United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.M., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

COMMISSARY AGENCY, Seaside, CA, 

Employer

__________________________________________

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Docket No. 17-1170

Issued: February 16, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 8, 2017 appellant filed a timely appeal from a December 22, 2016 merit decision 

and an April 24, 2017 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 met his burden of proof to establish disability on or 

after August 25, 2011 due to his accepted emotional conditions, depressive disorder and anxiety 

state; and (2) whether OWCP properly denied appellant’s request for reconsideration of the 

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

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 7, 2013 appellant, then a 63-year-old meat cutter, filed an occupational 

disease claim (Form CA-2) alleging that he developed anxiety and depressive disorders due to 

exposure to being required to engage in practices at work which violated the employing 

establishment’s policies and practices. He indicated that he first became aware of his claimed 

condition on March 1, 2011 and first realized on the same date that it was caused or aggravated 

by factors of his federal employment. Appellant stopped work on August 25, 2011 and he was 

separated from the employing establishment effective May 23, 2012 due to his inability to 

perform his duties as a meat cutter.

The record contains an August 31, 2012 investigative report in which the Defense 

Commissary Agency’s Inspector General determined that it had been substantiated that several 

workplace practices at the employing establishment violated agency rules and guidelines, 

including improper repacking and dating of processed meat products, improper pricing and 

mislabeling, poor inventory management, and a single incident of poultry being packaged in the 

meat department area.2

In an undated report received on October 29, 2013, Dr. Borina Dramov, an attending 

Board-certified psychiatrist and neurologist, indicated that she had primarily been treating 

appellant for injuries sustained when he was attacked and beaten at his home on 

August 24, 2011.3 She noted that appellant provided him with a July 9, 2013 statement which 

detailed his claims that, between 2003 and 2011, he was asked to carry out actions at work which 

he believed were either illegal or at least in violation of the employing establishment’s policies 

and procedures.4 Appellant further asserted in his July 9, 2013 statement that he was instructed 

to cut meat without performing a cutting test, and to repackage unsold meat and attach new sellby dates to the labels. Dr. Dramov provided an opinion that being required to violate the law and 

the employing establishment’s policies and procedures contributed to appellant’s current 

depressive and anxiety disorders. She indicated that other factors also contributed to appellant’s 

anxiety and depressive disorders, such as his wife’s heart attack in 2010 and his daughter having 

multiple surgeries around that same time period. Dr. Dramov noted, however, that there was no 

doubt that at the time that he was attacked on August 24, 2011 he had already developed anxiety 

disorder and depressive disorder which were contributed to by his work duties and disclosures. 

 

2 The record reveals that the investigation addressed a number of allegations made by appellant regarding work 

practices at the employing establishment.

3 The Board notes that on September 22, 2011 appellant filed a traumatic injury claim (OWCP File No.

xxxxxx219) alleging that on August 24, 2011 he sustained a work injury in the form of three head lacerations, left 

eye laceration, and trauma to his head, neck, chest, ribs, knees, and left wrist. Regarding the cause of injury, 

appellant asserted that he was attacked on August 24, 2011 by unidentified coworkers due to his whistleblower 

activities at work, including exposing employees who falsified product order invoices and mishandled inventory. In 

decisions dated November 10, 2011, June 1, 2012, and June 19, 2013, OWCP denied appellant’s claim because he 

failed to establish that the August 24, 2011 attack occurred in the performance of duty. By decision dated July 2, 

2014, the Board affirmed OWCP’s June 19, 2013 decision finding that appellant had not established a work-related 

injury on August 24, 2011 because he failed to establish that the August 24, 2011 attack occurred in the performance 

of duty. Docket No. 14-0116 (issued July 2, 2014).

4 The record contains a copy of appellant’s July 9, 2013 statement.
3

She noted that appellant’s being attacked at his home on August 24, 2011 by individuals who 

told him to stop talking about various practices at work certainly made these conditions even 

worse. 

On November 27, 2013 OWCP requested that appellant submit additional evidence in 

support of his claim. In a December 9, 2013 statement, appellant provided details about his 

claim that supervisors required him to engage in practices at work which violated employing 

establishment policies and practices, including being forced to sell meat that was past its 

expiration date.

