United States Department of Labor

Employees’ Compensation Appeals Board

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J.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Kansas City, MO, Employer

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Docket No. 17-1412

Issued: November 20, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 13, 2017 appellant filed a timely application for review from a February 22, 

2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because 

more than 180 days elapsed from October 14, 2016, the date of the most recent 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 appellant’s 

claim.

ISSUE

The issue is 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.
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FACTUAL HISTORY

On October 13, 2015 appellant, then a 35-year-old building equipment mechanic, filed an 

occupational disease claim (Form CA-2) alleging that he sustained major depressive disorder 

with anxious distress as a result of harassment and intimidation in a hostile work environment. 

The claim form did not indicate that he stopped work.

In a statement dated September 29, 2015, appellant alleged that he had been subjected to 

retaliation for taking an absence from work due to a physical disability. He noted that he had a 

service-connected disability and previously had been diagnosed with major depressive disorder 

and anxious distress.

In progress notes dated August 17, 2015, Dr. Shreeja Kumar, a Board-certified 

psychiatrist, diagnosed major depression recurrent with anxious distress. She recommended 

medication and therapy. At the session, appellant reported to her that he had taken some leave 

from work lately and that he was stressed in part due to work.

On October 15, 2015 the employing establishment controverted appellant’s claim. It 

alleged that his claims of harassment were vague and unsubstantiated and that he had provided 

no medical evidence demonstrating a connection between his diagnosed conditions and factors of 

his federal employment.

By letter dated November 19, 2015, OWCP informed appellant of the evidence needed to 

establish his claim and noted that he had not submitted sufficient factual or medical evidence. It 

requested that he respond to a factual development questionnaire and afforded him 30 days to 

submit additional evidence to the record. On the same date, OWCP sent another development 

questionnaire to the employing establishment regarding the factual aspects of appellant’s claim. 

Neither appellant nor the employing establishment submitted additional evidence or responded to 

OWCP’s questionnaire.

By decision dated December 28, 2015, OWCP denied appellant’s claim. It found that he

had not submitted sufficient factual evidence to support that the claimed employment factors 

occurred as alleged. Thus, “there is no factual basis for the claim.”

By letter dated June 6, 2016, a coworker verified that she had filed a grievance on behalf 

of appellant for harassment by managers of the employing establishment. 

In an attending physician’s report (Form CA-20) dated May 23, 2016, Dr. Kumar 

diagnosed major depressive disorder. She checked a box marked “yes” indicating that she 

believed that his condition was caused or aggravated by an employment activity, with no 

elaboration. Dr. Kumar noted that appellant had continued symptoms, which were exacerbated 

by stress, and that he had high anxiety when he “goes out.”

By an appeal request form received on June 15, 2016, appellant requested reconsideration 

of OWCP’s December 28, 2015 decision. With his request, he included a narrative statement 

dated October 10, 2015. Appellant alleged that someone had written a note on a route sheet 

reading “Did you think I would come to work more than 3 days per week?” and that this 
3

constituted harassment, intimidation, disparate treatment, discrimination, and a hostile work 

environment.

Appellant also responded to OWCP’s development questionnaire by letter dated 

June 8, 2016. He identified the specific supervisors alleged to have harassed him; detailed a 

number of incidents alleged to have constituted harassment, intimidation, disparate treatment, 

discrimination, and a hostile work environment; and noted that he had filed a grievance and a 

complaint with the Equal Employment Opportunity Commission. The incidents appellant 

alleged included being criticized for taking a late lunch break, being told not to wear a headset 

radio when he did not even own one, and the written note on his route sheet mentioned above. 

He alleged that his depression and anxiety was aggravated by his work environment.

On July 22, 2016 the employing establishment responded to appellant’s allegations. It 

stated that he was individually informed of the policy regarding headset radios because he had 

missed a general meeting on the topic. The employing establishment further stated that the note 

on appellant’s route sheet had been written by another employee, who had been informed by a 

supervisor that the comment was inappropriate and would not be tolerated.

In progress notes dated July 20, 2016, Dr. Kumar reviewed appellant’s diagnoses, 

symptoms, and prescriptions. She then wrote, “It is my professional opinion that [appellant’s] 

medical condition is exacerbated by stresses with his current employment.”

By decision dated October 14, 2016, OWCP reviewed the merits of appellant’s claim and 

affirmed the December 28, 2015 decision as modified. It found that he had not established any 

incidents or events that would afford coverage under FECA, because there were no covered 

incidents that occurred in the performance of duty.

2

 OWCP found that appellant had also not 

submitted sufficient medical evidence to support causal relationship. 

By an appeal request form received January 20, 2017, appellant again requested 

reconsideration. With his request, he included a short statement contending that he had 

submitted sufficient medical evidence to establish his claim.

By decision dated February 22, 2017, OWCP denied appellant’s request for 

reconsideration. It found that he had not submitted any relevant evidence or legal arguments not 

previously considered in support of his request.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a), 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.3 Section 10.608(b) of OWCP’s regulations 

 

2

Id. 

3

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).
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provide that, when an application for reconsideration does not meet at least one of the three 

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.4

ANALYSIS

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

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

With his request for reconsideration, received January 25, 2017, appellant submitted only 

a short narrative statement contending that he had submitted sufficient medical evidence to 

establish his claim.

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

law, or advance a new and relevant legal argument not previously considered. Thus, he is not 

entitled to a review of the merits of his claim based on the first and second above-noted 

requirements under section 10.606(b)(3).

The underlying issue is whether appellant has submitted sufficient evidence to establish 

that the alleged incidents occurred in the performance of duty. A claimant may be entitled to a 

merit review by submitting relevant and pertinent new evidence, but appellant did not submit any 

such evidence in this claim. In his January 25, 2017 request for reconsideration, appellant 

merely contended that he had submitted sufficient medical evidence to establish causal 

relationship. However, OWCP denied his claim by an October 14, 2016 decision, because he 

had not established any compensable employment factors within the performance of duty. As 

such, appellant did not submit any evidence relevant to the underlying reason his claim was 

denied on October 14, 2016.

5

 He therefore did not meet any of the requirements to warrant 

reconsideration of his claim under 20 C.F.R. § 10.606(b)(3). 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).

 

4

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

5 The Board has held that the submission of evidence or argument which does not address the particular issue 

involved in the case does not constitute a basis for reopening a case. A.M., Docket No. 16-1875 (issued August 23, 

2017); Edward Matthew Diekemper, 31 ECAB 224-25 (1979). 
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ORDER

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

Compensation Programs dated February 22, 2017 is affirmed.

Issued: November 20, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board