United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.T., claiming as widow of L.T., Appellant 

and 

U.S. POSTAL SERVICE, BULK MAIL 

CENTER, Dallas, TX, Employer 

__________________________________________ 

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Docket No. 14-806 

Issued: May 22, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 1, 2013 appellant filed a timely appeal of a December 4, 2012 decision of the 

Office of Workers’ Compensation Programs (OWCP), denying her application for 

reconsideration without merit review of the claim.1

 Since more than 180 days has elapsed 

between the last merit decision on November 11, 2011 and the filing of this appeal, the Board 

lacks jurisdiction to review the merits of the claim pursuant to the Federal Employees’ 

Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

 1

 The Board initially issued an order dismissing appeal dated May 12, 2014, because appellant had not submitted 

a timely appeal of the December 4, 2012 OWCP decision. By order dated September 9, 2014, the Board reinstated 

the appeal, finding that appellant submitted evidence that the appeal was mailed on May 29, 2013, which was within 

180 days of the December 4, 2012 decision. 20 C.F.R. § 501.3(e) and (f). The Board also issued an order dated 

March 23, 2015, denying appellant’s request for an oral argument. 

2

 5 U.S.C. §§ 8101-8193. 
2

ISSUE 

The issue is whether OWCP properly determined that appellant’s application for 

reconsideration was insufficient to warrant merit review of the claim. 

FACTUAL HISTORY 

On July 31, 1995 the employee, then a 38-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained a back injury in the performance of duty on 

July 15, 1995. He alleged that he was hit in the back with a bag of mail. OWCP accepted the 

claim for a lumbar sprain. The employee returned to a light-duty job and filed a claim for a 

recurrence of disability from April 7 to 26, 1996, which was accepted by OWCP. In a report 

dated September 8, 2004, Dr. Huntly Chapman, a Board-certified orthopedic surgeon, stated that 

the employment-related diagnosis was herniated nucleus pulposus at L4-5 and L5-S1. 

On November 25, 2008 appellant filed a Form CA-7 (claim for compensation) and 

indicated that she was seeking a schedule award (in the claim of her now deceased husband). 

She submitted a report dated November 25, 2006 from Dr. Steven Mueller, a Board-certified 

anesthesiologist, who indicated that the employee had died on November 24, 2006. Dr. Mueller 

reported that the employee had been admitted to the hospital on November 16, 2006, and that the 

primary cause of death was squamous cell carcinoma of the left lung, complicated by regional 

metastases, with involvement of the heart and pericardium. In a report dated December 31, 

2008, an OWCP medical adviser opined that the evidence did not support that the employee’s 

death was causally related to his federal employment. 

On April 2, 2009 appellant filed a Form CA-5 claim for compensation by widow. He 

submitted a death certificate dated November 24, 2006 signed by Dr. Mueller. The immediate 

cause of death was reported as squamous cell carcinoma of the lungs, with contributing factors 

reported as acute respiratory distress syndrome (ARDS), multisystem organ failure, and coronary 

artery disease. Appellant also resubmitted the November 25, 2006 report from Dr. Mueller. 

In a decision dated May 5, 2009, OWCP denied the claim for compensation. It found the 

evidence did not establish that the employee’s death was causally related to federal employment 

or his employment injury. 

Appellant requested reconsideration and submitted an April 29, 2009 report from 

Dr. Chapman, who stated that the employee’s job injury and associated stresses of that injury 

were a “producing cause” of the employee’s problems and ultimate death. 

By decision dated September 10, 2009, OWCP reviewed the merits of the claim and 

denied modification. In a letter dated April 30, 2010, appellant, through her representative, 

requested reconsideration. Appellant argued that the employee had low back problems that 

included herniated discs and multiple medications. The evidence submitted included a 

December 11, 2007 decision from the Department of Veterans Affairs (VA) which indicated that 

the employee’s death was accepted as service related. 
3

In a decision dated August 6, 2010, OWCP reviewed the merits of the claim and denied 

modification. It noted that the issue of whether a herniated disc was employment related was not 

directly relevant to the issue presented of whether the employee’s death was employment related. 

By decision dated June 29, 2011, OWCP found that appellant’s application for reconsideration 

was insufficient to warrant review of the merits of the claim. 

By letter dated August 2, 2011, appellant’s representative again requested 

reconsideration. He argued that the employee had employment-related herniated discs, and the 

herniated discs, increased medication, and elevated pain levels were contributing factors to his 

death. Appellant submitted a July 20, 2011 report from Dr. Chapman, opining that the employee 

had disc herniations, as demonstrated by a June 9, 1999 MRI scan. Dr. Chapman opined that the 

employment injury on July 15, 1995 had aggravated a preexisting condition and caused herniated 

discs. 

By decision dated November 1, 2011, OWCP again reviewed the merits of the claim and 

denied modification. It found the evidence was insufficient to warrant modification of the denial 

of the claim. 

Appellant again requested reconsideration on May 11, 2012. By decision dated May 31, 

2012, OWCP found the evidence was insufficient to warrant a review of the merits of the claim. 

In a letter dated October 29, 2012, appellant requested reconsideration. She stated that 

she was asking for an upgrade from a back sprain to a herniated disc. Appellant resubmitted 

reports dated September 8, 2004 and July 20, 2011 report from Dr. Chapman. She also 

submitted the August 2, 2011 reconsideration request from her former representative. 

By decision dated December 4, 2012, OWCP found the evidence was insufficient to 

warrant merit review of the claim. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

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 evidence not previously considered by OWCP.”4

 20 

C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.5

 3

 5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application”). 

4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
4

ANALYSIS 

In the present case, appellant requested reconsideration of her claim by letter dated 

October 29, 2012. She did not attempt to show that OWCP erroneously applied or interpreted a 

specific point of law, or advance a relevant legal argument not previously considered by OWCP. 

Appellant stated that she wanted to expand the claim to include a herniated disc. She had 

previously argued that the employee (her spouse) had sustained an employment-related herniated 

disc and this was a contributing factor to his death. 

As to the third standard noted above, appellant did not submit relevant and pertinent 

evidence not previously considered by OWCP. The underlying issue in the case was a medical 

issue as to whether the employee’s death on November 24, 2006 was causally related to his 

federal employment or an employment-related injury. The September 8, 2004 and July 20, 2011 

reports from Dr. Chapman were previously submitted and are not new evidence. The August 2, 

2011 reconsideration request had been previously submitted and does not constitute new 

evidence. 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). She 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 

constitute relevant and pertinent evidence not previously considered by OWCP. Pursuant to 20 

C.F.R. § 10.608(b), OWCP properly declined to review the merits of the claim. 

On appeal, appellant resubmitted evidence of record. She argued that the medical 

evidence established her claim. As noted above, the issue before the Board was whether 

appellant had met any of the requirements of 20 C.F.R. § 10.606(b). The Board considered the 

evidence and arguments submitted on reconsideration, and for the reasons stated, the Board finds 

that appellant was not entitled to a merit review of her claim. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant’s application for 

reconsideration was insufficient to warrant merit review of the claim. 
5

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated December 4, 2012 is affirmed. 

Issued: May 22, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board