T.S. and U.S. Postal Service, West Side Annex Post Office, Dubuque (Board decision, December 14, 2023)

ECAB final decision. The Board affirmed OWCP's denial of the claimed emotional condition because no compensable employment factor was established. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A postal carrier claimed that a supervisor's conduct during her route and after she clocked out aggravated her psychiatric conditions. OWCP denied the claim after finding no compensable work factor. The Board found no corroboration for allegations about comments to a coworker or repeated scanner messages. Witness accounts confirmed that the supervisor told the group to finish work and told the carrier to leave if she had clocked out, but did not establish verbal abuse or an improper instruction. The Board affirmed the denial without reaching the medical evidence.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Emotional condition claim denial affirmed.
• Key point: The reported supervisor interaction did not establish an abusive or otherwise compensable employment factor.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.S., Appellant
)
)
and ) Docket No. 23-0213
)
Issued: December 14, 2023
U.S. POSTAL SERVICE, WEST SIDE ANNEX )
POST OFFICE, Dubuque, IA, Employer )
__________ )

Appearances: Case Submitted on the Record
Kevin Card, for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 30, 2022 appellant, through her representative, filed a timely appeal from September 23 and November 1, 2022 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 5 U.S.C. § 8101 et seq.
3
The Board notes that, following the November 1, 2022 merit decision, OWCP received additional evidence. 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.
ISSUE

The issue is whether appellant has met her burden of proof to establish an emotional condition in the performance of duty, as alleged.

FACTUAL HISTORY

On February 14, 2022 appellant, then a 47-year-old city delivery specialist, filed a traumatic injury claim (Form CA-1) alleging that on January 24, 2022 she developed mental anguish, major depressive disorder (MDD), anxiety, and post-traumatic stress disorder (PTSD) while in the performance of duty. She alleged that she was harassed via text message regarding her work performance while on her route and then singled-out and humiliated by her supervisor, L.C., in front of her coworkers, who she claimed yelled at her to leave work if she had clocked out. On the reverse side of the claim form, A.E., an employing establishment supervisor, indicated that his knowledge of the facts about the injury did not agree with statements by the employee, noting that appellant was held to the same jobs standards as other employees. Appellant did not stop work.

In an undated witness statement, D.O., appellant’s coworker, indicated that, on the evening of January 24, 2022, he unloaded his work vehicle and walked into the employing establishment toward the time clock and past appellant’s case. He noted that she was upset about an interaction that she considered hostile that had occurred between herself and another carrier earlier that day. D.O. indicated that L.C. then approached them and instructed them to complete their work and clock out. He heard appellant say to L.C. that she had already clocked out, and L.C. replied that she should “leave and go home if [appellant] was already off the clock.” D.O. noted that there were other employees present talking amongst themselves. He further indicated that, as appellant was walking out, he heard her say in the direction of L.C. that she was not going to put up with this kind of harassment.

In an undated statement, L.C. related that, on January 24, 2022 after 8:00 p.m., she saw a group of carriers standing around appellant’s case. She indicated that she told them all that it was late and that she would like to go home, so she requested that they finish up, and clock out. Appellant responded that she was off the clock. L.C. indicated that she then asked appellant to please stop casing the mail, as she was not allowed to work while off the clock. Appellant threw the letters she had in her hand in the case and stated “Oh, am I not allowed to grab my bag? You won’t let me get my bag? It’s none of your business what I’m doing. How is it your business?” L.C. responded that “I’m a supervisor and what happens in this office is my business. I just asked you to finish up and grab your things.” She indicated that appellant responded “OOOooohhh you’re a supervisor!” while waving her arms in the air. L.C. related that she used the restroom and, when she returned, appellant was looking in her direction, so she asked if appellant needed something from her. Appellant responded that she was putting on lip balm and there was nothing for L.C. to see. L.C. walked past her and thought she heard appellant say something else, so she turned around and asked if appellant was saying something to her. Appellant then yelled , “No harassment going on here! Nope! None at all!” L.C. returned to her desk and, by the time she turned around, appellant had already left the office.

