United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.M., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

INTELLIGENCE AGENCY, 

MacDILL AIR FORCE BASE, FL, Employer 

__________________________________________ 

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Docket No. 16-1575 

Issued: May 25, 2017 

Appearances: Case Submitted on the Record

Karen P. Morter, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 30, 2016 appellant, through his representative, filed a timely appeal from a 

February 19, 2016 merit decision and a July 25, 2016 nonmerit decision of the Office of 

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

Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of 

this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish an emotional 

condition in the performance of duty; (2) whether OWCP properly denied appellant’s request for 

the issuance of a subpoena; and (3) whether it properly denied appellant’s request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On October 10, 2014 appellant, then a 54-year-old intelligence analyst, filed an 

occupational disease claim (Form CA-2) alleging that he sustained post-traumatic stress disorder 

(PTSD), generalized anxiety disorder with panic attacks, and major depressive disorder due to 

exposure to various work factors over time. He claimed that he was exposed to repeated 

psychological abuse, trauma, and anguish and that “illegal and pernicious adverse actions” had 

been taken against him. Appellant indicated that he first became aware of his claimed conditions 

on October 17, 2013 and first realized on September 29, 2014 that they were caused or 

aggravated by his federal employment. 

On the same Form CA-2, appellant’s immediate supervisor indicated that appellant was 

reassigned from his normal position to Headquarters, Commandant’s office, while waiting to 

return to normal duties or further disposition due to his inability to pass a Counterintelligence 

Scope Polygraph following numerous attempts. He indicated that this failure resulted in loss of 

confidence and appellant’s removal from access to the Sensitive Compartmented Information 

Facility (SCIF). As of August 24, 2014, appellant was reassigned from Headquarters, U.S. 

Special Operations Command (HQ USSOCOM) to Headquarters, Defense Intelligence Agency 

(HQ DIA) at Bolling Air Force Base in Washington, DC. 

Appellant submitted an October 15, 2014 statement in which he discussed the incidents 

and conditions at work, which he believed caused his claimed emotional conditions. He 

referenced Department of Defense Instruction 5210.91, which he believed dictated that he should 

be exempted from polygraph testing due to his emotional condition.3

 Appellant asserted that, 

despite having produced medical documentation of his emotional status, he was improperly 

subjected to polygraph testing and interrogation on five occasions between 2011 and 2014.4

 He 

noted that, from October 7, 2013 to August 4, 2014, he was not allowed to do his regular job 

because he could not successfully complete the polygraph testing. Appellant reported being 

relieved of employment at HQ USSOCOM and being involuntarily reassigned to HQ DIA. He 

indicated that he was assigned menial work, in an area with coworkers some called “misfits,” as 

a form of punishment by management. Appellant noted that he filed an appeal over access 

denials stemming from an inability to pass polygraph testing. He noted that he filed an Equal 

 3

 Appellant asserted that this instruction provided that “written procedures shall be established to exempt or 

postpone examinations when individuals are considered medically, psychologically, or emotionally unfit to undergo 

an examination.” 

4

 In particular, appellant asserted that he provided such medical evidence prior to an August 5, 2014 polygraph 

session. 
3

Employment Opportunity (EEO) complaint for discrimination against him based on his 

disability. 

Appellant submitted a July 31, 2014 letter in which Dr. Michael I. Rothburd, an attending 

clinical psychologist, indicated that appellant was initially evaluated on June 23, 2014 and was 

diagnosed with anxiety disorder and PTSD. In an October 17, 2013 report, Dr. Heather Magee, 

an attending clinical psychologist, diagnosed adjustment disorder with anxiety. On 

November 14, 2013 she indicated that appellant had been referred to her due to his situational 

anxiety and that it would be helpful for him to use sick leave to address symptoms related to 

occupational stress. In a September 29, 2014 report, Dr. Gary K. Arthur, an attending Boardcertified psychiatrist, diagnosed chronic PTSD, generalized anxiety disorder, and major 

depressive disorder and found total disability. 

In a November 6, 2014 statement received on December 11, 2014, appellant’s immediate 

supervisor indicated that on July 31, 2014 he received a letter from Dr. Rothburd, which used the 

terms “anxiety disorder” and “post-traumatic stress disorder.” He indicated that, to his 

knowledge, this was “the first time [PTSD] was used.” The supervisor listed the dates of 

appellant’s polygraph testing on March 23 and 25, 2011, January 31 and June 26, 2012, and 

August 5, 2014 and discussed appellant’s attempts to pass his polygraph testing.5

 A performance 

appraisal covering the rating period October 1, 2013 to August 22, 2014 was also submitted. 

