United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF AGRICULTURE, U.S. 

FOREST SERVICE, Royal, AR, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0252

Issued: January 8, 2020

Appearances: Case Submitted on the Record

Sara Kincaid, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 23, 2018 appellant, through counsel, filed a timely appeal from a May 1, 2018 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 The most recent 

merit decision was a Board decision dated January 12, 2017, which became final 30 days after 

 

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 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 May 1, 2018, the date of OWCP’s last decision, was 

October 28, 2018. Because using October 31, 2018, 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 October 23, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

issuance, and is not subject to further review.3 As there is no merit decision issued by OWCP 

within 180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation 

Act4(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).

FACTUAL HISTORY

As noted, this case has previously been before the Board.5 The facts and circumstances as 

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

as follows. 

On March 5, 2014 appellant, then a 37-year-old recreation specialist supervisor, filed an 

occupational disease claim (Form CA-2) alleging that he developed an emotional condition as a 

result of factors of his federal employment due to acts of management including changing his work 

duties without notice, denying reasonable accommodations, verbal abuse, and failure to provide 

proper instructions. He first became aware of his condition and realized that it was causally related 

to factors of his federal employment on March 5, 2013. Appellant stopped work on 

March 1, 2014. 

Dr. B. Cody Wright, a Board-certified psychiatrist, began treating appellant on 

November 27, 2013. He noted a prior history of generalized anxiety disorder. Additional 

diagnoses included adjustment disorder with depressed mood and obsessive compulsive 

personality disorder. In a May 15, 2014 report, Dr. Cody indicated that appellant’s adjustment 

disorder with depressed mood was caused by work-related stress. He also indicated that recent 

exacerbations of appellant’s generalized anxiety disorder were due in part to work-related stress. 

Appellant has alleged that K.D., a supervisor, and C.R., the center director, harassed and 

discriminated against him because of his service-connected psychological disabilities. He alleged 

that K.D. demanded that he accept responsibilities for which he had not been hired and which 

created an extremely stressful situation for him. Appellant indicated that he was not part of 

management and had never been consulted when he was temporarily assigned as a duty officer, 

which was a major increase in responsibility. He asserted that the employing establishment had 

not appropriately compensated him for duty officer and shift supervisor duties which he claimed 

were above his grade level. Appellant also alleged that K.D. verbally berated him and that C.R. 

verbally threatened him. He asserted that the employing establishment failed to provide him 

 

3 20 C.F.R. § 501.6(d); see G.G., Docket No. 18-1074 (issued January 7, 2019).

4 5 U.S.C. § 8101 et seq.

5 Docket No. 16-0717 (issued January 12, 2017).
3

reasonable accommodations. Finally, appellant alleged that the employing establishment 

management team had not appropriately addressed his concerns about workplace harassment.

On April 28, 2014 C.R. submitted a job description for a recreation specialist, GS-09, 

which noted responsibilities of management and supervision of less than 25 percent and 

administration of recreation programs and services of 50 percent. The description noted that the 

position required working nonstandard tours of duty, weekends, and holidays and might require 

overtime on a regular and recurring basis. 

Appellant indicated that he filed an Equal Employment Opportunity complaint. He also 

submitted timesheets.

By decision dated September 10, 2014, OWCP denied appellant’s claim finding that the 

evidence of record did not establish an emotional condition that “arose during the course of 

employment and within the scope of compensable work factors” as defined by FECA.

On November 8, 2014 appellant requested reconsideration. 

By decision dated April 13, 2015, OWCP denied modification of the September 10, 2014 

decision.

On July 28, 2015 appellant, through counsel, requested reconsideration. Appellant 

submitted a July 10, 2014 declaration which detailed allegations of discrimination and harassment. 

Also submitted was a complainant’s November 13, 2014 affidavit and a December 2, 2014 rebuttal 

affidavit, which described alleged incidents of harassment and discrimination by management. 

By decision dated January 8, 2016, OWCP denied modification of the April 13, 2015 

decision.

On February 29, 2016 appellant appealed to the Board. By decision dated January 12, 

2017, the Board affirmed OWCP’s January 8, 2016 decision. The Board found that the evidence 

of record failed to establish that appellant was harassed or discriminated against by K.D. and C.R.

because of his service-connected mental disabilities or that he was verbally berated or threatened. 

The Board found no error or abuse with regard to administrative matters including that appellant 

was forced to accept responsibilities for which he was not hired, that he was not appropriately 

compensated for performing duty officer and shift supervisor duties, that he had been denied 

reasonable accommodations, and that the employing establishment failed to address his concerns 

about workplace harassment. 

On January 10, 2018 appellant, through counsel, requested reconsideration. Appellant 

resubmitted Dr. Wright’s May 15, 2014 report, as well as time and attendance records from 2012 

to 2014, which were also previously of record. He also submitted a statement dated January 9, 

2018 describing his work duties as a recreational specialist and asserted that performing his regular 

and specially assigned duties with the excessive workload caused him stress. 

Counsel asserted that the new factual evidence was sufficient to establish that appellant 

had sustained an emotional condition in the performance of duty. She reiterated that appellant’s 
4

regular and specially assigned duties detailed in the January 9, 2018 statement caused his 

emotional condition. 

By decision dated May 1, 2018, OWCP denied appellant’s request for reconsideration 

finding that the evidence submitted was insufficient to warrant a merit review.

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 compensation at any time on his own motion or on application.6

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.7

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

OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.9 If the request is timely, but fails to meet at least one of the 

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

reopening the case for review on the merits.10

ANALYSIS

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).

In his request for reconsideration, appellant did not show that OWCP had erroneously 

applied or interpreted a specific point of law. In the January 19, 2018 request for reconsideration, 

counsel asserted that new factual evidence from him in the form of an updated January 9, 2018 

statement was sufficient to establish that he sustained an emotional condition in the performance 

 

6 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

7 20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket 

No. 08-1569 (issued December 9, 2008).

8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of the merit 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 (iFECS). Id. at Chapter 2.1602.4b.

9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
5

of duty. These assertions, however, do not establish a legal error by OWCP nor does it provide a 

new and relevant legal argument. Thus, appellant is not entitled to a review of the merits of his 

claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

Appellant submitted a January 9, 2018 statement describing his work duties as a 

recreational specialist and asserted, in great detail, that performing his regular and specially 

assigned duties with the excessive workload caused him stress. However, this evidence is 

duplicative of evidence previously submitted and considered by OWCP in its prior merit decisions. 

Accordingly, it is not enough to merely repeat the allegations in a new statement on reconsideration 

without providing relevant and pertinent new evidence to substantiate his claim, for instance new 

witness statements or documentation supporting his claims in his statement. 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.11

Similarly, appellant resubmitted time and attendance records, as well as Dr. Wright’s 

May 15, 2014 report. However, despite counsel’s assertions to the contrary, this evidence is 

duplicative of evidence previously submitted and considered by OWCP in its earlier merit 

decisions.12 Therefore, he is not entitled to a review of the merits of his claim based on the third 

above-noted requirement under 20 C.F.R. § 10.606(b)(3).

Accordingly, the Board finds that appellant has not met any of the requirements of 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). 

 

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

ECAB 1090, 1093-94 (1984).

12 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the May 1, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 8, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board