United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Rochester, NH, Employer 

__________________________________________ 

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Docket No. 17-0081 

Issued: April 20, 2017 

Appearances: Case Submitted on the Record

Bradley M. Lown, Esq., for the appellant1

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 October 17, 2016 appellant, through counsel, filed a timely appeal from August 5 and 

September 20, 2016 nonmerit decisions of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from the last merit decision, dated March 22, 2016 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 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

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration 

pursuant to 5 U.S.C. § 8128(a). 

On appeal counsel argues that the evidence contained in the police report is sufficient to 

establish that the employment incident occurred as alleged. 

FACTUAL HISTORY 

On February 2, 2016 appellant, then a 65-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on January 15, 2016 her supervisor grabbed her left arm in the 

presence of customers at the front window counter. She alleged that she sustained left shoulder 

blade pain and stress as a result of this incident. The employing establishment portion of the 

Form CA-1 indicated that appellant’s claim did not match witness statements. 

Appellant’s supervisor, L.S., completed a statement alleging that on January 15, 2016 

appellant called a customer to her station. He informed the customer that appellant could not 

help her and L.S. instructed appellant to follow her.3 LS. instructed appellant to come with her 

to the office. Appellant ignored her. L.S. noted, “At this point I touched her arm to gain her 

attention. She threw her arm in the air and started shouting ‘Don’t touch me ... she grabbed 

me.’” L.S. informed appellant that she had not grabbed her, she touched her, and that she needed 

to come to her office now. Appellant then followed L.S. to her office where L.S. informed her 

that she had arranged new bids for a passport clerk. Appellant informed L.S. that she felt 

disrespected and would not talk to L.S. 

In a statement dated January 15, 2016, K.L, a coworker, described appellant walking 

away as L.S. asked for further conversation. She noted that L.S. placed her hand on appellant’s 

arm and asked her to have a conversation. Appellant threw her arm back and instructed L.S. not 

to touch her. She walked away with L.S., but shortly returned to close her cash drawer. 

Appellant’s customer suggested that appellant call the police. The customer then called the 

police and appellant made the report. Appellant waited in the lobby with the customer, perhaps a 

friend, for the police to arrive. 

A second coworker, K.M., also completed a statement on that date. She reported that 

L.S. had instructed appellant that they had not finished their conversation three times, before L.S. 

walked to appellant’s station, told the customer that appellant could not help her, placed her hand 

on appellant’s arm, and told appellant that she needed to come with her. Appellant threw her 

arm in the air and told L.S. not to touch her. She then followed L.S. While appellant was gone, 

the customer, who seemed to know appellant, became agitated asserting that L.S. had grabbed 

appellant, that she knew people in the union, and that L.S. should be fired. When appellant 

returned, the customer continued to assert that L.S. had dragged appellant away, that appellant 

needed to call the union, that appellant needed to file a police report, and that she needed to 

telephone the police immediately. The customer called the police and appellant reported the 

incident. 

 3

 L.S. informed appellant that she was not qualified to handle passport applications. 
3

The employing establishment inspector provided an investigative memorandum which 

detailed L.S.’s statement and noted that the police interviewed all parties. A coworker witnessed 

the events and completed a statement regarding light contact by L.S. The employing 

establishment noted that there was a history of a strained relationship between L.S. and 

appellant. The employing establishment inspector concluded that there was not enough evidence 

to support a charge as the validity of the alleged assault was questionable and appeared to have 

been incidental contact to gain the attention of the alleged victim. 

The investigative report included a witness statement from appellant’s customer that 

appellant was grabbed by her supervisor. The customer indicated that L.S. grabbed appellant by 

her arm and dragged her away from the counter. Appellant indicated that she had walked away 

from L.S. to help customers and that L.S. grabbed her left upper arm. The officer did not 

observe any marks or signs of injury. L.S. explained that she had not grabbed appellant, but 

placed her hand on her arm and told her to report to the office. Appellant began screaming that 

L.S. had grabbed her. A coworker, K.L., confirmed that L.S. put her hand on appellant’s arm, 

rather than pulling or dragging her. Coworker K.M., also stated, that L.S. did not grab or drag 

appellant. The witnesses noted that the customer, rather than appellant, had called the police and 

that appellant and the customer had a personal relationship. 

In support of her claim, appellant submitted January 19 and 21, 2016 notes from 

Dr. Richard Capella, an osteopath, indicating that a coworker grabbed and pulled on appellant’s 

left arm. Dr. Capella diagnosed left shoulder acute sprain, anxiety, stress, and panic. Appellant 

sought treatment for left shoulder pain on February 9, 2016 from Dr. Peter D. Buckley, a Boardcertified orthopedic surgeon. Dr. Buckley reported that appellant sustained a left shoulder injury 

on January 15, 2016 and noted that she had a history of right rotator cuff tear and surgery, but no 

previous left shoulder issues. He diagnosed left shoulder joint pain possibly stemming from 

cervical radiculitis and localized primary osteoarthritis of the left shoulder acromioclavicular 

joint. He described the employment incident as a coworker pulling appellant’s arm and opined 

that the injury was work related. Dr. Buckley indicated that appellant could return to work with 

restrictions. 

On February 25, 2016 OWCP requested additional factual and medical evidence from 

appellant to support her claim. It noted discrepancies in the description of the employment 

incident, as well as the medical evidence. OWCP provided appellant with a questionnaire and 

afforded her 30 days to respond. 

