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Since both cases involve procedures which employees must follow in order to obtain sick leave, it
was unclear why the Board considered the procedural requirements a "duty imposed upon the
employee" in Frisina but "purely a personnel matter" in DeDonato (the Board noted in DeDonato
that, in response to his written request for sick leave, the employee received an immediate
response from the employing establishment instructing him to "comply with employing
establishment regulations within five days since his current absence had exceeded three days").
The Office took the position that Frisina stood alone among cases of this type and that all
circumstances related to the administration of leave were strictly personnel matters and not factors
of the employment.
The Board clarified its position in Anthony A. Zarcone, 44 ECAB 751, finding that employment
establishment requirements for the use of sick leave were not compensable factors of employment.
In affirming the Office's decision that appellant had not met his burden of proof to establish that he
sustained an injury in the performance of duty, the Board discussed its previous decisions in Cutler
and Raymond H. Schulz, Jr., 23 ECAB 25. The Board stated:
In the case of Pasquale Frisina, the Board stated that the procedure for reporting sick leave
was a requirement imposed by the employment. It found, without explanation, that the
circumstances presented were a part of the employment and related to the duties that the
claimant was employed to perform and to the requirements imposed by the employment.
This holding was not explained in light of the Board's prior decisions in Edgar Lloyd Pake,
(33 ECAB 872) which found that the disapproval of a request for sick leave was not a
compensable factor arising from the employment. Because there was no explanation of
how the requirement related to the duties the claimant was hired to perform, Frisina implies
that any "requirement" of employment constitutes a compensable factor of employment.
Such a holding is too broad, as the above discussion of Lillian Cutler and Raymond H.
Schulz, Jr., demonstrates. Accordingly, the Board expressly overrules Pasquale Frisina to
the extent that it is inconsistent with Cutler, Pake and the holding herein. The Board notes
that Pasquale Frisina was implicitly overruled in subsequent cases, notably Joseph C.
DeDonato and Ralph O. Webster, (38 ECAB 521) which held that emotional conditions
resulting from actions taken by the employing establishment in personnel matters such as
use of leave are not sustained in the performance of duty.
The Board has thus made clear that requirements for use of sick leave are personnel matters,
administrative in nature, and have no relationship to the duties the employee was hired to perform
h. Other Factors. The Board reiterates in its decisions the principles set forth in Cutler
distinguishing between injuries or illnesses which have some connection with the employee's
employment but do not result from the regular or special duties or a requirement imposed by the
employment, and those that do. An employing establishment may take action against or relating
to an employee because of something the employee did while on the job, or in connection with the
employment, or because of his or her activities as a private citizen, which may result in a claim by
the employee or dependents. In such cases the CE must determine whether the employee's
actions were related to the assigned duties and the requirements of the employment.
In Walter Asberry, Jr. 36 ECAB 686 (1985), the employee claimed that his emotional disability was
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