5

OWCP referred appellant for a second opinion examination to Dr. Alberto G. Lopez, a 

Board-certified psychiatrist and neurologist, in order to evaluate whether he sustained a 

diagnosed medical condition causally related to the implicated factors his federal employment 

and, if so, whether he continued to have any residuals, including disability, due to such a 

condition. It provided Dr. Lopez with a February 13, 2014 statement of accepted facts which 

indicated that it had been accepted that appellant was instructed by supervisors to engage in

practices at the employing establishment which violated established agency rules and guidelines. 

These practices included improper repacking and dating of processed meat products, improper 

pricing and mislabeling, poor inventory management, and a single incident of poultry being 

packaged in the meat department area.

In a June 2, 2014 report, Dr. Lopez detailed appellant’s factual and medical history, 

noting that he complained of being required to perform illegal and unethical acts at work and of 

being attacked on August 24, 2011. He reported the findings of his evaluation of appellant on 

June 2, 2014 and diagnosed depression (unspecified), anxiety disorder (unspecified), posttraumatic stress disorder, cocaine abuse in remission, and rule out concussive syndrome. 

Dr. Lopez indicated that appellant had a long-standing depressive disorder and anxiety disorder 

which were related to his work. He found that appellant was traumatically assaulted “apparently 

off the job” on August 24, 2011 and that he then developed post-traumatic stress symptoms 

including nightmares and paranoia.6 Dr. Lopez explained his opinion regarding why he felt that 

the depressive disorder and anxiety disorder were work related, noting that the employment 

factors causing this condition were present prior to the nonwork-related assault on 

August 24, 2011. He indicated that the depressive disorder and anxiety disorder occurred 

because appellant was induced to illegally sell meat that was unsuitable for sale.7 Dr. Lopez

advised that, as far as his psychiatric condition was concerned, appellant was able to work as a 

meat cutter, but he was not able to work at his former workplace at the employing establishment. 

 

5 Appellant also submitted a December 16, 2013 letter from his counsel at the time and some entries from his 

personal journal describing events at work in 2011. 

6 Dr. Lopez noted that appellant was brutally assaulted with loss of consciousness, and then suffered poor 

memory and concentration thereafter. He indicated that appellant felt that the August 24, 2011 assault was work

related, but he noted that this determination would be left to the trier of fact.

7 Dr. Lopez noted that customers complained to appellant about the high prices for meat that did not look 

desirable, and that he was asked to repackage meat that had not sold by the expiration date and to attach a new sellby date on the label. He indicated that he agreed with Dr. Dramov’s opinion that appellant’s depressive and anxiety 

disorders were related to this element of his work. 
4

He indicated that appellant feared retaliation at his former workplace. Dr. Lopez noted that 

appellant remained symptomatic with respect to depression and anxiety, but advised that he 

should respond to psychotherapy.

By decision dated June 30, 2014, OWCP accepted that appellant sustained depressive 

disorder (not elsewhere classified) and anxiety state (unspecified). Appellant filed claims for 

compensation (Form CA-7) alleging disability beginning August 25, 2011 and continuing due to 

these accepted employment conditions.

By a separate decision also dated June 30, 2014, OWCP indicated that although 

appellant’s claim had been accepted for depressive disorder (not elsewhere classified) and 

anxiety state (unspecified), it was denied for post-traumatic stress disorder and concussive 

disorder because the medical evidence of record did not establish that these medical conditions 

were related to the accepted employment factors. It noted that it had only been accepted that 

appellant was instructed by his supervisors to perform his work duties as a meat cutter in ways 

that violated established employing establishment policies and procedures. OWCP discussed

Dr. Lopez’ June 2, 2014 report and found that it established that appellant sustained depressive 

disorder and anxiety state due to the established employment factors. It indicated that Dr. Lopez 

advised that appellant developed post-traumatic stress disorder due to the August 24, 2011 

assault, but it noted that the August 24, 2011 incident was not accepted as work related. 

OWCP requested that Dr. Lopez provide a supplemental report answering several 

questions it posed about the nature and extent of appellant’s medical conditions and disability. 

