B.B. and U.S. Postal Service, Post Office, Orlando (Board decision, March 20, 2024)

ECAB final decision. The Board affirmed OWCP's refusal to reopen the claim for merit review. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A postal rural carrier asked OWCP to reconsider an emotional condition claim. She submitted a Social Security disability determination, but the Board found it did not address whether medical evidence connected the condition to the accepted work incident. She presented no new relevant legal argument or medical evidence warranting merit review. The Board affirmed OWCP's refusal to reopen the claim.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a), 20 C.F.R. § 10.606(b)(3), 20 C.F.R. § 10.608.
• Outcome: Merit reconsideration denied.
• Key point: A Social Security disability determination did not supply relevant medical causation evidence for this FECA claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.B., Appellant
)
)
and ) Docket No. 24-0006
) Issued: March 20, 2024
U.S. POSTAL SERVICE, POST OFFICE,
)
Orlando, FL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 4, 2023 appellant filed a timely appeal from an April 7, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from the last merit decision dated March 11, 2022 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.

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).

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.
 FACTUAL HISTORY

On May 7, 2019 appellant, then a 55-year-old rural letter carrier, filed an occupational disease claim (Form CA-2) alleging that she developed post-traumatic stress disorder (PTSD) due to factors of her federal employment. She alleged that she was wrongfully accused of a crime while at work, that she was harassed by customers, and that she was intimidated and pressured by upper management. Appellant noted that she first became aware of her condition on September 15, 2016 and realized its relation to her federal employment on November 15, 2018. She stopped work on February 26, 2019.

In a development letter dated May 23, 2019, OWCP informed appellant of the deficiencies of her claim. It advised her of the type of factual and medical evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30 days to respond.

OWCP thereafter received diagnostic testing and medical records by Dr. Nadia Sadek, a Board-certified family medicine specialist, dated from January 2, 2018 through April 17, 2019 for unrelated medical issues.

In reports dated April 9 and 15, 2019, Dr. Sadek administered depression screenings and diagnosed severe depression.

By decision dated June 24, 2019, OWCP denied appellant’s claim for an employment- related emotional condition, finding that the evidence of record was insufficient to establish that the incidents occurred as alleged. It concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

On July 23, 2019 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

OWCP thereafter received June 4 and August 22, 2019 narrative reports by Dr. Sadek, who diagnosed severe anxiety and PTSD “due to an assault that occurred on [sic] November of 2018 at a hostile work environment.” Dr. Sadek noted that appellant was having trouble sleeping, focusing, and concentrating on the job. She opined that appellant was unable to work and referred her to a psychiatrist.

A hearing was held on October 8, 2019. Appellant testified that in August 2016 a postal customer began building around his mailbox which made it difficult for her to access the mailbox. She reported the issue to management. Appellant related that the customer then accused her of leaving the scene of an accident, so she was suspended for 14 days. When she returned to work, management suspended her again and gave her a final removal letter dated January 14, 2017 with a removal date of January 18, 2017, which she grieved through the union. As a result of the grievance, appellant’s termination was overturned, and she returned to work at the end of August 2018. When she returned to work, she noticed changes to her schedule and that other employees took her postal vehicle, which caused her to be late on her routes. Appellant indicated that in October 2018 a postal customer grabbed her arm while she was delivering his mail and she feared he was going to hit her in the face. She called the police when she returned to the post office, and her supervisor seemed upset that she did not call the police while still at the scene. Appellant related that she became distressed and anxious, so she began seeing a counselor. OWCP’s hearing representative afforded appellant 30 days to submit additional evidence.

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 Appellant, through counsel, submitted a November 5, 2018 arrest affidavit by C.C., a law enforcement officer, who noted that appellant reported that W.S., a postal customer, yelled at her about his missing mail and grabbed her arm. Officer C.C. interviewed W.S., who indicated that he confronted her about his missing mail, grabbed her postal vehicle, and touched her arm. Officer C.C. arrested W.S. for battery.

