United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Memphis, TN, Employer

__________________________________________

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Docket No. 19-1278

Issued: December 30, 2019

Appearances: Case Submitted on the Record

Joanne Marie Wright, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 21, 2019 appellant, through her representative, filed a timely appeal from a 

December 6, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days have elapsed from OWCP’s last merit decision, dated November 30, 2017, 

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 over the merits of this case.3

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the December 6, 2018 decision, OWCP received additional evidence. However, 

the Board s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

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

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

FACTUAL HISTORY

On January 22, 2015 appellant, then a 52-year-old modified letter carrier, filed an 

occupational disease claim (Form CA-2) alleging that she developed acute stress, depression, and 

anxiety as a result of her federal employment duties. She noted that OWCP had approved a prior 

claim in 2002, however, several incidents/episodes from 2002 through the present, required her to 

seek medical attention and or lose time from work. Appellant indicated that she was advised that 

she must submit a new claim.4 She reported that she first became aware of her condition and its 

relationship to her federal employment on November 14, 2014.

In a development letter dated February 10, 2015, OWCP requested that appellant submit 

additional evidence in support of her claim. It advised her of the type of factual and medical 

evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30 

days to submit the necessary evidence. 

In a report dated January 29, 2015, Dr. Tejinder Saini, a Board-certified psychiatrist, 

related that he had treated appellant for major depression since 2002. He related that her 

depression was due to job-related stress and that she returned for treatment due to a recurring 

depressive episode as her job had again aggravated her preexisting employment-related illness. 

OWCP received several forms relating appellant’s return to work dates in 2014, as well as 

an attending physician’s report (Form CA-20) dated February 2, 2015 from a licensed social 

worker. It also received a Form CA-20 report from Dr. Saini dated March 10, 2015 which 

diagnosed major depression, recurrent, due to harassment by supervisor at work. 

Appellant submitted an employing establishment grievance form dated October 21, 2014 

which indicated that she had filed a grievance regarding disapproved annual leave. It had been 

resolved such that she would be allowed to take 16 hours of annual leave. 

Witness statements were received from several of appellant’s coworkers. In a letter dated 

March 6, 2015, E.P. related that she had worked with appellant for over 20 years and that appellant 

was a good worker, even though she had limited-duty restrictions. She related that, when appellant 

was offered a carrier/clerk position, several other clerks were not happy with the assignment and 

caused tension between the clerks, but appellant continued to work “to the best of her ability.” 

Another coworker, T.S., related in a letter dated March 6, 2015 that appellant had requested that 

he sit in during a meeting with management. He related that, during this meeting, the acting 

employing establishment manager informed her that she should not work outside of her medical 

restrictions and that he would speak to appellant’s supervisor regarding appellant’s concerns. 

By decision dated April 16, 2015, OWCP denied appellant’s claim. It found that she failed 

to establish fact of injury because the evidence of record did not support that the occupational

 

4 The record reflects that appellant had filed a number of OWCP claims since November 2000, several of which 

remain open for medical care. None of these claims have been consolidated with the current claim. 
3

exposure occurred as alleged. OWCP concluded that appellant had not substantiated a 

compensable factor of employment as she had failed to provide any factual or medical evidence

of a work injury, and therefore that the requirements had not been met to establish an injury as 

defined by FECA.

OWCP continued to receive medical evidence. 

On April 12, 2016 appellant requested reconsideration and submitted additional evidence.

Appellant’s allegations on reconsideration included that she was degraded, belittled, 

harassed, bullied, intimidated, and threatened beginning in 2001 through her last day of work on 

November 14, 2014 then again when she returned to work on July 22, 2015. She argued that she 

was placed off the clock by her previous supervisors thus creating a stressful work environment.

Appellant alleged that this occurred even when the employing establishment had work within her 

limitations. She indicated that this caused undue financial and mental stress. Appellant also 

indicated that, when she attempted to return to work on July 21, 2015 she was advised to bring 

updated medical documentation, and despite providing the requested documentation the next day, 

she was not allowed to clock in. She also indicated that she was told that she would be put off the 

clock in May 2014 if she did not sign a limited-duty job offer, despite her belief that the job was 

not within her limitations. 

By decision dated August 16, 2016, OWCP denied modification of the April 16, 2015 

decision. It found that there were no accepted events that were factors of employment.

On August 12, 2017 appellant requested reconsideration. Appellant’s representative 

submitted a memorandum in which she argued that appellant’s preexisting accepted emotional 

condition under OWCP File No. xxxxxx373 was aggravated, she accepted a modified job offer 

under protest, she was denied work, sent home improperly, charged with absent without leave, and 

suffered emotionally and financially. She alleged that the employing establishment had an 

obligation to provide appellant with a suitable job with her restrictions under her prior accepted 

claim. Appellant’s representative contended that appellant’s claims should be combined. 

By decision dated November 30, 2017, OWCP denied modification of its prior decision. 

It explained that the cases were accepted for different conditions and were not suitable for 

combination. OWCP found that appellant’s allegations of not being provided suitable work under 

OWCP File No. xxxxxx699 that resulted in an aggravation of her preexisting condition under 

OWCP File No. xxxxxx373 were not supported.

On November 28, 2018 appellant, through her representative, requested reconsideration. 

