United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.M., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Lexington, KY, 

Employer

__________________________________________

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Docket No. 19-1189

Issued: November 16, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On May 6, 2019 appellant filed a timely appeal from a November 8, 2018 merit decision 

and a January 17, 2019 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over this case.

2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the January 17, 2019 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

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish an emotional 

condition in the performance of duty, as alleged; and (2) 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

This case has previously been before the Board.3 The facts and circumstances of the case 

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

are as follows.

On September 21, 2009 appellant, then a 32-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that management subjected him to stress due to 

their discriminatory and retaliatory actions, thereby causing anxiety; insomnia; chest pain; severe 

aches of the head, neck, and back of the eyes; muscle tension of the neck, shoulders, and back; and 

fatigue of the entire body. He noted that he first became aware of his claimed conditions on 

August 15, 2009 and first realized their relation to his federal employment on August 25, 2009. 

Appellant stopped work on August 18, 2009. On the reverse side of the Form CA-2, appellant’s 

immediate supervisor indicated that appellant had not transferred from his position in Cleveland, 

Ohio, and reported to a new position in Lexington, Kentucky.

In an accompanying statement, appellant claimed that on August 15, 2009 management 

improperly took away his work badge and threatened him with placement in absent without leave 

(AWOL) status and termination if he did not report to a new position in Lexington, Kentucky, 

despite the fact that he had not been given proper notice of the reassignment. He asserted that 

management did not provide him with the same counseling/training, information, housing 

instructions, and moving expenses as the other reassigned employees and failed to provide him the 

option of changing work crafts in order to avoid reassignment. Appellant alleged that the 

employing establishment also did not give him the same opportunity as his coworkers to attend 

meetings regarding the relocation process and neglected to pay him 80 hours of administrative 

leave for time spent on relocation. In addition, he asserted that management only provided 

relocation forms 24 hours prior to the deadline for reporting to the Lexington, Kentucky job and 

refused his requests for assistance in filling out the forms. Appellant maintained that the 

employing establishment discriminated against him due to race, gender, and the fact that he 

previously filed a complaint. He asserted that, in August 2009, he placed bids on several vacant 

positions for which he was qualified (including a clerk position), but that his bids were 

unreasonably denied. Appellant indicated that his coworkers were awarded their bids and that the 

employing establishment did not respond to his numerous inquiries regarding his failed bids.

 

3 Docket No. 13-0527 (issued May 13, 2013), petition for recon. denied, Docket No. 13-0527 (issued March 6, 

2014); Docket No. 15-0523 (issued November 6, 2015), petition for recon. denied, Docket No. 15-0523 (issued 

February 1, 2017).
3

Appellant submitted an October 7, 2009 attending physician’s report (Form CA-20), from

Dr. James F. Cunagin, a Board-certified psychiatrist, who diagnosed adjustment disorder with 

mixed depression and anxiety.

In an October 16, 2009 development letter, OWCP requested that appellant submit 

additional factual and medical evidence in support of his claim. In a development letter of even 

date, it requested additional evidence from the employing establishment. OWCP provided both 

parties 30 days to respond.

In response, the employing establishment submitted an October 16, 2009 letter, in which it

controverted appellant’s claim and asserted that it did not commit error or abuse with respect to an 

administrative function when it directed him to report to his new work assignment in Lexington, 

Kentucky by August 30, 2009. It advised that he had not yet reported to the new work assignment. 

The employing establishment also submitted an October 2, 2009 letter, in which it provided a 

chronology of events regarding the reassignment action.

In statements received by OWCP on November 3 and 10, 2009, appellant repeated a 

number of his prior assertions regarding the cause of his stress-related conditions. He also alleged 

that the employing establishment wrongly failed to pay him for the 8.75 hours he worked on 

August 15, 2009, and to provide him with 30 days of housing expenses related to the relocation to 

Lexington, Kentucky. Appellant advanced similar arguments in a statement dated 

November 27, 2009.