In a supplemental report dated October 3, 2014, Dr. Lopez advised that appellant did not 

have a psychiatric condition preventing him from returning to work, despite having indicated in 

his June 2, 2014 report that, as far as his psychiatric condition was concerned, he was able to 

perform work as a meat cutter, but not at his former workplace at the employing establishment. 

He noted that appellant did not have any partial or total disability resulting from the accepted 

anxiety disorder or depression. Dr. Lopez explained that the previously noted restriction from 

returning to work at the employing establishment was preventative and prophylactic. 

By decision dated November 21, 2014, OWCP denied appellant’s claim for disability 

beginning August 25, 2011 due to his accepted emotional conditions of depressive disorder and 

anxiety state. It found that the record did not contain a medical report relating his claimed 

disability on or after August 25, 2011 to the accepted employment conditions. OWCP indicated 

that on October 3, 2014 Dr. Lopez clarified his June 2, 2014 report that indicated that appellant 

could not return to his former workplace. Dr. Lopez explained that appellant had no disability 

due to his accepted employment conditions and noted that his prior restriction was only 

preventative and prophylactic in nature. 

On April 22, 2015 appellant requested reconsideration of OWCP’s November 21, 2014 

decision denying his claim for disability beginning August 25, 2011.

In a January 5, 2015 report, Dr. Isidro R. Quiroga, an attending clinical psychologist, 

summarized the factual recitation portion of Dr. Lopez’ June 2, 2014 report and discussed his 

psychological evaluation of appellant on January 5, 2015. He diagnosed post-traumatic stress 
5

disorder, depression (unspecified), anxiety disorder (unspecified), cocaine abuse in remission, 

and postconcussive syndrome. Dr. Quiroga posited that, based on all information at his disposal, 

appellant’s psychiatric disorders were predominantly related to his work. He discussed treatment 

options and indicated that appellant was totally disabled from work. Dr. Quiroga indicated that, 

even if appellant’s treatment was successful, he could not return to his former workplace at the 

employing establishment.8

By decision dated May 28, 2015, OWCP denied modification of its November 21, 2014 

decision denying appellant’s claim for disability beginning August 25, 2011. It noted that

Dr. Quiroga did not provide a rationalized medical opinion relating appellant’s claimed disability 

on or after August 25, 2011 to the accepted employment conditions.

On August 13, 2015 appellant requested reconsideration of OWCP’s May 28, 2015 

decision.

In an August 4, 2015 report, Dr. Richard Alloy, an attending clinical psychologist, 

discussed appellant’s factual and medical history and reported the findings of his psychological 

evaluation on that date. He noted that appellant, who attended the evaluation with his wife, 

reported that he was required to violate employing establishment policies and procedures in his 

former employment and that he was attacked at his home on August 24, 2011. Dr. Alloy 

diagnosed depressive disorder, anxiety disorder, psychotic disorder, somatoform disorder, 

chronic post-traumatic stress disorder, and cognitive disorder. He noted that appellant was 

working up until the assault on August 24, 2011, but could no longer work after that incident. 

Dr. Alloy indicated that as recently as July 14, 2011, appellant received an outstanding 

performance rating at the employing establishment and posited that this created an impression of 

his strong commitment to his job while at the same time he was dealing with the rapid and 

serious buildup of stress in less than two months. He noted that Dr. Dramov’s report9“shows the 

emphasis is on the stress, anxiety, and depression while putting the assault itself into a secondary 

level of concern.” Dr. Alloy asserted that this represents strong evidence and support for the date 

of August 25, 2011 being the “tipping point” from accumulated stress and, therefore, the onset 

date for his permanent total disability. He noted, “It would appear from the information obtained 

from [appellant and his wife] plus the letter from neurologist Dr. Dramov, that the assault 

solidified in [appellant’s] mind he was not liked or wanted at the workplace, and that his anxiety, 

depression, and paranoia [were] in effect justified.” Dr. Alloy opined that the sum total of 

accumulated workplace stress pushed him over the edge psychologically, rendering him totally 

permanently disabled as of August 25, 2011.

By decision dated November 12, 2015, OWCP denied modification of its May 28, 2015 

decision. It noted that Dr. Alloy did not provide a rationalized medical opinion relating 

appellant’s claimed disability on or after August 25, 2011 to the accepted employment 

conditions.

