United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

O.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bayamon, PR, Employer

__________________________________________

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Docket No. 18-0359

Issued: August 7, 2019

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 11, 2017 appellant, through counsel, filed a timely appeal from an 

August 30, 2017 merit decision and a November 13, 2017 nonmerit decision of the Office of 

Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation 

Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of 

this 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

ISSUES

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

condition in the performance of duty; 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

On March 27, 2017 appellant, then a 55-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that he developed a disabling emotional condition due to acts of 

harassment, mistreatment, and errors and abuse by management. He first became aware of his 

condition and realized it resulted from his employment on October 29, 2015. The claim form did 

not indicate whether appellant stopped work. 

In a narrative statement, appellant alleged that his illness resulted from management acts 

of harassment, mistreatment, and error and abuse. He noted the details of his alleged employment 

factors including: unfounded accusations of being too slow, not completing his work duties, and 

lying about his physically limited medical conditions; harassment regarding medical 

documentation in support of his disabilities; unjustified removal of previously granted workplace 

accommodations; refusal of reasonable requests for assistance, including requests for overtime in 

order to complete his route; pressure from management to find employment with another post 

office; compilation of fraudulent inspection reports regarding his performance standards; 

fraudulent preparation and submission of duty status report (Form CA-17) by management and a 

malicious characterization of “Family Medical Leave Act” (FMLA); issuance of an unwarranted 

seven-day suspension on May 14, 2015 and unwarranted letter of warning on May 20, 2017; and 

false accusations by management resulting in eventual criminal charges for which appellant was 

eventually found not guilty.

In a development letter dated April 7, 2017, OWCP advised appellant that the evidence 

submitted was insufficient to establish his claim. It requested that he respond to the attached 

questionnaire in order to substantiate the factual elements of his claim and provide additional 

medical evidence to establish that he sustained a diagnosed condition causally related to his federal 

employment. Appellant was afforded 30 days to submit the necessary evidence. A development 

letter was also sent to the employing establishment requesting that a knowledgeable supervisor 

respond as to the accuracy of appellant’s allegations and to provide further evidence.

On May 11, 2017 OWCP received the employing establishment’s response to its 

development letter. It responded that it did not concur with appellant’s allegations. The employing 

establishment indicated that his walking limitations were considered when his route was assigned. 

It explained that because appellant could not meet the goals of his position within the allotted time 

frame, another carrier provided assistance to complete his route. The employing establishment 

provided a position description for a city carrier.

In an April 25, 2017 psychiatric report, Dr. Fernando Cabrera, Jr., Board-certified in 

psychiatry and neurology, indicated that appellant had worked for the employing establishment 

since 2003. He noted that appellant was first evaluated in 2014 because of anxiety disorder due to 

stress from a difficult work environment. Dr. Cabrera reviewed appellant’s allegations about 
3

management’s harassing and discriminatory acts against him. He indicated that appellant 

developed severe anxiety attacks, tremors, palpitations, chest pain, numbness, weakness, feeling 

like he wanted to die, inability to sleep, negative view of life, and poor libido. Dr. Cabrera 

diagnosed adjustment disorder with anxious and depressed mood due to severe stress. He provided 

examination findings and opined that appellant had a “diagnosis of Adjustment Disorder mixed 

with depression and anxiety secondary to the labor problems he had at his work and the legal 

charges of fraud of the [F]ederal [G]overnment.”

On June 2, 2017 appellant responded to OWCP’s development questionnaire. He 

contended that management demanded that he violate his medical restrictions and that they did not 

consider any of his physical limitations specified on his duty status reports (Form CA-17) even 

though his claim was accepted by OWCP.

3

 Appellant also alleged that he was denied assistance 

with his daily work as a result of a fraudulent inspection of his route performed by another 

employee with no physical limitations. He explained that because of the fraudulent inspection, he 

was forced to complete his route faster and work harder and beyond his physical limitations. 

Appellant further contended that he was given an unnecessary grievance letter and a seven-day 

suspension for unapproved absences even though he was approved to use FMLA leave. He 

asserted that management mocked, harassed, and discriminated against him due to his physically 

disabling conditions. Appellant indicated that management also fabricated criminal charges 

against him for which he was found not guilty. He reported that he filed a grievance against 

management for an August 19, 2014 incident and another grievance in connection with a notice of 

removal from the employing establishment. Appellant also explained that he had been under the 

care of a psychologist for stress, depression, and anxiety caused by constant threats, harassment, 

and discrimination from management. He noted that he had no prior emotional conditions or 

received any prior psychiatric or psychological care before 2014.

