United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH Employer

__________________________________________

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Docket No. 18-0811

Issued: November 13, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 March 7, 2018 appellant, through counsel, filed a timely appeal from a February 8, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs. As more than 180 

days elapsed from the last merit decision dated July 1, 2015, 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 to review the merits of the case.

 

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.
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 May 18, 2015 appellant, then a 50-year-old supervisor, filed a traumatic injury claim

(Form CA-1) alleging that she developed post-traumatic stress disorder (PTSD) on May 5, 2015 

at 12:30 p.m. when she witnessed an attempted robbery. On the reverse of the form, appellant’s 

supervisor indicated that appellant was injured in the performance of duty.

By development letter dated May 27, 2015, OWCP requested that appellant provide 

additional factual and medical evidence in support of her emotional condition claim. Appellant’s 

manager completed a statement dated May 14, 2015 and described the events of May 5, 2015. She 

noted that a postal carrier alleged that a customer approached her postal vehicle and pulled out a 

gun. Appellant was present near this site, parked in a vehicle a short distance from the carrier. 

She provided a statement asserting that she observed an individual approaching the nearby carrier’s 

vehicle, reached into his pants pocket, and pulled something out, but she did not indicate that she 

had seen a weapon. Appellant’s manager noted that appellant provided both an oral and a written 

statement regarding the events of May 5, 2015, but did not stop work until May 18, 2015.

In notes dated May 19, 2015, Dr. Jameelad D. Strickland, an internist, diagnosed PTSD. 

She indicated that appellant should remain off work from May 18 through 29, 2015.

Appellant completed a narrative statement on June 4, 2015. She described conducting a 

supervisory inspection of a postal carrier on her route on May 5, 2015. Appellant noted that the 

carrier was parked at a convenience store on her route and appellant parked behind her. At 12:30 

p.m. a male in his mid-thirties walked to the carrier’s vehicle and as he approached pulled 

something out of his pocket. He then noticed appellant and began to walk backwards rapidly. The 

carrier then jumped from her vehicle and informed appellant that the man had pulled a gun on her. 

Appellant began to try to telephone the police, but the carrier returned to her vehicle and left the 

parking lot following the man. She noted, “I’m saying to myself, where is she going?” Appellant 

started her vehicle and “as I was pulling off I see a vision in my mind. I see us in a hail of bullets 

and got scared.” She honked her horn and followed the carrier. The carrier reached the man and 

talked with him as he explored the contents of his pants pockets. She followed him for 

approximately 1000 feet and then got out of her vehicle and returned to appellant. The carrier

informed appellant that she was going to contact a police officer on her route who had knowledge 

of the man’s behavior. 

Appellant contacted 911 and then realized that a police officer was directly behind her 

performing a traffic stop. She received his assistance following the stop. Appellant then 

telephoned her manager. The carrier alleged that the same person had drawn a gun the day before 

at a business on her route. She repeatedly opined that the man was hiding in bushes and was 

waiting for the police to leave. The carrier was unable to complete her route. Appellant and the 

carrier returned to the employing establishment and appellant felt overwhelmed. She informed the 
3

postmaster that she was “shook up.” The carrier asked why this happened to her and appellant 

was unable to cope with the carrier’s distress. 

Appellant telephoned the Employee Assistance Program after she arrived home. She 

described the events of the day and a prior, similar situation to the counselor. Appellant noted 

that, over a year ago, when she was the last employee left in the employing establishment, a man 

threatened to break all the windows when she refused to open the door after hours. This man went 

from door to door knocking and kicking at the glass. Appellant telephoned a coworker for help 

and called the police. Police dispatch informed appellant that officers had the man in custody, and 

asked appellant to step outside. Appellant opened the door and the man kicked the door so hard it 

shattered. She telephoned maintenance to repair the door. The counselor allegedly informed 

appellant that her current condition was due to both incidents.

