United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.L., Appellant 

and 

U.S. POSTAL SERVICE, PARKLAWN 

STATION, Milwaukee, WI, Employer 

__________________________________________ 

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Docket No. 16-0536 

Issued: July 6, 2016 

Appearances: Case Submitted on the Record

Colleen Bero-Lehmann, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 28, 2016 appellant, through counsel, filed a timely appeal from an August 5, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision, dated July 27, 2012, to the filing of this 

appeal, pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request to reopen his case for 

further review of the merits under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On October 1, 2010 appellant, then a 46-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on August 31, 2010 he sustained a stress-related condition in 

 1

 5 U.S.C. § 8101 et seq. 
2

the performance of duty. He stopped work on August 31, 2010. OWCP assigned the case file 

number xxxxxx825, which is the current claim. 

In a statement dated November 5, 2010, appellant related that on August 31, 2010 his 

supervisor told him to deliver a package in violation of the work restrictions he had from another 

injury. Due to the supervisor’s actions, appellant claimed he experienced a flashback to a prior, 

accepted assault. There was no actual assault on August 31, 2010, a fact acknowledged by 

appellant. 

By decision dated July 27, 2012, OWCP denied appellant’s claim finding that he had not 

established any compensable work factor on August 31, 2010. It noted that appellant had 

advised the employing establishment that he was robbed on August 31, 2010, but subsequently 

admitted that he had lied about the robbery. OWCP advised appellant that a fear of future injury 

was not compensable under FECA. 

On July 23, 2013 appellant, through counsel, requested reconsideration. In a statement 

dated July 19, 2013, she clarified that OWCP had previously accepted post-traumatic stress 

disorder (PTSD) under file numbers xxxxxx904 and xxxxxx771. Counsel related that appellant 

had been attacked while delivering his route on April 27, 2001. As a result of the attack, 

appellant underwent “surgery to remove a severely damaged testicle.” Later, in June 2001 he 

was “caught in the middle of a gun fight while he was on his route” and in March 2002 he was 

robbed at gunpoint on his route. An impartial medical examiner evaluated him under another file 

number and found that he could only perform indoor duties. On August 31, 2010 appellant’s 

supervisor instructed him to leave the building to deliver a package which was outside of his 

restrictions. Counsel related, “Once outside, [he] had a full blown flashback and panic attack. 

The flashback was so vivid, [he] was under the impression that he had actually been robbed 

again.” Appellant initially filed a recurrence of disability under the original claim number, but 

an OWCP hearing representative found that the events of August 31, 2010 constituted a claim for 

a new injury. Counsel argued that when appellant experienced the flashback on August 31, 2010 

he was performing his assigned work duties and thus had established a compensable work factor. 

She asserted that the work assignment of delivering mail outside resulted in appellant’s flashback 

and aggravation of PTSD. Counsel argued that the reaction did not constitute a fear of future 

injury as found by OWCP. 

In support of appellant’s request for reconsideration, he submitted a transcript from a 

February 9, 2012 hearing held in file number xxxxxx771. He also submitted a May 23, 2012 

OWCP hearing representative decision issued under file number xxxxxx771. In that decision, 

the hearing representative affirmed a September 28, 2011 decision finding that appellant had no 

residuals of his April 27, 2001 work injury, accepted for trauma to the right testicle with 

hemorrhage as the result of an assault. Counsel noted that OWCP had also accepted that 

appellant sustained a major depressive disorder and an acute reaction to stress under xxxxxx904. 

She noted that the hearing representative had discussed appellant’s claim for a new injury in the 

current file number, xxxxxx825. Counsel said the hearing representative had instructed OWCP 

to review and consolidate all the emotional condition claims. After any necessary development, 

the hearing representative advised OWCP to determine whether his claim under file number 

xxxxxx771 should be expanded to include PTSD and adjudicate his stress claim under file 

number xxxxxx825. 
3

By decision dated August 5, 2015, OWCP denied counsel’s request for reconsideration 

finding the evidence or argument was insufficient to warrant reopening his case for further 

review of the merits under section 8128(a). 

