These ECAB rulings on stress claims are important because they draw a line between stress
that is actually related to the duties and requirements of the job, and stress that is
"self-generated" although it may be related in some
way to the job. This is called the "Cutler rule"
from the Cutler decision below. But the "McEuen
exceptions" are equally important. In McEuen and following decisions, ECAB ruled
that stress disability can be compensable when agency actions causing it were in error,
abusive, or discriminatory.
The material here is taken from an excellent site for postal
stewards and members, Kathy Higgins' Carrier
Connection. Her material about injury compensation was originally published in
the NALC Postal Record. |
| Cutler and Derderian |
Lillian
Cutler, 28 ECAB 125: (1976)
“There are distinctions which govern situations where an
employee has a disabling emotional condition having some kind of causal relationship to
the employment. Where the disability results from his emotional reaction to his regular or
specially assigned work duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Act. On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a
reduction-in-force or his frustration from not being permitted to work in a particular
environment or to hold a particular position.
“In the present case, where an employee became upset over
not receiving a promotion, the resulting disability did not have such a relationship
to the employee’s assigned duties as to be regarded as arising from the employment.
The emotional reaction in such circumstances could be truly described as self-generated
and as not arising out of or in the course of the employment.” George Derderian, 33 ECAB 1910 (1982)
(remanded to OWCP finding that) “The situations
enumerated by [the employee] which would be deemed conditions of employment as enunciated
in Cutler were his emotional reaction to the circumstances of his performance rating; his
assignment to [a special] project and its subsequent cancellation; the legal action taken
against him by his subordinate for failure to select the subordinate for a promotion and
the employing establishment’s alleged failure to arrange for [his] defense in the
ensuing lawsuit ; and confrontations with his supervisor involving criticism and other
verbal altercations concerning his performance.
Factors enumerated by [the employee] which would not be
compensable. . .are: distress over the reduction-in-force and the appeals process which
followed; distress over failure of being promoted; distress over the newly created
position and the national advertisement of that position; and distress over the assignment
of one of his subordinates as his acting supervisor .” |
| The McEuen exceptions for error, abuse, or discrimination |
Thomas D. McEuen, 41
ECAB 387
In this case, the medical evidence establishes more than [the
employee’s] feeling of job insecurity: It establishes that [the employee’s]
episode of severe depression and impaired functioning was directly precipitated by what
[he] regarded as an unsatisfactory performance appraisal. The Board finds that [the
employee’s] emotional reaction bears a direct relationship to his regular or
especially assigned duties and constitutes an injury in the performance of duty within the
meaning of the [FECA]. .
. . an unsatisfactory performance rating, without more, is
insufficient to provide coverage. Although the rating is generally related to the
employment, it is an administrative function of the employer, not a duty of the employee.
As was held in Cutler, an emotional reaction under such circumstances would be
self-generated. Exceptions will occur, however, in those cases where the
evidence discloses error or abuse on the part of the employing establishment.
That is what has occurred in this case. An error was committed by the employing
establishment that resulted in appellant’s emotional reaction. Such reaction cannot
be labeled “self-generated.” Docket No. 91-672 (9/26/91).
Although the employing establishment’s investigation into the. . . motor vehicle
accident is generally related to [the employee’s] employment, it relates to
administrative functions of the employer and not to [the employee’s] regular or
specially assigned duties. In this case, the administrative function of the employer is to
investigate the motor vehicle accident. Where the evidence demonstrates that the
employing establishment neither erred nor acted abusively in the administration of
such matters, coverage will not be afforded. (italics added) Consequently, a
mere reaction to an administrative investigation, without more, is not covered by the
Act.
Docket No.
