Lillian Cutler (28 ECAB 125)
mq: Lillian Cutler (28 ECAB 125)  28ECAB125 Docket No. 76-234
In the Matter of LILLIAN CUTLER and DEPARTMENT OF LABOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Chicago, Ill.
[Headnotes are part of digests.]
Docket No. 76-234; Submitted on the Record;
Issued December 13, 1976
Before FLOYD G. ANSLEY, E. GERALD LAMBOLEY, FRED E. STRINE
The issue is whether appellant's disability, caused by her disappointment in not receiving a promotion for which she applied, constituted an injury sustained while in the performance of duty.
Appellant was employed as a claims and benefit payment assistant at Grade GS-7. On September 26, 1973 an announcement was made in her office that two vacancies in the position of compensation claims examiner would be filled either at GS-9 or GS-11. Appellant filed an application for both vacancies. She was one of four applicants
certified as qualified at the GS-9 level. There were also four applicants who were certified as qualified at the GS-11 level. The selecting officer decided to fill both vacancies with applicants on the GS-11 list.
The decision by the selecting officer regarding the two vacancies was announced by a memorandum that was circulated among the office staff on November 28, 1973. This is how appellant learned that she had not been selected for a promotion.
On December 5, 1973, appellant filed a claim alleging that she had sustained an employment injury on November 28, 1973 caused by "Shock to system due to nonselection for promotion. Without prior knowledge that selection was made I was shown a copy of attached letter at 4:30 Wed. Nov. 28 which caused sleepless night, throbbing of heart and headache." She related that her condition continued thereafter and that she had a rise in blood pressure.
The case record shows that after appellant learned of the announcement on November 28, 1973, she worked on November 30, December 3 and December 4. She was absent from work during the period from December 6, 1973 through January 10, 1974. She alleged that her absence was due to an employment- related condition.
The medical records in the case record indicate that during the period in question appellant was disabled because of an anxiety neurosis and a temporary elevation in blood pressure. It was stated by treating physicians that the disability resulted from her reaction to not being selected for a promotion.
The medical director of the Office of Workers' Compensation Programs, after a review of the case record, stated that the diagnosis of appellant's condition was an acute anxiety reaction with transient essential hypertension. He expressed the opinion that appellant's " transient illness was predominantly endogenous."
The associate director of the Office commented as follows regarding appellant's claim:
"Although employees are encouraged to apply for promotional opporunities through merit staffing procedures, they aren't required to do so. Basically, this employee, as well as others, apply for higher grade positions in an effort to benefit themselves.
"Thus, no employment action, administrative or otherwise, was directed at the claimant - she merely applied on a voluntary basis for a promotion and was one of the unsuccessful candidates. The disappointment and anxiety involved in not receiving the desired position are understandable; however, I do not believe that disability caused by self-generated anxiety, under such circumstances, is a compensable disability under the FECA.
Her position was that of a Claims and Benefit Payment Assistant, and the conditions or factors of employment insofar as this position was concerned is not implicated in the claim. Since her disability came from within herself, and was related to her voluntary effort to secure a promotion, the claim should be rejected for the reason that the disability claimed was neither caused nor aggravated by the conditions of employment."
On June 28, 1974, the Office issued a compensation order finding that appellant's illness and disability from December 6, 1973 through December 10, 1974, were "self-generated and unrelated to conditions or factors of her employment."
The Office granted appellant's request for reconsideration of its decision and for a hearing. During the hearing, held on January 7, 1975 before a hearing representative of the Office, she repeated her allegation that her disability resulted from the shock of learning that she had not been selected for one of the vacancies. She particularly implicated the fact that she had first received notice of the selections by means of a general office memorandum rather than in person. During the hearing appellant also alleged that "prejudice, personal, racial and religious, have entered the promotion system and that apparently all my years of effort and devotion were in vain."1
I n a decision dated December 8, 1975, the hearing representative of the Office concluded as follows:
"The evidence of record shows that the claimant voluntarily applied for a promotion to a higher grade position in her office. She was under no obligation or requirement to so do and her action in making the application had no relationship to the duties, responsibilities or working conditions in her employment as a Claims and Benefit Payment Assistant. In effect, her position was no different of that of any person who makes application for employment with an employer. There is no evidence that her illness was caused in any way by the working conditions or factors of her employment as a Claims and Benefit Payment Assistant. The medical evidence of record shows that her illness was essentially self-generated and resulted from her failure to obtain employment at a higher grade level.
"In consideration of the entire evidence of record, it is found that the claimant's disability was not caused, aggravated. or precipitated by the conditions of her employment."
1 The case record shows that on December 27, 1973, appellant filed a complaint alleging that the failure to select her for a promotion was due to religious discrimination. On August 14. 1974, a hearing was held regarding this allegation. On September 6. 1974 a complaints examiner issued findings and recommendations finding that the allegations were not supported by the evidence. This decision was made final on October 10. 1974.
The decision of the hearing representative became final on January 16, 1976.
The Board notes that on appeal the Office, in the memorandum it filed in justification of its decision, conceded that "appellant's short illness was related to her disappointment on learning that she had not received a promotion to which she believed she was entitled." However, it further stated, "it is the position of the Office that the circumstances surrounding appellant's illness are not within the realm of the Federal Employee's Compensation Act."
