

8

See cases cited in note 4.

9

Even if the record showed that supervisors spoke to appellant in a raised or harsh tone of voice, this would not
be enough to show error or abuse.

4

ORDER
IT IS HEREBY ORDERED THAT the December 3 and May 17, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 13, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Omaha, NE, Employer
__________________________________________

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

Docket No. 07-1652
Issued: March 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 6, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 21, 2007 denying her traumatic injury
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that her exposure
to a contaminated needle on January 22, 2007 caused an injury.
FACTUAL HISTORY
On January 24, 2007 appellant, a 58-year-old practical nurse, filed a traumatic injury
claim alleging that on January 22, 2007 she was exposed to hepatitis C when she accidentally
stuck her thumb with a contaminated needle of a hepatitis C positive veteran. She did not lose
any time from work or have any medical expenses. No evidence in support of her claim was
submitted.

By letter dated February 9, 2007, the Office advised appellant of the factual and medical
evidence needed to establish her claim. It requested that she submit a physician’s reasoned
opinion containing a diagnosis and addressing the relationship of her claimed condition and
specific employment factors. No additional evidence was received.
In a decision dated March 21, 2007, the Office denied appellant’s claim on the grounds
that she failed to establish fact of injury. It found that there was no evidence to establish that the
event occurred as alleged. Furthermore, there was no medical evidence which provided a
diagnosis which could be connected to the claimed event.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.2 These are the essential elements of each
compensation claim regardless of whether the claim is predicated upon a traumatic injury and an
occupational disease.3
Office regulations, at 20 C.F.R. § 10.5(ee), define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must determine whether fact of injury is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5
The Act6 defines injury stating that this includes, in addition to injury by accident, a disease
proximately caused by the employment.

1

5 U.S.C. §§ 8101-8193.

2

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

5

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

6

5 U.S.C. § 8101(5).

2

Chapter 2.805.8 of the Office’s procedure manual7 provides:
“High-Risk Employment. Certain kinds of employment routinely present situations
which may lead to infection by contact with animals, human blood, bodily
secretions and other substances. Conditions such as [human immunodeficiency
virus] (HIV) infection and hepatitis B more commonly represent a work hazard in
health care facilities, correctional institutions and drug treatment centers, among
others, than in [f]ederal workplaces as a whole….
“a. Physical Injury and Prophylactic Treatment. For claims based on transmission
of a communicable disease where the means of transmission and the incubation
period are medically feasible, the CE [claims examiner] should do the following:
(1) If the source of infection is a known or probable carrier of the disease, the CE
should accept the case for the physical injury involved and authorize prophylactic
treatment….”
Chapter 3.400.7 of the procedure manual8 provides:
a. Preventive (Prophylactic) Treatment. The [Act] does not authorize provision of
preventive measures such as vaccines and inoculations and, in general, preventive treatment
is a responsibility of the employing agency under the provisions of 5 U.S.C. § 7901.
However, preventive care can be authorized by [the Office] for the following:
(1) Complications of preventive measures which are provided or sponsored by
the agency, such as adverse reaction to prophylactic immunization.
(2) An injury involving actual or probable exposure to a known contaminant,
thereby requiring disease-specific measures against infection. Included among
such treatments would be tetanus antitoxin or booster toxoid injections for
puncture wounds; administration of rabies vaccine where a bite from a rabid
animal or one whose status was unknown, is involved; or AZT where exposure to
HIV virus has occurred.”9
ANALYSIS
Appellant claimed that she was exposed to hepatitis C in the performance of duty on
January 22, 2007 when she was accidentally stuck by a needle which had been used on a veteran
who was hepatitis C positive. The Office denied the claim on the grounds that she submitted
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.8 (October 1995).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.7
(April 1992).
9

See also 20 C.F.R. § 10.313(b) (provides that the Office can authorize treatment where there is “actual or
probable exposure to a known contaminant due to an injury, requiring disease specific measures against the
infection”).