92-1042 (3/8/93). [Remand ordered, the board stating that OWCP] must review the
administrative actions of the employing establishment and its supervisors to determine
whether any of those actions constitute error or abuse. Incidents of harassment or
discrimination, if proven, are examples of error or abuse in administrative actions that
would otherwise not be covered by the Act. (italics added)
Workers’ compensation law is not applicable to each and
every injury or illness that is somehow related to an employee’s employment. There
are distinctions as to the type of situation giving rise to an emotional condition which
may be covered under the Federal Employees’ Compensation Act. Where the
disability results from an emotional reaction to regular or specially assigned work duties
or a requirement imposed by the employment, the disability comes within the coverage of
the Act. (italics added)
On the other hand, the disability is not covered where it results
from such factors as an employee’s fear of a reduction-in-force or his
frustration from not being permitted to work in a particular environment or to hold a
particular position. Disabling conditions resulting from an employee’s feeling of job
insecurity or the desire for a different job do not constitute personal injury sustained
while in the performance of duty within the meaning of the Act [Cutler cited]. When the
evidence demonstrates feelings of job insecurity and nothing more, coverage will not be
afforded because such feelings are not sufficient to constitute a personal injury
sustained in the performance of duty within the meaning of the Act . . .
In this case, the feelings are considered to be self-generated by
the employee as they arise in situations not related to his assigned duties. However,
where the evidence demonstrates that the employing establishment either erred or acted
abusively in the administration of a personnel matter, any physical or emotional condition
arising in reaction to such error or abuse cannot be considered self-generated by the
employee but caused by the employing establishment [McEuen cited]. (Italics
added) |
| Related cases |
These related cases
are also summarized in the Postal Record: An emotional reaction to the actions
taken by an employing agency concerning a promotion found to be illegal is not
compensable where the evidence shows that the employing agency acted properly
(italics added) toward the employee in performing its responsibility. Carol S.
Medlinger, 29 ECAB 168 (1978).
Dissatisfaction with the type of work to which an employee is
assigned and frustration over what the employee regarded as lack of promotion
opportunities are not factors of employment. Delores F. Ximinez, 29 ECAB 929 (1978).
Fear of a reduction in force or frustration from not being
permitted to work in a particular environment or to hold a particular position are not
factors of employment. Anna J. Backman, 30 ECAB 118 (1978).
A disabling condition resulting from an employee’s feeling
of job insecurity per se is not sufficient to constitute a personal injury sustained while
in the performance of duty. Likewise, emotional reactions to failure to be assigned the
type of work desired for which the employing establishment considered him unsuitable does
not constitute a personal injury sustained while in the performance of duty. Joseph
Robert Wilson, 30 ECAB 384 (1979).
[It is necessary to distinguish between] situations arising out
of assigned duties and those arising out of an employee’s desire for changes in his
assigned employment situation. Among the situations held to be within assigned duties was
the requirement to undergo a fitness for duty examination. Ronald S. Dick, 30 ECAB 714
(1979).
The fear of recurrence of [an emotional condition] if the
employee returns to work does not constitute a valid claim for compensation.(italics
added) Herbert H. Kiehn, 31 ECAB 488 (1980).
[It is a factor of employment where] supervisor, in reacting to
work activities, came toward her in such a manner that she believed that he was about to
strike her. Dorothy J. Williams, 32 ECAB 665 (1981).
[It is a factor of employment where employee] repeatedly
complained to the employing establishment about [a member of his work crew’s]
drinking problem, and that these complaints were futile. Frank J. Sarginson, 32 ECAB 1418
(1981).
A claim is compensable if it is established that the
performance of regular duties or the regular work environment [loud, abrupt, excessive
noise at work by coworkers, deliberate or otherwise] did, in fact, cause or precipitate
the condition for which compensation is claimed. (italics added) Ernest J.
Reece, Jr., 32 ECAB 1508 (1981).
[A change in an employee’s] status in the bargaining unit
and the impending transfer of his office to a new location [are not factors of employment;
however] disagreement with another employee over a technical procedure in connection
with work and a subsequent confrontation with his supervisor concerning the incident [are
factors of employment]. Jerry D. Campbell, 32 ECAB 1959 (1981).