In a letter dated December 24, 2014, OWCP requested that appellant submit additional 

factual and medical evidence in support of his claim. It also requested additional information 

from the employing establishment. 

In a January 13, 2015 statement, appellant reported that as of May 2014 he had not 

passed the polygraph testing and he asserted that management advised him that his employment 

would be terminated. He advised that he was unfairly stripped of his position in October 2013 

and removed from his office. Appellant indicated that on August 5, 2014 he was forced to take 

another polygraph test or else adverse action would be taken against him.6

Appellant submitted a January 19, 2015 statement in which a coworker indicated that she 

was aware that he was unable to pass the polygraph examination. The coworker noted that, after 

being reassigned to another job, appellant complained that he occupied a position which required 

little or no work and that his colleagues infrequently interacted with him. The coworker believed 

that the reassignment had left appellant depressed and dejected. Appellant also submitted the 

findings of a September 25, 2014 Minnesota Multiphasic Personality Inventory test and 

additional medical evidence. 

In an undated statement received on February 4, 2015 and a March 24, 2015 statement 

received on March 24, 2015, appellant’s immediate supervisor indicated that appellant was 

properly issued a lower classification security badge in October 2013. He noted that appellant 

 5

 It appears that the copy of the November 6, 2014 statement submitted on December 11, 2014 is incomplete. 

6

 Appellant indicated that he experienced a nervous breakdown during and after a polygraph examination on 

March 25, 2011. 
4

was reassigned to another work location and subsequently lost access to classified workstations 

and networks. The supervisor indicated that polygraph testing was properly administered and 

noted that appellant was not under his supervision after August 24, 2014. 

Additional administrative documents were submitted to the record. In a May 21, 2014 

letter, the Insider Threat Program Coordinator for the employing establishment indicated that 

appellant was reassigned, noting that the decision to reassign him was not solely based on his 

inability to pass polygraph testing. In an April 29, 2015 statement, the Chief of the Credibility 

Assessment Program of the employing establishment indicated that the administration of two 

polygraph tests per year was not considered excessive under the relevant standards. He advised 

that no standards were violated with respect to appellant’s polygraph testing.7

By decision dated June 8, 2015, OWCP denied appellant’s claim for a work-related 

emotional condition. It found that appellant failed to establish any of his alleged compensable 

work factors. OWCP determined that appellant had not established error or abuse with respect to 

administrative matters, regarding the management of polygraph testing, security clearance 

matters, or reassignment to different jobs and/or workplaces. 

Appellant submitted a June 19, 2015 statement in which he requested a hearing with an 

OWCP hearing representative regarding OWCP’s June 8, 2015 decision denying his emotional 

condition claim. He again asserted that, after providing notification to the responsible officials 

of his official diagnoses, he should have been considered unfit for the polygraph testing. 

Appellant argued that provisions of Title 32 of the Code of Federal Regulations supported this 

position. He noted that he was subjected to polygraph testing on five occasions during a threeyear time span, which he believed exceeded the number of times that the polygraph testing could 

be administered. Appellant asserted that management committed wrongdoing when he was 

involuntarily relieved of employment at HQ USSOCOM and involuntarily reassigned to HQ 

DIA. He expressed his disagreement with OWCP’s finding that he failed to establish any 

compensable work factors. 

Appellant also submitted a July 29, 2015 request to subpoena three witnesses 

(Dr. Rothburd, Dr. Arthur, and a coworker) and various “key” documents concerning 

management’s handling of polygraph testing and security matters in his case. He submitted 

additional medical reports from 2015. 

During the telephone hearing held on December 22, 2015, appellant testified that he was 

unemployed and had been placed on disability retirement as of September 15, 2015. He again 

alleged that the employing establishment was aware of his inability to undergo the polygraph 

sessions. Appellant reported that he had briefly been admitted to the hospital in August 2014 

after a severe panic attack. 