Appellant submitted numerous documents, sent between himself and employing 

establishment officials, which mostly related to the circumstances of his relocation in August 2009

and the bidding process for several job vacancies. These documents included: a May 1, 2009 

letter, providing 60 days advance notice of possible involuntary reassignment of appellant’s job;

letters dated July 2 through 18, 2009, regarding posted job openings; a July 14, 2009 notice of 

involuntary reassignment, effective August 15, 2009; e-mails dated August 15 through 27, 2009 

concerning the need to report to the new job location by August 30, 2009; an August 26, 2009 

e-mail regarding a request for reassignment; September 10 and 16, 2009 e-mails, concerning job 

bids; an October 14, 2009 letter, concerning a pre-disciplinary interview related to attendance 

issues; multiple leave slips from the latter half of 2009; excerpts from a 2001 employing 

establishment handbook; and undated lists of coworkers selected for job vacancies. Appellant also 

submitted documents relating to an Equal Employment Opportunity (EEO) claim he had filed on 

October 8, 2009 with respect to some of these matters. He submitted additional medical evidence 

in support of his claim, including a September 18, 2009 report from Dr. Cunagin and an 

October 19, 2009 report from Dr. Alexa R. Raymond, a Board-certified family practitioner.

By decision dated February 26, 2010, OWCP denied appellant’s claim for an emotional 

condition, finding that he had not established a compensable work factor. It determined that he 

had not submitted sufficient evidence to demonstrate that management committed error or abuse 

with respect to administrative matters or that management subjected him to harassment and 

discrimination.

On October 15, 2012 appellant requested reconsideration of the February 26, 2010 

decision. He continued to argue that management committed error and abuse with respect to the 
4

August 2009 relocation and his rejected bids for job vacancies. Appellant alleged that, around the 

time of the August 2009 relocation, he should have been allowed to become a part-time regular or 

part-time flexible carrier at the Cleveland, Ohio workplace.

In support of his reconsideration request, appellant submitted numerous documents related 

to his EEO claim, dated from January 5 through August 13, 2010. He submitted e-mails and 

letters, dated from May 29, 2009 through January 13, 2010, which contained discussions of his 

August 2009 relocation and bidding for job vacancies. Appellant also submitted a settlement 

agreement for a grievance he filed against the employing establishment, which was signed on 

September 18, 2009. The document provided that it was mutually agreed that all employees would 

be treated with dignity and respect, and that appellant would receive the same consideration as that 

received by his coworkers who were relocated to Lexington, Kentucky. It was noted that appellant 

had not been placed on AWOL status, and that, by virtue of the full and final settlement agreement, 

appellant’s union was withdrawing the case from the grievance procedure. Both parties agreed 

that the settlement was nonprecedent setting and would not be cited by either party in any 

subsequent grievance or arbitration hearing.

By decision dated January 2, 2013, OWCP denied appellant’s reconsideration request

finding that it was untimely filed and failed to demonstrate clear evidence of error. 

Appellant appealed to the Board and, by decision dated May 13, 2013,

4

the Board found 

that OWCP had properly determined, in its January 2, 2013 decision, that appellant had filed an 

untimely request for reconsideration of OWCP’s February 26, 2010 decision. However, the Board 

further found that OWCP had not presented adequate facts and findings, in its January 2, 2013 

decision, supporting that appellant failed to demonstrate clear evidence of error in the February 26, 

2010 decision. The Board remanded the case to OWCP and directed it to issue a decision, which 

contained adequate facts and findings regarding whether appellant had demonstrated clear 

evidence of error.5

Appellant submitted additional EEO documents dated May 3, 2010, excerpts from a 2007 

union manual and a 2010 collective bargaining agreement, a motion appellant filed in U.S. District 

Court on August 29, 2009, travel receipts from August 2009, a November 18, 2009 notice of 

removal, and other documents concerning the August 2009 job relocation and bidding for job 

vacancies. 

By decision dated September 26, 2014, OWCP denied appellant’s October 15, 2012 

request for reconsideration, finding that his October 15, 2012 reconsideration request was untimely 

filed and failed to demonstrate clear evidence of error.

