United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.S., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Los Angeles, CA, 

Employer

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Docket No. 17-1172

Issued: November 14, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 8, 2017 appellant filed a timely appeal from an April 4, 2017 merit decision and 

an April 26, 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.2

ISSUES

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

performance of his federal employment, and (2) whether OWCP properly denied appellant’s

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

 

1

5 U.S.C. § 8101 et seq.

2 Appellant submitted evidence on appeal. The Board’s jurisdiction is limited 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).
2

FACTUAL HISTORY

This case has been before the Board on a prior appeal.3 The facts of the case as presented

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

On January 12, 2015 appellant, then a 42-year-old mail handler, filed a traumatic injury 

claim (Form CA-1). He alleged that on March 27, 2012 he sustained an emotional condition as a 

result of being improperly placed on absent without leave (AWOL) status for March 27, 2012. 

On the claim form appellant indicated that his father had died on March 27, 2012. He also 

reported that he was subject to workplace harassment and bullying.

Appellant submitted a calendar for January to May 2012, showing various dates as 

“AWOL,” including March 27, 2012. In an undated statement received on February 18, 2015, he

asserted that he should have been placed on Family and Medical Leave Act (FMLA) leave for 

March 27, 2012, as he had a chronic low back condition and was seen by a physician on 

March 25 and 27, 2012.4 He also reported that March 27, 2012 was a scheduled vacation day, 

and that his father’s death should have been considered as an emergency circumstance.

The employing establishment submitted a letter dated March 24, 2012 to appellant from 

his supervisor. The supervisor indicated that appellant had requested leave, but did not have 

enough work hours to qualify for FMLA. According to him, appellant would be placed in 

AWOL status until appropriate documentation was submitted to justify an absence. The letter 

reported that appellant had not complied with employing establishment regulations regarding 

absences, and therefore was charged with AWOL. To change the leave status to sick leave or 

other approved leave, it was necessary that appellant provide medical documentation.

The record contains an “investigative interview” form from appellant’s supervisor, 

requesting an explanation regarding specific dates of absence from January 6 to May 12, 2012, 

including March 27, 2012. In a “notice of removal” dated June 4, 2012, the employing 

establishment alleged that appellant had violated a “last chance” agreement dated October 18, 

2010 to maintain a satisfactory attendance record.5 Appellant submitted a decision dated 

August 26, 2012 from the California Unemployment Insurance Appeals Board. In an undated 

note, appellant argued that the decision showed that he did call the employing establishment on 

March 27, 2012 to explain his absence. The decision itself found that appellant had no 

documentary record or corroboration for calling the employing establishment from March 20 to 

April 14, 2012. Appellant also submitted a portion of a Merit Systems Protection Board (MSPB) 

decision, which found that the employing establishment’s removal against appellant was 

sustained.

 

3 Docket No. 16-0711 (issued June 27, 2016).

4 The record contains a report dated March 25, 2012 from Dr. Anjum Sameena, a Board-certified family 

practitioner, which indicated that appellant was seen for back pain.

5 A grievance form filed with respect to the notice of removal reports that appellant was removed from the 

employing establishment on July 15, 2012.
3

An arbitrator’s decision dated June 17, 2013 denied a grievance filed regarding 

appellant’s removal, and found that appellant had violated a last chance agreement. As to 

March 27, 2012, the arbitrator found that appellant had subsequently been approved for funeral 

leave due to the death of his father.

By undated e-mail correspondence received on January 13, 2015, appellant’s supervisor 

reported that appellant had a history of attendance issues. He indicated that he was not informed 

that appellant’s father had passed away, and any unapproved leave during that period was due to 

attendance irregularities. 

By decision dated April 27, 2015, OWCP denied the claim for compensation. It found 

appellant had not established a compensable work factor.

On May 6, 2015 appellant requested a review of the written record by an OWCP hearing 

representative. He argued that he believed the evidence showed error by the employing 

establishment in placing him on AWOL. Appellant submitted Board decisions that did not 

involve claims for emotional conditions.

By decision dated September 11, 2015, the hearing representative affirmed the April 27, 

2015 decision which denied appellant’s claim. She found appellant had not established a 

compensable work factor with respect to administrative error on March 27, 2012, or regarding an 

allegation of harassment and bullying.