Workers' compensation law does not apply to each and every injury or illness that is somehow related to an employee's employment. As pointed out in the recent Compendium on Workmen's Compensation, issued by the National Commission on State Workmen's Compensation Laws appointed by the President, "Workmen's compensation is presently intended to provide coverage only for certain work-related conditions, not all of the workers' health problems."2
There are situations where an injury or an illness has some connection with the employment but nevertheless does not come within the concept or coverage of workers' compensation. A common example is that of an employee who is injured while on his way to or from work. Such an injury is causally related to his employment; if it were not for his employment the injury would not have occurred. Nevertheless, where the employee has fixed hours and place of work and such injury does not occur on the employment premises, it is not covered. Although related to employment, the injury is not regarded as having occurred in the course of the employment.3
There are injuries that occur in the course of the employment and have some kind of causal connection with it but nevertheless are not covered because they are found not to have arisen out of the employment. Superficially some of these situations appear to be indistinguishable from others where the injury is held to have arisen out of the employment. However, a careful analysis of these various situations shows that there is a sound legal basis for the distinction. Many of these cases, including the present one, involve disabling emotional reactions to factors in the employment.
Where an employee experiences emotional stress in carrying out his employment duties, or has fear and anxiety regarding his ability to carry out his 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
2 p. 30. The Compendium is part of a several volume report issued by the Commission in 1973. See also George A. Fenske, Jr., 11 ECAB 471, 472.
3 Larson, Workmen's Compensation Law, section 15.00.
in the course of the employment. This is true where the employee's disability resulted from his emotional reaction to his day-to-day duties.4 The same result is reached where the emotional disability resulted from the employee's emotional reaction to a special assignment or requirement imposed by the employing establishment or by the nature of his work. Examples of the latter type of situation can be illustrated from decisions of the Board.
An employee was instructed by a classification officer to rewrite her job description for classification to a higher grade, and she suffered frustration in attempting to prepare the description to satisfy the officer. The Board held that her ensuing heart attack would be compensable if the medical evidence established that it was precipatated by such frustration.5
An employee was instructed that he had to undergo a fitness-for-duty examination in order to continue in the employment. His fear of taking the examination caused him to undergo great emotional stress, and he had a mental breakdown. The Board held that if the requirement of undergoing the physical examination, and the circumstances under which this requirement was imposed upon him, caused his disability, the disability was compensable.6
An employee was charged with irregularities in his employment. He was removed from his regular work duties and given the assignment of devoting his work time to preparing a reply to the allegations. He became disabled from an emotional condition which the evidence established was related to the above circumstances. The Board found that his disability "arose directly out of and in the course of work activities, pertaining to the charges and investigation, which he was specifically assigned by his supervisor to perform." It was noted that there had been no findings by the employing establishment that the charges against the employee had been established or that his disabling condition was caused by his wilful misconduct. The Board held that his disability constituted an injury within the meaning of the Act.7
4 Madge Price Derby, 5 ECAB 283; Maurice H. Meridith, 9 ECAB 412: Theodore M. Parr/s, 12 ECAB 213; Arthur Jones, 16 ECAB 458; Maxine Orpha Bahn, 19 ECAB 395.
5 Helen E. Hendrick, 15 ECAB 479.
6 Raymond H. Schulz, Jr., 23 ECAB 25.
7 Paul Raymond Kuyoth, 27 ECAB 253. decision reaffirmed, 27 ECAB 498.
In contrast, the Board has held that "a disabling condition resulting from an employees' feeling of job insecurity per se is not sufficient to constitute 'a personal injury sustained while in the performance of duty' within the meaning of *** the Federal Employees' Compensation Act.''8 Likewise, "assuming that appellant was unhappy doing inside work, desired a different job, brooded over the failure to give him the kind of work he desired for which the establishment considered him unsuitable, and as a result of such brooding appellant became emotionally disturbed, causing an outbreak of dermatitis; this does not establish 'a personal injury sustained while in the performance of duty' within the meaning of *** the Federal Employees' Compensation Act.''9
The above cases demonstrate the distinctions that 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.
The situation presently before the Board clearly falls within the second category. Where an employee becomes upset over not receiving a promotion, the resulting disability does 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 can be truly described as self generated and as not arising out of or in the course of the employment.
The Board finds that appellant's disability commencing December 6, 1973 was not due to an injury sustained while in the performance of duty. The medical evidence shows that her disability was related to an emotional reaction to her not receiving a promotion for which she applied. These circumstances do not constitute an injury within the meaning of the Act.
After the Office issued its decision, appellant, for the first time, contended that her action in applying for a promotion was not voluntary. She alleged that her application was filed "under duress", because there was an "implied" threat that "unless she applied for and received the appointment in her section, the nature of her work, her position and her status would be substantially changed." There is no evidence in the case record to support this allegation.
8 Kathrine W. Brown. 10 ECAB 618 at 620.
9 Kenneth S. Vreeland, 12 ECAB 281 at 284.
Appellant also contended that she should have been notified personally that she was not going to receive one of the two promotions, rather than by a memorandum of general nature which was circulated in her office. However, the Board finds that the contention has no merit here.
The decision of the Office of Workers' Compensation Programs, dated December 8, 1975 which became final January 16, 1976, is affirmed.