On appeal appellant’s counsel describes the history of assaults on April 27, 2001, 

March 6, 2002, and June 2011 delivering mail. She notes that he was beaten in the April 27, 

2001 assault and lost a testicle. Beginning in 2002 appellant was restricted from performing 

work outdoors. Counsel relates that, “On August 31, 2010 [his] supervisors, knowing full well 

that [he] was under indoor work restrictions, ordered [him] to deliver a package outside. As 

expected, [appellant] experienced a flashback to a previous physical assault that he suffered at 

work on his [employing establishment] route.” He believed that he had again been assaulted 

because of his flashback. She argues that OWCP erred in denying appellant’s claim based on its 

finding that it constituted a fear of reinjury. Counsel discussed evidence submitted under other 

file numbers and reviewed the supporting medical evidence. She noted that an emotional 

reaction to performing job duties was compensable. Counsel advised that if OWCP found that 

the August 31, 2010 incident was not compensable he should receive compensation for a 

recurrence of disability due to his April 27, 2001 and March 6, 2002 employment injuries. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

interpreted a specific point of law; (2) advance a relevant legal argument not previously 

considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously 

considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant’s application for review must be received within one year of the 

date of that decision.4

 When a claimant fails to meet one of the above standards, OWCP will 

deny the application for reconsideration without reopening the case for review on the merits.5

ANALYSIS 

The Board finds that the case is not in posture for decision. By decision dated July 27, 

2012, OWCP denied appellant’s traumatic injury claim finding he had failed to establish a 

compensable factor of employment occurring on August 31, 2010. On July 23, 2013 OWCP 

received his request for reconsideration. Appellant’s request was timely filed as it was received 

within one year of OWCP’s merit decision.6

 

 2 Id. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award for or against 

payment of compensation at any time on her own motion or on application.” 

3

 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.607(a). 

5 Id. at § 10.608(b). 

6 See supra note 3. 
4

On reconsideration appellant’s counsel asserted that he sustained an emotional condition 

because the employing establishment instructed him to work outside of his restrictions. She 

maintained that he experienced a flashback to prior work-related assaults in 2001 and 2002 

because he was ordered to deliver mail in violation of the limitations provided by an impartial 

medical examiner in a prior claim file. Counsel also asserted that a condition that arises during 

the performance of regular or specially assigned work duties is compensable under FECA. She 

argued that appellant’s flashback on August 31, 2010 did not constitute a fear of future injury as 

found by OWCP. Counsel submitted a May 23, 2012 decision by an OWCP hearing 

representative issued in another file number that instructed OWCP to consolidate all of 

appellant’s stress-related claims and to adjudicate the current claim for a new injury on 

August 31, 2010. She argued that failure to consolidate the claims under a master file was also 

an error. 

In its August 5, 2015 decision denying appellant’s request for reconsideration, OWCP 

determined that the evidence submitted had not warranted a review of the merits, under 

20 C.F.R. § 10.606(b)(3). The Board finds, however, that counsel for appellant raised relevant 

legal arguments not previously addressed by OWCP in her request for reconsideration filed on 

July 23, 2013. As such, appellant has been improperly denied a review of the merits of his 

claim. The case shall therefore be remanded for consideration of the legal arguments. 

On remand, OWCP should combine the case records prior to a review of the merits of the 

claim and thereafter issue an appropriate merit decision.7

 

CONCLUSION 

The Board finds that the case is not in posture for decision. 

 7

 Additionally, as noted, on reconsideration appellant’s counsel submitted an OWCP hearing representative 

decision dated September 28, 2011 issued under file number, xxxxxx771, instructing that claim files be combined. 

The hearing representative instructed OWCP to combine his stress-related case records and adjudicate the current 

claim for a new injury under the current file number. OWCP, however, did not combine the case records prior to 

adjudicating his claim for the alleged August 31, 2010 employment injury and therefore the factual and medical 

evidence pertaining to appellant’s prior accepted injuries conditions is not contained in the case record. OWCP 

procedures provide that cases should be combined when correct adjudication of the issues depends on frequent 

cross-reference between files. Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & 

Management, Chapter 2.400.8(c) (February 2000). 
5

ORDER 

IT IS HEREBY ORDERED THAT the August 5, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board. 

Issued: July 6, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board