 

4 Supra note 3.

5 Appellant filed a petition for reconsideration of the Board’s May 13, 2013 decision, but the Board denied the 

petition by order dated March 6, 2014. Supra note 3.
5

Appellant submitted additional EEO materials dated January 29, 2010 to March 23, 2015, 

and arbitration decisions from 2003 and 2009 concerning grievances filed by other individuals

regarding a period of denied leave and a termination action, respectively. 

Appellant appealed the September 26, 2014 decision to the Board and, by decision dated 

November 6, 2015,6the Board affirmed the September 26, 2014 decision.

On February 27, 2017 OWCP received a Form CA-2, which appellant had completed on 

November 2, 2009. Appellant alleged that management subjected him to additional discriminatory 

and retaliatory actions, including refusing to return him to work and/or to give him a return to work 

date, thereby causing stress, anxiety, and various physical ailments. He asserted that he first 

became aware of his claimed conditions on October 30, 2009, and first realized their relation to 

his federal employment on November 1, 2009. In March 17 and April 1, 2017 letters, appellant 

argued that the filing of a Form CA-2 on November 2, 2009 required the establishment of a new 

claim separate from the claim initiated by his filing of the Form CA-2 on September 21, 2009.

On June 10, 2017 appellant requested reconsideration of the denial of his claim. In an 

accompanying statement, he argued that management improperly refused to return him back to 

work. Appellant also argued that the employing establishment wrongly issued him a notice of 

removal and failed to conduct a pre-disciplinary interview. 

In support of his reconsideration request, appellant submitted excerpts from December

1995 and November 2009 employing establishment manuals and a 2010 Office of Personnel 

Management (OPM) manual, a February 17, 2010 letter from a union official regarding required 

notice for reassignment actions, a blank assignment order form (PS Form 1723), and arbitration

decisions from 1987 and 2000 concerning grievances filed by other individuals regarding delays

in their return to work and their right to wear a button at work, respectively. He also submitted a 

November 17, 2012 arbitration decision, regarding a grievance of a 2008 announcement of the 

need to reassign up to 110 employees from a postal installation in Oakland, CA. The arbitrator 

found that the agency violated a collective bargaining agreement when it reassigned approximately

38 employees in 2009 without giving notice of the place of reassignment 60 days in advance.

In an April 17, 2018 letter, appellant argued that the employing establishment erred by not 

placing him in a residual job vacancy in his Cleveland, Ohio workplace, which had been vacant 

since February 27, 2009. He asserted that this argument was supported by a September 25, 2015 

arbitration decision. Appellant attached a copy of that decision which involved a postal carrier 

who was involuntarily reassigned from one location to another within New Jersey. The arbitrator 

found that the postal worker was entitled to be returned to a residual vacancy at his original 

location.

By decision dated November 8, 2018, OWCP denied appellant’s claim for an emotional

condition, finding that he had not established a compensable employment factor. It determined

that the arbitration decisions submitted by him did not establish error or abuse by the employing 

establishment. OWCP noted that its handling of the Form CA-2 appellant filed on November 2, 

 

6

Id.
6

2009 did not constitute a compensable employment factor because it is unrelated to the present 

claim, i.e., the claim initiated by the Form CA-2 filed on September 21, 2009.

On December 10, 2018 appellant requested reconsideration of the November 8, 2018

decision. In an accompanying statement, he asserted that he had to work in a hostile work 

environment and that management subjected him to threats, discrimination, and retaliation. 

Appellant argued that, in August 2009, the employing establishment improperly directed him to 

relocate from Cleveland, Ohio to a new job in Lexington, Kentucky. He asserted that management 

wrongly threatened to fire him if he did not hurry and finish his work in Cleveland, Ohio, and then

report for duty in Lexington, Kentucky by August 30, 2009. Appellant indicated that the 

employing establishment provided him printed materials regarding the relocation, but failed to 

provide adequate training and counseling to help him carry out the relocation process and perform 

the new job in Lexington, Kentucky. He asserted that management failed to advise him of a 

July 22, 2009 meeting, concerning the relocation process. Appellant alleged that, on August 15, 

2009, management improperly took his work badge away and prevented him from using the 

employee assistance program. On the same date, management gave him a personnel form, which 

failed to indicate approval of 80 hours of leave for the time he spent relocating his workspace. 

