United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Los Angeles, CA, Employer

__________________________________________

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Docket No. 23-0902

Issued: November 29, 2023

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

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 20, 2023 appellant filed a timely appeal from an April 5, 2023 merit decision and 

a June 14, 2023 nonmerit decision of the Office of Workers’Compensation Programs (OWCP).1 

Pursuant to the Federal Employees’Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction to consider the merits of this case.

ISSUES

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

condition in the performance of duty on February 1, 2023, as alleged; and (2) whether OWCP 

1 The Board notes that, following the June14, 2023 decisions, OWCP received additional evidence. 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

5 U.S.C. § 8101 et seq.
2

properly denied appellant’s request for reconsideration of the merits of his claim pursuant to 

5 U.S.C. § 8128(a).

FACTUAL HISTORY

On February 18, 2023 appellant then a 53-year-old senior delivery specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on February 1, 2023 he developed mental and 

emotional distress, aggravation of post-traumatic stress disorder (PTSD), depression, anger, 

irritability, paranoia, hopelessness, and rage when his manager, C.C., without contradiction 

allowed and encouraged V.D., a coworker, to harass, intimidate, cause emotional distress and 

mental suffering by blaming him and two other disabled employees for his required overtime 

during a 10 minute “rant” which occurred during an official meeting while in the performance of 

duty.

Appellant provided documentation of his 50 percent Department of Veterans Affairs 

service-connected disability due to PTSD and persistent depressive disorder. He further submitted 

a February 1, 2023 statement addressed to C.C. regarding the 10-minute remarks made by V.D. 

during the official meeting on that date, during which he blamed three employees, including 

appellant, for the overwork of the remaining carriers, as they performed light and limited duty and 

had not “walked for years.” V.D. requested that C.C. take appellant’s route away and asserted that 

the three employees were the reason why he had to work overtime. Appellant alleged that 

management failed to properly manage staffing and attendance, and to prevent harassment and 

intimidation by V.D., resulting in a hostile workplace.

In a February 27, 2023 development letter, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of additional evidence needed, including a detailed 

description of the implicated work factors and copies of any grievance documents related to the 

claim, and provided a questionnaire for his completion. In a separate development letter of even 

date, OWCP also requested that the employing establishment provide information, including 

comments from a knowledgeable supervisor regarding the accuracy of appellant’s allegations. It 

afforded both parties 30 days to respond.

Appellant provided statements dated December 8 and 10, 2018, alleging that temporary 

supervisor, S.C., had not provided him sufficient auxiliary assistance, and was punishing him for 

her mistake, and that she failed to respond to his request to use the restroom at the Wagner station 

in retaliation. He also provided an October 23, 2017 statement alleging that manager U.J. was 

watching him on his route without explanation, which he felt was a form of intimidation given the 

Equal Employment Opportunity Commission (EEOC) complaint he had filed against U.J.

In October 2 and 26, 2017 witness statements, L.F., chief union steward, asserted that 

appellant was instructed by U.J. to keep the mail up front with him following each swing shift and 

she subsequently explained that this went against a memorandum that clearly states that no mail 

was to be kept up front. She further asserted that he had not been given the same respect and 

courtesy from management. 
3

On January 2, 2020 appellant provided a statement in support of his EEOC alleging that 

work was taken from him and given to less disabled carriers. He further alleged hostile treatment 

and retaliation based on race.

In March 11, 2023 statements, appellant alleged that an additional incident occurred on 

March 10, 2023 concerning how overtime on his route was divided between carriers. 

Supervisor R. yelled at him while he was in the middle of the work floor in front of coworkers 

causing him embarrassment and shame because of his physical disabilities. He asserted that this 

was an obvious attempt to shame him in front of his fellow employees. Appellant related that V.D. 

also verbally assaulted him concerning the portion of his route that he wanted to carry for overtime. 

In a separate statement of even date, he reported that Supervisor R. harassed him by repeatedly 

requesting his medical restrictions and criticizing the time he took to case the mail on his route.

On March 14, 2023 Dr. Yun Chong, a psychiatrist, diagnosed severe anxiety due to stress 

and additional PTSD symptoms. On March 23, 2023 he completed an attending physician’s report 

(Form CA-20) diagnosing severe symptoms of anxiety due to PTSD exacerbated by stress. 

Dr. Chong checked a box marked “Yes” indicating that the diagnosed condition was caused or 

aggravated by an employment activity.

On March 29, 2023 the employing establishment responded to OWCP’s development 

letter, and asserted that on February 1, 2023 a carrier was asking questions about routes because 

there were no able bodies on those routes. It disagreed that violations occurred. The employing 

establishment noted that appellant worked four hours a day casing different routes. It further noted 

that the February 1, 2023 meeting concerned carrier performance, and that a carrier asked why the 

burden was being place on those who could carry mail. The employing establishment asserted that 

when appellant began to speak about others, management interrupted him and informed the group 

that there would be no discussion of any individual’s performance or status.

By decision dated April 5, 2023, OWCP denied appellant’s stress-related condition claim, 

finding that he provided vague and general information without supporting evidence, while the 

employing establishment provided multiple statements from eyewitnesses which were in direct 

conflict with his stated sequence of events such that he had not established a compensable 

employment factor. It concluded, therefore, that the requirements had not been met for establishing 

that he sustained an injury as defined by FECA.

On May 11, 2023 appellant requested reconsideration. He submitted additional statements 

regarding the events of the February 1, 2023 meeting. Appellant further explained the basis for 

his disagreement with OWCP’s evaluation of the evidence submitted. He alleged retaliation on 

the part of the claim’s examiner. Appellant also provided copies of text messages requesting 

statements from his coworkers.