OWCP received several witness statements. In a handwritten statement, R.P., appellant’s 

coworker, related that on August 19, 2014 he heard appellant’s supervisor, J.S., speaking to 

appellant in a “harassing way” and demanding to see appellant’s medical information because 

appellant was requesting auxiliary assistance to complete his route. He reported that 

Supervisor J.S. was refusing to provide assistance and was “outright disrespectful and menacing.” 

In a March 12, 2015 statement, M.T., appellant’s shop steward, stated that on that date he and 

appellant had a meeting with Supervisor J.S. and Manager R.L. regarding how to develop a 

working plan for appellant due to his physical limitations. He described how J.S. and R.L. 

discriminated against appellant because of his physical limitations and mistreated him. In an 

April 27, 2015 statement, V.R., appellant’s coworker, related that on March 25, 2015 he witnessed 

J.S. make fun of and embarrass appellant because of his physical condition. In an April 27, 2015 

statement, M.R., appellant’s coworker, indicated that on April 14, 2015 he heard J.S. stop by 

appellant’s station, hand him some papers, and tell him that he should work in these places because 

of his physical condition. He alleged that J.S. was “clearly harassing and discriminating” against 

appellant because of his physical limitations. 

Appellant submitted other documents to support his claim. A Judgment of Acquittal dated

October 19, 2016 indicated that appellant was found “not guilty” and acquitted from all criminal 

 

3 The Board notes that appellant had seven prior traumatic injury claims.
4

charges in the federal district court for the District of Puerto Rico relating to false statements, false 

statements in connection with the receipt of federal employment benefits, theft of government 

money, and attempting to corruptly influence, delay, or prevent a witness from testifying in 

connection with the other charges.

OWCP also received a grievance form dated November 7, 2016 from appellant. Appellant 

challenged whether management had “just cause” to issue a January 26, 2016 Notice of Removal. 

By decision dated August 30, 2017, OWCP denied appellant’s emotional condition claim. 

It determined that he had failed to establish a factual basis for his claim because the evidence 

submitted was insufficient to substantiate that the incidents occurred as alleged. OWCP also found 

that appellant had failed to submit sufficient medical evidence to establish a diagnosed condition 

causally related to factors of his federal employment.

On October 24, 2017 appellant requested reconsideration. In a narrative statement, he 

indicated that all the facts and circumstances as set forth in his previous statements, previous 

witness statements, and in the April 25, 2017 medical report of Dr. Cabrera were accurate and true 

and had been experienced by him.

OWCP received a January 26, 2016 Notice of Removal for the employing establishment, 

which informed appellant that he was removed from federal employment effective March 4, 2016. 

By decision dated November 13, 2017, OWCP denied further merit review of appellant’s 

claim pursuant to 5 U.S.C. § 8128(a). It found that appellant’s reconsideration request neither

raised substantive legal questions nor included new and relevant evidence sufficient to warrant 

further merit review of appellant’s claim. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence5including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.6 

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

the following: (1) medical evidence establishing that he or she has an emotional condition or 

psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged to 

have caused or contributed to the condition; and (3) rationalized medical opinion evidence 

 

4 Supra note 2.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6 M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 

1143, 1145 (1989).
5

establishing that the identified compensable employment factors are causally related to the 

emotional condition.7

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

somehow related to an employee’s employment.8 In the case of Lillian Cutler,9the Board 

explained that there are distinctions as to the type of employment situations giving rise to a 

compensable emotional condition under FECA. There are situations where an injury or illness has 

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

coverage under FECA.10 When an employee experiences emotional stress in carrying out his or 

her employment duties, and the medical evidence establishes that the disability resulted from an 

emotional reaction to such situation, the disability is generally regarded as due to an injury arising 

out of and in the course of employment.11 On the other hand, when an injury or illness results 

from an employee’s feelings of job insecurity per se, fear of a reduction-in-force, his or her 

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

position, unhappiness with doing work, or frustration in not given the work desired or hold a 

particular position, such injury or illness falls outside FECA’s coverage because they are found 

not to have arisen out of employment.12

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 compensable factors of 

employment and may not be considered.13 If an employee does implicate a factor of employment, 

OWCP should then determine whether the evidence of record substantiates that factor. As a rule, 

allegations alone by a claimant are insufficient to establish a factual basis for an emotional 

condition claim. The claim must be supported by probative evidence.14 If a compensable factor 

of employment is substantiated, OWCP must base its decision on an analysis of the medical 

evidence which has been submitted.