 

8

In a work capacity evaluation form (Form OWCP-5a) dated March 17, 2015, Dr. Quiroga indicated that 

appellant was totally disabled beginning August 25, 2011.

9 Dr. Alloy’s reference is to Dr. Dramov’s undated report received by OWCP on October 29, 2013.
6

On February 21, 2016 appellant requested reconsideration of OWCP’s November 12, 

2015 decision.10

In a February 20, 2016 report, Dr. Alloy indicated that the nonwork-related August 24, 

2011 assault had blinded OWCP to the effects of the ongoing accepted anxiety and depression 

because it had become difficult to “separate out” this work-related condition from the effects of 

the August 24, 2011 assault. He noted that when he wrote in his August 4, 2015 report that 

August 24, 2011 incident was a “tipping point” in appellant’s condition, he meant this from a 

“chronological perspective, and not causation.” Dr. Alloy repeated portions of his August 4, 

2015 report and noted that there was a reasonable medical probability that the ongoing 

progression and exacerbation of appellant’s accepted anxiety and depression would have 

continued absent the August 24, 2011 assault, ultimately rendering him totally disabled 

regardless of the assault.

By decision dated May 19, 2016, OWCP denied modification of its November 12, 2015 

decision. It determined that Dr. Alloy’s supplemental February 20, 2016 report did not establish 

that appellant sustained disability on or after August 25, 2011 due to the accepted depressive 

disorder and anxiety state conditions, which were accepted as only being related to the fact that 

appellant was required to violate employing establishment policies and procedures while 

working as a meat cutter. 

On September 23, 2016 appellant requested reconsideration of OWCP’s May 19, 2016 

decision.

In an August 15, 2016 report, Dr. Gregory L. Katz, an attending clinical psychologist, 

noted that he had seen appellant on three occasions, the last time being on August 12, 2015. He 

discussed appellant’s factual and medical history and summarized several medical reports of 

record. Dr. Katz noted that appellant discussed his former whistleblower activities and the 

August 24, 2011 assault. He opined that appellant’s primary diagnoses of depression and anxiety 

were directly related to his employment and that these could be seen as part of a “complex posttraumatic stress disorder” where he suffered multiple and recurrent stressors related to being 

ordered to perform unethical or illegal acts by the supervisors, as well as stress due to reporting 

these acts. Dr. Katz indicated that the primary need for treatment and periods of disability were

related to the events of appellant’s employment, and only minimally by the nonindustrial 

stressors, including the assault on August 24, 2011. He found that appellant was largely 

recovered from the emotional/psychological sequelae secondary to the assault, and posited that 

the primary factors influencing his ongoing anxiety and depression were the events of his 

employment associated with his whistleblowing. Dr. Katz indicated that appellant was 

preoccupied with his former whistleblowing activities and the fact that supervisors and 

coworkers unfairly harassed him and retaliated against him for speaking out about their 

wrongdoing. He indicated that, while the August 24, 2011 incident was a traumatic event, it was 

only a minor contributor to appellant’s overall symptom picture and disabling condition. 

 

10 In November 28 and December 1, 2015 letters, appellant indicated that he would like an employment factor 

added to the statement of accepted facts. He asserted that an employment factor occurred when, during a meeting on 

the morning of August 24, 2011, his supervisor told him that he would have to work with a former coworker and a 

former supervisor with whom he had difficulty working in the past.
7

Dr. Katz noted that appellant felt that his supervisor was “setting him up” for stress and conflict 

by assigning him to work with a coworker he had previously reported for his poor performance,

and appellant indicated that this led to his decision to take off work on August 25, 2011.11

In an October 10, 2016 report, Dr. Katz noted that appellant continued to ruminate about

being mistreated after engaging in whistleblower activities and that he was distressed that he lost 

his job due to reporting the wrongdoing of supervisors. He found that appellant continued to be 

totally disabled from work. On October 26, 2016 Dr. Katz indicated that appellant continued 

with his anxiety and depression and noted that he expressed difficulty understanding how he 

could have been mistreated for reporting the abuses and unethical conduct by other employees. 

