United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Little Rock, AR, Employer

__________________________________________

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Docket No. 22-0887

Issued: August 23, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 26, 2022 appellant filed a timely appeal from a May 16, 2022 nonmerit decision

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

from OWCP’s last merit decision, dated May 14, 2021, 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 this case.

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).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 16, 2020 appellant, then a 49-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 13, 2020 he sustained a respiratory condition while 

in the performance of duty. The claim form revealed that appellant’s condition was caused when 

he became upset that he was not made aware of curtailed mail when he arrived early to work. On 

the reverse side of the claim form the employing establishment controverted appellant’s claim, 

noting that his alleged injury was caused by his own willful misconduct. He stopped work on 

October 13, 2020.

In a statement dated October 13, 2020, W.B., an employing establishment postmaster, 

indicated that the routes on October 10, 2020 had been curtailed, which was a normal operating 

procedure used to ensure the success of the carriers. He indicated that on October 13, 2020

appellant yelled at D.J., a coworker, about curtailed mail, used profanities, and stormed out of the 

building. W.B. noted that appellant then requested to fill out an incident report to document his 

heart rate and nausea. He indicated that he asked appellant whether he needed an ambulance or a 

ride back to the employing establishment, which he declined.

In a statement dated October 13, 2020, K.B., appellant’s coworker, indicated that she 

observed appellant become angry with W.B. and D.J. over curtailed mail.

In a statement dated October 15, 2020, D.J. indicated that on October 13, 2020 he observed 

W.B. tell appellant that the delivery point sequencing must be completed first and flats should be 

completed last. He noted that he replied that he “could not be there” and was “going to have an 

episode.”

In a work excuse dated October 22, 2020, Dr. Lonnie Robinson, Board-certified in family 

medicine recommended that appellant remain out of work until November 5, 2020.

In an October 26, 2020 development letter, OWCP informed appellant that the evidence 

submitted was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence necessary to establish his claim and attached a questionnaire for his completion. OWCP 

afforded appellant 30 days to submit the necessary evidence.

OWCP thereafter received a letter of transmittal of investigative file dated January 15, 

2009 by the Equal Employment Opportunity Commission (EEOC) with regard to a complaint by 

appellant against J.P., the employing establishment’s postmaster general.

In an information for pre-complaint counseling form dated January 13, 2014, appellant 

described various instances of W.B. retaliating against him following a previous EEOC complaint. 

He noted that he locked him out of the building and arrived late to work, which caused him to have 

to wait in his vehicle for up to one hour in severe cold weather.

OWCP also received a portion of an unsigned, undated settlement agreement and release 

of claims between appellant, J.P., and the employing establishment, which indicated that appellant 

agreed to accept a lump sum of money and, in exchange, W.B. would undergo EEOC antiretaliation training and J.P. would instruct W.B. on the provisions of Section 704(a) of Title VII 

of the 1964 Civil Rights Act (42 U.S.C. § 2000e-3(a)) prior to W.B. resuming his duties.
3

In an attending physician’s report (Form CA-20) dated October 26, 2020, Dr. Robinson, 

diagnosed anxiety related to work stress and recommended that appellant remain out of work from 

October 14 through November 5, 2020.

In a November 3, 2020 response to OWCP’s questionnaire, appellant indicated that he 

believed the employing establishment retaliated against him for taking leave from work on a 

Saturday. He noted that this was not a single incident, and that he had experienced 14 years of 

abuse, which led to a total mental and physical breakdown.

In an unsigned statement, appellant indicated that he was subjected to years of abuse and 

harassment and that he had filed a retaliation complaint against W.B. in 2014. He noted that he 

did not have any problem with two interim Postmasters, R.P. and K.K., but when W.B. returned, 

the harassment continued.

By decision dated November 30, 2020, OWCP denied appellant’s claim, finding that the 

evidence was insufficient to establish a medical condition in connection with the accepted 

employment incident or a psychological condition in connection with claimed work factors. It 

concluded, therefore, that the requirements had not been met to establish an injury as defined by 

FECA.