On February 17, 2016 appellant filed an appeal with the Board. The Board affirmed the 

September 11, 2015 OWCP decision.6 The Board found appellant had not established a 

compensable work factor with respect to administrative error on March 27, 2012, or any 

allegation of harassment. 

On July 20, 2016 appellant requested reconsideration. He submitted a copy of the 

September 11, 2015 OWCP decision, with handwritten notes asserting that he did not file a 

traumatic injury claim. Appellant submitted a copy of an April 27, 2015 OWCP decision, which 

found appellant had filed an occupational disease claim.7 In addition, he resubmitted the

decision from the California Unemployment Insurance Appeals Board, denying the claim for 

benefits.

In an undated statement, appellant wrote that he was never asked about harassment or 

bullying by OWCP. He wrote that he did not submit evidence on harassment and bullying 

because the claim was being developed for his allegation regarding AWOL status on 

March 27, 2012. Appellant submitted additional medical evidence regarding treatment for 

conditions that included his back.

 

6

Supra note 3.

7 As the Board noted in the prior appeal, appellant filed a Form CA-1 traumatic injury claim on January 12, 2015. 

Appellant has also filed occupational disease or illness claims (Form CA-2) with respect to an emotional condition. 

With respect to the January 12, 2015 claim, OWCP has addressed the allegation of administrative error on 

March 27, 2012, and an allegation of harassment and bullying. 
4

In another undated statement, appellant wrote that he was alleging that the employing 

establishment erred with respect to investigative interviews on May 15, 2012, regarding the 

March 27, 2012 administrative action. He asserted that he did call in on March 27, 2012, and 

again asserted that he was improperly placed in AWOL status. Appellant reiterated his belief 

that he had established a compensable work factor.

As to additional documents, appellant submitted an April 21, 2015 letter from the Office 

of Personnel Management (OPM) indicating his claim for disability retirement was approved. 

He wrote on the letter that if he was approved for disability retirement he should also be 

approved for workers compensation. 

By decision dated April 4, 2017, OWCP reviewed the merits and denied modification. It

found the evidence did not establish a compensable work factor and was insufficient to warrant 

modification of the prior decision.

On April 11, 2017 appellant requested reconsideration. He wrote on a copy of the 

April 4, 2017 decision that he was alleging there was no “big difference between a no call 

AWOL” and other AWOL status and it was not clear whether he was on AWOL status due to no 

call or denied leave.

By decision dated April 26, 2017, OWCP denied appellant’s request for reconsideration 

of the merits of the claim pursuant to 5 U.S.C. § 8128(a). It found the evidence was insufficient 

to warrant a merit review of the claim. 

LEGAL PRECEDENT -- ISSUE 1

Appellant has the burden of proof to establish by the weight of the reliable, probative and 

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

affected by factors of his federal employment.8 This burden includes the submission of detailed 

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

affected the condition or conditions for which compensation is claimed.9 A claimant must also 

submit rationalized medical opinion evidence establishing a causal relationship between the 

claimed condition and the established, compensable work factors.10

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

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

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

workers’ compensation. These injuries occur in the course of the employment and have some kind 

of causal connection with it, but nevertheless are not covered because they are found not to have 

arisen out of the employment. Disability is not covered where it results from an employee’s 

frustration over not being permitted to work in a particular environment or to hold a particular 

position, or secure a promotion. On the other hand, where disability results from an employee’s 

 

8 Pamela R. Rice, 38 ECAB 838 (1987).

9 Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996). 

10 See Bonnie Goodman, 50 ECAB 139, 141 (1998). 
5

emotional reaction to his regular or specially assigned work duties or to a requirement imposed by 

the employment, the disability comes within the coverage of FECA.

11

A reaction to an administrative or personnel matter is generally not covered as it is not 

related to the performance of regular or specially assigned duties.12 Nevertheless, if the evidence 

demonstrates that the employing establishment erred, acted abusively, or unreasonably in the 

administration of a personnel matter, any physical or emotional condition arising in reaction to 

such error or abuse may be covered.13

ANALYSIS -- ISSUE 1

The Board finds that appellant has failed to establish an emotional condition in the 

performance of his federal employment. 

The Board notes that appellant has not asserted that his regular or specially assigned work 

duties caused his alleged emotional condition. In the present case, appellant alleges

administrative error when the employing establishment placed him on AWOL for 

March 27, 2012. The record indicates that the employing establishment did subsequently 

approve leave based on his father’s death.