3

insufficient evidence to establish that the incident occurred as alleged, that appellant sustained a
diagnosed condition and that the condition was causally related to the incident.
The Board finds that appellant’s work as a practical nurse exposes her to accidental
needle sticks which may contain blood positive for various viruses, such as the hepatitis C virus
claimed.10 Appellant works in a health care facility. On January 22, 2007 she was disposing a
contaminated needle when she claimed that she accidentally stuck herself with the needle which
punctured her skin. There is no evidence to the contrary to refute appellant’s allegation. The
Board finds that appellant has established that the needle stick incident on January 22, 2007
occurred as alleged.
Usually, the question of whether an employment incident causes a personal injury
generally can be established only by medical evidence.11 However, as noted, Office procedures
contain specific provisions pertaining to high risk employment. Chapter 2.805.8.a(1) of the
Office’s procedures provides that the Office should accept the case for the physical injury
involved and authorize prophylactic treatment when the source of the infection is a known or
probable carrier of the disease. In this case, appellant claimed the needle she accidentally stuck
herself that had been used on a veteran who was hepatitis C positive. However, there is no
evidence of file denoting that the source of the contaminated needle was positive for hepatitis C
virus. Although it is appellant’s burden to establish her claim, the Office is not a disinterested
arbiter but, rather, shares responsibility in the development of the evidence, particularly when
such evidence is of the character normally obtained from the employing establishment or other
government source.12 In order to properly adjudicate the claim, it is important to secure evidence
regarding whether the source of the contaminated needle was actually positive for the hepatitis C
virus. The Board, therefore, will remand the case to the Office to request additional information
from the employing establishment regarding the veteran whom appellant alleges was positive for
hepatitis C virus. Upon securing the information, the Office should then undertake any further
development as is deemed necessary to determine whether the employment incident of
January 22, 2007 caused a personal injury and issue an appropriate decision.
CONCLUSION
The Board finds the case is not in posture for decision.

10

An employee’s statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence. See Edward W. Malaniak, 51 ECAB
451 (2000).
11

See, e.g., Calvin E. King, 51 ECAB 394 (2000).

12

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

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ORDER
IT IS HEREBY ORDERED THAT the March 21, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this opinion of the Board.
Issued: March 18, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Edison, NJ,
Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0426
Issued: July 17, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 26, 2017 appellant, through counsel, filed a timely appeal from an
October 24, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

The Board notes that appellant appealed from an October 23, 2018 schedule award decision, which is pending
before the Board under Docket No. 19-0975.

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met his burden of proof to establish disability from work
for the periods February 5 through May 31, 2004, June 17, 2004 through February 7, 2005,
October 3, 2005 through June 30, 2008, and February 11 through March 15, 2009, causally related
to his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On March 4, 2004 appellant, then a 46-year-old former mail handler, filed a traumatic
injury claim (Form CA-1) for cervical, lumbar, and left lower extremity conditions, which he
attributed to unloading trailers while in the performance of duty.6 He stated that his condition
progressively worsened. Based on his description of work events of a period of days, OWCP
converted appellant’s traumatic injury claim to an occupational disease claim (Form CA-2), and
subsequently denied the claim because the medical evidence of record did not establish an injury
causally related to the accepted employment factors.
After numerous requests for reconsideration and an appeal to the Board,7 OWCP ultimately
accepted appellant’s claim for lumbar strain, which resolved as of October 8, 2012. In separate
decisions dated December 4, 2012, OWCP informed appellant that his claim had been accepted,

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the October 24, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
5

Docket No. 16-1177 (issued October 27, 2016); Docket No. 15-0400 (issued May 12, 2016); Order Dismissing
Appeal, Docket No. 13-0183 (issued December 20, 2012); Docket No. 11-0247 (issued September 13, 2011).
6

Personnel records indicate that appellant was a temporary casual employee on a holiday season appointment.
Although the appointment was scheduled to expire on March 30, 2004, the employing establishment terminated
appellant effective February 13, 2004 for being disrespectful to a supervisor.
7

Docket No. 11-0247, supra note 5.