OWCP continued to receive evidence, including a narrative report by Dr. Robinson dated 

December 2, 2020, who indicated that appellant related complaints of stress and anxiety due to an 

adversarial relationship with his supervisor. Appellant alleged that the supervisor was abusive 

toward him, verbally attacked him, and created a hostile work environment. Dr. Robinson further 

noted that on October 14, 2020 M.C., his nurse practitioner, diagnosed acute stress reaction. On 

October 22, 2020 Dr. Robinson diagnosed anxiety disorderspecifically related to appellant’s work 

environment. Dr. Robinson noted that appellant did not have anxiety in areas of his life outside of 

work, and that the anxiety was specifically caused by the adversarial relationship with his 

supervisor.

In a report dated January 27, 2021, Dr. Veronica Zak, a psychiatrist, noted that appellant 

complained of anxiety, depression, and stress, which he attributed to an incident with his 

supervisor at work in October 2020. She conducted a behavioral health examination and 

diagnosed acute stress disorder, moderate episodes of recurrent major depressive disorder, anxiety, 

panic attack, and insomnia. Dr. Zak recommended counseling and medication management.

In follow-up reports dated February 11 and March 15, 2021, Dr. Zak noted that appellant 

related complaints of stress due to his job duties and conflicts at work. She reiterated her previous 

diagnoses and recommended medication management.

On May 4, 2021 appellant, through counsel, requested reconsideration of OWCP’s 

November 30, 2020 decision.

By decision dated May 14, 2021, OWCP modified its prior decision, finding that the 

evidence of record established that appellant was claiming an emotional condition. It continued 

to deny the claim, however, finding that the evidence of record was insufficient to establish a 

compensable factor of employment “that fall[s] within the performance of duty under the FECA.”
4

On May 12, 2022 appellant requested reconsideration of OWCP’s May 14, 2021 decision. 

In support of his request, he submitted a May 4, 2022 narrative report by Dr. Zak, who diagnosed 

chronic post-traumatic stress disorder (PTSD). She reviewed the essential functions of appellant’s

job and opined that the PTSD was caused by his job duties over the last few years, a fight with his 

supervisor, and a hostile work environment.

By decision dated May 16, 2022, OWCP denied appellant’s request for reconsideration of 

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

neither raised substantial legal questions, nor included new or relevant evidence.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a 

matter of right.2 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.3 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.4

A timely request for reconsideration, including all supporting documents, must set forth 

arguments, and contain evidence that either: (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.5 When a timely request for reconsideration does not meet at least one of 

the above-noted requirements, OWCP will deny the request for reconsideration without reopening 

the case for a review on the merits.6

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).

Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted 

a specific point of law. Moreover, he has not advanced a relevant legal argument not previously 

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607. 

4

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020). 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.

5

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued 

February20, 2020).

6

Id. at § 10.608.
5

considered. Consequently, appellant 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).7

In support of his request for reconsideration, appellant submitted a May 4, 2022 narrative 

report by Dr. Zak. While this medical evidence is new, it is not relevant because it does not address 

the underlying issue of the present case, which is factual in nature, i.e., whether appellant has 

established an emotional condition in the performance of duty, as alleged. 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.8 Consequently, appellant is not entitled to a review of 

the merits based on the third above-noted requirements under 20 C.F.R. § 10.606(b)(3).

The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3).9 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 his claim, pursuant to 5 U.S.C. § 8128(a).

7 C.B., Docket No. 18-1108 (issued January 22, 2019).

8 L.O., Docket No. 21-0030 (issued May 19, 2022);G.K., Docket No. 20-1026 (issued December 11, 2020); M.K., 

Docket No. 18-1623 (issued April10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

9 R.R., Docket No. 20-0378 (issued March 9, 2021); D.M., Docket No. 18-1003 (issued July 16, 2020); Susan A. 

Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening the case for 

a review on the merits).
6

ORDER

IT IS HEREBY ORDERED THAT the May 16, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 23, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board