United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Jacksonville, FL, Employer

__________________________________________

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Docket No. 19-1790

Issued: March 11, 2020

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 26, 2019 appellant, through counsel, filed a timely appeal from a February 26, 

2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from OWCP’s last merit decision, dated February 9, 2018, 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 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

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

On December 18, 2017 appellant, then a 55-year-old lead clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on October 12, 2017, while in the performance of duty, he 

sustained injury to multiple parts of the right side of his body when he was assaulted by his 

coworker who threatened to kill him. He stopped working on the date of injury. On the reverse 

side of the claim form, appellant’s supervisor noted that appellant was not injured in the

performance of duty and that the employing establishment was controverting the claim. 

In an undated handwritten statement, appellant related that on October 12, 2017 he was 

working on an automated flat sorting machine (AFSM) while his coworker, J.H. was working on 

another AFSM. He indicated that when he moved to help pull down the other machine J.H. initially

walked off and refused to help pull down the machine. Appellant alleged that J.H. subsequently 

came up to him and hit him in the chest with his shoulder and elbow, while cursing and shouting 

that he would kill him. He noted that he was scared for his life and K.G., another coworker, 

stepped in between them before J.H. could hit him again. However, when appellant tried to move 

away, J.H. hit him in the chest. He set out immediately to his supervisor, J.C., stopping along the 

way to speak to L.M., another coworker, about the incident. Appellant alleged that J.H. later came 

up to J.C.’s desk and started yelling at him, threatening to kill and beat him up, while using racial 

slurs. He further alleged that his supervisor did nothing to protect him, despite telling her that J.H. 

had assaulted him three to four times. Appellant asserted that he told J.C. that he was hurt and 

needed to go to the hospital. He also asked her to call the police and the postal inspector, but she 

refused. Instead, appellant was told to go to the South Dock office. 

Appellant explained that he was trying to write a statement detailing the assault when J.C. 

and his other supervisor, R.B., walked into the South Dock office and told him to leave the 

property. He asserted that both of them refused to help him and became hostile towards him. On 

his way out of the building, appellant told his supervisors that he was hurt and needed medical 

attention, but R.B. directed him to leave the property right away. He noted that he left work 

because he feared for his life. Appellant concluded by alleging that J.H. was close friends with 

the members of management and that J.C. treated white employees more favorably. 

In a December 5, 2017 Certificate of Disability, Dr. Robert E. Groble, a Board-certified 

psychiatrist, noted that appellant was under his care and had not sufficiently recovered to return to 

full-time work until March 2, 2018.

In a December 6, 2017 witness statement, K.G. noted that she was walking to a different 

machine on October 12, 2017 when she heard appellant and another coworker, J.H., hollering back 

and forth at one another. She immediately turned around and walked towards them “as they were 

getting a little too close.” K.G. related that she put her hand on appellant’s chest and pushed him 

back, stepping in between he and J.H before she and another coworker ultimately separated the 
3

two. She noted that they were both name calling and therefore, were both at fault for the 

altercation. 

In another witness statement of even date, L.M. attested that she was not scheduled or 

present in the area when the dispute between appellant and J.H. occurred on October 12, 2017. 

She noted that on the day of the dispute appellant approached her and began telling her that he and 

J.H. had words over the pull-down rotation. Appellant told her that J.H. refused to go to the other 

side of the machine when it became appellant’s turn to take up the rotation, an argument then 

ensued and J.H. bowed up at him, making bodily contact at his stomach or chest area and 

threatened to beat him up. He indicated that J.H. then left the area and must have told their 

supervisor something because she paged him instructing him to report to her desk. 

Appellant’s supervisor, J.C., noted in her witness statement dated December 6, 2017 that 

J.H., not appellant, approached her first on October 12, 2017 and was explaining what happened 

when appellant came and provoked a heated argument. She asserted that appellant did not mention 

anything about being assaulted or that J.H. threatened to kill him when they were baiting each 

other with insults, cursing, name calling, and threatening to beat each other up. J.C. observed that 

neither appeared injured and appellant only brought up that he was hurt when she and another 

supervisor instructed him to gather his belongings and escorted him out of the building. Appellant 

only then told them that his shoulder and chest hurt, and that his arm was numb before picking up 

his backpack and throwing it over the shoulder that he claimed was injured. J.C. further noted that 

appellant did not need any assistance getting to the parking lot and driving off the property. She 

also denied appellant’s racial remarks and contended that appellant had been untruthful about what 

happened for his own benefit. J.C. indicated that he was previously involved in several arguments, 

where he was the one that escalated the situation each time. In a subsequent statement dated 

December 22, 2017, she affirmed her earlier statements, claiming that appellant had made a lot of 

accusations that were “only partly true and partly a vivid imagination.”

