United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

East Hampton, NY, Employer 

__________________________________________ 

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Docket No. 16-1130 

Issued: September 11, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 6, 2016 appellant filed a timely appeal from a March 22, 2016 nonmerit decision 

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

since the last merit decision dated August 10, 2015 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 over the merits of this case.2

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules 

of Procedure, 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated November 25, 2016, the Board 

denied the request for oral argument as the issue on appeal could be fully addressed on the record. Order Denying 

Request for Oral Argument, Docket No. 16-1130 (issued November 25, 2016). 
2

On appeal appellant contends that he suffered from post-traumatic stress disorder 

causally related to working for 24 years as a letter carrier. He stated that his claim had been 

improperly rescinded in 2015. 

FACTUAL HISTORY 

This case has previously been before the Board on prior appeal.3 The facts as set forth in 

the prior decision are hereby incorporated by reference. The relevant facts are as follows. 

On May 21, 2009 appellant, then a 49-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging post-traumatic stress disorder (PTSD) due to factors of his federal 

employment. In a statement dated June 24, 2009, he explained that he had been arrested in 

March 2006 for allegedly damaging the vehicle of a coworker. Appellant alleged that he 

experienced anguish, anxiety, nausea, and other symptoms due to the false accusation and his 

subsequent arrest. He resigned on June 22, 2006. 

OWCP initially denied appellant’s claim on November 5, 2009 finding that appellant had 

not established that the employment incident occurred in the performance of duty as alleged. 

On December 17, 2009 appellant requested reconsideration. By decision dated March 8, 

2010, OWCP modified the denial of the claim, finding that appellant’s occupational disease 

claim was untimely filed. 

On April 2, 2010 appellant again requested reconsideration. He argued that the 

employing establishment knew that he was ill due to his March 2006 arrest and that he had asked 

for time off before resigning. Appellant also contended that he was unaware that he had PTSD 

until he was diagnosed with that condition in June 2006. OWCP denied appellant’s 

reconsideration request on June 10, 2010, finding that he had not raised legal contentions or 

submitted relevant and pertinent new evidence warranting merit review. 

Appellant appealed to the Board on September 20, 2010. By September 28, 2011 

decision, the Board set aside the June 10, 2010 decision remanding the case for further merit 

review. The Board noted that appellant’s argument that the employing establishment timely 

knew of his injury presented a legal premise with some reasonable color of validity.4

On remand OWCP again denied appellant’s claim in a decision dated February 2, 2012. 

Appellant requested reconsideration on July 30, 2012. OWCP reviewed the merits of the claim, 

but denied modification on September 25, 2012. 

Appellant again requested reconsideration on January 18, 2013 and submitted a report 

from Clinical Psychologist Mary Ann Juliano, dated January 11, 2011. 

By decisions dated March 20, 2013, OWCP vacated the February 2, 2012 decision and 

accepted appellant’s occupational disease claim. It determined that the medical evidence of 

 3

 Docket No. 10-2336 (issued September 28, 2011). 

4 Id. 
3

record established PTSD causally related to the factors of an employment incident of 

June 23, 2006. 

Appellant submitted claims for wage-loss compensation (Form CA-7) for the period 

June 23, 2006 to December 31, 2011. On July 31, 2013 OWCP denied appellant’s claim for 

wage-loss compensation. 

Appellant requested a hearing before an OWCP hearing representative on 

August 13, 2013. On September 5, 2014 the hearing representative affirmed the July 31, 2013 

OWCP decision, noting that the evidence of record suggested that appellant’s claim was 

untimely filed as the postmaster had denied discussing the March 2006 arrest with appellant as a 

possible emotional condition claim. 

On March 24, 2015 OWCP proposed to rescind the acceptance of appellant’s claim. It 

noted that the evidence of record established that appellant was ultimately charged by the State 

of New York with criminal mischief with regard to vandalizing his coworkers’ vehicle. OWCP 

indicated that the evidence did not support that appellant was falsely accused of vandalism, nor 

was the evidence now sufficient to establish that any incident occurred within the performance of 

duty. It noted that there was no evidence that the employing establishment was on notice at the 

time of his resignation of a work-related injury, and that this would suggest that the claim was 

untimely filed. OWCP noted that the proposed rescission would affect both medical benefits and 

wage-loss compensation benefits. 

Appellant submitted no additional evidence in response to the proposed rescission of 

benefits. By decision dated April 27, 2015, OWCP rescinded the acceptance of appellant’s claim 

effective that date. 

By letter dated April 8, 2015 and received by OWCP on May 12, 2015, appellant 

indicated his disagreement with the proposal to rescind the approval of his claim. He alleged 

that there were many witnesses to the incident, that he did not perform the alleged act, and that 

the incident happened in the performance of duty. Appellant contended that his supervisor drove 

him to the police station to be arrested. He indicated that his resignation letter explained that he 

was resigning due to the incident. Appellant alleged that he would not have resigned from his 

job of 24 years had the incident never happened. 

On August 10, 2015 OWCP reviewed appellant’s claim on the merits, but denied 

modification of the April 27, 2015 decision. It noted that appellant’s claim was properly 

rescinded because the evidence received subsequent to the acceptance of appellant’s claim 

established that appellant’s claim was untimely filed. OWCP also found that the evidence of 

record established that appellant was convicted of a crime and; therefore, the evidence failed to 

establish that appellant was falsely accused. 

