United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Ponce, PR, Employer 

__________________________________________ 

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Docket No. 17-0015 

Issued: March 8, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 30, 2016 appellant filed a timely appeal from an April 6, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 Because more than 180 

days elapsed from the most recent merit decision dated March 10, 2015 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 to review the merits of this case. 

ISSUE 

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

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

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from April 6, 2016, the date of OWCP’s last decision was 

October 3, 2016. Since using October 5, 2016, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is September 30, 2016, rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.3 The facts and circumstances outlined in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below. On June 8, 2010 appellant, then a 51-year-old mail processing clerk, filed a Form CA-2a, 

claim for a recurrence of disability alleging that on May 8, 2009 postmaster C.F. touched his 

buttocks in a sexual manner while he was walking to his workstation. He indicated that 

employees began making jokes and sexual comments which caused him to have a nervous 

breakdown. Appellant asserted that this aggravated his accepted emotional condition. He did 

not stop work. C.F. noted on the Form CA-2a that appellant’s allegations were false and that he 

continued to work through the month of May 2010. He indicated that appellant was put on 

administrative leave due to inadequate medical documentation and submitted his recurrence 

claim a year later. 

By letter dated July 30, 2010, OWCP advised appellant that his claim was considered a 

new traumatic injury as he was claiming a new incident occurred.4

 It advised him of the type of 

factual and medical evidence needed to establish his claim. 

The employing establishment submitted an August 2010 witness statement from 

August 2010 from R.D., a coworker, who indicated that on May 5, 2009 while walking toward 

the finance office appellant alleged physical contact between C.F. and appellant. R.D. indicated 

that during the alleged physical contact they walked through a narrow hallway space and 

continued to walk and talk. He did not hear concern from appellant. A witness statement from 

A.C., a coworker, noted that on May 5, 2009 the employees and C.F. were gathered together in a 

group and the topic of being gay was raised and C.F. indicated that he was not gay and that he 

was not going to participate in the conversation. A witness statement from L.C., a coworker, 

noted that on May 5, 2009 he was walking from the drive through the office to the lobby with 

another employee when appellant alleged that there had been contact between C.F. and appellant. 

L.C. indicated that he did not witness any physical contact between C.F. and appellant. 

In a decision dated August 30, 2010, OWCP denied appellant’s claim finding the 

evidence of record was insufficient to establish that the events occurred as alleged. 

On November 30, 2010 appellant requested reconsideration. 

In a December 8, 2010 decision, OWCP denied appellant’s request for reconsideration as 

the evidence submitted was insufficient to warrant a merit review. 

On December 22, 2010 appellant again requested reconsideration. He submitted a 

voluntary withdrawal of his Equal Employment Opportunity (EEO) complaint dated 

July 9, 2009. 

In a decision dated September 23, 2011, OWCP denied modification of the August 30, 

2010 decision. 

 3

 Docket No. 13-1800, Order Remanding Case (issued February 21, 2014). 

4

 The prior claim is not presently before the Board. 
3

On March 5, 2012 appellant again requested reconsideration and submitted additional 

medical evidence. In a decision dated May 9, 2013, OWCP denied his request for 

reconsideration as it was untimely filed and failed to demonstrate clear evidence of error. 

On July 29, 2013 appellant appealed his claim to the Board. In an order dated 

February 21, 2014, the Board set aside OWCP’s May 9, 2013 decision and remanded the case to 

OWCP for further development.5

 The Board found that appellant’s letter dated February 24, 

2012 was a timely request for reconsideration of the September 23, 2011 decision. The Board 

noted that although appellant did not use the word “reconsideration” in his letter he provided 

sufficient detail to discern that he was contesting the denial of his claim. The Board instructed 

OWCP to apply the standard for reviewing timely requests for reconsideration. 

Appellant submitted an arbitration decision dated December 6, 2013 which found that the 

employing establishment had a right to separate appellant as set forth in a May 29, 2010 notice of 

separation. However, the employing establishment advised that the separation would be held in 

abeyance until his OWCP claim, disability retirement, or both were finalized. 

By decision dated June 20, 2014, OWCP denied modification of its September 23, 2011 

decision. On November 25, 2014 appellant again requested reconsideration. He submitted a 

copy of the arbitration decision dated December 6, 2013, previously of record. 

By decision dated March 10, 2015, OWCP denied modification of the June 20, 2014 

decision. 

On January 7, 2016 appellant submitted a reconsideration request indicating that he 

would submit evidence from R.D. which would support his claim and prove that OWCP’s 

decision was in error. He alleged that management harassed him in order to exacerbate his 

preexisting medical condition. Appellant asserted that his buttocks were grabbed by C.F. which 

triggered the deterioration of his psychiatric condition. He alleged that C.F. grabbed his buttocks 

in a sexual manner and R.R., a witness, was present during an interview when C.F. admitted 

touching appellant’s buttocks in a playful manner but not a sexual manner. Appellant indicated 

that statements from A.C. dated May 27, 2015, L.C. dated May 28, 2015 were submitted to R.D.; 

however R.D. chose which evidence to submit to OWCP. He believed that OWCP did not have 

a complete record. Appellant alleged that management manipulated the evidence and that C.F. 

grabbed his buttocks in a sexual manner and mentioned a gay topic in the meeting. 

Appellant also submitted a July 9, 2009 withdrawal of his EEO complaint, his CA-2a 

claim form, A.C.’s August 2010 statement, R.D.’s August 2010 statement, L.C.’s August 2010 

statement, excerpts from the Board’s prior order, and excerpts from OWCP’s March 10, 2015 

decision, all previously of record. 