Appellant asserted that management refused to issue another work badge, which would allow him 

to access his new secure workplace in Lexington, Kentucky. He believed that the employing 

establishment violated a September 18, 2009 settlement agreement, by not providing him the same 

rights as other relocated employees with respect to timely instructions, training, counseling, and 

the ability to become a part-time flexible employee. In addition, appellant argued that a 

November 17, 2012 arbitration decision, demonstrated that the employing establishment erred by 

failing to provide him notice 60 days before the date of the job relocation action.

Appellant also indicated that, on approximately August 19, 2009, the employing 

establishment advised him that it would change his work schedule from a night shift (4:00 p.m. to 

12:30 a.m.) to a day shift (10:30 p.m. to 7:00 a.m.). He contended that the employing establishment 

committed error and abuse by not giving him adequate notice of this upcoming change. Appellant 

also alleged stress due to the employing establishment’s “tampering” with his 8.75 hours of work 

time for August 15, 2009 and due to “relocation pay that was deleted.” He asserted that 

management mishandled a Form CA-2 he filed on November 2, 2009. Appellant maintained that 

management improperly did not pick him to fill several job vacancies and failed to consider the 

effect of a September 21, 2015 arbitrator’s decision on the hiring process. He alleged that the 

September 21, 2015 decision, showed that he should have been allowed to fill a residual vacancy

position, which had been vacant at his original work installation since February 27, 2009. 

Appellant also asserted that problems with the automated mail processing equipment, including 

jamming and failure of bins/stackers to fill, made it hard to meet production goals and thereby 

caused or aggravated his claimed stress-related condition.

Appellant also submitted several documents in support of his reconsideration request, 

including a December 8, 1976 grievance decision, concerning the relocation of postal employees 

(from a postal facility in Omaha, Nebraska, to a postal facility in Des Moines, Iowa), a March 20, 

1998 letter, from an employing establishment official regarding compliance by postal managers 

with arbitration awards and grievance settlements, and excerpts from a 2013 union publication 

concerning the enforcement of collective bargaining agreements.
7

By decision dated January 17, 2019, OWCP denied appellant’s request for reconsideration 

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

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA7 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that any disability or specific condition 

for which compensation is claimed is causally related to the employment injury.8 These are the 

essential elements of each and every compensation claim regardless of whether the claim is 

predicated on a traumatic injury or an occupational disease.9

To establish an emotional condition in the performance of duty, a claimant must submit: 

(1) factual evidence identifying an employment factor or incident alleged to have caused or 

contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or 

she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion 

evidence establishing that the accepted compensable employment factors are causally related to 

the diagnosed emotional condition.10

Workers’ compensation law does not apply to each and every injury or illness that is 

somehow related to an employee’s employment. There are situations where an injury or an illness 

has some connection with the employment, but nevertheless does not come within the concept or 

coverage of workers’ compensation. Where the disability results from an employee’s emotional 

reaction to his or her regular or specially assigned duties or to a requirement imposed by the 

employment, the disability comes within the coverage of FECA.11 On the other hand, the disability 

is not covered where it results from such factors as an employee’s fear of a reduction-in-force or 

his or her frustration from not being permitted to work in a particular environment or to hold a 

particular position.12

A claimant has the burden of proof to establish by the weight of the reliable, probative, and 

substantial evidence that the condition for which he or she claims compensation was caused or 

adversely affected by employment factors.13 This burden includes the submission of a detailed 

description of the employment factors or conditions which he or she believes caused or adversely 

 

7 5 U.S.C. § 8101 et seq.

8 A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

9 20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued 

October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).

10 See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014); 

Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).

