United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.T., Appellant

and

U.S. POSTAL SERVICE, BULK MAIL 

CENTER, Springfield, MA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0760

Issued: September 10, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 26, 2018 appellant filed a timely appeal from a September 8, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has 

elapsed from OWCP’s last merit decision, dated September 29, 2016, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction over the merits of the claim. 

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 November 30, 2005 appellant, then a 53-year-old clerk, filed an occupational disease 

claim (Form CA-2) alleging that she sustained post-traumatic stress disorder (PTSD) causally 

 

1 5 U.S.C. § 8101 et seq.
2

related to factors of her federal employment. She related that the employing establishment 

instructed her to work outside of her medical restrictions and that a coworker initiated a 

confrontation. Appellant stopped work on August 10, 2005. 

In an undated statement received by OWCP on January 30, 2006, appellant indicated that 

OWCP previously accepted that in 1999 she sustained depression due to work factors under File 

No. xxxxxx372. She returned to work with restrictions necessitating a quiet environment without 

stress. Appellant, in 2004, began working in an area with W.G., a coworker, who told her that she 

could not use the telephone, her wastepaper basket, or sit at a desk in the office. W.G. repeatedly 

spoke in a raised voice to M.W., a supervisor. She used profanity towards appellant, told her not 

to speak to her, slammed doors, made racist comments, accused her of being treated like a princess, 

and possibly vandalized her vehicle. On July 27, 2005 W.G. answered a telephone call from 

appellant’s husband and put down the receiver. When appellant went to get the telephone, W.G. 

accused her of coming to hit her and stated “that she was going to plaster appellant to the wall if 

she came near her again.” M.G. told W.G. that appellant was only trying to get to the telephone. 

The next day M.G. transferred appellant to another office at the bulk mail center which she 

believed was outside her work restrictions. 

By decision dated December 11, 2006, OWCP denied appellant’s emotional condition 

claim. It found that she had not established any compensable factors of employment and, thus, 

she had not established an emotional condition in the performance of duty. OWCP noted that the 

evidence supported appellant’s contention that a coworker, W.G., raised her voice to M.W., a 

supervisor. It also found that the evidence established that W.G. referred to appellant as a princess, 

and that M.W. advised her to ignore W.G.’s actions. OWCP determined, however, that any 

reaction arising from such incidents was self-generated and not compensable. It further found that 

appellant had not factually established her allegation that W.G. yelled at her for using her 

wastebasket, slammed a door, made comments about her husband’s race, or scratched her 

automobile. 

Appellant, on December 11, 2007, requested reconsideration. In a December 6, 2007

statement, J.P., a coworker, related that he was not present when W.G. raised her voice to appellant,

but that he had spoken with her after several incidents and she was clearly upset. He asserted that 

other coworkers witnessed W.G. harassing her, but were afraid to provide statements. After the 

July 27, 2005 incident, appellant was transferred to an office that violated her work restrictions.

By decision dated February 22, 2010, OWCP denied modification of its December 11, 

2006 decision. It noted that it had conducted a merit review of the case as it received appellant’s 

request for reconsideration on December 11, 2007, but did not adjudicate the request until 

February 2010, thus jeopardizing her right to a merit review by the Board. OWCP found that the 

witness statement she submitted from J.P., a coworker, was insufficient to support modification. 

It noted that J.P. recounted that he was not present on the occasions that W.G. raised her voice 

when speaking with appellant. 

On October 13, 2010 appellant again requested reconsideration. In an October 4, 2010 

witness statement, C.L., a union steward, advised that appellant informed her that W.G. yelled at 

her not to use her wastebasket and told her not to speak with her anymore. C.L. discussed the 

situation with M.W., who reassigned appellant to another location.
3

By decision dated November 17, 2010, OWCP denied modification of its February 22, 

2010 decision. It determined that appellant had not established that W.G.’s actions rose to the 

level of verbal abuse or otherwise constituted a compensable work factor.