Appellant’s primary allegation is the he sustained an emotional condition as a result of 

actions by the employing establishment on March 27, 2012. He had alleged that it was error by 

the employing establishment to initially place him on AWOL for March 27, 2012. A reaction to 

an administrative or personnel matter is generally not covered as it is not related to the 

performance of regular or specially assigned duties.14 Nevertheless, if the evidence demonstrates 

that the employing establishment erred, acted abusively, or unreasonably in the administration of 

a personnel matter, any physical or emotional condition arising in reaction to such error or abuse 

may be covered.15 The evidence that was before OWCP at the time of the September 11, 2015 

OWCP decision, discussed by the Board in its prior decision, failed to establish error or abuse by 

the employing establishment. The Board indicated that evidence showed appellant was placed 

on AWOL status until he submitted proper documentation as to the absence from work. After 

appellant submitted documentation regarding his father’s death, he was granted leave. No 

evidence of error or abuse was presented.

Appellant has not submitted any additional evidence establishing a compensable work 

factor in this regard. He has submitted numerous statements, often on copies of decisions or 

other documents, reiterating his allegation of error, but no probative evidence establishes any 

error by the employing establishment on March 27, 2012. While appellant asserts that he did call 

 

11 Lillian Cutler, 28 ECAB 125 (1976).

12 See Brian H. Derrick, 51 ECAB 417, 421 (2000). 

13 Margreate Lublin, 44 ECAB 945, 956 (1993).

14 Supra note 12.

15 Supra note 13.
6

in to the employing establishment, there was no contemporaneous evidence presented that he had 

notified the employing establishment of the reason for his absence on March 27, 2012. 

The submission of evidence regarding an OPM decision on disability retirement does not 

establish an employment injury under FECA.16 Appellant also referred to investigative 

interviews on May 15, 2012. No evidence of error was submitted regarding any interviews in 

connection with appellant’s absence on March 27, 2012. 

With respect to any allegation of harassment or bullying, appellant submitted no 

probative evidence. He wrote that OWCP had not requested evidence, but it is appellant’s 

burden of proof to submit evidence necessary to establish any claim of harassment or bullying.17 

Appellant did not establish a compensable work factor regarding an allegation of harassment or 

bullying.

The Board finds that appellant has not established a compensable work factor. Since 

appellant has not established a compensable work factor, the claim is not established and the 

Board will not address the medical evidence.18

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

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,19

OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of 

law; (ii) advances a relevant legal argument not previously considered by OWCP; or 

(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.”

20

 

20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.21

 

16 See S.S., Docket No. 15-0780 (issued September 3, 2015); Daniel Deparini, 44 ECAB 657 (1993).

17 E.H., Docket No. 13-0559 (issued August 21, 2013).

18 See Margaret S. Krzycki, 43 ECAB 496 (1992).

19 5 U.S.C. § 8128(a) (providing that “[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”).

20 20 C.F.R. § 10.606(b)(3).

21 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
7

ANALYSIS -- ISSUE 2

The Board also finds that OWCP did not abuse its discretion by denying appellant’s 

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

On reconsideration appellant alleged that there was “no big difference between a no call 

AWOL status and other AWOL status.” As discussed above, the underlying issue is whether 

there was administrative error in initially placing him on AWOL status for March 27, 2012. This 

is a legal issue. 

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law, or advance a relevant legal argument not previously considered by OWCP. He made a 

general statement, expressing his own opinion, as to AWOL status without discussing a point of 

law or advancing a relevant legal argument regarding a compensable work factor in this case. 

The Board also finds that appellant did not submit any evidence with his request for 

reconsideration. Therefore he did not submit any relevant and pertinent new evidence which 

would require a merit review.

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific 

point of law, advanced a relevant legal argument not previously considered by OWCP, or 

constitute relevant and pertinent new evidence not previously considered by OWCP. Pursuant to 

20 C.F.R. § 10.608(b), OWCP properly declined to review the merits of the claim.

CONCLUSION

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

performance of his federal employment. The Board further finds that OWCP properly denied his

request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). 
8

ORDER

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

Compensation Programs dated April 26 and 4, 2017 are affirmed. 

Issued: November 14, 2017

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