In a grievance dated February 8, 2022, appellant claimed that on January 24, 2022 she asked L.C. whether she had told a coworker to stay away from appellant, because she was “nothing

2 but trouble.” She noted that another carrier was present to witness the conversation and that L.C. denied this allegation. Later, when she started her route for the day, appellant received multiple scanner messages from L.C., who asked why she was so far behind on her route. She indicated that she asked L.C. to stop messaging her because it was slowing her down. When she returned to her work location after completing her route, appellant indicated that L.C. told her to leave if she had already clocked out. She felt humiliated and singled-out, as other carriers that were clocked out were not asked to leave. Appellant indicated that she responded that she did not have to leave and that she was gathering her personal belongings. She was then standing by her case, and L.C. approached her and asked, in a loud, intimidating voice, whether she needed something or had a problem. Appellant indicated that she responded “No,” and that L.C. told her to leave again in a loud and rude tone. She requested that an investigation be conducted and named several witnesses to the incident.

In a narrative report dated February 20, 2022, Dr. Mark W. Mittauer, a Board-certified psychiatrist, noted that appellant related worsening symptoms of MDD and PTSD, which she attributed to being harassed by L.C. on January 24, 2022 In a duty status report (Form CA-17) dated February 22, 2022, he noted worsening depression, anxiety, suicidal thoughts, MDD, PTSD, and insomnia due to the January 24, 2022 employment incident. Dr. Mittauer recommended that appellant remain out of work. He indicated that the incident was witnessed by a coworker named D.O. Dr. Mittauer related that he provided appellant psychiatric treatment, including psychotropic medications. He opined that the “upsetting event” worsened her psychiatric conditions of MDD and PTSD. Dr. Mittauer further opined that appellant was unable to work in any capacity for the employing establishment.

In a letter dated March 4, 2022, the employing establishment controverted appellant’s claim.

In a grievance form dated March 14, 2022 and a letter dated March 24, 2022, appellant indicated that she had not received continuation of pay (COP) or any other compensation for five weeks, which had caused her further mental anguish, depression, and anxiety.

In a letter dated March 29, 2022, Dr. Mittauer requested approval for appellant’s claim for COP. He noted that the delay in receipt of payment had worsened her depression, anxiety, and symptoms of PTSD.

In an April 1, 2022 development letter, OWCP informed appellant that the evidence submitted was insufficient to establish her claim. It advised her of the type of factual and medical evidence necessary to establish her claim and attached a questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary evidence.

OWCP thereafter received a March 29, 2022 Step B grievance decision, which determined that the available documentation did not substantiate that a violation of the National Agreement of the Joint Statement on Violence on Behavior in the workplace occurred. It explained that the file contained statements from some of the other employees on duty at the time of the January 24, 2022 incident, but that there was nothing to support appellant’s contention that any type of harassment occurred. The grievance was deemed resolved.

3
A separate Step B grievance decision also dated March 29, 2022 remanded the matter to local parties for further documentation pertaining to the processing of appellant’s claim for COP.

In a narrative report dated April 8, 2022, Dr. Mittauer indicated that he had provided psychiatric treatment to appellant on eight occasions prior to the January 24, 2022 incident and thereafter on February 22 and March 22, 2022. He noted that on July 29, 2020 a customer threatened her with a gun while she was delivering mail, which caused her to develop PTSD, including nightmares, flashbacks, and intrusive recollections of threat to her safety. Then, in April 2021, the customer violated a restraining order, followed appellant, and was present in places he was supposed to avoid, which worsened appellant’s PTSD symptoms. 4 On January 24, 2022 appellant was harassed at work by L.C., who yelled at her. This was upsetting to her and worsened her psychiatric conditions of MDD, other specified anxiety disorder, and PTSD. Dr. Mittauer noted that appellant further related “ongoing harassment by certain coworkers and certain supervisors,” that she “experienced unfair treatment at work,” and that her local union representatives did not support her complaints or handle them properly. He opined that she was unable to work for the employing establishment in any capacity and requested that her claim for COP and compensation benefits be approved.

In an April 19, 2022 statement in response to OWCP’s questionnaire, appellant indicated that she had similar symptoms prior to the claimed January 24, 2022 employment incident. She related that, beginning in late 2014, she claimed that she was “always getting yelled [at] and humiliated by my postmaster,” and never clearly understood why. Appellant felt like a target and, after the incident on January 24, 2022 she experienced a lot of emotions and flashbacks from previous attacks. She felt humiliated, and small because her coworkers looked on, but did not intervene. Appellant tried to work after the incident, but was so anxious that she ultimately sought medical attention and was removed from the work environment. She disagreed with L.C.’s statement and noted that D.O. was previously her union president.

In a further undated statement, appellant indicated that the city carrier assistant (CCA) and A.K., two additional witnesses, agreed to write statements on her behalf, but then declined as they “did not want to get involved.” As a result, she indicated that she was not able to provide all the information that OWCP requested in its development letter.