By letter dated October 6, 2015, Colin Asterita, Esq., provided a witness statement in 

which he related that he represented appellant with regard to the misdemeanor charge of criminal 

mischief, that the case was dismissed, and that there was no conviction or guilty plea of any kind. 

He also noted that the case was now sealed pursuant to statutory law. Attorney Asterita argued 

that OWCP was under the mistaken impression that appellant had been convicted of the charge. 
4

A certificate of disposition indicated that the charges of criminal mischief resulting from 

appellant’s March 17, 2006 arrest were dismissed. 

By letter dated December 24, 2015, appellant argued that his supervisor at the time of the 

incident had driven him to the police station. He indicated that his supervisor was unable to 

submit a witness statement because human resources would not allow him to do so. Appellant 

contended that his claim was timely filed because he was not aware of his occupational disease 

until June 2006 and therefore his claim filed on May 10, 2009 was timely. He also alleged that 

he had not committed a criminal act, but was falsely accused of doing so while performing his 

normal duties as a letter carrier. Appellant submitted a copy of a portion of an article from an 

unidentified newspaper indicating that he allegedly pushed a mail cart into another employee’s 

car and was arrested and charged with fourth-degree criminal mischief. 

By decision dated March 22, 2016, OWCP denied appellant’s request for reconsideration 

without conducting a merit review. It determined that the evidence of record was insufficient to 

warrant review of the August 10, 2015 decision. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5

OWCP’s 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.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 reviewed appellant’s request for reconsideration under the 

appropriate criteria for timely filed requests for reconsideration, and determined that appellant 

had not shown that OWCP erroneously applied or interpreted a specific point of law, did not 

advance a relevant legal argument not previously considered by OWCP, and did not submit 

relevant and pertinent new evidence not previously considered by OWCP. 

The Board finds that the arguments made by appellant on reconsideration are cumulative, 

duplicative, or repetitive in nature and are insufficient to warrant reopening a claim for merit 

review.8

 In the last merit decision, OWCP found that appellant’s claim was denied because it 

was untimely filed. The underlying issue in this case is whether appellant has established that 

the claim was timely filed. 

 5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.606(b)(3). 

7 Id. at § 10.608(b). 

8 Denis M. Dupor, 51 ECAB 482 (2000). 
5

The claim centered on an incident that allegedly occurred in March 2006 when appellant 

claimed to have been falsely accused of a crime by a coworker and was arrested. Appellant did 

not file his claim until May 21, 2009, or over three years after the alleged incident. He has 

argued on numerous occasions that the employing establishment knew about his emotional injury 

prior to the date that he resigned on June 22, 2006 or, in the alternative, that he did not become 

aware of his emotional condition until June 2006. OWCP has repeatedly rejected these 

arguments. Accordingly, appellant’s statement on reconsideration that his supervisor was aware 

of the injury in a timely fashion and that he did not know of his injury until June 2006 are not 

relevant new legal arguments. He has not established that OWCP erroneously applied or 

interpreted a specific point of law and he has not advanced a relevant new legal argument.9 

Appellant’s arguments are duplicative.

Appellant also failed to submit any relevant and pertinent new evidence. The newspaper 

article submitted on reconsideration was previously of record and considered by OWCP in its 

August 10, 2015 decision. The Board has held that evidence or argument that repeats or 

duplicates evidence previously of record has no evidentiary value and does not constitute a basis 

for reopening a case.10 

Appellant also submitted a witness statement on October 6, 2015 from Mr. Asterita, Esq., 

who had represented appellant in his criminal case.11 Mr. Asterita. Esq., provided a certificate of 

disposition indicating that the criminal case against appellant was dismissed. However, the 

underlying issue in this case is whether appellant’s claim was timely filed. Evidence that does 

not address the particular issue involved does not constitute a basis for reopening a claim.12 As 

this evidence does not address the underlying issue that appellant’s claim was untimely filed, it is 

not pertinent new evidence. 

Accordingly, as appellant has not met any of the criteria warranting reopening his claim 

for further merit review, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

 9 See L.D., Docket No. 14-0205 (issued April 7, 2014). 

10 C.W., Docket No. 16-1137 (issued December 19, 2016). 

11 The Board notes that this letter did not constitute a request for reconsideration of OWCP’s August 10, 2015 

merit decision because appellant’s counsel of record before OWCP was Glenn Smith. Mr. Asterita, Esq., was never 

authorized to represent appellant before OWCP. There is no evidence of record that Mr. Asterita, Esq., was 

appellant’s authorized representative before OWCP on October 6, 2015. R.D., Docket No. 16-894 (issued 

October 3, 2016). OWCP’s regulations at 20 C.F.R. § 10.700 provides: “(a) The claims process under FECA is 

informal. Unlike many workers’ compensation laws, the [employing establishment] is not a party to the claim, and 

OWCP acts as an impartial evaluator of the evidence. Nevertheless, a claimant may appoint one individual to 

represent his or her interests, but the appointment must be in writing.” ... (c) A properly appointed representative 

who is recognized by OWCP may make a request or give direction to OWCP regarding the claims process, 

including a hearing. This authority includes presenting or eliciting evidence, making arguments on facts or the law, 

and obtaining information from the case file, to the same extent as the claimant.” 

12 P.M., Docket No. 15-1902 (issued January 28, 2016). 
6

CONCLUSION 

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

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

ORDER 

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

Compensation Programs dated March 22, 2016 is affirmed. 

Issued: September 11, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board