15

 

7 George H. Clark, 56 ECAB 162 (2004).

8 L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

9 28 ECAB 125 (1976).

10 A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

11 Cutler, supra note 9; see also Trudy A. Scott, 52 ECAB 309 (2001).

12 William E. Seare, 47 ECAB 663 (1996).

13 Dennis J. Balogh, 52 ECAB 232 (2001).

14 Charles E. McAndrews, 55 ECAB 711 (2004).

15 Norma L. Blank, 43 ECAB 384, 389-90 (1992). 
6

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.

Appellant alleged that he developed depression, anxiety, panic attacks, auditory 

hallucinations, insomnia, and low libido due to alleged discriminatory acts and harassment by 

management. OWCP denied appellant’s claim finding that he failed to establish a factual basis for 

his emotional condition claim. Initially, the Board disagrees with OWCP’s determination that 

appellant provided only “vague and general information” regarding his claim without supporting 

evidence or specific examples. The Board notes that appellant submitted a 5-page narrative 

statement, along with his Form CA-2, detailing the harassing and discriminating behavior he 

alleged on the part of his supervisor, which he believed contributed to his emotional condition. He 

also provided a three-page statement in response to OWCP’s development questionnaire, in which 

he reiterated the details of management’s alleged behavior, disputes with management over leave, 

and grievances filed against management.16 Appellant also submitted witness statements with 

specific dates and descriptions of management’s alleged harassment. Accordingly, the Board finds 

that appellant’s statements contained sufficient details and specific examples to substantiate a

factual basis for his claim. 

As appellant has sufficiently described the employment factors which he believed 

contributed to his emotional condition, the Board must initially review whether these alleged 

incidents and conditions of employment are compensable employment factors under the terms of 

FECA. He has not alleged his condition was due to any specific job duties under Cutler. Instead, 

appellant has alleged that he was the victim of discrimination and harassment by management.

Appellant made several allegations regarding administrative and personnel actions. As a 

general rule, administrative and personnel matters, although generally related to the employee’s 

employment, are administrative functions of the employer rather than the regularly or specially 

assigned work duties of the employee and are not covered under FECA.17 In Thomas D. McEuen,

18

the Board held that an employee’s emotional reaction to administrative actions or personnel 

matters taken by the employing establishment is not covered under FECA as such matters pertain 

to procedures and requirements of the employer and do not bear a direct relation to the work 

required of an employee. 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, such action will be considered a compensable employment factor.19 In 

determining whether the employing establishment erred or acted abusively, the Board will examine 

 

16 In its August 30, 2017 decision, OWCP noted that these statements were of diminished probative value as it was 

not clear whether they were signed by appellant. The Board notes, however, that the five-page narrative statement 

was attached to appellant’s Form CA-2, which was signed, and the three-page narrative statement was also attached 

to a signed certification form dated May 27, 2017. 

17 Matilda R. Wyatt, 52 ECAB 421 (2001).

18 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).

19 William H. Fortner, 49 ECAB 324 (1998).
7

the factual evidence of record to determine whether the employing establishment acted 

reasonably.20

Appellant alleged that management wrongfully issued a seven-day suspension on May 14, 

2015 and a Letter of Warning on May 20, 2017. Although the handling of disciplinary actions and 

evaluations are generally related to the employment, they are administrative functions of the 

employing establishment, and not duties of the employee.21 Appellant submitted a grievance form 

dated November 7, 2016 wherein appellant challenged a January 26, 2016 Notice of Removal. 

The form, however, does not show error or abuse on behalf of the employing establishment. 

Rather, it merely noted appellant’s challenge and the remedy sought. The Board finds that there 

is no evidence in the record to establish that appellant was improperly disciplined or provided a 

Notice of Removal. Appellant has not offered evidence to establish error or abuse or that the 

employing establishment acted unreasonably in these matters.