On May 18, 2023 J.G., a coworker, responded to a questionnaire prepared by appellant and 

indicated by answering “Yes” that V.D. blamed light-duty or limited-duty carriers for the extra 

overtime that he had been forced to carry, that he mentioned appellant by name, and that C.C. 

allowed him to do so.
4

By decision dated June 14, 2023, OWCP denied appellant’s request for reconsideration of 

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

LEGAL PRECEDENT -- ISSUE 

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim,4including that he or she sustained an injury in the 

performance of duty and that any specific condition or disability from work for which he or she 

claims compensation is causally related to that employment injury. 5 These are the essential 

elements of each and every compensation claim, regardless of whether the claim is predicated 

upon a traumatic injury or an occupational disease.6

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.7

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

somehow related to an employee’s employment.8 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.9 On the other hand, the disability 

is not covered when 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.10

3

Id.

4 L.G., Docket No. 21-0690 (issued December 9, 2021); S.S., Docket No. 19-1021 (issued April21, 2021); O.G., 

Docket No. 18-0359 (issued August7, 2019); J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5 L.G., id.; S.S., id.; G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April10, 2019); T.O., Docket No. 18-1012 (issued 

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

7

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C.,Docket No. 14-1456 (issued December24, 2014); 

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

8

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

9

See S.K., supra note 7; D.T.,Docket No. 19-1270 (issued February 4, 2020); Thomas D. McEuen, 41 ECAB 387 

(1990); Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

10 See S.K., id.; Gregorio E. Conde, 52 ECAB 410 (2001).
5

Appellant’s burden of proof includes the submission of a detailed description of the 

employment factors which he or she believes caused or adversely affected a condition for which 

compensation is claimed.11 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.12 For harassment or discrimination to give rise to a compensable disability under FECA, 

there must be probative and reliable evidence that harassment or discrimination did in fact occur. 13 

Mere perceptions of harassment, retaliation, or discrimination are not compensable under FECA.14

ANALYSIS -- ISSUE

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

condition in the performance of duty on February 1, 2023, as alleged.

Appellant has not attributed his condition to the performance of his regularly or specially 

assigned duties under Cutler.

15

 Instead, he maintained that C.C., his supervisor, did not object to 

or prevent this harassment, resulting in a hostile work environment, and that he experienced 

harassment at work by a coworker, V.D., during a meeting on February 1, 2023.

There is no dispute that on February 1, 2023 there was a carrier meeting at the employing 

establishment chaired by C.C. C.C. confirmed that V.D. spoke during the meeting, but disagreed 

that his remarks rose to the level of harassment. She related that he was asking questions about 

routes because there were no able bodies on those routes, and that he asked why the burden was 

being placed on those who could carry mail. The employing establishment asserted that when 

V.D. began to speak about others, management interrupted him, and informed the group that there 

would be no discussion of an individual’s performance or status. Appellant has not provided any 

evidence such as witness statements supporting his allegations of harassment by V.D. or C.C.’s 

failure to act.16 Consequently he has not established a compensable work factor with respect to 

these allegations.17

11 P.T., Docket No. 14-0598 (issued August 5, 2014).

12 L.S., Docket No. 18-1471 (issued February 26, 2020).

13 R.D.,Docket No. 19-0877 (issued September 8, 2020); T.G.,Docket No. 19-0071 (issued May28, 2019); Marlon 

Vera, 54 ECAB 834 (2003).

14 Id.; see also Kim Nguyen, 53 ECAB 127 (2001).

15 Supra note 9.

16 See E.G., Docket No. 20-1029 (issued March 18, 2022); J.B., Docket No. 07-0664 (issued September 13, 2007).

17 See E.G., id.; D.B., Docket No. 19-1310 (issued July 21, 2020).
6

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

is not necessary to consider the medical evidence of record. 18

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 does not entitle a claimant to review of an OWCP decision as a 

matter of right.19 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.20 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. 21 

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

arguments, and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.22 When a timely application 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.23

ANALYSIS -- ISSUE 2

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

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

On reconsideration, appellant submitted a May 18, 2023 witness statement from J.G., a 

coworker, corroborating the events of the February 1, 2023 meeting and statements of V.D. to 

which he attributed his emotional condition. As this statement addresses the underlying issue of 

whether he experienced a compensable employment event, it constitutes relevant and pertinent 

new evidence that was not previously considered. Therefore, the Board finds that the submission 

18 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 any compensable employment factors). See also Margaret S. 

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

19 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).

20 20 C.F.R. § 10.607.

21 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). See also Chapter 2.1602.4b.

22 Id. at § 10.606(b)(3).

23 Id. § 10.608(a), (b).
7

of this evidence requires reopening of appellant’s claim for merit review pursuant to the third 

requirement of 20 C.F.R. § 10.606(b)(3).24

Consequently, the Board will set aside OWCP’s June 14, 2023 decision and remand the 

case for an appropriate merit decision on appellant’s claim.25

CONCLUSION

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

condition in the performance of duty on February 1, 2023, as alleged. The Board further finds that 

OWCP improperly denied his request for reconsideration of the merits of his claim pursuant to 5 

U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the April 5, 2023 decision of the Office of Workers’

Compensation Programs is affirmed. The June 14, 2023 decision is reversed and the case is 

remanded for further proceedings consistent with this decision of the Board.

Issued: November 29, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

24 Id. at § 10.606(b)(3); see also I.M., Docket No. 22-1287 (issued May 23, 2023); J.T., Docket No. 20-1301 (issued 

July 28, 2021); M.J., Docket No. 20-1067 (issued December 23, 2020).

25 I.M., id.; F.K., Docket No. 21-0998 (issued December 29, 2021).