APPLYING LEGAL PRECEDENT

The Board notes, “Where the disability results from an employee’s emotional reaction to his or her regular or specially assigned duties or to a requirement imposed by the employment, the disability comes within the coverage of FECA.” - Lilian Cutler, 28 ECAB 125 (1976). This is in fact, the definitive precedent in the appellant’s case.

According to the principles of Cutler “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 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.” The appellant has alleged from the very beginning of this process; that the polygraph examination – a requirement for his position – and his fear and anxiety regarding his ability to carry out his newly, specially assigned duties, had in fact, caused his disabilities.

Also, according to the principles of Cutler, “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.” The examination in the appellant’s case was the polygraph examination, and his fear of taking it coupled with his fear of the impending punishment for not passing it, in fact, caused his disabilities. The appellant has presented an abundance of rationalized medical evidence establishing that this factor of his employment, is without doubt, the nexus between his performance of duties and his emotional condition.

Also according to the principles of Cutler, “An employee was charged with irregularities in his employment. He was removed from his regular work duties. 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 willful misconduct. The Board held that his disability constituted an injury within the meaning of the Act. Similarly, the appellant was removed from his regular work duties and charged with the unsuccessful completion of a required examination – without any evidence of wrong doing on his part. The appellant has stated repeatedly throughout this entire process, that the polygraph examination coupled with the abrupt changes in his work activities, were the cause of his disabilities.

The OWCP incorrectly decided and the Board has erroneously ruled that appellant’s claims are not compensable by citing Matilda R. Wyatt, 52 ECAB 421 (2001). “Administrative and personnel matters, although generally related to the employee’s employment, are administrative functions of the employer rather than the regular or specially assigned work duties of the employee and are not covered under FECA.” In this case, a woman alleged that her stress resulted from being denied her medical retirement and workers’ compensation claims. The Board ruled that the development of any condition related to such matters would not arise in the performance of duty because the processing of these claims bears no relation to appellant’s day-to-day or specially assigned work duties. These are not compensable factors of employment. In the appellant’s case, this precedent does not apply because the repetitious polygraph examinations did, in fact, arise in the performance of duty and were directly related to, and impacted his day-to-day or specially assigned work duties. Therefore, the assertion that the employing agency’s actions were merely administrative matters and not a part of his duties is completely inaccurate.

The Board has also cited William F. Fortner, 49 ECAB 324 (1998). “The Board has held that, where the evidence establishes error or abuse on the part of the employing establishment in what would otherwise be an administrative matter, coverage will be afforded.” This case involves a man who alleged that he suffered an emotional condition when the employing establishment advised him that he had been improperly placed under the Civil Service Retirement System rather than the Federal Employee’s Retirement System. The Board found that this allegation related to an administrative or personnel matter, unrelated to the employee’s regular or specially assigned work duties and does not fall within coverage of the FECA. This precedent does not apply in the appellant’s case because the polygraph examination itself, coupled with the unfavorable actions taken by the employing agency, were in fact, directly related to his regular or specially assigned work duties and absolutely fall within the coverage of the FECA.

ANALYSIS

The Board properly acknowledges in its ruling that the appellant alleged that he sustained an emotional condition as a result of his employment conditions. However, the OWCP has misconstrued the appellant’s allegations to indicate that he has only alleged error and abuse in administrative and personnel matters. The appellant has repeatedly claimed that factors of his employment - in performance of his day-to-day and specially assigned duties – have caused his disabling condition. In his case, the appellant’s emotional reaction to the special assignments and the requirement imposed by the employing establishment, is therefore, a compensable work factor. (See appellant’s CA-2, appellant’s Response to OWCP Questionnaire, dated January 13th, 2015, and appellant’s Notice of Decision Rebuttal, dated June 19th, 2017)

The Board claimed that the appellant’s allegations do not pertain to his regular or specially assigned duties under Cutler. In fact, the appellant has consistently alleged throughout this entire process, that his employment – his regular and then his subsequent special assignments and duties - were in fact, the cause of his disabilities. Whether the administrative actions were taken in error or abuse is superfluous to the fact that they were in fact, actions involving his day-to-day duties, not simply an administrative matter, somehow unrelated to his duties. As a requirement of his position, the appellant was repeatedly forced to submit to the polygraph examination, an examination that caused and then exacerbated his debilitating condition. The decisions to take unfavorable actions against him were implemented because of how he performed in a requirement of his duties. This absolutely represents a compensable work factor under FECA.