2

and also informed him that wage-loss compensation benefits were terminated, effective
December 4, 2012.8
In March and December 2013, appellant filed multiple claims for compensation (Form CA7) for wage loss beginning February 5, 2004 and continuing.
Appellant also timely requested reconsideration of OWCP’s December 4, 2012 decision
terminating wage-loss benefits. In a September 18, 2014 decision, OWCP denied his request for
reconsideration of the merits of his claim. On subsequent appeal, the Board affirmed OWCP’s
September 18, 2014 nonmerit decision.9
As OWCP had not yet addressed appellant’s claim for wage-loss compensation beginning
February 5, 2004, counsel resubmitted the CA-7 forms in September 2016 and requested that
OWCP issue a final decision regarding entitlement to compensation for the claimed periods.10
Counsel reiterated his request in January 2017.
Medical evidence relevant to the claimed periods of wage-loss compensation included a
September 27, 2005 report from Dr. David Weiss, a Board-certified orthopedist, who noted that
appellant suffered a work-related injury on June 17, 2004 when he was crawling under branches
and felt a sudden popping sensation in his low back. Dr. Weiss also noted that appellant was then
currently employed as a school bus driver. He diagnosed chronic post-traumatic lumbosacral
strain and sprain, L3-4 and L5-S1 herniated nucleus pulposus (HNP), aggravation of preexisting
lumbar osteoarthritis, and left lumbar radiculitis. Dr. Weiss provided a permanent impairment
rating of appellant’s lumbar spine, which he attributed to appellant’s work-related injury of
June 17, 2004.
In a January 16, 2012 report, Dr. Weiss noted that appellant was currently unemployed,
and according to appellant, he could no longer perform his job duties. He diagnosed cumulative
and repetitive trauma disorder superimposed upon defined work-related injuries of February 4 and
June 17, 2004, occupational low back syndrome, L3-4 and L5-S1 HNP, aggravation of preexisting,
age-related lumbar osteoarthritis, and left lumbar radiculopathy.
By letter dated April 12, 2017, OWCP requested additional medical evidence establishing
appellant’s disability from work for the period February 4, 2004 through December 4, 2012. It
afforded him 30 days to submit the requested medical evidence.

8
OWCP terminated wage-loss compensation based on the October 25 and November 21, 2012 reports of
Dr. Kenneth P. Heist, a Board-certified orthopedic surgeon and second opinion referral physician. Dr. Heist found
that appellant had preexisting lumbar degenerative joint disease. He also diagnosed post-traumatic lumbar strain.
Dr. Heist indicated that appellant’s then current lumbar-related restrictions were due to preexisting spinal disease, and
that the work-related lumbar sprain had long since resolved without residuals. In his supplemental report, he indicated
that it was unlikely that appellant’s three-month tenure with the employing establishment performing repetitive lifting
would have caused changes to his preexisting lumbar degenerative condition. Dr. Heist advised that appellant had
reached maximum medical improvement and was capable of performing his mail handler duties without restrictions.
9

Docket No. 15-0400, supra note 5.

10

In its May 12, 2016 decision (Docket No. 15-0400), the Board specifically noted that OWCP had not yet issued
a final decision regarding appellant’s Form CA-7 claims for wage-loss compensation for periods prior to
December 4, 2012.

3

Counsel submitted various medical records, which included a March 4, 2004 PS Form 3956
(Authorization for Medical Attention) indicating appellant could not work until cleared by
employee health. The PS Form 3956 also indicated that he needed a referral to his primary care
physician for further evaluation and/or possible magnetic resonance imaging (MRI) scan. The
healthcare provider’s signature is illegible.
An August 15, 2008 physician activity status report from Dr. Anthony Tarasenko, an
internist, noted a diagnosis of lumbar strain. Dr. Tarasenko advised that appellant could return to
regular duty on August 15, 2008. His then current employer was Greyhound Bus Line.
On February 14, 2009 appellant was treated in a hospital emergency department by
Dr. Chantal Simpson-Gabriel, an emergency medicine specialist, for complaints of low back pain
that began three days prior after standing from a seated position. Dr. Simpson-Gabriel diagnosed
low back pain, prescribed a muscle relaxant and pain medication, and advised appellant to avoid
heavy lifting.
By decision dated July 6, 2017, OWCP denied appellant’s claim for compensation for the
period February 4, 2004 through December 4, 2012. It found that he had not submitted a
rationalized medical opinion explaining his three-month tenure with the employing establishment
caused or aggravated his diagnosed medical condition(s).
On July 12, 2017 counsel requested a review of the written record before a representative
of OWCP’s Branch of Hearings and Review.
By letter dated September 19, 2017, counsel argued that OWCP failed to review appellant’s
claims for wage-loss compensation through December 2012. He submitted medical evidence
previously of record and argued that the reports established entitlement to wage-loss
compensation.
By decision dated October 24, 2017, the hearing representative modified and affirmed
OWCP’s July 6, 2017 decision. She noted that appellant had not submitted any medical records
that offered a rationalized opinion placing him off work contemporaneous to the dates of disability
claimed. The hearing representative modified the denial of compensation to reflect that appellant
had only claimed compensation for the periods February 5 through May 31, 2004, June 17, 2004
through February 7, 2005, October 3, 2005 through June 30, 2008, and February 11 through
March 15, 2009.
LEGAL PRECEDENT
An employee seeking benefits under FECA11 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.12

11

Supra note 3.