In a letter dated December 27, 2017, the employing establishment controverted appellant’s 

claim. 

In a development letter dated January 2, 2018, OWCP advised appellant that the evidence 

of record was not sufficient to establish that he actually experienced the incident alleged to have 

caused injury on October 12, 2017. It further noted that he submitted no evidence showing a 

medical diagnosis of any condition resulting from his injury. OWCP provided appellant a factual 

questionnaire for completion and afforded him 30 days to respond.

By decision dated February 9, 2018, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the October 12, 2017 employment incident 

occurred as alleged. It noted that he had not responded to the January 2, 2018 questionnaire nor 

did he provide any witness statements to support that he was threatened or physically struck by his 

coworker. OWCP therefore, found that the requirements had not been met to establish an injury 

as defined by FECA. 

OWCP continued to receive additional medical evidence, including an October 12, 2017 

emergency room report from Dr. Kevin Gysling, Board-certified in emergency medicine. 

Dr. Gysling noted that appellant reported being assaulted at work when he was pushed back and 
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his arms were forced above his head. An x-ray of the right shoulder performed that day showed 

degenerative changes with no acute abnormalities. X-rays of the right hand and wrist were normal. 

On February 8, 2019 appellant requested reconsideration of the February 9, 2018 decision. 

In an October 24, 2017 magnetic resonance imaging (MRI) scan of the cervical spine, 

appellant was noted to have findings, including disc bulges and herniation, throughout the cervical 

spine that when compared to prior examinations revealed no significant changes. An MRI scan of 

the right shoulder of even date revealed moderate supraspinatus and infraspinatus tendinitis, 

degenerative changes and joint effusion. 

By decision dated February 26, 2019, OWCP denied appellant’s request for 

reconsideration of the merits of his claim, noting that he had not responded to the January 2, 2018 

factual questionnaire and that the medical documentation submitted in support of his request was 

insufficient to establish the factual component of his claim.

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.3

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.4

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

OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the 

 

3 5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued 

February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).

4 20 C.F.R. § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., id.; B.W., Docket 

No. 18-1259 (issued January 25, 2019).

5

Id. at § 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.

6

Id. at § 10.608(a); see also Y.H., Docket No. 18-1618 (issued January 21, 2020); R.W., Docket No. 18-1324 (issued 

January 21, 2020); M.S., 59 ECAB 231 (2007).
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requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.7

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).

The Board finds that appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument 

not previously considered. As such, he 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).8

In support of his request for reconsideration, appellant submitted October 12, 2017 x-rays 

of the right hand and wrist and October 24, 2017 MRI scans of his right shoulder and cervical 

spine. These reports cannot alone establish the factual basis for appellant’s claim.9 As noted, the 

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

constitute a basis for reopening a claim.10 While, in his October 12, 2017 medical report,

Dr. Gysling noted that appellant reported being assaulted that day while at work, he did not provide 

the specific details needed to establish that the claimed injury occurred at the time, place, and in 

the manner alleged. Additionally, appellant has yet to respond to OWCP’s January 2, 2018 

development letter requesting specific details of the alleged October 12, 2017 employment 

incident. Thus, he is not entitled to a review of the merits of his claim based on the third abovenoted requirement under 20 C.F.R. §10.606(b)(3).11

The Board accordingly finds that as appellant has not satisfied any of the three 

requirements under 20 C.F.R. §10.606(b)(3) to warrant further merit review of his claim, OWCP 

properly denied his request for reconsideration.12

On appeal counsel argues that OWCP improperly denied review when appellant presented 

evidence of compensability. As previously noted, the Board does not have jurisdiction over the

February 9, 2018 merit decision. 

 

7

Id. at § 10.608(b); D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., Docket No. 19-0291 (issued

June 21, 2019). 

8 E.W., supra note 4; T.V., Docket No. 19-1504 (issued January 23, 2020).

9 B.V., Docket No.18-1473 (issued April 23, 2019); C.F., Docket No. 17-1611 (issued December 13, 2017). 

10 S.W., Docket No. 19-1498 (issued January 9, 2020); E.J., Docket No. 19-1509 (issued January 9, 2020); M.E.,

Docket No. 18-0553 (issued November 5, 2018). 

11 S.B., Docket No. 19-1320 (issued January 17, 2020); J.M., Docket No. 19-0252 (issued January 8, 2020).

12 C.A., Docket No. 19-0160 (issued January 16, 2020); L.E., Docket No. 19-0470 (issued August 12, 2019).
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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). 

ORDER

IT IS HEREBY ORDERED THAT the February 26, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 11, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board