The investigation did not involve [the employee’s]
day-to-day regular duties, a specially assigned duty, or a requirement imposed by his
employment. Instead it involved his dealings with the U.S. Postal Service as a private
landowner. That the investigation would not have been instigated if [the employee] were
not a postmaster is not a sufficient link to employment to consider his emotional reaction
to it to have arisen out of his employment. Manuel W. Vetti, 33 ECAB 750 (1982).
Exposure to noise and bright lights at work is clearly a factor
of employment under [the Cutler] analysis, as it invokes conditions of employment
encountered in the performance of day-to-day duties. The fear of losing one’s job or
being mugged while commuting is not a factor of employment under Cutler, as that is an
emotional reaction that can be truly described as self-generated and as not arising out of
or in the course of employment. Peter Sammarco, 35 ECAB 631 (1984).
The employing establishment’s administrative action of
dismissal of [the employee] was based on its investigation of his conduct on the job; the
action, which the Merit Systems Protection Board ruled was proper, was based on his
“willful misconduct.” [The employee’s] resulting emotional upset must
therefore be considered self-generated and not arising out of or in the course of his
federal employment. Walter Asberry, Jr., 36 ECAB 686 (1985).
[The employee’s] emotional reaction to the denial of
reimbursement of travel vouchers constituted an injury sustained in performance of duty.
The procedure for claiming these expenses is a requirement imposed by the employing
establishment and relates to the duties [the employee] was required to perform.
(italics added) Robert E. Green, 37 ECAB 145 (1985).
[A] letter from the employing establishment proposing to remove
[the employee] from his position due to failure to meet certain performance requirements
of that position did not constitute an injury sustained in the performance of duty.
Although [the employee’s] disabling emotional reaction had some connection to his
employment, it was not a reaction to his day-to-day duties or to fear or anxiety
concerning his ability to perform his employment duties, but to what he perceived as a
“sudden loss of his career.” Allen C. Godfrey, 37 ECAB 334 (1986).
[The employee’s] fear of a reduction in force and fear of a
possible reassignment . . . are not compensable [employment factors] under the principles
enunciated in Cutler, Janice Balan, 37 ECAB 485 (1986).
[The employee] did not cite any duties or special requirements
imposed by his position of mail handler which can be related to his emotional condition,
[but] attributed his condition to alleged mismanagement of his claim by OWCP. The
factors he listed are not employment factors and are actions of OWCP, not the employing
establishment. (italics added) Virgil M. Hilton, 37 ECAB 806 (1986).
[The] refusal of the employing establishment to permit [the
employee] to return to work or provide her with vocational rehabilitation does not
constitute an injury within the performance of duty. Billie M. Gentry, 38 ECAB 498 (1987).
The detail assignment to Chicago constitutes specially assigned
work duty within the language of Cutler. A disability arising out of an emotional
reaction to a detail assignment or the working conditions involved in a detail assignment
would therefore be within the coverage of the FECA. (italics added) Brenda Getz, 39
ECAB 245 (1987).
The sexual harassment complaints made against [the employee] did
not arise out of [his] day-to-day regular duties or out of any specially assigned duties
imposed by the employment. Rather, the complaints arose out of [the employee’s]
own behavior toward certain female co-employees. Wilbert Kimbrough, 39 ECAB 425 (1988).
[The employee’s] emotional condition resulted from her
reaction to knowledge of the shootings [of postal workers in Edmond, OK] and to the
subsequent revelation that her husband was among the dead . . . [and not to her]
day-to-day duties, specially assigned duties, or any other requirement imposed by her
employment. Carla E. Phillips, 39 ECAB 1040 (1988).
[The employee] alleged an emotional condition which he attributed
to discrimination in his employment as he sought time off work for religious purposes. The
. . . emotional condition was due to symptoms caused by his distress over not being able
to fulfill his religious responsibilities and obligations, which are not factors of
employment. Robert Gray, 39 ECAB 1239 (1988). |
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