12

S.J., Docket No. 17-0828 (issued December 20, 2017); G.T., Docket No. 07-1345 (issued April 11, 2008);
Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Under FECA the term “disability” is defined as the incapacity because of an employment
injury to earn the wages the employee was receiving at the time of the injury.13 Whether a
particular injury causes an employee to be disabled from work and the duration of that disability,
are medical issues that must be proven by a preponderance of the reliable, probative, and
substantial medical evidence.14
For each period of disability claimed, the employee has the burden of proof to establish
that he was disabled from work as a result of the accepted employment injury.15 The Board will
not require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so, would
essentially allow an employee to self-certify their disability and entitlement to compensation.16
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.17 The physician’s opinion must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature of
the relationship.18
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work for the periods February 5 through May 31, 2004, June 17, 2004 through February 7, 2005,
October 3, 2005 through June 30, 2008, and February 11 through March 15, 2009.
Although the March 4, 2004 PS Form 3956 indicated that appellant could not work until
cleared by employee health, the form did not include a specific medical diagnosis or otherwise
explain how his accepted lumbar sprain precluded him from performing his previous mail handler
duties and the signature on the form was illegible. The Board has held that a report that bears an
illegible signature cannot be considered probative medical evidence because it lacks proper
identification.19 Thus, this report has no probative value.20
Dr. Tarasenko August 15, 2008 activity status report included a diagnosis of lumbar strain
and noted that appellant could return to regular duty effective that date. However, he did not
identify a specific period of disability, and he did not relate appellant’s then current lumbar strain
13

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
14

See S.J., supra note 12; Tammy L. Medley, 55 ECAB 182 (2003).

15

See S.J., supra note 12; Amelia S. Jefferson, 57 ECAB 183 (2005).

16

See S.J., supra note 12; Fereidoon Kharabi, 52 ECAB 291 (2001).

17

See S.J., supra note 12; Kathryn E. DeMarsh, 56 ECAB 677 (2005).

18

Id.

19

K.C., Docket No. 18-1330 (issued March 11, 2019); see R.M., 59 ECAB 690 (2008); D.D., 57 ECAB 734 (2006);
Richard J. Charot, 43 ECAB 357 (1991).
20

N.C., Docket No. 19-0299 (issued June 24, 2019).

5

to his prior employment, which ended in February 2004.21 To be of probative value, a physician’s
opinion must provide rationale on causal relationship. Medical evidence that does not offer an
opinion regarding the cause of an employee’s condition or disability is of no probative value on
the issue of causal relationship.22 As such, Dr. Tarasenko’s August 15, 2008 report is insufficient
to establish appellant’s claim for wage-loss compensation.
The February 14, 2009 emergency department treatment records by Dr. Simpson-Gabriel
indicated that appellant had been experiencing low back pain for approximately three days after
having stood up from a seated position. Appellant was not diagnosed with a lumbar strain/sprain,
but merely noted to have experienced low back pain. Dr. Simpson-Gabriel did not specifically
address appellant’s ability to perform his prior duties as a mail handler. She just advised to avoid
heavy lifting and to follow-up with his treating physician. As Dr. Simpson-Gabriel did not provide
an opinion on causal relationship, her reports are of no probative value.23 Consequently, the
February 14, 2009 emergency department treatment records do not establish that he was disabled
for work due to his accepted lumbar strain.
The remainder of the medical evidence, including Dr. Weiss’ September 27, 2005 and
January 16, 2012 reports, does not discuss specific dates of disability, accompanied by an
explanation of how appellant’s accepted lumbar sprain disabled him from all work during the
claimed periods.24 As such, this evidence is insufficient to meet appellant’s burden of proof to
establish entitlement to wage-loss compensation for the period February 5, 2004 through
March 15, 2009.
Appellant submitted no probative evidence contemporaneous to the claimed dates of
disability that would indicate he was disabled from work due to his accepted lumbar sprain or
absent from work for authorized medical treatment.25 As such, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established disability from work for the periods
February 5 through May 31, 2004, June 17, 2004 through February 7, 2005, October 3, 2005
through June 30, 2008, and February 11 through March 15, 2009.

21

S.H., Docket No. 16-1378 (issued October 16, 2017); Vanessa Young, 55 ECAB 575 (2004).

22

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

23

Id.

24

Id.

25

An injured employee may be entitled to compensation for lost wages incurred while obtaining authorized medical
services. See 5 U.S.C. § 8103(a); S.J., supra note 12; Gayle L. Jackson, 57 ECAB 546 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7