Appellant continued to be disabled due to the severity of his mental health symptoms. In a 

December 2, 2016 report, Dr. Katz indicated that appellant continued to be preoccupied with 

stressors related to his whistleblower activities and expressed his belief that “it does not make 

sense” that he had to suffer for reporting wrongdoing. 

In a December 22, 2016 decision, OWCP denied modification of its May 19, 2016 

decision. It noted that Dr. Katz did not provide a rationalized medical opinion relating 

appellant’s claimed disability on or after August 25, 2011 to the accepted employment 

conditions.

On February 6, 2017 appellant requested reconsideration of OWCP’s December 22, 2016 

decision. In a January 26, 2017 statement, he argued that his work stoppage on August 25, 2011 

was caused by a departmental meeting he attended with a supervisor on August 24, 2011, as well 

as by another departmental meeting he attended with a supervisor approximately a week prior to 

August 24, 2011. Appellant generally asserted that the reports of attending physicians supported 

his disability claim.

In statements dated February 27, March 3, 7, and 18, and April 7, 2017, appellant 

requested that the diagnosis of complex post-traumatic stress disorder be added to the accepted 

conditions and again argued that his work stoppage on August 25, 2011 was caused by the two 

departmental meetings he attended in August 2011. He resubmitted a copy of his December 1, 

2015 statement, a December 16, 2013 letter from his former counsel, and some entries from his 

personal journal describing events at work in 2011. 

In a January 24, 2017 report, Dr. Katz indicated that appellant continued with depression 

and anxiety and ruminated about the stressors he experienced after his whistleblower activities. 

He complained that he had no support from superiors, many of whom were involved in illegal or 

inappropriate actions on the job. Dr. Katz indicated that appellant became disabled on 

August 25, 2011. He found that appellant’s disability and need for treatment were a direct result 

of a combination of stressors, the first being the August 24, 2011 assault, and the second being 

the events of his employment resulting from his being treated negatively by supervisors and 

coworkers after making his whistleblower reports. Dr. Katz noted that appellant’s disability 

began the day after he had to meet with a supervisor about whom he had made complaints. He

indicated that, by August 24, 2012, appellant had recovered from his post-traumatic stress 

 

11 Dr. Katz noted that it was at this point appellant was in agreement with his wife to seek treatment in the form of 

psychotherapy.
8

syndrome symptoms caused by the August 24, 2011 assault and posited that his ongoing 

depression/anxiety after that point were due to the events of his employment associated with the 

whistleblowing.

By decision dated April 24, 2017, 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 appellant 

submitted in support of his reconsideration request was repetitious in nature.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that an injury was sustained in the performance of duty as 

alleged, and that any disability and/or specific condition for which compensation is claimed are 

causally related to the employment injury.12 In general the term disability under FECA means 

incapacity because of injury in employment to earn the wages which the employee was receiving 

at the time of such injury.13 This meaning, for brevity, is expressed as disability for work.14 

The medical evidence required to establish a causal relationship between a claimed 

period of disability and an employment injury is rationalized medical opinion evidence. The 

opinion of the physician must be based on a complete 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 between the diagnosed condition and the 

specific employment factors identified by the claimant.15

ANALYSIS -- ISSUE 1

OWCP accepted that appellant sustained depressive disorder (not elsewhere classified) 

and anxiety state (unspecified). In accepting these conditions, it found that they were related to 

accepted employment factors, i.e., appellant’s being instructed by supervisors to engage in 

practices at the employing establishment which violated established agency rules and guidelines. 

These practices included improper repacking and dating of processed meat products, improper

pricing and mislabeling, poor inventory management, and a single incident of poultry being 

packaged in the meat department area. Appellant filed claims for compensation alleging 

disability beginning August 25, 2011 and continuing due to these accepted employment 

conditions. By decisions dated November 21, 2014, November 12, 2015, and May 19 and 

December 22, 2016, OWCP denied appellant’s disability claim finding that he failed to submit 

sufficient medical evidence in support of his claim.