11 Lillian Cutler, 28 ECAB 125 (1976).

12 A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

13 B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).
8

affected a condition for which compensation is claimed, and a rationalized medical opinion 

relating the claimed condition to compensable employment factors.14

In cases involving emotional conditions, the Board has held that, when working conditions 

are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory 

function, must make findings of fact regarding which working conditions are deemed compensable 

factors of employment and are to be considered by a physician when providing an opinion on 

causal relationship, and which working conditions are not deemed factors of employment and may 

not be considered.15 If a claimant does implicate a factor of employment, it should then determine 

whether the evidence of record substantiates that factor. When the matter asserted is a 

compensable factor of employment and the evidence of record establishes the truth of the matter 

asserted, OWCP must base its decision on an analysis of the medical evidence.16

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish an emotional

condition in the performance of duty as alleged.

Appellant alleged that he sustained an emotional condition due to various incidents and 

conditions at work. Therefore, the Board must initially review whether these alleged incidents and 

conditions are covered employment factors under the terms of FECA. The Board notes that 

appellant’s claim does not directly relate to his regular or specially assigned duties under Lillian 

Cutler.

17

 Rather, appellant primarily claimed that management committed error and abuse with 

respect to various administrative/personnel matters. He also claimed that management subjected 

him to harassment and discrimination.

With respect to administrative or personnel matters, appellant claimed that management 

officials improperly attempted to relocate his job from Cleveland, Ohio, to Lexington, Kentucky, 

and wrongly threatened to terminate his employment over the matter. He asserted that 

management did not provide him with same counseling/training, information, housing 

instructions, and moving expenses as the other reassigned employees and failed to provide him the 

option of working as a part-time flexible or regular mail carrier in order to avoid reassignment. 

Appellant alleged that the employing establishment neglected to pay him 80 hours of 

administrative leave for time spent on relocation and for 8.75 hours he worked on August 15, 2009,

failed to give him relocation forms in a timely manner, and refused his requests for assistance in 

filling out such forms. He asserted that in August 2009 he placed bids on several vacant positions,

which were unreasonably denied, and that the employing establishment did not respond to his 

numerous inquiries regarding his failed bids. Appellant also alleged managerial wrongdoing with 

 

14 P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

15 See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

16 Id.

17 See Lillian Cutler, supra note 11.
9

respect to its handling of work badges, a Form CA-2 he filed on November 2, 2009, and 

disciplinary matters, including the issuance of a notice of removal on November 18, 2009.

The Board has held that administrative and personnel matters, although generally related 

to the employee’s employment, are administrative functions of the employer rather than the regular 

or specially assigned work duties of the employee and are not covered under FECA.18 However, 

the Board has also held that, where the evidence establishes error or abuse on the part of the 

employing establishment in what would otherwise be an administrative matter, coverage will be 

afforded.19 In determining whether the employing establishment has erred or acted abusively, the 

Board will examine the factual evidence of record to determine whether the employing 

establishment acted reasonably.20

The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted allegations regarding administrative/personnel matters. Appellant submitted e-mails, letters, 

and other documents, which concerned some of these administrative/personnel matters, but the 

evidence did not show that the employing establishment committed error or abuse with respect to 

these matters. There is no indication that he obtained a final determination from an administrative 

body showing that the employing establishment committed error or abuse. Appellant submitted 

numerous materials regarding an EEO complaint he filed in October 2009, but there is no final 

EEO decision in the case record showing that error and abuse actually occurred.21 The record 

contains a September 18, 2009 settlement agreement concerning a grievance appellant filed against 

the employing establishment. Although the agreement denotes that appellant would receive the 

same consideration as that received by his coworkers who were relocated to Lexington, Kentucky, 

it does not contain a finding of wrongdoing by the employing establishment. In fact, the agreement 

specifically indicated that it was nonprecedent setting. Appellant believed that November 17, 2012 

and September 21, 2015 arbitration decisions he submitted to the case record established 

managerial error and abuse in the relocation and job bidding matters. However, these decisions 

would not establish his claims of wrongdoing because their findings pertain to the circumstances 

of individuals other than appellant.22 Although appellant expressed dissatisfaction with the actions 

of management, the Board has held that mere dislike or disagreement with certain supervisory 

actions will not be compensable absent error or abuse on the part of the supervisor.23 Appellant 

has not substantiated error or abuse committed by the employing establishment in the above-noted 

matters and, therefore, he has not established a compensable employment factor with respect to 

administrative or personnel matters.