In a February 17, 2016 note, Dr. Reiko Johnson, a Board-certified family practitioner, 

diagnosed stress and anxiety related to an incident at work involving a coworker. 

Appellant completed a statement on March 4, 2016 and described the events of 

January 15, 2016. She noted that she was working and attempted to ascertain when her 

eligibility for processing passport applications expired. Appellant attempted to explain to L.S., 

but she became loud. She returned to her window and told L.S. “it’s okay.” L.S. followed 

appellant to her window and instructed the customer that appellant would not be helping her. 

She then grabbed appellant’s left forearm and pulled her. Appellant was in shock, but followed 

L.S. to the office where she yelled at her. She alleged that L.S. publically humiliated her and 

that two customers offered sympathy. 
4

By decision dated March 22, 2016, OWCP denied appellant’s traumatic injury claim 

finding that the evidence of record failed to support that the alleged events took place as she 

described. It noted that the statements of appellant’s coworkers did not corroborate her version 

of events. OWCP further noted that the police report noted that no injuries were visible and that 

witnesses interviewed offered varying descriptions of events. 

Dr. Johnson released appellant to return to fully duty on March 2, 2016. On March 8 and 

April 5, 2016 Dr. Buckley diagnosed left shoulder joint pain consistent with rhomboid strain. He 

released appellant to return to work with restrictions. In a May 16, 2016 report, Dr. Buckley 

diagnosed rhomboid and scapular rotator strain. He opined that this condition was related to the 

incident when she was pulled by her supervisor. 

Appellant submitted a statement dated June 28, 2016 and alleged that her supervisor 

grabbed her arm. She asserted that the witness statements meant nothing. 

Counsel requested reconsideration on July 21, 2016 and submitted a note from 

Dr. Buckley. In a report dated May 16, 2016, Dr. Buckley diagnosed rhomboid and scapular 

rotator strain. He opined that this condition was related to the incident when she was pulled by 

her supervisor. 

By decision dated August 5, 2016, OWCP denied appellant’s request for reconsideration 

of the merits, noting that her claim was denied due to the finding that she failed to establish that 

the employment incident occurred as alleged. It determined that the additional medical evidence 

submitted was irrelevant to the denial of appellant’s claim. 

Counsel requested reconsideration on August 22, 2016 and submitted additional medical 

evidence. He argued that corroborating evidence confirmed that the employment incident 

occurred, but that the extent of physical contact was at issue. Counsel opined that there was 

corroborating evidence of the physical wrenching that occurred at work. He also asserted that 

the failure of the police to make a finding was irrelevant. 

On August 8, 2016 Dr. Buckley diagnosed partial thickness rotator cuff tear in the left 

shoulder. 

By decision dated September 20, 2016, OWCP denied appellant’s request for 

reconsideration of the merits of her claim. It found that counsel’s argument was cumulative and 

contained no new factual evidence to support appellant’s allegation that L.S. grabbed and pulled 

her arm. 

LEGAL PRECEDENT 

FECA provides in section 8128(a) that OWCP may review an award for or against 

payment of compensation at any time on its own motion or on application by the claimant.4

 

Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain 

review of the merits of the claim by submitting in writing an application for reconsideration 

 4

 5 U.S.C. §§ 8101-8193, 8128(a). 
5

which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted 

a specific point of law; or advances a relevant legal argument not previously considered by 

OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.5 

Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is 

timely, but does meet at least one of these three requirements, OWCP will deny the application 

for review without reopening the case for a review on the merits.6

 Section 10.607(a) of OWCP’s 

regulations provides that to be considered timely an application for reconsideration must be 

received by OWCP within one year of the date of OWCP’s merit decision for which review is 

sought.7

ANALYSIS 

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

the merits of her claim on August 5 and September 20, 2016. 

In support of the initial request for reconsideration dated July 21, 2016, counsel 

submitted a note from Dr. Buckley. This medical evidence is not relevant to the basis for which 

OWCP denied appellant’s claim, the failure to establish that the employment incident occurred 

as alleged. As appellant failed to submit relevant new evidence in support of her request for 

reconsideration, the Board finds that OWCP properly denied reconsideration of the merits in the 

August 5, 2016 decision. 

Counsel again requested reconsideration on August 16, 2016. He argued that appellant 

had established that the incident occurred as alleged as witness statements supported that L.S. 

grabbed and pulled her by the arm. The Board finds that this assertion by counsel is insufficient 

to require OWCP to reopen appellant’s claim for consideration of the merits. OWCP reviewed 

the witness statements prior to issuing the March 22, 2016 merit decision. Counsel’s 

disagreement with OWCP’s assessment of the factual evidence does not show that OWCP 

erroneously applied or interpreted a specific point of law, nor does it advance a relevant legal 

argument not previously considered by OWCP. As appellant’s requests for reconsideration do 

not comply with the requirements of section 20 C.F.R. § 10.606(b)(3) of OWCP’s regulations, 

the Board finds that OWCP properly declined to reopen appellant’s claim for consideration of 

the merits. 

On appeal counsel argues that the evidence contained in the police report establishes that 

the employment incident occurred as alleged. However, as explained, the Board lacks 

jurisdiction over the merits of this case. 

 5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.608. 

7 Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations ̧ Chapter 2.1602.4 

(February 2016). 
6

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

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

ORDER 

IT IS HEREBY ORDERED THAT the September 20 and August 5, 2016 decisions of 

the Office of Workers’ Compensation Programs are affirmed. 

Issued: April 20, 2017 

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