In a decision dated February 19, 2016, OWCP’s hearing representative affirmed OWCP’s 

June 8, 2015 decision denying his claim for an emotional condition. She determined that 

 7

 The record also includes a February 6, 2014 advisory letter to appellant from the Chief of the Defense 

Intelligence Central Adjudication Facility of the employing establishment. It noted that a “favorable security 

clearance determination” had been made in his case based on his decision to seek mental health care. 
5

appellant failed to establish any compensable work factors. The hearing representative found the 

evidence insufficient to establish that being required to take the polygraph or the reassignment of 

duties were compensable factors. Additionally, she denied his request for subpoenas for three 

witnesses and key documents as appellant did not demonstrate his inability to obtain any written 

evidence from the individuals. Moreover, the hearing representative found that the “key 

documents could have been secured by other means such as “a Privacy Act, Freedom of 

Information Act (FOIA), or other disclosure procedures. 

Appellant submitted a July 18, 2016 statement in which his representative argued that the 

employing establishment committed error and abuse with respect to administrative matters. In 

her statement, the representative argued that the polygraphs, when administered to an individual 

such as appellant, with a mental, emotional, or psychological disorder, and coupled with 

unfavorable actions taken against him, actually caused his mental health situation to cascade to 

the point where he could not effectively function. She also argued that the medical evidence 

should have been considered sufficient to exempt appellant from the testing.8

 The representative 

claimed that the employing establishment committed error or abuse because appellant had to 

undergo repeated polygraph testing and because he was reassigned away from classified 

information. 

Appellant submitted a copy of a February 18, 2014 memorandum regarding security 

clearance processes, which was produced by the Chief of the Special Security Office of the 

employing establishment. The official discussed appellant’s failure to fully complete polygraph 

testing. Appellant also submitted duty status reports CA-17 forms produced by Dr. Arthur on 

February 25, April 5, and July 13, 2016. 

By decision dated July 25, 2016, OWCP denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence and argument 

submitted by appellant was repetitious or irrelevant. 

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 an 

illness has some connection with the employment, but nevertheless does not come within the 

concept or coverage of workers’ compensation. 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.9

 On the other hand, the 

disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or 

to hold a particular position.10

 8

 The representative argued that Department of Defense Instruction 5210.91 and provisions of Title 32 of the 

Code of Federal Regulations supported this position. 

9 Lillian Cutler, 28 ECAB 125 (1976). 

10 Gregorio E. Conde, 52 ECAB 410 (2001). 
6

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.11 However, 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.12 

In determining whether the employing establishment has erred or acted abusively, the Board will 

examine the factual evidence of record to determine whether the employing establishment acted 

reasonably.13 

Appellant has the burden of establishing by the weight of the reliable, probative, and 

substantial evidence that the condition for which he claims compensation was caused or 

adversely affected by employment factors.14 This burden includes the submission of a detailed 

description of the employment factors or conditions which appellant believes caused or adversely 

affected a condition for which compensation is claimed and a rationalized medical opinion 

relating the claimed condition to compensable employment factors.15

In cases involving emotional conditions, the Board has held that, when working 

conditions are alleged as factors in causing a condition or disability, OWCP, as part of its 

adjudicatory function, must make findings of fact regarding which working conditions are 

deemed compensable factors of employment and are to be considered by a physician when 

providing an opinion on causal relationship and which working conditions are not deemed 

factors of employment and may not be considered.16 If a claimant does implicate a factor of 

employment, OWCP should then determine whether the evidence of record substantiates that 

factor. When the matter asserted is a compensable factor of employment and the evidence of 

record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of 

the medical evidence.17

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is a causal relationship between the claimant’s diagnosed condition and the 

compensable employment factors. The opinion of the physician must be based on a complete 

and accurate factual and medical background of the claimant, must be one of reasonable medical 

certainty, and must be supported by medical rationale explaining the nature of the relationship 

 11 Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 

ECAB 556 (1991). 

12 William H. Fortner, 49 ECAB 324 (1998). 

13 Ruth S. Johnson, 46 ECAB 237 (1994). 

14 Pamela R. Rice, 38 ECAB 838, 841 (1987). 

15 Effie O. Morris, 44 ECAB 470, 473-74 (1993). 

16 See Norma L. Blank, 43 ECAB 384, 389-90 (1992). 

17 Id.
7

between the diagnosed condition and the specific employment factors identified by the 

claimant.18

ANALYSIS -- ISSUE 1 

Appellant alleged that he sustained an emotional condition as a result of a number of 

employment incidents and conditions. OWCP denied appellant’s emotional condition claim 

because he failed to establish any compensable employment factors. The Board must, thus, 

initially review whether these alleged incidents and conditions of employment are covered 

employment factors under the terms of FECA. The Board notes that appellant’s allegations do 

not pertain to his regular or specially assigned duties under Cutler.