 

18 T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 

41 ECAB 387 (1990), petition for recon. denied, 42 ECAB 556 (1991).

19 S.K., Docket No. 18-1648 (issued March 14, 2019); William H. Fortner, 49 ECAB 324 (1998).

20 J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

21 See M.R., Docket No. 18-0304 (issued November 13, 2018). 

22 See C.M., Docket No. 17-0027 (issued July 5, 2017). 

23 T.C., Docket No. 16-0755 (issued December 13, 2016).
10

Appellant also alleged harassment and discrimination by management in that he generally 

alleged that management subjected him to a hostile work environment, and committed 

discriminatory and retaliatory actions with respect to the August 2009 relocation and the denial of 

several job bids. He maintained that the employing establishment discriminated against him due 

to race, gender, and the fact that he previously filed a complaint. To the extent that disputes and 

incidents alleged as constituting harassment and discrimination are established as occurring and 

arising from an employee’s performance of his or her regular duties, these could constitute 

employment factors.24 The Board has held that unfounded perceptions of harassment and 

discrimination do not constitute an employment factor.25 Mere perceptions are not compensable 

under FECA and harassment or discrimination can constitute a factor of employment if it is shown 

that the incidents constituting the claimed harassment or discrimination actually occurred.26

Appellant, however, did not submit corroborative evidence in support of his allegations 

regarding harassment or discrimination. He did not submit witness statements or other 

documentary evidence demonstrating that the alleged harassment and discrimination occurred as 

alleged.27 Appellant did not submit a complaint or grievance filed with respect to these matters, 

such as an EEO complaint or a grievance filed with the employing establishment, which contained 

a final finding of harassment or discrimination committed by the employing establishment. 

Therefore, he has not established a compensable employment factor with respect to the claimed 

harassment and discrimination.

As the Board finds that appellant has not established a compensable employment factor, it 

is not necessary to consider the medical evidence of record.28 Therefore, OWCP properly denied 

appellant’s emotional condition claim.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607. 

 

24 D.B., Docket No. 18-1025 (issued January 23, 2019); David W. Shirey, 42 ECAB 783, 795-96 (1991).

25 See F.K., Docket No. 17-0179 (issued July 11, 2017).

26 Id.

27 Id.

28 See B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical 

evidence of record if a claimant has not established a compensable employment factors). See also Margaret S. 

Krzycki, 43 ECAB 496, 502-03 (1992).
11

LEGAL PRECEDENT -- ISSUE 2

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 or her own motion or on application.29

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.30

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

OWCP’s decision for which review is sought.31 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.32 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.33

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

evidence or argument already in the case record34 and the submission of evidence or argument which 

does not address the particular issue involved does not constitute a basis for reopening a case.35 

ANALYSIS -- ISSUE 2

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).

 

29 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); 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).

30 20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517 

(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

31 20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested 

decision. 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.

32 20 C.F.R. § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

33 20 C.F.R. § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

34 N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

35 M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).
12

On December 10, 2018 appellant filed a timely request for reconsideration of a

November 8, 2018 decision.

36

 The Board finds that he did not establish that OWCP erroneously 

applied or interpreted a specific point of law, nor did he advance a relevant legal argument not 

previously considered by OWCP. Appellant argued that various incidents and conditions at work 

constituted compensable employment factors. He alleged that, in August 2009, the employing

establishment improperly directed him to relocate from Cleveland, Ohio, to a new job in 

Lexington, Kentucky, and wrongly threatened to fire him over the matter. Appellant believed that 

the employing establishment failed to provide adequate notice of the relocation action and should 

have let him hold a part-time flexible or regular carrier position in Cleveland, Ohio. Moreover, he 

maintained that he was unfairly denied his bids on several job vacancies in August 2009. 