The Board also finds that appellant has not met his burden of proof to establish error or 

abuse in the handling of his requests for workplace assistance due to his medical limitations, 

including requests for overtime in order to complete his mail route. Assigning work tasks and 

monitoring work performance are administrative functions of a supervisor.22 Appellant has not 

provided probative evidence showing that management committed wrongdoing with respect to his

request for assistance.23 On the contrary, in its response to OWCP’s development letter, the 

employing establishment explained that it had accommodated appellant’s medical limitations and 

provided another carrier to assist him in completing his route within the allotted time frame. 

Appellant further alleged that management demanded that he violate his work restrictions 

and did not consider his physical limitations. He provided a statement from M.T., his shop 

steward, who described a meeting with appellant’s supervisor and manager in which they refused 

to create a working plan for appellant due to his physical limitations. Although appellant provided 

a corroborating witness statement, this evidence is insufficient to establish that management erred 

by not constructing a working plan for appellant.24 He did not provide probative evidence to show 

how management’s actions during that meeting constituted error or abuse. Mere dislike or 

disagreement with certain supervisory actions will not be found compensable absent error or abuse 

on the part of the supervisor.25 Furthermore, the employing establishment noted in its response to 

OWCP’s development letter that it had considered appellant’s walking limitations when it assigned 

his route. 

 

20 Ruth S. Johnson, 46 ECAB 237 (1994).

21 See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41 

ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).

22 Beverly R. Jones, 55 ECAB 411, 416 (2004).

23 See T.H., Docket No. 17-1578 (issued April 26, 2018).

24 See J.Q., Docket No. 17-1276 (issued December 27, 2017).

25 Linda J. Edwards-Delgado, 55 ECAB 401 (2004).
8

The record also fails to establish error or abuse in the denial of appellant’s use of FMLA 

leave. The Board notes that the handling of leave26 is considered an administrative function of the 

employing establishment and, absent error or abuse, a claimant’s disagreement or dislike of such 

a managerial action is not compensable.27 Appellant has not substantiated error or abuse 

committed by the employing establishment regarding these administrative actions. The Board 

finds, therefore, that he has not established a compensable employment factor with respect to 

administrative or personnel matters.

Appellant also alleged that harassment and discriminatory behavior by management caused 

him stress and anxiety. To the extent that disputes and incidents alleged as constituting harassment

and discrimination by supervisors and coworkers are established as occurring and arising from the 

employee’s performance of his or her regular duties, these could constitute employment factors.28 

However, for harassment or discrimination to give rise to a compensable disability under FECA, 

there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of 

harassment or discrimination are not compensable under FECA.29 Unsubstantiated allegations of 

harassment or discrimination are not determinative of whether such harassment or discrimination 

occurred. A claimant must establish a factual basis for his or her allegations that the harassment 

occurred with probative and reliable evidence.30 

Appellant asserted that management fraudulently prepared and submitted a Form CA-17 

because it did not believe that he had physically disabling conditions. He also related that 

management conducted a fraudulent inspection of his route. Appellant, however, has not 

submitted evidence to corroborate these allegations of fraudulent acts on the part of management. 

Personal perceptions and allegations by a claimant alone are insufficient to establish an 

employment-related condition.31 

Appellant further alleged that these fraudulent actions resulted in eventual criminal charges

against him. The Board finds, however, that appellant has not provided corroborating or 

supporting evidence to support his allegations of fraudulent actions by the employing 

establishment which resulted in criminal charges being filed. Where a claimant alleges 

compensable factors of employment, he or she must substantiate such allegations with probative 

and reliable evidence.32 The only evidence OWCP received in support of appellant’s contention 

was an October 19, 2016 Judgment of Acquittal, which found appellant “not guilty” of several 

criminal charges. The fact that he was acquitted of all criminal charges, however, does not 

establish that the employing establishment’s actions precipitated such charges or that they had

 

26 Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

27 Roger Williams, 52 ECAB 468 (2001).

28 David W. Shirey, 42 ECAB 783, 795-96 (1991).

29 Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

30 James E. Norris, 52 ECAB 93 (2000).

31 J.F., 59 ECAB 331 (2008); Roger Williams, 52 ECAB 468 (2001).

32 M.D., 59 ECAB 211 (2007).
9

harassed or discriminated against him by committing fraud. Because no further evidence was 

presented to corroborate this allegations, appellant has not established a compensable employment 

factor in this matter.