In a May 19, 2019 narrative report, Sally David, a licensed psychotherapist, indicated that appellant had attended counseling session with her since November 15, 2018. She noted that appellant related a history of being assaulted by a postal customer on November 5, 2018 and did not receive support from her employer, which led her to have aggressive and negative thoughts toward her supervisors. Ms. David further noted that appellant reported a recent recurrence of these negative thoughts, which she attributed to problems on her route and ongoing conflict with a supervisor. She diagnosed major depressive disorder, generalized anxiety disorder, and PTSD. Ms. David opined that appellant was unable to work due to mental health and physical limitations.

In an October 16, 2019 follow-up report, Ms. David noted that appellant reported ongoing negative and aggressive thoughts while driving and in confrontational situations. She indicated that appellant remained unable to work due to mental health limitations.

By decision dated November 12, 2019, OWCP’s hearing representative modified the June 24, 2019 decision, finding that appellant had established that she was touched on her arm by a postal customer while delivering mail, that the customer was arrested, and that she had been diagnosed with anxiety and PTSD. The claim remained denied, however, as the medical evidence of record was insufficient to establish causal relationship between the diagnosed conditions and the accepted employment incident.

On November 8, 2020 appellant, through counsel, requested reconsideration of OWCP’s November 12, 2019 decision.

OWCP thereafter received a May 8, 2019 intake sheet by appellant and medical report of even date by Dr. Sonny V. Joseph, a Board-certified psychiatrist. Dr. Joseph noted that she related symptoms of anxiety, depression, and insomnia with negative thoughts of wanting to hurt people. He diagnosed major depression and treated appellant through January 22, 2020.

By decision dated January 28, 2021, OWCP denied modification of the November 12, 2019 decision.

On January 28, 2022 appellant, through counsel, requested reconsideration of OWCP’s January 28, 2021 decision. In support thereof, counsel submitted a November 16, 2021 psychological evaluation by Dr. Vivian Loret de Mola-Roy, a licensed psychologist, who noted that appellant related symptoms of anxiety, depression, difficulty getting out of bed, and aggressive thoughts toward her supervisors and other individuals from her past that she felt created problems for her. Appellant noted a history of being accused of damaging a customer’s mailbox, after which she was suspended and felt humiliated, and a history of a postal customer grabbing her arm. Dr. Mola-Roy noted behavioral observations, conducted a mental status evaluation, and diagnosed major depressive disorder, generalized anxiety disorder, and PTSD, by history.

By decision dated March 11, 2022, OWCP denied modification of the January 28, 2021 decision.

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 On March 11, 2023 appellant, through counsel, requested reconsideration of OWCP’s March 11, 2022 decision. In support thereof, counsel submitted a March 10, 2022 disability determination by the Social Security Administration Office of Hearings Operations.

By decision dated April 7, 2023, OWCP denied appellant’s request for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a matter of right.3 OWCP has discretionary authority in this regard and has imposed certain limitations in exercising its authority.4 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.5

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.6 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.7

ANALYSIS

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).

Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted a specific point of law. Moreover, she has not advanced a relevant legal argument not previously considered. Consequently, appellant is not entitled to a review of the merits of her claim based on the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).8

3
5 U.S.C. § 8128(a).
4
20 C.F.R. § 10.607.
5
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. 6 Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued February 20, 2020).
7
Id. at § 10.608.
8
See R.L., Docket No. 20-1403 (issued July 21, 2021); M.O., Docket No. 19-1677 (issued February 25, 2020);
C.B., Docket No. 18-1108 (issued January 22, 2019).

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 Furthermore, appellant has not provided relevant and pertinent new evidence in support of her request for reconsideration. On reconsideration she submitted a March 10, 2022 disability determination by the Social Security Administration Office of Hearings Operations. While this evidence may be new, it is irrelevant to the underlying issue of whether appellant has met her burden of proof to establish an emotional condition causally related to an accepted employment incident, which can only be established by s medical evidence.9 Therefore, appellant is not entitled to a merit review based on the third requirement under 20 C.F.R. § 10.606(b)(3).

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 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 April 7, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 20, 2024
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

9
Y.L., Docket No. 20-1025 (issued November 25, 2020); Eugene F. Butler, 36 ECAB 393 (1984); Edward Matthew Diekemper, 31 ECAB 224 (1979).

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