19 Rather, he has alleged error 

and abuse in administrative and personnel matters. 

Appellant alleged that the employing establishment committed wrongdoing by requiring 

him to undergo polygraph testing and by altering his work duties and work conditions due to the 

results of same. Such administrative and personnel matters, although generally related to the 

employee’s employment, are administrative functions of the employing establishment rather than 

the regular or specially assigned work duties of the employee and are not covered under FECA. 

However, 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.20 

The Board finds that appellant has not established that the employing establishment 

committed error and abuse by administering polygraph testing to him between 2011 and 2014. 

Appellant did not present any documents, such as the findings of a complaint or grievance, 

establishing that the employing establishment committed error or abuse by conducting the 

polygraph testing.21 The submission of the medical evidence that appellant asserts the 

employing establishment had seen prior to the August 5, 2014 polygraph testing would not, in 

and of itself, be sufficient to show that he should have been exempted from undergoing the 

testing.22 Appellant referenced Department of Defense Instruction 5210.91 and parts of Title 32 

of the Code of Federal Regulations, which he believed were violated because the employing 

establishment proceeded with polygraph testing. However, his mere opinion that these 

provisions were violated would not constitute probative evidence of error or abuse by the 

employing establishment. Moreover, appellant did not submit evidence supporting his assertion 

that the frequency of polygraph testing to which he was subjected exceeded any established limit 

such that the employing establishment committed error or abuse. The Chief of the Credibility 

 18 Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990). 

19 See supra note 9. 

20 See supra note 12. 

21 Appellant indicated that he filed an EEO complaint regarding the polygraph testing, but the record does not 

contain a final decision regarding any such complaint. 

22 Appellant’s immediate supervisor indicated that on July 31, 2014 he received a letter from Dr. Rothburd, which 

used the terms “anxiety disorder” and “post-traumatic stress disorder.” He indicated that, to his knowledge, this was 

“the first time [post-traumatic stress disorder] was used.” 
8

Assessment Program of the employing establishment indicated that the administration of two 

polygraph tests per year was not considered excessive under the relevant standards and the Board 

notes that the administration of polygraph tests to appellant fell within these standards.23 

There is no evidence in the record showing that the employing establishment acted 

abusively or erroneously by removing appellant from his regular duties, reassigning him to new 

duties, or adjusting the parameters of his security clearance. Appellant has not submitted 

evidence showing that management violated any specific rule or regulation by carrying out these 

actions. He has not established his claims that he was placed in an office for “misfits” where 

other colleagues refused to interact with him and that he was given little to no work to perform as 

an improper form of punishment. Appellant has not submitted the findings of any complaint or 

grievance showing that these administrative/personnel actions constituted error or abuse by the 

employing establishment. 

Thus, appellant has not established a compensable work factor under FECA with respect 

to his claims that the employing establishment committed error or abuse regarding administrative 

or personnel matters. 

For the foregoing reasons, appellant has not established any compensable work factors 

under FECA and, therefore, has not met his burden of proof in establishing that he sustained an 

emotional condition in the performance of duty.24

LEGAL PRECEDENT -- ISSUE 2 

Under 5 U.S.C. § 8126 of FECA, and its implementing regulations (20 C.F.R. § 10.619), 

subpoenas may be issued by the hearing representative for the attendance and testimony of 

witnesses and the production of relevant documents. Subpoenas are issued for documents only if 

they are relevant and cannot be obtained by other means, and for witnesses only where oral 

testimony is the best way to ascertain the facts. A person requesting a subpoena must submit the 

request in writing no later than 60 days after the date of the original hearing request and explain 

why the testimony or evidence is directly relevant to the issues at hand, and why the information 

cannot be obtained without the use of a subpoena. The decision to grant or deny a subpoena 

request is within the discretion of OWCP’s hearing representative.25

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly denied appellant’s request for the issuance of a 

subpoena. 

 23 The record reflects that appellant underwent polygraph testing on March 23 and 25, 2011, January 31 and 

June 26, 2012, and August 5, 2014. 

24 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). 

