United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.F., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Little Rock, AR, 

Employer 

__________________________________________ 

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Docket No. 14-0770 

Issued: September 29, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 21, 2014 appellant filed a timely appeal from a September 23, 2013 merit 

decision and a January 21, 2014 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether appellant has established an emotional condition in the 

performance of duty; and (2) whether OWCP properly denied merit review of the claim under 

5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

The case has previously been before the Board. On April 18, 2012 appellant, a 39-year 

old mail handler and local union representative, filed a claim alleging an emotional condition 

resulting from an altercation with a coworker that date. He alleged that the coworker (Joe Smith) 

began talking with him about an upcoming union election and a verbal and physical altercation 

occurred. Appellant alleged that he was a union steward, on official time, and engaged in the 

performance of duty at the time of the incident. OWCP found that the altercation was not a 

compensable work factor as it related to private union business. 

Appellant appealed that decision and in its May 21, 2013 decision, the Board remanded 

the case for additional factual development.2

 It noted that OWCP procedures provided specific 

guidelines for developing cases involving an alleged injury while a claimant was performing 

representational functions and that OWCP had failed to follow those procedure in developing the 

factual aspect of this case. 

The Board cited OWCP procedure manual which states that when an employee claims to 

have been injured while performing representational functions, an inquiry should be made to 

determine whether the employee was on, or would have been eligible to be on, official time and 

in the performance of duty at the time of the injury.3

 The history of the case as set forth in the 

Board’s prior decision is incorporated herein by reference. 

Upon return of the case record, by letter dated June 17, 2013, OWCP requested 

information from the employing establishment as to whether appellant was on official time and 

in the performance of duty on April 18, 2012 at the time of the incident. In a response received 

on July 17, 2013, the employing establishment confirmed, through time and attendance reports, 

that appellant was on official time on April 18, 2012 and was within his official hours of duty at 

the time of the altercation on that date. 

As to whether appellant was actually in the performance of duty at the time of the 

altercation, however, Alicia A. Settles, a human resources specialist responding on behalf of the 

employing establishment, responded: “No, [appellant] was just walking around on the 

workroom floor.” There were no witnesses to the incident and the reports of both appellant and 

Mr. Smith differed considerably as to the circumstances surrounding the incident. The 

employing establishment had conducted an investigation, interviewed witnesses, and concluded 

that at the time of the incident appellant was not in the performance of duty. 

Appellant was provided copies of the employing establishment response and afforded an 

opportunity to provide additional evidence to support his burden of proof to establish that he was 

in the performance of duty at the time of the incident. 

 2

 Docket No. 12-1816 (issued May 21, 2013). 

3

Id. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16 

(September 2010). 
3

On August 26, 2013 appellant submitted a response stating that on April 18, 2012 he had 

just left his wife’s office in the Human Resources office and was on his way to look for a 

supervisor “Allen.” While on his way to look for that supervisor, he was confronted by the 

coworker, Mr. Smith. Mr. Smith allegedly, with his forearm, pushed appellant in the chest and 

later pushed appellant in the face with his hand. Appellant claimed that he did not know why 

Mr. Smith was mad but appellant stated that he had not supported Mr. Smith in the upcoming 

election for president of the local branch of the union. He claimed that Mr. Smith could have 

been upset because appellant had reported that his supporters had been improperly distributing 

election literature on the workroom floor. Appellant also claimed that Mr. Smith was angry at 

him for allegedly disparaging Mr. Smith to coworkers, which was detrimental to Mr. Smith’s 

election campaign. 

Mr. Smith denied that he had ever touched appellant. He claimed that any cuts on 

appellant’s face would have been self-inflicted. Mr. Smith claimed that this type of behavior 

was a union tactic. He claimed he was running against Bobby Nation for president and appellant 

was a local steward under Mr. Nation. 