By decision dated May 27, 2022, OWCP denied appellant’s traumatic injury claim, finding that she had not established a compensable factor of employment as causing or contributing to her diagnosed emotional condition. Consequently, it found that she had not met the requirements to establish that she “sustained an emotional condition that arose during the course of employment and within the scope of compensable work factors as defined by FECA.”

On June 29, 2022 appellant requested reconsideration of OWCP’s May 27, 2022 decision and submitted additional medical evidence. In a June 26, 2022 statement, she described the July 29, 2020, April 7, 2021, and January 24, 2022 employment incidents. Appellant reiterated

4
OWCP accepted the July 29, 2020 claim for aggravation of anxiety and MDD under OWCP File No. xxxxxx212.
It also accepted the April 7, 2021 claim for MDD and PTSD under OWCP File No. xxxxxx427. Appellant ’s claims have not been administratively combined by OWCP.

4 that on January 24, 2022 she felt singled out and that she was treated with a lack of dignity by L.C. and that this negatively impacted her mental state and life.

In a letter dated September 1, 2022, appellant’s representative noted that appellant had an accepted claim for an emotional condition under OWCP File No. xxxxxx212. He requested that OWCP administratively combine the current claim with OWCP File No. xxxxxx212, as he believed that the current claim caused an aggravation of an underlying condition .

In a subsequent narrative report dated September 7, 2022, Dr. Mittauer opined that the claimed January 24, 2022 employment incident substantially aggravated appellant’s accepted July 29, 2020 conditions. He noted that she attempted to work for one week after the January 24, 2022 incident, but was unable to do so due to a permanent aggravation of the underlying accepted conditions.

By decision dated September 23, 2022, OWCP denied modification of its May 27, 2022 decision.

On October 31, 2022 appellant, through her representative, requested reconsideration and submitted legal arguments. He argued that OWCP had not referenced or discussed the medical evidence.

By decision dated November 1, 2022, OWCP denied modification of its September 23, 2022 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA 5 has the burden of proof to establish the essential elements of his or her claim, including that the individual is an employee of the United States within the meaning of FECA, that the claim was timely filed within the applicable time limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that any disability or medical condition for which compensation is claimed is causally related to the employment injury. 7 These are the essential elements of each and every compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8

To establish a claim for an emotional condition in the performance of duty, an employee must submit: (1) factual evidence identifying employment factors or incidents alleged to have caused or contributed to his or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric disorder; and (3) rationalized medical opinion evidence establishing

5
Supra note 2.
6
F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued December 13, 2019);
Joe D. Cameron, 41 ECAB 153 (1989).
7
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); James E. Chadden, Sr., 40 ECAB 312 (1988). 8 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41 ECAB 992 (1990).

5 that the identified compensable employment factors are causally related to his or her emotional condition.9

Workers’ compensation law does not apply to each and every injury or illness that is somehow related to an employee’s employment. In the case of Lillian Cutler,10 the Board explained that there are distinctions as to the type of employment situations giving rise to a compensable emotional condition arising under FECA. There are situations where an injury or illness has some connection with the employment, but nevertheless does not come within coverage of FECA.11 When an employee experiences emotional stress in carrying out his or her employment duties and the medical evidence establishes that the disability resulted from an emotional reaction to such situation, the disability is generally regarded as due to an inju ry arising out of and in the course of employment. This is true when the employee’s disability results from his or her emotional reaction to a special assignment or other requirement imposed by the employing establishment or by the nature of the work. 12

Allegations alone by a claimant are insufficient to establish a factual basis for an emotional condition claim. 13 Where the claimant alleges compensable factors of employment, he or she must substantiate such allegations with probative and reliable evidence.14

Administrative and personnel matters, although generally related to the employee’s employment, are administrative functions of the employer rather than regular or specially assigned work duties of the employee and are not covered under FECA. 15 Where the evidence demonstrates that the employing establishment either erred or acted abusively in discharging its administrative or personnel responsibilities, such action will be considered a compensable employment factor. 16

Verbal altercations and difficult relationships with supervisors/managers, when sufficiently detailed and supported by the record, may constitute compensable factors of employment. 17 However, this does not imply that every ostensibly abusive or threatening statement uttered in the workplace will give rise to coverage under FECA. For appellant to prevail