Appellant, on March 8, 2011, requested reconsideration. She submitted a March 1, 2011 

statement from S.T., her husband. He described appellant’s complaints of harassment by W.G. 

beginning in June 2005. S.T. advised that on July 27, 2005 he telephoned the office and W.G. 

answered. He heard W.G. tell M.G. that she was going to hit her, and M.G. responded that she 

was only going to use the telephone. W.G. stated that if appellant came near her again she intended 

to plaster her against the wall.

By decision dated September 29, 2016, OWCP denied modification of its November 17, 

2010 decision. It found that S.T. did not directly hear or witness the incident and thus his opinion 

was insufficient to show that its prior decision should be modified.

On August 24, 2017 appellant requested reconsideration. In support of her request, she 

submitted a July 10, 2017 report from Dr. Luz Martin, a Board-certified psychiatrist. Dr. Martin 

related that she had treated appellant since October 20, 2003, when appellant saw a supervisor 

assault another employee. She noted that in 2005 she related that a coworker told her that she was 

going to plaster her to a wall and she had an argument with her supervisor about who was the boss. 

The employing establishment reassigned appellant to a loud work area. Dr. Martin noted that 

appellant had repeatedly advised that she experienced stress from her work at the employing 

establishment causing a “loss of sleep, headaches, feeling sick, [and] panic attacks.” She attributed 

her symptoms of PTSD, anxiety, and depression to work stress. 

By decision dated September 8, 2017, OWCP denied appellant’s request for 

reconsideration, finding that she had not raised an argument or submitted evidence sufficient to 

warrant reopening her case for further review of the merits under 5 U.S.C. § 8128(a). It found that 

the medical evidence submitted on reconsideration was not relevant to the underlying factual issue

of whether she had established a compensable work factor.

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 payment of compensation at any time on his own motion or on application.2

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.3

 

2

Id. at § 8128(a).

3 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010).
4

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.4 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.5 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.6

ANALYSIS

OWCP issued its most recent decision on the merits of appellant’s claim on 

September 29, 2016. It received her request for reconsideration on August 24, 2017. Appellant’s 

request for reconsideration was timely filed as it was received within one year of the last merit 

decision issued September 29, 2016.

The issue presented on appeal is whether appellant’s August 24, 2017 request for 

reconsideration met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to 

reopen the case for further review of the merits of the claim. 

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). 

In her August 24, 2017 request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law or advance a relevant legal argument not 

previously considered. She is thus not entitled to a review of the merits of her claim based on the 

first and second above-noted requirements under section 10.606(b)(3).

The Board further finds that appellant did not submit any relevant or pertinent new 

evidence not previously considered. In support of her request for reconsideration, she submitted 

a report dated July 10, 2017 from Dr. Martin. Dr. Martin described her treatment of appellant 

beginning October 20, 2003, and noted that she complained of work stress. She also related that 

she had been reassigned to the bulk mail center, that a coworker told her she was going to plaster 

her to a wall, and that she had argued with her supervisor over who was her manager. Dr. Martin 

attributed appellant’s symptoms of PTSD, anxiety, and depression to work stress. Her history of 

injury, however, is based on appellant’s statements rather than any personal knowledge of events 

at the employing establishment.7 The underlying issue in this case is whether appellant has 

provided sufficient evidence to establish a compensable work factor. This issue is factual in nature. 

Dr. Martin’s medical report is not relevant to the pertinent issue of whether she has established a 

 

4

Id. at § 10.607(a).

5

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

6

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

7 See J.L., Docket No. 16-1914 (issued March 29, 2017).
5

compensable work factor.8 Evidence that does not address the particular issue involved does not 

warrant reopening a case for merit review.9

On appeal appellant notes that one of her witnesses is now deceased and that OWCP 

delayed adjudicating two of her reconsideration requests. She further raises arguments relevant to 

the merits of her claim and requests a polygraph test. The only issue currently before the Board, 

however, is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3) such that 

she would be entitled to a merit review. As found above, 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 submit relevant and pertinent new evidence not previously 

considered. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the September 8, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 10, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

8

Id.; see also G.T., Docket No. 14-0859 (issued August 13, 2014).

9

J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002).