The Board also acknowledges that the appellant alleged that the employing establishment committed wrongdoing by requiring him to undergo polygraph testing and by “altering” his work conditions due to the results of the same. Appellant’s allegations have continually emphasized the stress that he felt before, during and after each polygraph examination/interrogation session. The Board failed to acknowledge his allegation that he suffered from emotional reactions to this requirement for which he was trying to meet the demands of his position. The Board has previously held that emotional reactions to situations in which an employee is trying to meet his position requirements are compensable (Georgia F. Kennedy, 35 ECAB 1151, 1155 – 1984); (Joesph A. Antal, 34 ECAB 608, 612 – 1983). In the appellant’s case, he was directed to take the polygraph examination five times in three years. As noted by the Insider Threat Program Coordinator, successful completion of this examination is a requirement for his position. The appellant’s fear and emotional reactions to his inability to meet this requirement, unequivocally establish this as a compensable work factor.

For the foregoing reasons, appellant respectfully requests the Board to RECONSIDER his claim and REMAND the case to the Office in order to carry out the factual and medical developments described above, to be followed by an appropriate decision.

John M. wrote on Jan 23^rd, 2018 at 7:26pm:

Maybe you can emigrate to Iran or North Korea.John M. wrote on Jan 23^rd, 2018 at 7:26pm:

It was- we win, you lose, like all malingerers!

quickfix wrote on Jan 23^rd, 2018 at 7:57pm:


No need for him to move there Quickfix.  For those few Americans whose livelihoods are subject to being arbitrarily erased by traitor slugs like you, life here in America is no different than life is for the average N. Korean or Iranian.  You are the one who should move to North Korea or Iran because you are a blood brother to the assholes who run those countries.   Bullies and tyrants are all the same and you'd fit right in in either of those places.   

quickfix wrote on Jan 25^th, 2018 at 7:33pm:


Considering that polygraph "testing" has no scientific basis, and there is no documented instance of it ever catching a spy, it's likely that you and your fellow polygraph operators are doing more to harm our national security than to protect it.

quickfix:

Source of information for your statement about James Gregory failing the polygraph?

I did find the following interesting PDF document:
https://fas.org/sgp/library/spies.pdf

In this document, no mention of the polygraph to uncover James Gregory, although Edward Lee Howard did fail the polygraph.

quickfix wrote on Jan 25^th, 2018 at 7:33pm:


I've caught real spies and sent them to prison with physical proof.  I received the highest award someone in my organization could receive for my success.  I am national security.  You're a traitor and a fraud who sold your sacred honor for personal gain involved in the polygraph scam.  You are the worst of the worst, talking about exposing liars when you yourself are the biggest liar of all as you falsely accuse innocent people for personal profit.   

I'm laughing my head off as I watch the corrupt FBI hierarchy go down in flames.  The rest of the country is learning what I already knew about the frauds that are at the top of our intelligence community while honest mid-level investigators, case officers, and analysts are still working miracles for the American people.  I know the feeding frenzy of investigative journalists will eventually uncover this polygraph fraud as they peel back the layers of corruption.   

quickfix wrote on Jan 25^th, 2018 at 8:41pm:


What an incredibly stupid argument. I expect better from you.

Quote:


It's true that Jeffery Eugene Gregory was polygraphed, failed, and confessed to spying with Conrad. But it's not true that he was "caught" by the polygraph. Gregory's case is documented in former U.S. Army Counterintelligence Field Activity chief Stuart A. Herrington's 1999 seminal work on the Conrad espionage case, Traitors Among Us: Inside the Spy Catcher's World, at p. 390 ff. Herrington avers that it was Conrad accomplice Roderick James Ramsay who fingered Gregory as a spy. Herrington writes, at p. 390:

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So it was Ramsay who identified Gregory as a spy, not the polygraph. It's true that Gregory ultimately confessed during a (no doubt specific issue) polygraph interrogation. Herrington describes it thus, at p. 395:

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