9
S.D., Docket No. 23-0898 (issued July 13, 2023); R.B., Docket No. 19-0343 (issued February 14, 2020).
10
28 ECAB 125, 129 (1976).
11
See L.Y., Docket No. 21-0344 (issued June 15, 2023); M.R., Docket No. 18-0305 (issued October 18, 2018);
Robert W. Johns, 51 ECAB 136 (1999).
12
D.I., Docket No. 19-0534 (issued November 7, 2019); T.G., Docket No. 19-0071 (issued May 28, 2019).
13
See V.H., Docket No. 22-0882 (issued June 9, 2023); A.C., Docket No. 18-0507 (issued November 26, 2018).
14
L.S., Docket No. 18-1471 (issued February 26, 2020); G.R., Docket No. 18-0893 (issued November 21, 2018).
15
See L.N., Docket No. 22-0126 (issued June 15, 2023); C.V., Docket No. 18-0580 (issued September 17, 2018).
16
K.W., Docket No. 20-0832 (issued June 21, 2022); A.B., Docket No. 18-0635 (issued August 14, 2020); David C.
Lindsey, Jr., 56 ECAB 263, 268 (2005); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991). 17 L.Y., supra note 11: J.M., Docket No. 16-0717 (issued January 12, 2017); L.M., Docket No. 13-0267 (issued November 15, 2013).

6 on his or her claim, he or she must support his or her allegations with probative and reliable evidence.18

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish an emotional condition in the performance of duty, as alleged.

Appellant has not attributed her emotional condition to the performance of her regular or specially assigned duties under Cutler.19 Rather she has alleged that she sustained an emotional condition as a result of harassment by her supervisor, L.C, on January 24, 2022. OWCP denied appellant’s emotional condition claim on the grounds that she did not establish any compensable employment factors. The Board must, thus, initially review whether these alleged incidents and conditions of employment are covered employment factors under the terms of FECA. 20

Appellant claimed that on January 24, 2022 L.C. told a coworker to stay away from appellant, because she was “nothing but trouble.” Later, when she started her route for the day, she received multiple scanner messages from L.C., who asked why she was so far behind on her route. When appellant returned to her work location after completing her route, she indicated that L.C. told her to leave if she was already clocked out in a loud and rude tone. In a witness statement, D.O. indicated that L.C. instructed all the employees to finish work, clock out, and leave, and when appellant responded that she was already clocked out, L.C. specifically instructed her to leave. In her statement, L.C. confirmed that she asked all the employees to clock out and leave, and that appellant told her it was none of L.C.’s business what she was doing, waved her arms around, and claimed she was being harassed.

As noted above, where the claimant alleges compensable factors of employment, he or she must substantiate such allegations with probative and reliable evidence. 21 The record does not contain any evidence substantiating appellant’s allegations that on January 24, 2022 L.C. told a coworker to stay away from appellant or that she received multiple scanner messages from L.C. on that date. The Board finds, therefore, that appellant has not established a compensable employment factor relating to those allegations.

Regarding appellant’s allegations that she was publicly scolded/verbally abused by L.C. on January 24, 2022 in front of her coworkers, the Board has generally held that being spoken to in a raised or harsh voice does not of itself constitute verbal abuse or harassment. 22 The witness statements of record did not corroborate appellant’s allegation of verbal abuse and there was no

18
Y.J., Docket No. 15-1137 (issued October 4, 2016) (allegations of verbal abuse must be surrounded by specificity in order to more appropriately gauge the context in which they were made). 19 Supra note 10.
20
L.N., supra note 15; S.K., Docket No. 18-1648 (issued March 14, 2019); Dennis J. Balogh, 52 ECAB 232 (2001).
21
Supra note 14.
22
A.C., Docket No. 18-0507 (issued November 26, 2018); S.O., Docket No. 16-1156 (issued October 21, 2016).

7 evidence that the supervisor’s remarks were unwarranted. 23 Therefore, the Board finds that appellant has not established error or abuse in connection with L.C.’s instructions on January 24, 2022 for her to stop casing mail, and leave the workplace if she was already clocked out. Accordingly, the Board finds that she has not established a compensable employment factor with respect to this allegation.

As appellant has not established a compensable employment factor, the Board finds that it is not necessary to consider the medical evidence of record. 24

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish an emotional condition in the performance of duty, as alleged.

23
A.C., id.
24
See C.Y., Docket No. 22-0699 (issued June 2, 2023); B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical evidence of record if a claimant has not established any compensable employment factors). See also Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

8
ORDER

IT IS HEREBY ORDERED THAT the November 1, 2022 and September 23, 2022 decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: December 14, 2023
Washington, DC

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

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

9