Appellant submitted a letter of warning dated January 7, 2009 in which he was charged 

with failure to meet the attendance requirement of his position. He submitted a medical 

certificate dated February 3, 2009. Appellant submitted a settlement agreement dated 

February 25, 2009 which found the issue of job accommodation would be referred to OWCP and 

appellant would be provided a copy of his medical record and pay vouchers from 1987 to 1988. 

 5

 Docket No. 13-1800, Order Remanding Case (issued February 21, 2014). 
4

He submitted a May 27, 2015 statement from A.C. who indicated that he was not present at the 

conversation meeting and did not have any knowledge of appellant’s case. Appellant submitted 

a May 28, 2015 statement from L.C. indicating that he did not witness the incident as he was 

walking in front of appellant. He submitted a statement from R.D. dated November 4, 2015 

which stated: “I am a witness in the incident between C.F. and appellant on May 5, 2009 

(touching buttocks) in the hallway walking to the finance offices.” Appellant submitted e-mails 

from D.S., a union official, to R.D. requesting copies of statements from L.C. and A.C. which 

had been submitted to OWCP for appellant’s claim. An e-mail from R.D. to D.S. dated 

March 27, 2015 R.D. indicated that he had no knowledge of appellant’s new claim and he did not 

have any statements that were a part of this case. 

In an April 6, 2016 decision, OWCP denied appellant’s January 7, 2016 request for 

reconsideration as the evidence submitted was insufficient to warrant a merit review. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,6 OWCP has the discretion to reopen a case for review 

on the merits. It must exercise this discretion in accordance with the guidelines set forth in 

section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may 

obtain review of the merits of his or her written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence which: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”7

Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.8

ANALYSIS 

OWCP denied appellant’s emotional condition claim because he had failed to establish 

any compensable employment factors. Thereafter, it denied appellant’s reconsideration request, 

without a merit review. 

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

20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the 

claim. In his request for reconsideration, appellant did not show that OWCP erroneously applied 

 6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.606(b)(3). 

8 Id. at § 10.608(b). 
5

or interpreted a specific point of law. He submitted statements dated June 15 and December 30, 

2015 and reiterated his allegations that management harassed him in order to exacerbate his 

preexisting medical condition and that C.F. grabbed his buttocks in a sexual manner which 

triggered the deterioration of his psychiatric condition. These assertions do not show a legal 

error by OWCP or a new and relevant legal argument. The underlying issue in this case is 

whether appellant submitted sufficient evidence to establish that his claimed condition is causally 

related to any compensable employment factors. This is a factual issue which must be addressed 

by relevant new factual evidence.9

 

Appellant did not submit any pertinent new and relevant evidence in support of his claim. 

He submitted a withdrawal of his EEO complaint dated July 9, 2009, a Form CA-2a, recurrence 

of disability claim, an August 2010 statement from A.C., an August 2010 statement from R.D., 

an August 2010 witness statement from L.C., excerpts from the Board’s prior order and a prior 

OWCP decision. However, these reports are duplicative of evidence previously submitted and 

were considered by OWCP’s earlier decisions dated August 30, 2010, September 23, 2011, 

June 20, 2014 and March 10, 2015. Evidence that repeats or duplicates evidence already in the 

case record has no evidentiary value and does not constitute a basis for reopening a case.10 

Therefore, these reports are insufficient to require OWCP to reopen the claim for a merit review. 

With respect to the third requirement, submitting relevant and pertinent new evidence not 

previously considered by OWCP, appellant submitted a letter of warning dated January 7, 2009 

in which he was charged with failure to meet the attendance requirement of his position, a 

medical certificate dated February 3, 2009, a February 25, 2009 settlement agreement form from 

mediation between appellant and the employing establishment addressing job accommodation, 

copies of his medical record, pay vouchers, and e-mails from D.S. to R.D. dated March 27, 2015 

requesting copies of witness statements submitted to OWCP. This evidence is not relevant, 

however, as the underlying issue is whether appellant has established a compensable 

employment factor.11 Therefore, OWCP properly determined that this evidence did not 

constitute a basis for reopening the case for a merit review. 

Appellant submitted a statement from A.C. dated May 27, 2015 who indicated that he 

was not present at the conversation meeting and did not have any knowledge of appellant’s case. 

He submitted a statement from L.C. dated May 28, 2015 indicating that he had not witnessed the 

incident as he was walking in front of appellant. Appellant submitted a statement from R.D. 

dated November 4, 2015 who noted that he was a witness to the incident between C.F. and 

appellant on May 5, 2009. However, this evidence is not relevant as it merely repeats witness 

statements previously submitted in August 2010 that were previously considered.12 Therefore, 

OWCP properly determined that this evidence did not constitute a basis for reopening the case 

for a merit review. 

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

10 See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35 

ECAB 1090, 1093-94 (1984). 

11 See Margaret S. Krzycki, 43 ECAB 496 (1992) (where a claimant has not established a compensable 

employment factor, the Board has held that it need not address the medical evidence of record). 

12 See supra note 9. 
6

On appeal, appellant asserts that he submitted sufficient evidence to establish that he 

sustained an emotional condition in the performance of duty. As explained, the Board does not 

have jurisdiction over the merits of the claim. 

The Board accordingly 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, advance a relevant legal argument not previously considered by OWCP, 

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

20 C.F.R. § 10.608, OWCP properly denied merit review. 

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the April 6, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 8, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board