United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.F., Appellant 

and 

U.S. POSTAL SERVICE, CAROL STREAM 

POST OFFICE, Carol Stream, IL, Employer 

__________________________________________ 

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Docket No. 16-1541 

Issued: January 13, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 26, 2016 appellant filed a timely appeal from a March 31, 2016 merit decision 

and a July 7, 2016 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.2

ISSUES 

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

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

reconsideration under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence with her notice of appeal to the Board. The 

Board’s jurisdiction is limited, however, to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1). 

Appellant may submit this evidence to OWCP, together with a formal request for reconsideration, pursuant to 5 

U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2). 
2

FACTUAL HISTORY 

On June 30, 2015 appellant, then a 57-year-old mail processor filed a notice of 

occupational disease (Form CA-2) claiming that she sustained an emotional condition in the 

performance of duty due to a pattern of harassment by management. In accompanying 

statements, she alleged that supervisor K.B. yelled at her on April 19, 2015 regarding taking her 

lunch late and threatened to take away her position. Appellant alleged that on May 11, 2015, 

supervisors K.B. and A.P. yelled at her and removed her time card because they thought she did 

not work on Mother’s Day, but appellant claimed that she had reported to work that day. She 

asserted that, by removing her time card from the rack on May 11, 14, and 28, and June 15 to 

22, 2015, managers were retaliating against her for filing an Equal Employment Opportunity 

(EEO) complaint. 

In a July 1, 2015 letter, supervisor A.P. asserted that on April 19, 2015 she was walking 

toward appellant and K.B. at the time of the alleged altercation, but that she did not hear K.B. 

yell or scream. Instead, appellant approached A.P. “screaming and yelling about her time card 

missing” and alleging that someone had interfered with her money. Appellant later apologized 

for yelling. 

Dr. Dadhija Patel, an attending osteopath Board-certified in internal medicine, provided a 

June 11, 2015 letter relating appellant’s account of harassment at work, causing anxiety. 

In a July 10, 2015 letter, OWCP advised appellant of the additional evidence needed to 

establish her claim, including factual corroboration of the alleged harassment, and a statement 

from her attending physician explaining how and why those factors could have caused the 

claimed emotional condition. Appellant was afforded 30 days to submit such evidence. 

In response, appellant submitted additional statements reiterating her prior allegations. 

She also provided chart notes dated June 10, 2015 to March 7, 2016 from Dr. Pradeep Thapar, an 

attending Board-certified psychiatrist, finding her disabled for work due to major depressive 

disorder and generalized anxiety. Dr. Thapar prescribed medication.3

 

In a July 8, 2015 letter, a union official noted meeting with manager J.G. on 

June 29, 2015. J.G. asserted that she was unaware that appellant had filed EEO complaints 

against K.B. She explained that appellant’s time card could have been missing because she “did 

not leave it in the rack in Automation as [appellant was] instructed by” supervisor W.P. J.G. 

called W.P. and verified that he had instructed appellant to leave her time card in the Automation 

division, and not to take it with her to the Priority Mail division. J.G. noted that since appellant 

began leaving her time card in Automation as instructed, there had not been a problem with it not 

being in the rack when she clocked in. 

In an e-mail received on August 7, 2015, manager J.G. denied yelling at appellant, 

harassing her, or pressuring her to drop her EEO claim. 

In a July 29, 2015 e-mail, supervisor W.P. related that appellant had accused supervisors 

of moving or hiding her time card. W.P. explained that as appellant worked in different 

 3

 Appellant also submitted medication management notes from a nurse practitioner. She claimed compensation 

(Form CA-7) from July 9 to 24, 2015, and from December 26, 2015 to April 1, 2016. 
3

divisions and often arrived after work was assigned at noon, it was sometimes difficult for her to 

recall where she had last clocked out. W.P. instructed appellant to leave her time card in the rack 

at the Automation unit, punch out for lunch at Automation, “and to end [appellant’s] tour leaving 

her time card in the card area.” After appellant began complying with these instructions, she had 

no difficulty locating her card and had not accused others of moving it. 

By decision dated March 31, 2016, OWCP denied the claim, finding that appellant had 

not established any compensable factors of employment. It found that she had not established 

the April 19 or May 11, 2015 incidents as factual, as supervisory witness statements contradicted 

her version of events. Additionally, OWCP found that appellant submitted insufficient evidence 

to establish that management personnel had hidden her time card as alleged. As appellant had 

failed to establish any compensable work factors, OWCP did not address the medical evidence. 

On April 25, 2016 appellant requested reconsideration. She submitted April 6 and 

May 4, 2016 notes from Dr. Patel diagnosing major depressive disorder and generalized anxiety 

disorder. Appellant also filed claims for compensation from April 16 to June 24, 2016. 

By nonmerit decision dated July 7, 2016, OWCP denied reconsideration, finding that the 

evidence submitted was irrelevant or immaterial to appellant’s burden to establish compensable 

work factors. It noted that the medical evidence was irrelevant as appellant had not established 

any compensable employment factors. 