Appellant has also alleged that management mocked, harassed, and discriminated against 

him due to his physical limitations. The Board notes, however, that he did not provide specific 

dates or other details regarding management’s alleged harassing and discriminatory behavior. 

General allegations of harassment are insufficient to establish that such actions did, in fact, occur.33 

The evidence of record contains several witness statements from various coworkers, 

including R.P., V.R., and M.R. They described different scenarios where they overheard 

appellant’s supervisor speaking to him in what they considered to be a harassing way, being 

disrespectful, making fun of him, refusing to accommodate his restrictions, and suggesting that he 

look for work elsewhere. While these statements support verbal disagreements between appellant 

and his supervisor and provided more specific details, the Board finds that they are insufficient to 

establish that these instances rose to the level of a compensable factor of employment.34 With 

regard to emotional claims arising under FECA, the term harassment as applied by the Board is 

not the equivalent of harassment as defined or implemented by other government agencies, such 

as the Equal Employment Opportunity Commission, which is charged with statutory authority to 

investigate and evaluate such matters in the workplace. For harassment or discrimination to give 

rise to a compensable disability, there must be evidence introduced which establishes that the acts 

alleged or implicated by the employee did, in fact, occur. Unsubstantiated allegations of 

harassment or discrimination are not determinative of whether such harassment or discrimination 

occurred. A claimant must establish a factual basis for his or her allegations that the harassment 

occurred with probative and reliable evidence.35 Mere perceptions or feelings of harassment will 

not support an award of compensation.36 The Board finds that appellant has not provided 

corroborating evidence which is of sufficient probative value to demonstrate that management’s 

actions towards him rose to the level of establishing harassment or discrimination under the terms 

of FECA. Thus, appellant has not established a compensable employment factor under FECA 

with respect to his alleged harassment and discrimination.

On appeal counsel alleges that the factual and medical evidence of record establish that 

appellant’s debilitating emotional conditions are compensable and that OWCP failed to fulfill its 

obligation to develop appellant’s claim. As explained above, however, the Board found that the 

evidence of record fails to establish a compensable employment factor under FECA and, therefore, 

appellant has not met his burden of proof to establish that he sustained an emotional condition in 

the performance of duty.

 

33 See Paul Trotman-Hall, 45 ECAB 229 (1993).

34 See C.T., Docket No. 08-2160 (issued May 7, 2009); Charles D. Edwards, 55 ECAB 258 (2004).

35 See G.M., Docket No. 17-1469 (issued April 2, 2018); T.V., Docket No. 16-1519 (issued September 12, 2017); 

Beverly R. Jones, 55 ECAB 411 (2004); James E. Norris, 52 ECAB 93 (2000).

36 Supra note 28.
10

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.

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 own motion or on application.37

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

provide evidence or an argument that: (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.38 

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.39 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.40 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.41

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).

Along with his reconsideration request, appellant submitted a narrative statement where he 

repeated his allegations and indicated that the witness statements, and medical evidence previously 

submitted were accurate and true. He also provided a January 26, 2016 Notice of Removal from 

the employing establishment. The Board finds that neither appellant’s statement nor the Notice of 

Removal showed legal error by OWCP or advanced a legal argument not previously considered 

by OWCP or constituted relevant and pertinent new evidence. Consequently, he was 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).42

 

37 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

38 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).

39 20 C.F.R. § 10.607(a).

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

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

42 T.G., Docket No. 18-1064 (issued April 26, 2019).
11

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.43 Appellant, however, did not submit any relevant and pertinent 

new factual evidence to establish a compensable employment factor. Rather, he merely reaffirmed 

that his previous statements and evidence submitted were accurate and true. Moreover, the Notice 

of Removal is irrelevant to the establishment of a compensable employment factor. Thus, 

appellant is also not entitled to a review of the merits of his claim based on the third above-noted 

requirement under section 10.606(b)(3).44

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. The Board further finds that OWCP properly denied 

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

ORDER

IT IS HEREBY ORDERED THAT the November 13 and August 30, 2017 decisions of 

the Office of Workers’ Compensation Programs are affirmed.

Issued: August 7, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

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

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