By decision dated September 23, 2013, OWCP denied the claim for compensation 

finding that appellant had not established a compensable work factor. It found appellant had 

failed to establish that he was in the performance of duty at the time of the altercation with the 

coworker. Citing Sylvester Blaze,

4

 OWCP found that the incident arose out of internal union 

business and did not contribute to or was facilitated by the workplace. It was motived by a 

personal union matter between appellant and the coworker and did not arise in the performance 

of duty. 

In a letter dated September 26, 2013, appellant requested reconsideration. He stated that 

he was not just walking around at the time of the April 18, 2012 incident, and reiterated that he 

was looking for a supervisor about a potential grievance and had been looking for job 

information relevant to union members. Appellant resubmitted statements from other coworkers 

and contended that the injury compensation specialist handling the case was biased. 

By decision dated January 21, 2014, OWCP denied the claim without considering the 

merits. It found the evidence submitted was either duplicative or irrelevant to the underlying 

issue of whether appellant was in the performance of duty at the time of the incident. 

LEGAL PRECEDENT -- ISSUE 1 

Workers’ compensation law does not apply to each and every injury or illness that is 

somehow related to an employee’s employment. There are situations where an injury or illness has 

some connection with the employment but nevertheless does not come within the coverage of 

workers’ compensation. These injuries 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.5

 4 Sylvester Blaze, 37 ECAB 851 (1986). 

5 Lillian Cutler, 28 ECAB 125 (1976). 
4

The Board has adhered to the principle that union activities are personal in nature and are 

not considered to be within the course of employment.6 Attendance at a union meeting, for 

example, is exclusively for the personal benefit of the employee and devoid of any mutual 

employer-employee benefit that would bring it within the course of employment.7

 

The Board has recognized an exception to this general rule when employees performing 

representational functions, which entitle them to official time, are injured when in the 

performance of duty. The underlying rationale for this exception is that an activity undertaken 

by an employee in the capacity of a union official may simultaneously serve the interest of the 

employer.8 OWCP procedure manual indicates that “representational functions” include 

“authorized activities undertaken by employees on behalf of other employees pursuant to such 

employees’ right to representation under statute, regulation, executive order, or terms of a 

collective bargaining agreement.9

ANALYSIS -- ISSUE 1 

In the present case, OWCP found that appellant had not established a compensable work 

factor. It accepted that an incident occurred on April 18, 2012, and confirmed that he was on 

official time at the time of the incident;10 however, despite the fact that he was on official time, 

OWCP found that he was outside the performance of duty as the dispute involved internal union 

activity. 

The Board has interpreted the phrase sustained while in the performance of duty as the 

equivalent of the coverage formula commonly found in workers’ compensation laws, namely 

arising out of and in the course of employment.11 Arising in the course of employment relates to 

time, place, and work activity: to arise in the course of employment, an injury must occur at a 

time when the employee may reasonably be said to be engaged in his employer’s business, at a 

place where he may reasonably be expected to be in connection with his employment, and while 

he was reasonably fulfilling the duties of his employment or engaged in doing something 

incidental thereto.12 The Board finds that the singular fact that one is on paid, official time for 

union representation is not enough to establish that every interaction during such official time is 

within the performance of duty. 

 6 Jimmy E. Norred, 36 ECAB 726 (1985). 

7 C.M., Docket No. 10-753 (issued December 15, 2010). 

8 Marie Boylan, 45 ECAB 338, 342-43 (1994). 

9

 Federal (FECA) Procedure Manual, supra note 3 at Chapter 2.804.16(b). 

10 The Board will accept the employing establishment’s determination as to whether a union representative was 

on official time. See Federal (FECA) Procedure Manual, supra note 3 at Chapter 2.804.16(e). 

11 Bernard D. Blum, 1 ECAB 1 (1947). 

12 Carmen B. Gutierrez, 7 ECAB 58, 59 (1954). 
5

In this case, the record establishes that although appellant had been on official union 

time, there is no evidence to establish that he was in the performance of duty at the time of the 

altercation. He acknowledged that he had just left his wife’s office, in the human resources 

department, and reportedly was on his way to speak with a supervisor. 