Appellant stated that she was unable to cry following the May 5, 2015 incident even though 

she wanted to do so. She required extra sleep for the next three days and on May 7, 2015 noticed 

that she was angry.

Appellant submitted a copy of the police report regarding the May 5, 2015 incident. 

According to the report, while the carrier was delivering mail on St. Clair Avenue, a man 

approached the carrier and instructed her to give him rubber bands and displayed a handgun. The 

carrier knew the man as he was a postal customer on her route. Appellant approached and the man 

fled. She informed the police that she could not see what the man pulled from his pocket.

Appellant submitted a copy of the carrier’s statement noting that, while she and appellant 

were at lunch on St. Clair Avenue, a man she knew from her route walked towards her, reached in 

his pocket, and pulled out a gun. She alleged that when the man saw appellant parked behind her 

in another postal vehicle, he put the gun back in his pocket and backed away. The man asked if 

the carrier had any rubber bands. The carrier shouted, “No.” She then jumped out of her vehicle 

and ran to appellant who indicated that she would call the police. The carrier looked in the store 

and saw the man inside. When the man exited the store, she pulled along beside him in her vehicle 

and began asking why he threatened her. The carrier indicated that appellant remained behind her 

in her car honking the horn and instructing her to keep going as the man was armed. She stopped 

her vehicle and the man disappeared through the parking lot. 

When the police arrived the carrier identified the man with the gun based on a photograph. 

She noted that she had been his mail carrier for three or four years. The carrier asserted that a 

customer had informed her that the man had attempted a robbery at gunpoint the previous day. 

She indicated that the same man had harassed her on several occasions asking for money or if she 

wanted to shoot dice. The carrier alleged that she had reported this harassment to the employing 

establishment.

In a report dated June 22, 2015, Dr. Roopa K. Chavda, a psychiatrist, noted treating 

appellant since May 18, 2015. She described the incident of May 5, 2015 as appellant witnessing 

a man pull a gun on her colleague. Dr. Chavda noted that appellant felt threatened, was fearful for 

her life, and was worried that there would be a shootout. She also noted that appellant was 

experiencing flashbacks of a prior incident when she felt threatened by a drunken man who entered 

her workplace when she was alone. Dr. Chavda diagnosed PTSD. She opined, “In my opinion 
4

[appellant] is suffering from symptoms of acute PTSD secondary to exposure to a traumatic 

incident at work. She is experiencing nightmares, increased physiological distress when subjected 

to events or instances that remind her of her past traumatic events, mood changes -- anxiety and 

irritability. [Appellant] is unable to tolerate situations that cause her to be hyper vigilant and 

anxious as these trigger panic attacks.” Dr. Chavda completed a form report on the same date and 

indicated that appellant could return to work on June 25, 2015.

By decision dated July 1, 2015, OWCP denied appellant’s traumatic emotional condition 

claim finding that she had not established that she was in the performance of duty at the time the 

alleged incident occurred. It found, “Although [appellant] your description is difficult to follow, 

it is clear that you and your coworker went outside the boundaries of being in the performance of 

duty upon pursuing the man with a handgun. You should have immediately contacted the police 

and your postal manager while in the parking lot of the convenience store instead of pursuing your 

coworker, who in turn was pursuing a man both you were conscious of possessing handgun.”

3

On June 30, 2016 counsel requested reconsideration of the July 1, 2015 decision. In 

support of his request, he provided additional medical evidence as well as resubmitting

Dr. Chavda’s June 22, 2015 report. Appellant submitted treatment notes from Eliot W. Gutow, a 

licensed social worker, beginning May 18, 2015 as well as notes from Siobhan D. Malave, a 

licensed social worker, beginning on July 16, 2015. Dr. Chavda examined appellant on May 28, 

and June 12, 2015. Dr. Shila J. Mathew, a Board-certified psychiatrist, examined appellant on 

July 21 and 22, 2015 for psychiatric consultation due to a traumatic event which occurred in 

May 2015. Appellant also provided treatment notes from Dr. Joshua H. Zarowitz, an osteopath, 

who examined her on August 27, November 16, and December 18, 2015, January 29 and 

March 16, 2016 due to PTSD, anxiety, and depression. Dr. Cheryl Wills, a Board-certified 

psychiatrist, completed reports on May 3 and 9, 2016 and diagnosed major depressive disorder as 

well as chronic PTSD triggered by workplace trauma.