 

12 J.F., Docket No. 09-1061 (issued November 17, 2009).

13 See 20 C.F.R. § 10.5(f).

14 Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

15 See E.J., Docket No. 09-1481 (issued February 19, 2010).
9

The Board finds that appellant did not meet his burden of proof to establish disability on 

or after August 25, 2011 due to his accepted emotional conditions, depressive disorder and 

anxiety state.

Appellant submitted a January 5, 2015 report in which Dr. Quiroga, an attending clinical 

psychologist, diagnosed post-traumatic stress disorder, depression (unspecified), anxiety disorder 

(unspecified), cocaine abuse in remission, and postconcussive syndrome. Dr. Quiroga posited 

that appellant’s psychiatric disorders were predominantly related to his work. He discussed 

treatment options and indicated that appellant was totally disabled from work. Dr. Quiroga

indicated that, even if appellant’s treatment was successful, he could not return to his former 

workplace at the employing establishment. In a work capacity evaluation form dated March 17, 

2015, he indicated that appellant was totally disabled beginning August 25, 2011.

The Board notes that these reports of Dr. Quiroga do not establish appellant’s claim for 

disability on or after August 25, 2011 due to their limited probative value with respect to this 

issue. Dr. Quiroga did not provide any medical rationale in support of his opinion on causal 

relationship. The Board has held that a medical report is of limited probative value on the issue of 

causal relationship if it contains a conclusion regarding causal relationship which is unsupported 

by medical rationale.16 Dr. Quiroga did not describe the accepted conditions, depressive disorder 

and anxiety state, or explain how they could have caused disability on or after August 25, 2011. 

Moreover, he diagnosed a condition that has not been accepted as work-related, post-traumatic 

stress disorder, and it is unclear whether he felt that this condition was solely responsible for 

appellant’s disability.17

In an August 4, 2015 report, Dr. Alloy, an attending clinical psychologist, indicated that a 

report of an attending physician18 showed that “the emphasis is on the stress, anxiety, and 

depression” while the August 24, 2011 assault was of secondary concern. He asserted that this 

represented strong evidence for August 25, 2011 being the “tipping point” from accumulated 

stress and, therefore, the onset date for appellant’s permanent total disability. Dr. Alloy noted 

that it appeared that “the assault solidified in [appellant’s] mind he was not liked or wanted at the 

workplace, and that his anxiety, depression, and paranoia [were] in effect justified.” He opined 

that the sum total of accumulated workplace stress pushed appellant over the edge 

psychologically, rendering him permanently totally disabled as of August 25, 2011. In a 

February 20, 2016 report, Dr. Alloy indicated that it had become difficult to “separate out”

appellant’s work-related depression and anxiety from the effects of the August 24, 2011 assault. 

 

16 C.M., Docket No. 14-88 (issued April 18, 2014).

17 In a June 2, 2014 report, Dr. Lopez, an OWCP referral physician indicated that, as far as his psychiatric 

condition was concerned, appellant was able to work as a meat cutter, but noted that he was not able to work at his 

former workplace at the employing establishment. However, in a supplemental report dated October 3, 2014, he

advised that appellant did not have any partial or total disability resulting from the accepted anxiety disorder or

depression. Dr. Lopez explained that the previously noted restriction from returning to work at the employing 

establishment was preventative and prophylactic. It is well established that the possibility of future injury constitutes 

no basis for the payment of compensation. Gaeten F. Valenza, 39 ECAB 1349, 1356 (1988). Therefore, Dr. Lopez’

opinion does not establish appellant’s claim for disability on or after August 25, 2011.

18 Dr. Alloy’s reference is to Dr. Dramov’s undated report received by OWCP on October 29, 2013.
10

He noted that there was a reasonable medical probability that the ongoing progression and 

exacerbation of appellant’s accepted anxiety and depression would have continued absent the 

August 24, 2011 assault, ultimately rendering him totally disabled regardless of the assault. 

In these reports, Dr. Alloy has provided an opinion that appellant had been disabled since 

August 25, 2011 primarily due to his work-related depression and anxiety, rather than due to the 

August 24, 2011 assault.