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. 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.4

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

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

adversely affected by employment factors.5 This burden includes the submission of a detailed 

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

affected the condition or conditions for which compensation is claimed.6 

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 

 4 See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 

28 ECAB 125 (1976). 

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

6 Effie O. Morris, 44 ECAB 470, 473-74 (1993). 
4

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.7

 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.8

 

For harassment or discrimination to give rise to a compensable disability under FECA, 

there must be probative and reliable evidence that harassment or discrimination did in fact 

occur.9

 Mere perceptions of harassment, retaliation, or discrimination are not compensable 

under FECA.10 

ANALYSIS -- ISSUE 1 

Appellant has not attributed her emotional condition to the performance of her regular or 

specially assigned duties as a mail processor under Cutler.

11 Rather, this case is solely based on 

her allegation that her supervisors yelled at her on April 19 and May 11, 2015, and retaliated 

against her for filing an EEO complaint by moving or hiding her time card on May 11, 14, 25, 

and 28, and June 15 to 22, 2015. On July 20, 2015 OWCP advised appellant of the type of 

evidence needed to establish her claim. Appellant provided additional statements reiterating her 

allegations and medical evidence. OWCP denied the claim on March 31, 2016, finding that she 

had failed to establish any of her allegations as factual or compensable. 

Appellant failed to submit any witness statements or other evidence corroborating her 

account of events. Instead, Supervisor A.P. provided a witness statement asserting that neither 

she nor K.B. yelled at appellant on April 19, 2015 as alleged. Rather, they claimed it was 

appellant who had yelled at them. 

Regarding appellant’s allegation that management moved or hid her time card in 

retaliation for her filing an EEO claim, Manager J.G. and Supervisor W.P. submitted letters 

explaining that appellant often left her time card in the wrong work unit, leading her to believe 

that someone had moved it. When she followed instructions to leave her time card in the 

Automation area rack, she no longer experienced difficulties with locating her card. 

The Board finds that appellant has not met her burden of proof to establish any of her 

allegations as factual or compensable. Appellant submitted no evidence corroborating her 

account of events and the witness statements tend to negate her recollections. As she has not 

 7 See Charles D. Edwards, 55 ECAB 258 (2004); Norma L. Blank, 43 ECAB 384 (1993). 

8 Lori A. Facey, 55 ECAB217 (2004); Norma L. Blank, id. 

9 Marlon Vera, 54 ECAB 834 (2003). 

10 Kim Nguyen, 53 ECAB 127 (2001). 

11 See supra note 3. 
5

established any compensable factor of employment, the medical evidence need not be 

addressed.12

On appeal, appellant contends that additional evidence accompanying her appeal request 

is sufficient to establish her claim. However, the Board may not consider evidence for the first 

time on appeal that was not before OWCP at the time it issued the final decision in the case.13 

LEGAL PRECEDENT -- ISSUE 2 

To require the office to reopen a case for merit review under section 8128(a) of FECA,14

section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant 

must: (1) show 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.15 Section 10.608(b) provides that 

when an application for review of the merits of a claim does not meet at least one of the three 

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.16 

In support of a request for reconsideration, a claimant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.17 Appellant need only 

submit relevant, pertinent evidence not previously considered by OWCP.18 When reviewing an 

OWCP decision denying a merit review, the function of the Board is to determine whether 

OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s 

application for reconsideration and any evidence submitted in support thereof.19 

ANALYSIS -- ISSUE 2 

Appellant requested reconsideration on April 18, 2016. She did not offer an argument. 

In support of her request, appellant submitted claims for wage-loss compensation and medical 

reports from Dr. Patel. OWCP denied reconsideration by decision dated July 7, 2016, finding 

that her request form, claim forms, and Dr. Patel’s reports were irrelevant. 

The Board finds that OWCP appropriately denied reconsideration. The critical issue in 

the March 31, 2016 merit decision was that appellant had not established any compensable 

factors of employment. To be relevant, the evidence submitted on reconsideration must address 

 12 Margaret S. Krzycki, 43 ECAB 496 (1992). 

13 Supra note 2. 

14 5 U.S.C. § 8128(a). 

15 20 C.F.R. § 10.606(b)(3). 

16 Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008). 

17 Helen E. Tschantz, 39 ECAB 1382 (1988). 

18 See supra note 14. See also Mark H. Dever, 53 ECAB 710 (2002). 

19 Annette Louise, 54 ECAB 783 (2003). 
6

that issue. The compensation claim forms and the medical evidence are not relevant to 

establishing appellant’s allegations as factual. Therefore, they do not comprise a basis for 

reopening the case.20 

A claimant may be entitled to a merit review by submitting pertinent new and relevant 

evidence or argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that appellant has not established an emotional condition in the 

performance of duty. The Board further finds that OWCP properly denied appellant’s request 

for further merit review of her claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

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

Compensation Programs dated July 7 and March 31, 2016 are affirmed. 

Issued: January 13, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 20 Joseph A. Brown, Jr., 55 ECAB 542 (2004).