As to the substance of the altercation, the evidence indicated that the coworker 

confronted appellant over an upcoming union election. There were no witnesses at the time of 

the alleged altercation, but there is also no dispute that the substance of the altercation was solely 

related to local union matters. This confrontation is more properly characterized as a private 

dispute unrelated to job duties.13 The burden of proof is on appellant to establish that he was in 

the performance of duty at the time of the altercation. OWCP procedure manual explicitly states 

that activities relating to the internal business of a labor organization, such as soliciting new 

members or collecting dues, are not considered in the performance of duties.14 The Board finds 

this altercation to have been a diversion from the performance of duty and became a private 

dispute between the two factions of the local union. 

The Board finds that as this matter was solely related to internal union business, appellant 

has failed to establish a compensable work factor with respect to the April 18, 2012 incident.15 

LEGAL PRECEDENT -- ISSUE 2

To require OWCP to reopen a case for merit review under section 8128(a), its regulations 

provide that the evidence or argument submitted by 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 it; or (3) constitute relevant and pertinent new evidence not 

previously considered by OWCP.16 Section 10.608(b) of its regulations provide that when an 

application for reconsideration does not meet at least one of the three requirements enumerated 

under section 10.606(b)(3), OWCP will deny the application without reopening the case for a 

review on the merits. 

ANALYSIS -- ISSUE 2 

Following OWCP’s September 23, 2013 denial of the claim for compensation, appellant 

filed a timely request for reconsideration. In support of his request, he disputed the employing 

establishment’s contention that he was not in the performance of duty but was “just walking 

around” at the time of the April 18, 2012 incident. Appellant reiterated that he was looking for a 

 13 This situation relates more similarly to the importing of personal, private disputes (e.g., Edward Savage, Jr., 46 

ECAB 346 (1994)) than to the “friction and strain” doctrine referenced in the Federal (FECA) Procedure Manual, 

supra note 3 at Chapter 2.804(12). Further, the Board finds this case to be beyond the facts in Joseph H. McHale, 

45 ECAB 669 (1994) (where a union-related discussion was found to be an insubstantial deviation from the 

performance of duty). 

14 Federal (FECA) Procedure Manual, supra note 3 at Chapter 2.804.16(d). 

15 As appellant has not established any compensable employment factors, the Board need not consider the medical 

evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992). 

16 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007). 
6

supervisor about a potential grievance and had been reviewing job information relevant to union 

members. He resubmitted statements from other coworkers and contended that the injury 

compensation specialist handling the case was biased. 

In its January 21, 2014 decision, OWCP found the evidence duplicative of documents 

already submitted into the record and his argument regarding the bias of the injury compensation 

specialist was found to be irrelevant to the underlying issue of whether appellant was in the 

performance of duty at the time of the altercation. 

The issue presented on appeal is whether appellant met any of the requirements of 

20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of his 

claim. If a claimant fails to submit relevant evidence not previously of record, or advance legal 

contentions of facts not previously considered, OWCP has the discretion to refuse to reopen a 

case for further consideration of the merits.17 The statements from the coworkers were 

previously of record and would not be sufficient to warrant a review of the merits. As for the 

new argument about the bias of the injury compensation specialist, the Board finds that argument 

irrelevant to the underlying issue and also insufficient to warrant a review of the merits. 

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advance a relevant legal argument not previously considered by OWCP 

or submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that appellant has failed to establish his burden of proof to establish an 

emotion condition causally related to employment factors. The Board further finds that OWCP 

properly denied appellant’s request for review of the merits of his claim pursuant to 5 U.S.C. 

§ 8128(a). 

 17 Pamela I. Holmes, 49 ECAB 581, 586 (1998). 
7

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated January 21, 2014 and September 23, 2013 are affirmed.18

Issued: September 29, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 18 Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member 

of the Board effective December 27, 2014.