19

 However, his mere recitation of this causal relationship is of limited 

probative value absent a medical explanation which supports his opinion. The Board has held 

that mere conclusory opinion provided by a physician without the necessary medical rationale 

explaining how and why the work condition or work factors were sufficient to result in the claimed 

medical condition or disability is insufficient to meet a claimant’s burden of proof to establish a 

claim.20 Dr. Alloy did not discuss the accepted conditions of depressive disorder and anxiety state 

in any detail or explain the medical process of how they could have been competent to cause 

disability on or after August 25, 2011. He did not discuss objective findings from specific 

examinations/evaluations that supported his opinion on causal relationship. Such medical rationale 

is especially necessary in the present case because appellant stopped work immediately after he 

suffered the nonwork-related assault on August 24, 2011 and he did not seek psychiatric or

psychological treatment until after that nonwork-related event.

In an August 15, 2016 report, Dr. Katz, an attending clinical psychologist, indicated that 

appellant was largely recovered from the emotional/psychological sequelae secondary to the 

August 24, 2011 assault, and he posited that the primary factors influencing his ongoing anxiety 

and depression were the events of his employment associated with his whistleblowing. He

advised that appellant was preoccupied with his former whistleblowing activities and the fact 

that supervisors and coworkers unfairly harassed him and retaliated against him for speaking out 

about their wrongdoing. Dr. Katz opined that, while the August 24, 2011 incident was a 

traumatic event, it was only a minor contributor to appellant’s overall symptom picture and 

disabling condition. He noted that appellant felt that his supervisor was “setting him up” for 

stress and conflict by assigning him to work with a coworker he had previously reported for his 

poor performance, and appellant indicated that this led to his decision to take off work on 

August 25, 2011. In an October 10, 2016 report, Dr. Katz noted that appellant continued to 

ruminate about being mistreated after engaging in whistleblower activities and that he was 

distressed that he lost his job due to reporting the wrongdoing of supervisors. In October 26 and 

December 2, 2016 reports, he indicated that appellant continued to be preoccupied with the 

mistreatment he suffered for reporting the wrongdoing of supervisors and coworkers.

The Board notes that Dr. Katz’s reports would not establish appellant’s claim for 

disability on or after August 25, 2011. The reports are of limited probative value with respect to 

 

19 The Board notes that the August 24, 2011 assault was nonwork-related in nature. This issue was adjudicated in 

under a separate claim (OWCP File No. xxxxxx219). In a decision dated July 2, 2014, the Board affirmed a 

June 19, 2013 decision of OWCP finding that appellant had not established a work-related injury on August 24, 

2011 because he failed to establish that the August 24, 2011 attack occurred in the performance of duty. The Board 

notes that its decisions and orders are final upon the expiration of 30 days from the date of issuance and, in the 

absence of new review by OWCP, the subject matter is res judicata and not subject to further consideration by the 

Board. See 20 C.F.R. § 501.6(d); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998).

20 J.D., Docket No. 14-2061 (issued February 27, 2015).
11

this issue due to their lack of medical rationale on causal relationship.21 Dr. Katz did not describe 

the accepted conditions, depressive disorder and anxiety state, or explain how they could have 

caused disability on or after August 25, 2011. The Board notes that Dr. Katz’ reports are of 

limited probative value for the further reason that they are not based on an accurate factual 

history. He advised that appellant’s medical condition and work stoppage on August 25, 2011

were due, at least in part, to several events/conditions that have not been accepted as 

employment factors, including appellant’s claims that supervisors and coworkers unfairly 

harassed him and retaliated against him for his whistleblower activities and that a supervisor was 

“setting him up” for stress and conflict by assigning him to work with a coworker he had 

previously reported for his poor performance.

22

 The Board has held that an opinion on a given 

medical question is of limited probative value if it is not based on a complete and accurate 

factual and medical history.23

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.24 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.25 One such limitation is that the request for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

review is sought.26 A timely application for reconsideration, including all supporting documents, 

must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously 

applied or interpreted a specific point of law; (ii) advances a relevant legal argument not 

 

21 Y.D., Docket No. 16-1896 (issued February 10, 2017); D.R., Docket No. 16-0528 (issued August 24, 2016) 

(finding that a report is of limited probative value regarding causal relationship if it does not contain medical 

rationale explaining how the claimed condition/disability was work related).