Appellant alleged that the employing establishment failed to provide adequate training and 

counseling to help him carry out the relocation process and perform the new job in Lexington, 

Kentucky. He asserted that OWCP improperly failed to pay him for 8.75 hours worked on 

August 15, 2009 and denied his request for 80 hours related to time spent relocating. Appellant 

also alleged management wrongdoing with respect to its handling of matters relating to work 

badges, meetings on the relocation matter, and his filing of a Form CA-2 on November 2, 2009. 

He asserted that he had to work in a hostile work environment in which management subjected 

him to threats, discrimination, and retaliation. Appellant believed that his arguments regarding 

compensable employment factors were supported by a September 18, 2009 settlement agreement, 

as well as by November 17, 2012 and September 21, 2015 arbitrators’ decisions. However, the 

Board finds that OWCP had previously considered and rejected all of these same arguments when 

it denied appellant’s emotional condition claim on multiple prior occasions. 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.37

Appellant also implicated work duties as contributing to his claimed conditions38 by 

asserting that problems with the automated mail processing equipment, including jamming and 

failure of bins/stackers to fill, made it hard to meet production goals and thereby caused or 

aggravated his claimed stress-related conditions. He further alleged that management committed 

error and abuse when it prevented him from using the employee assistance program on August 15, 

2009, and advised him on approximately August 19, 2015, of an upcoming change in his workshift 

from a night shift to a day shift.

The Board finds, however, that these arguments are not relevant to the underlying factual 

issue of the present case, i.e., whether appellant submitted probative factual evidence supporting 

the finding of a compensable employment factor. Appellant’s argument with respect to 

malfunctioning equipment only constitutes a vague, unsupported allegation regarding work 

duties/conditions. He did not provide any details of how often the equipment malfunctioned or 

present evidence documenting the extent of such malfunctioning or its potential effect on meeting 

production goals. Appellant’s arguments with respect to the employee assistance program and 

workshift changes also only constitute vague, unsupported allegations regarding management 

 

36 See J.F., Docket No. 16-1233 (issued November 23, 2016).

37 See id.

38 See supra note 14.
13

wrongdoing. He did not present supporting evidence in conjunction with his arguments regarding 

management’s handling of these administrative matters. The Board has held that the submission 

of evidence or argument which does not address the particular issue involved does not constitute a 

basis for reopening a case.39 Therefore, the submission of these arguments would not require 

reopening of appellant’s case for review on the merits. Accordingly, the Board finds that appellant 

is not entitled to a review of the merits based on either the first or second requirement under 20

C.F.R. § 10.606(b)(3). 

On reconsideration, appellant submitted evidence, including a December 8, 1976 grievance 

decision concerning the relocation of postal employees, a March 20, 1998 letter from an employing 

establishment official regarding compliance by postal managers with arbitration awards and 

grievance settlements, and excerpts from a 2013 union publication concerning the enforcement of 

collective bargaining agreements. However, these documents are not relevant to the underlying 

issue of the present case, i.e., whether appellant established a compensable employment factor. 

The documents do not specifically concern appellant and do not directly relate to any of the 

particular incidents or conditions at work, which appellant claimed constituted compensable 

employment factors, such as the August 2009 job relocation to Lexington, Kentucky or the denial 

of his job bids in 2009. As noted above, OWCP is not required to review a claimant’s claim on 

the merits when the evidence or argument submitted on reconsideration does not address the 

particular issue involved.

40

Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R. 

§ 10.606(b)(3). 

The Board accordingly 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 appellant has not met his burden of proof to establish an emotional 

condition in the performance of duty as alleged. The Board further finds that OWCP properly 

denied his request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

 

39 See supra note 36.

40 Id.
14

ORDER

IT IS HEREBY ORDERED THAT the January 17, 2019 and November 8, 2018 

decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: November 16, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board