25 See 5 U.S.C. § 8126; 20 C.F.R. § 10.619. 
9

In a July 29, 2015 letter, appellant requested the issuance of a subpoena to have three 

witnesses appear at his hearing scheduled for December 22, 2015 before an OWCP hearing 

representative (Dr. Rothburd, Dr. Arthur, and a coworker) and for the production of “key” 

documents. 

The Board notes that OWCP’s hearing representative properly determined within her 

discretion that, with respect to the three witnesses, appellant had not provided sufficient 

explanation as to how their presence at the December 22, 2015 hearing would have been 

necessary. Appellant provided no explanation as to how any testimony or account from these 

individuals at the hearing would have been needed to establish his claim or why the information 

could not have been obtained by other means. OWCP’s hearing representative indicated that the 

medical testimony from physicians and the factual testimony from the coworker could have been 

obtained through written statements, and there was no indication that this option was not 

available. It was noted that any evidence within the control of the employing establishment, i.e., 

the purported “key” documents, could have been sought by other means, such as through a 

Privacy Act request or other disclosure procedure. 

LEGAL PRECEDENT -- ISSUE 3 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,26

OWCP’s 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 OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.27 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.28 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.29 The Board has held that the submission of evidence or argument 

which repeats or duplicates evidence or argument already in the case record,30 and the submission 

of evidence or argument which does not address the particular issue involved does not constitute a 

basis for reopening a case.31 While a reopening of a case may be predicated solely on a legal 

premise not previously considered, such reopening is not required where the legal contention 

does not have a reasonable color of validity.32 

 26 Under section 8128 of FECA, “[t]he 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). 

27 20 C.F.R. § 10.606(b)(3). 

28 Id. at § 10.607(a). 

29 Id. at § 10.608(b). 

30 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980). 

31 Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 

32 John F. Critz, 44 ECAB 788, 794 (1993). 
10

ANALYSIS -- ISSUE 3 

Appellant timely requested reconsideration of OWCP’s February 19, 2016 decision 

denying his claim. The Board finds that appellant did not meet 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 the claim. 

In his application for reconsideration, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. He did not identify a specific point of law or show that it was 

erroneously applied or interpreted; nor did appellant advance a new and relevant legal argument 

not previously considered by OWCP. 

In support of his reconsideration request, appellant submitted a July 18, 2016 statement in 

which his representative argued that the employing establishment committed error and abuse 

with respect to administrative matters. In her statement, the representative argued that the 

polygraphs, when administered to an individual such as appellant, with a mental, emotional, or 

psychological disorder, and coupled with unfavorable actions taken against him, actually caused 

his mental health situation to cascade to the point where he could not effectively function. 

However, these arguments that appellant was too psychologically impaired to undergo testing, 

and that the subsequent reassignment of duties constituted error and abuse by management were 

considered in OWCP’s previous decisions denying his claim. The representative argued that the 

medical evidence should have been considered sufficient to exempt appellant from the testing, 

but this matter was also considered in OWCP’s previous decisions.33 

The Board finds that the arguments of appellant’s representative are essentially 

restatements of previously considered arguments. The arguments are repetitious and thus 

insufficient to warrant a reopening of appellant’s claim for merit review.34 

Appellant submitted a copy of a February 18, 2014 memorandum regarding security 

clearance processes, which was produced by the Chief of the Special Security Office of the 

employing establishment. The official discussed appellant’s failure to fully complete polygraph 

testing. However, the document does not have any bearing on whether the employing 

establishment committed error or abuse regarding the handling of polygraph testing or related 

matters. Appellant’s claim was denied by OWCP because he had not established any 

compensable work factors. Appellant also submitted CA-17 forms produced by Dr. Arthur on 

February 25, April 5, and July 13, 2016, but these medical documents are not relevant to the 

factual question of whether the employing establishment committed wrongdoing regarding 

polygraph testing administered between 2011 and 2014. As noted above, the submission of 

evidence or argument which does not address the particular issue involved does not constitute a 

basis for reopening a case.35

 33 The representative argued that Department of Defense Instruction 5210.91 and provisions of Title 32 of the 

Code of Federal Regulations supported this position. OWCP specifically addressed this argument in its prior 

decisions. 

34 See supra note 30. 

35 See supra note 31. 
11

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit 

review. 

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish an emotional 

condition in the performance of duty. The Board further finds that OWCP properly denied 

appellant’s request for the issuance of a subpoena and properly denied his request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the July 25 and February 19, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: May 25, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board