22 Appellant also indicated that he was distressed that he lost his job due to reporting the wrongdoing of 

supervisors. However, the record reflects that appellant was separated from the employing establishment effective 

May 23, 2012 due to his inability to perform his duties as a meat cutter, rather than due to his whistleblowing 

activities. On appeal appellant argues that he stopped work on August 25, 2011 due to the effects of his attendance 

at two meetings in August 2011. However, these two meetings have not been accepted as compensable employment 

factors.

23 E.R., Docket No. 15-1046 (issued November 12, 2015).

24 This section provides in pertinent part: “[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).

25 20 C.F.R. § 10.607.

26 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of the OWCP decision for which review is sought. Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined 

by the document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated 

Federal Employees’ Compensation System. Id. at Chapter 2.1602.4b.
12

previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.27 When a timely application for reconsideration does not meet 

at least one of the above-noted requirements, OWCP will deny the request for reconsideration 

without reopening the case for a review on the merits.28

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record29 and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.30 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.31

ANALYSIS -- ISSUE 2

OWCP issued its latest merit decision on December 22, 2016. Appellant timely 

requested reconsideration of this decision on February 6, 2017.

The issue presented on appeal is whether appellant met any of the requirements of 20 

C.F.R. § 10.606(b)(3), thereby warranting reopening of the case for review of the merits of the 

claim. In his application for reconsideration, appellant did not identify a specific point of law or 

show that it was erroneously applied or interpreted by OWCP, nor did he advance a new and 

relevant legal argument not previously considered by OWCP. 

In his January 26, 2017 statement requesting reconsideration, and several other 

statements produced between February and April 2014, appellant argued that his August 25, 

2011 work stoppage was caused by two employment factors, a departmental meeting he attended 

with a supervisor on August 24, 2011, as well as another departmental meeting he attended with 

a supervisor approximately a week prior to August 24, 2011. The submission of this argument 

would not require reopening of appellant’s claim for merit review because his argument does not 

address the particular issue involved.

32

 These two departmental meetings have not been accepted 

as employment factors and appellant’s mere assertion that they constituted employment factors, 

without any supporting documentation or reference to Board precedent, would not establish them 

as such. The Board notes that the main issue of the present case is essentially medical in nature, 

i.e., whether appellant submitted sufficient medical evidence to establish disability on or after 

 

27 20 C.F.R. § 10.606(b)(3).

28 Id. at § 10.608(a), (b).

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

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

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

32 See supra note 30.
13

August 25, 2011 due to his accepted emotional conditions, depressive disorder and anxiety state. 

That is a medical issue which must be addressed by relevant medical evidence.33

In support of his reconsideration request, appellant submitted Dr. Katz’s January 24, 

2017 report. However, this report was similar to previously submitted reports of Dr. Katz which 

OWCP considered and determined did not establish appellant’s claim for work-related disability 

on or after August 25, 2011.34 As noted above, the Board has held that the submission of 

evidence or argument which repeats or duplicates evidence or argument already in the case record 

does not constitute a basis for reopening a case.35 A claimant may be entitled to a merit review by 

submitting relevant and pertinent new evidence, but the Board finds that appellant did not submit 

pertinent new and relevant medical evidence on the above-noted medical issue of the case.

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 disability on 

or after August 25, 2011 due to his accepted emotional conditions, depressive disorder and 

anxiety state. The Board further finds that OWCP properly denied appellant’s request for 

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

 

33 See Bobbie F. Cowart, 55 ECAB 746 (2004).

34 In his January 24, 2017 report, Dr. Katz provided an opinion that appellant had disability beginning August 25, 

2011 due to his medical condition related to being treated negatively by supervisors and coworkers after making his 

whistleblower reports. This report is similar to the reports of Dr. Katz that had previously been considered by 

OWCP, including his August 15, 2016 report.

35 See supra note 29. Appellant resubmitted a copy of his December 1, 2015 statement, a December 16, 2013 

letter from his former counsel, and some entries from his personal journal describing events at work in 2011. 

However, as noted, submission of previously submitted evidence already considered by OWCP would not require 

reopening a claim for merit review. See id.
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ORDER

IT IS HEREBY ORDERED THAT the April 24, 2017 and December 22, 2016 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: February 16, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board