United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.W., Appellant 

and 

U.S. POSTAL SERVICE, HINDENWOOD POST 

OFFICE, Richmond, VA, Employer 

__________________________________________ 

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Docket No. 15-1225 

Issued: February 22, 2016 

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, 2015 appellant filed a timely appeal of a December 11, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from April 24, 2013, the most recent OWCP merit decision, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction to review the merits of this case.2

 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

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

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated October 14, 2015, the Board denied the request because his arguments on appeal could 

be adequately addressed in a decision based on a review of the case as submitted on the record. Order Denying 

Request for Oral Argument, Docket No. 15-1225 (issued October 14, 2015). 
2

On appeal, appellant argues that he presented relevant and pertinent new evidence 

showing that his supervisor was aware of his underlying mental condition and that her 

harassment of him was deliberate and premeditated. 

FACTUAL HISTORY 

On March 15, 2012 appellant, then a 51-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained an emotional condition due to factors of his 

federal employment, including harassment and threats of disciplinary action from his supervisor, 

P.B. Appellant first became aware of his claimed condition and attributed it to his employment 

on January 27, 2012. He stated that his stress level at work was fine until P.B. arrived. 

Appellant alleged that she had been trying to provoke him to anger, was loud and rude to him on 

January 26, 2012, and then called him into her office for an improper predisciplinary interview 

(PDI) on January 27, 2012. He stopped work on January 27, 2012 and had not returned. 

By decision dated December 13, 2012, OWCP denied appellant’s claim finding that the 

evidence did not establish an emotional condition arising from a compensable factor of 

employment. 

On January 1, 2013 appellant requested a review of the written record by an OWCP 

hearing representative. 

By decision dated April 24, 2013, the OWCP hearing representative affirmed the prior 

decision as the factual evidence failed to establish improper PDIs, specific acts of harassment, or 

improper treatment by P.B. 

Appellant requested reconsideration and submitted a March 27, 2014 witness statement 

from an anonymous city letter carrier at the employing establishment attesting to P.B.’s, rude and 

unprofessional behavior, an April 1, 2014 statement from his wife alleging that he had changed 

due to work events, and a narrative statement dated April 13, 2014 reiterating his allegations. 

In a March 28, 2014 witness statement, appellant’s coworker, S.G., testified that P.B. 

would yell at carriers and clerks, loved confrontations, created tension and stress, and often 

added to the employees’ stress by refusing to pay employees if they called out sick, no matter 

what their reasons were. 

In a witness statement dated March 29, 2014 another coworker, W.G., stated that he 

“noticed” a confrontation between appellant and P.B. “just about on a daily basis” and recalled 

on or around January 25, 2012 that she “was all up in [appellant’s] face questioning him about 

the work from the day before.” 

In an April 3, 2014 witness statement, an anonymous coworker stated that P.B. called 

appellant into her office on December 6, 2011 for a PDI for unauthorized overtime that could 

lead to disciplinary actions. The coworker noted witnessing the confrontation between P.B. and 

appellant on January 26, 2012. The witness testified that the next day on January 27, 2012 P.B. 

called appellant into her office for another PDI and stated, “This is a PDI for unauthorized 

overtime.” Appellant became agitated, requested the Employee Assistance Program (EAP) 

number, and ended the PDI to make the telephone call. After speaking with an EAP 
3

representative, appellant told the witness that he was advised to seek medical attention, and that 

P.B. instructed him to go to the I&O Clinic in Hampton. 

By decision dated December 11, 2014, OWCP denied appellant’s request for 

reconsideration of the merits finding that he did not submit pertinent new and relevant evidence 

and did not show that OWCP erroneously applied or interpreted a point of law not previously 

considered by OWCP. 

LEGAL PRECEDENT 

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

a matter of right; it vests OWCP with discretionary authority to determine whether it will review 

an award for or against compensation.3

 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).4

 

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

OWCP regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that 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.5

 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

be reviewed within one year of the date of that decision.6 When a claimant fails to meet one of 

the above standards, OWCP will deny the application for reconsideration without reopening the 

case for review on the merits.7 

ANALYSIS 

The Board finds that OWCP improperly refused to reopen appellant’s case for further 

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

Appellant disagreed with the denial of his claim for an emotional condition and timely 

requested reconsideration. The underlying issue on reconsideration was whether he established a 

compensable factor of employment. Appellant alleged that his supervisor, P.B., caused stress 

due to harassment and threats of disciplinary action, specifically being loud and rude to him on 

January 26, 2012 and calling him into her office for an improper PDI on January 27, 2012. In an 

April 24, 2013 decision, an OWCP hearing representative found that the factual evidence failed 

to establish improper PDI, specific acts of harassment, or improper treatment by P.B. 

                                                             3 Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against 

payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a). 

4 See Annette Louise, 54 ECAB 783, 789-90 (2003). 

5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.607(a). 

7 Id. at § 10.608(b). 
4

The Board finds that appellant submitted pertinent new evidence relevant to the denial of 

his claim of an emotional condition. The evidence pertains to whether appellant established a 

compensable factor of employment.8

 He submitted a March 28, 2014 witness statement from his 

coworker, S.G., testifying that P.B. would yell at carriers and clerks, loved confrontations, 

created tension and stress, and often added to the employees’ stress by refusing to pay employees 

if they called out sick, no matter what their reasons were. Appellant also submitted a witness 

statement dated March 29, 2014 from another coworker, W.G., who stated that he “noticed” a 

confrontation between appellant and P.B. “just about on a daily basis” and recalled on or around 

January 25, 2012 that she “was all up in [appellant’s] face questioning him about the work from 

the day before.” In an April 3, 2014 witness statement, an anonymous coworker noted 

witnessing the confrontation between P.B. and appellant on January 26, 2012. The witness 

testified that the next day on January 27, 2012 P.B. called appellant into her office for another 

PDI and stated, “This is a PDI for unauthorized overtime.” Appellant became agitated, requested 

the EAP number, and ended the PDI to make the telephone call. After speaking with an EAP 

representative, appellant told the witness that he was advised to seek medical attention, and that 

P.B. instructed him to go to the I&O Clinic in Hampton. He submitted evidence concerning 

specific dates and encounters with his supervisor. The Board finds that this evidence is new, 

relevant, and pertinent to the matter of whether appellant established improper PDIs, harassment, 

or improper treatment by P.B. Therefore, this evidence is relevant to appellant’s claim of an 

emotional condition. 

Reopening a claim for merit review does not require a claimant to submit all evidence, 

which may be necessary to discharge his burden of proof.9

 If OWCP should determine that the 

new evidence submitted lacks probative value, it may deny modification of the prior decision, 

but only after the case has been reviewed on the merits.10 

The Board finds that appellant’s submission of pertinent new and relevant evidence on 

reconsideration entitles him to a merit review under 5 U.S.C. § 8128(a). OWCP’s decision dated 

April 8, 2013 is hereby set aside. After this and such further development deemed necessary, 

OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds that OWCP improperly refused to reopen appellant’s case for further 

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

                                                             8 See P.H., Docket No. 13-1391 (issued August 13, 2014) (where the Board found that the evidence submitted 

with the claimant’s request for reconsideration addressed her work performance and her interactions at work with a 

subordinate claims examiner and was, therefore, relevant to her emotional condition claim). 

9 Id. 

10 See C.M., Docket No. 14-1887 (issued May 6, 2015). 
5

ORDER 

IT IS HEREBY ORDERED THAT the December 11, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for 

proceedings consistent with this decision of the Board. 

Issued: February 22, 2016 

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