Appellant’s representative again noted that appellant had several accepted employment injuries. 

She noted that OWCP File No. xxxxxx373 was accepted for acute stress. Appellant’s 

representative also noted that appellant was required to work a modified-duty position under 

OWCP File No. xxxxxx699, that she accepted a limited-duty position under OWCP File No. 

xxxxxx699 under protest, and that Dr. Saini had provided a detailed description of work events on 

November 13, 2014 that aggravated appellant’s preexisting condition under OWCP File No. 

xxxxxx373.

Along with the request, OWCP also received a November 20, 2014 letter from appellant. 

Appellant explained that her continued job-related stressors aggravated her approved claim. She 

alleged that she was subjected to a hostile work environment as a result of her limited-duty job 
4

offer and was either forced to work outside her limitations or taken off the clock if she refused to 

do so. Appellant reported that on November 14, 2014 she was unable to work outside her 

limitations because her “knees and ankles were swollen, stiff, and hurting very bad,” and was sent 

home. She argued that her supervisors were required to check if there was work within a 50-mile 

radius of her station, but did not do so and that she became emotional walking to her car after this 

incident.

Appellant further indicated that she was constantly watched, instructed to move from one 

place to another, and denied her breaks, despite having a restriction on standing limited to two to 

four hours intermittently during an eight-hour period, and a 10-minute break. She reported that,

in October 2014, she was followed into the restroom by a supervisor, “W” and that another 

supervisor followed her into the restroom in 2002. Appellant further alleged that another worker, 

“A” was not doing her work, and that she was having to do that work as well as her own. She 

noted that her employer took away “8 hours of my retirement time for every 80 hours of 

accumulated leave without pay (LWOP)” and told her that they did not have any work for her. 

OWCP received reports dated March 13, July 3, October 23, and November 26, 2018, from

Dr. Saini. 

By decision dated December 6, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of her claim.

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against payment of compensation at any time on his or her own motion or on application.5

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.6

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought.7 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.8 If the request is timely, but fails to meet at least one 

 

5 5 U.S.C. § 8128(a).

6 20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

7

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual, 

Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document 

receipt date of the request for reconsideration as indicated by the received date in the integrated Federal Employees’

Compensation System. Id. at Chapter 2.1602.4b.

8

Id. at § 10.608(a); see also A.P., Docket No 19-0224 (issued July 11, 2019).
5

of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.9

ANALYSIS

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

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

In support of appellant’s November 28, 2018 request for reconsideration, appellant’s

representative again argued that appellant had accepted a modified-duty assignment under protest, 

and that she had not been provided a proper offer of modified assignment. The Board finds that 

these assertions are duplicative of arguments counsel has made in the past. The Board has held 

that the submission of evidence or argument which repeats or duplicates evidence or argument 

already in the case record does not constitute a basis for reopening a case.10 These allegations 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. Accordingly, appellant has not 

established a basis for further merit review under the first and second above-noted requirements

of 20 C.F.R. § 10.606(b)(3).

Along with her reconsideration request, appellant also submitted a November 20, 2014 

narrative statement repeating her prior allegations and providing new details regarding specific 

incidents. She explained that on November 14, 2014 she was unable to work outside her 

limitations because her “knees and ankles were swollen, stiff, and hurting very bad,” and was sent 

home. Appellant argued that management was required to check if there was work for her within 

a 50-mile radius of her station and failed to do so, and that she became emotional walking to her 

car after this incident. She also stated that, in October 2014, she was followed into the restroom 

by a supervisor, “W” and that another supervisor followed her into the restroom in 2002. Appellant 

argued that she was subjected to a hostile work environment as a result of her limited-duty job 

offer and either forced to work outside her limitations, or put off the clock when she refused to 

work outside her restrictions. She reported that she was denied breaks, despite having a restriction 

on standing limited to two to four hoursintermittently during an eight-hour period, and a 10-minute 

break. Appellant stated that her employer took away “8 hours of my retirement time for every 

80 hours of accumulated LWOP” and told her that they did not have any work for her.

The underlying issue in this case is whether appellant submitted sufficient evidence to 

establish a compensable factor of employment. This is a factual issue which must be addressed 

by relevant new factual evidence.11

 

9

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

10 F.D., Docket No. 19-0890 (issued November 8, 2019); see J.B., Docket No. 18-1531 (issued April 11, 2019).

11 See O.G., Docket No. 18-0359 (issued August 7, 2019); see Bobbie F. Cowart, 55 ECAB 746 (2004).
6

The Board finds that appellant submitted relevant and pertinent new factual evidence

related to the underlying issue in this claim.

12

 Thus, appellant is entitled to a review of the merits 

of her claim based on the third above-noted requirement under section 10.606(b)(3).13

This case will therefore be remanded for OWCP to conduct a merit review of the claim, to 

be followed by an appropriate merit decision.

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the December 6, 2018 nonmerit decision of the 

Office of Workers’ Compensation Programs is set aside and this case is remanded for further 

proceedings consistent with this opinion of the Board.

Issued: December 30, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

12 See K.J., Docket No. 19-0146 (issued July 10, 2019); see also E.R., Docket No. 17-1055 (issued 

August 17, 2017).

13 H.H., Docket No. 18-1660 (issued March 14, 2019).