By decision dated February 8, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of her claim. It noted that her claim was denied as she was found not to be in the 

performance of duty at the time her injury occurred. OWCP found that appellant failed to submit 

factual evidence supporting her contention that she was in the performance of duty at the time her 

alleged injury occurred. It contended that she voluntarily deviated from her federal duties when 

she chose to leave the parking lot of the convenience store and pursue a man who potentially had 

a handgun.

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

claimant must file his or her application for review within one year of the date of that decision.4 

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

an award for or against compensation. OWCP may review an award for or against payment of 

 

3 Appellant appealed this decision to the Board on December 8, 2015. On June 15, 2016 counsel requested that the 

Board dismiss the appeal. On August 17, 2016 the Board issued an Order Dismissing Appeal.

4 20 C.F.R. § 10.607(a).
5

compensation at any time based on its own motion or on application.5 To require OWCP to reopen 

a case for merit review under section 8128(a) of FECA, 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 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.7

In support of a request for reconsideration, an appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.8 He or she needs only 

to submit relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an 

OWCP decision denying merit review, the function of the Board is to determine whether OWCP 

properly applied the standards set for at section 10.606(b)(3) to the claimant’s application for 

reconsideration and any evidence submitted in support thereof.10

The Board has held that the submission of evidence which repeats or duplicates evidence 

already in the case record does not constitute a basis for reopening a case. The Board has also held 

that the submission of evidence which does not address the particular issue involved does not 

constitute a basis for reopening a case. While the reopening of a case may be predicated solely on 

a legal premise not previously considered, such reopening is not required where the legal 

contention does not have a reasonable color of validity.11

ANALYSIS

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

merits of her claim. 

Appellant’s request for reconsideration 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 by OWCP. Consequently, appellant was not entitled to a review of the merits based 

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

 

5 5 U.S.C. § 8128(a); A.D., Docket No. 18-0497 (issued July 25, 2018).

6 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

7

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

8

J.F., Docket No. 17-1508 (issued March 28, 2018).

9 C.F., Docket No. 18-0360 (issued July 19, 2018); Mark H. Dever, 53 ECAB 710 (2002).

10 C.F., id.; Annette Louise, 54 ECAB 783 (2003).

11 M.E., 58 ECAB 694 (2007).
6

The Board further finds that appellant has failed to submit relevant and pertinent new 

evidence in support of reconsideration. While appellant submitted additional medical evidence, 

this evidence is not relevant to the reasons for which OWCP denied her claim.12 The issue in her

claim was factual and legal, not medical, whether she was in the performance of duty at the time 

her injury occurred. As noted above, the submission of argument/evidence which does not address 

the particular issue involved does not constitute a basis for reopening a case.13 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

constitute relevant and pertinent new evidence not previously considered. 

CONCLUSION

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

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

 

12 Appellant also provided a series of treatment notes from Eliot W. Gutow and Siobhan D. Malave, licensed social 

workers. Certain healthcare providers such as physician assistants, nurse practitioners, physical therapists, and social 

workers are not considered “physician[s]” as defined under FECA. R.B., Docket No. 17-0890 (issued October 18, 

2017); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and 

physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2); 20 C.F.R. 

§ 10.5(t).

13 See Bobbie F. Cowart, 55 ECAB 746 (2004).
7

ORDER

IT IS HEREBY ORDERED THAT the February 8, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 13, 2018

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