United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.Y., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, SOCIAL SECURITY 

ADMINISTRATION, Chicago, IL, Employer 

__________________________________________ 

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Docket No. 15-1377 

Issued: October 15, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On June 10, 2015 appellant filed a timely appeal from a December 10, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 As more than 180 days 

elapsed between the last merit decision of OWCP dated September 11, 2013 to the filing of this 

appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. 

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

                                                             1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from December 10, 2014, the date of OWCP’s last decision was 

June 8, 2015. Since using June 10, 2015, the date the appeal was received by the Clerk of the Appellate Boards 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the 

U.S. Postal Service postmark is June 8, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

of her claim pursuant to 5 U.S.C. § 8128(a). 

On appeal, appellant contends that contrary to OWCP’s finding that her request for 

reconsideration lacked substantial legal questions and new and relevant evidence, her 

reconsideration request included evidence showing how the agency erred and acted abusively in 

the administration of personnel matters. She also contends her request for reconsideration 

detailed and included new and relevant evidence that OWCP failed to consider in its decision. 

FACTUAL HISTORY 

On June 28, 2012 appellant, then a 27-year-old paralegal specialist case manager, filed a 

traumatic injury claim (Form CA-1) alleging that on June 15, 2012 she suffered from stress due 

to harassment and retaliation at work. She claimed that she was followed into a lobby and 

threatened with physical violence by her supervisor. To this claim OWCP assigned File No. 

xxxxxx941. 

On July 13, 2012 appellant filed an occupational disease claim (Form CA-2) regarding 

the June 15, 2012 incident. To this claim OWCP assigned File No. xxxxxx929. 

In a July 16, 2012 narrative statement, appellant contended that her supervisor’s actions 

on June 15, 2015 created a hostile work environment. She asserted that her supervisor’s verbal 

assault occurred after she was subjected to repeated acts of harassment and intimidation since she 

had filed a claim against her supervisor on or about February 4, 2010 with the Equal 

Employment Opportunity (EEO) Commission. Appellant sought medical treatment on June 19, 

2012 from her primary physician. She claimed that she had completely lost her appetite and 

could not sleep. Appellant’s recall and short-term memory may have also been affected. She 

experienced increased feelings of anxiety and depression because leadership had not 

implemented any processes to ensure her safety or conducted an investigation despite the 

seriousness of her allegations of threats of workplace violence by her supervisor. 

In a July 31, 2012 narrative statement, appellant attributed her emotional condition to 

additional actions of her supervisor, which included being unapproachable, hostile, or unwilling 

to listen to her questions related to the distribution of workloads and using threats and 

intimidation of giving her a negative performance rating. The EEO claim was resolved in 

December 2010 under an alternative dispute resolution. Following the physical threats made by 

her supervisor on June 15, 2012, she filed a report with the Federal Protection Service and filed a 

second EEO claim against her supervisor. 

On August 2, 2012 OWCP advised appellant that it had deleted File No. xxxxxx941 as a 

duplicate of File No. xxxxxx929 and began developing appellant’s claim as an occupational 

disease claim. 

Appellant submitted several documents in support of her claim for a work-related 

emotional claim. A number of the documents related to her position description; her work 
3

assignments; the EEO claims she filed alleging discrimination and harassment based on her skin 

color, race, and sex and reprisal regarding her immediate supervisor’s negative and hostile 

responses to her questions related to the fair distribution of workloads and work assignments; the 

denial of her requests for reassignment; a demand to work 24 hours of credit time; and her 

request for reasonable accommodation and the threat of physical violence on June 15, 2012. 

Reports from appellant’s licensed clinical social worker and medical records dated 

June 26 to November 26, 2012 addressed appellant’s emotional and physical conditions, 

disability status, and medical treatment. 

In a January 28, 2013 decision, OWCP denied appellant’s claim. It found that she had 

failed to provide sufficient evidence to establish a compensable factor of employment. OWCP 

also found that the medical evidence did not establish a causal relationship between a 

compensable work factor and appellant’s diagnosed conditions. 

Following a request for a hearing, by decision dated September 11, 2013, an OWCP 

hearing representative affirmed the January 28, 2013 decision. She found that appellant had 

failed to provide sufficient evidence to show that the employing establishment committed error 

or abuse with respect to administrative matters or that management subjected her to harassment 

and discrimination. 

In a September 8, 2014 letter, appellant requested reconsideration. She contended that 

her supervisor subjected her to harassment and discrimination and committed error or abuse with 

respect to administrative matters. Appellant also argued that the medical evidence established 

that she had a work-related emotional condition and that OWCP ignored medical evidence from 

her licensed clinical social worker. 

Appellant submitted documents, including the employing establishment’s policy on 

prevention and elimination of harassment in the workplace and witness statements regarding the 

June 15, 2012 incident. Medical reports from her licensed clinical social worker addressed her 

emotional and physical conditions, disability status, and medical treatment. 

In a December 10, 2014 decision, OWCP denied further merit review of appellant’s 

claim. It found that her request for reconsideration did not raise any substantive legal questions 

or include new and relevant evidence. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128 of FECA,3

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.4

 To be entitled to a merit review of an OWCP decision denying or 

                                                             3

 5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(3). 
4

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

date of that decision.5

 Section 10.608(b) of the implementing regulations state that any 

application for review that does not meet at least one of the requirements listed in 20 C.F.R. 

§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.6

In determining whether a claimant has discharged his or her burden of proof and is 

entitled to compensation benefits, OWCP is required by statute and regulations to make findings 

of fact.7

 Its procedures further specify that a final decision of OWCP must include findings of 

fact and provide clear reasoning which allows the claimant to understand the precise defect of 

the claim and the kind of evidence which would tend to overcome it.8

 These requirements are 

supported by Board precedent.9

ANALYSIS 

The Board finds that OWCP did not provide adequate findings of fact or clear reasoning 

in support of its denial of appellant’s request for further merit review of her emotional condition 

claim. In support of her September 8, 2014 request for reconsideration, appellant contended that 

her supervisor subjected her to harassment and discrimination and committed error or abuse with 

respect to administrative matters. She also argued that the medical evidence established that she 

had a work-related emotional condition and that OWCP had ignored medical evidence from her 

licensed clinical social worker. 

In its December 10, 2014 decision, OWCP denied appellant’s request for further merit 

review by determining that her request did not raise any substantive legal questions or include 

new and relevant evidence. However, in support of this determination, it merely stated, her 

“letter neither raised substantive legal questions nor included new and relevant evidence.” 

OWCP did not provide any discussion of the arguments or evidence appellant submitted in 

support of her reconsideration request. 

For these reasons, appellant was not apprised of the precise defect of her claim or the 

kind of evidence which would tend to overcome it.10 The case will be remanded to OWCP for 

further consideration of the evidence and arguments submitted by appellant in support of her 

                                                             5 Id. at § 10.607(a). 

6 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 

7

 5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or 

against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP 

shall contain findings of fact and a statement of reasons. 

8 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013). 

9 See James D. Boller, Jr., 12 ECAB 45 (1960). 

10 See 20 C.F.R. § 10.126. 
5

reconsideration request to be followed by an appropriate decision, containing adequate facts and 

findings, regarding whether she is entitled to a review of her claim on the merits.11

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether OWCP 

properly refused to reopen appellant’s case for further merit review of her claim pursuant to 5 

U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the December 10, 2014 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: October 15, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

                                                             11 See supra notes 8 through 10.