United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.P., claiming as widow of E.P., Appellant 

and 

U.S. CUSTOMS SERVICE, Elk Grove, IL, 

Employer 

__________________________________________ 

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Docket No. 13-2092 

Issued: March 24, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 9, 2013 appellant filed a timely appeal of an August 7, 2013 decision of 

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

reconsideration without merit review of the claim. Since more than 180 days elapsed between 

the last OWCP merit decision on December 20, 2012 and the filing of this appeal,1

 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. 

ISSUE 

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

reconsideration was insufficient to warrant merit review of the claim. 

 1

 As noted in the factual history of the case, the Board reviewed the December 20, 2012 OWCP decision in a 

June 19, 2013 decision. Infra note 3. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

The case was before the Board on two prior appeals. In a decision dated January 26, 

2012, the Board found that the employee was exposed to mold spores on May 23, 1993 in the 

performance of duty.3 The accepted conditions included aggravations of bronchial asthma, 

chronic obstructive pulmonary disease (COPD), arrhythmia, ventricular tachycardia and aphasia, 

as well as a consequential stroke on October 19, 1994. The Board found a conflict in medical 

opinion under 5 U.S.C. § 8123(a) of FECA with respect to whether the employee’s death on 

December 8, 2009 was causally related to her federal employment. The case was remanded for 

referral to a referee physician. 

In a decision dated June 19, 2013, the Board affirmed an OWCP December 20, 2012 

hearing representative’s denial of appellant’s claim. The Board found the weight of the medical 

evidence rested with the referee physician, Dr. Ofelia Alvarez-Willis, a Board-certified internist. 

The history of the case as provided in the Board’s prior decision is incorporated herein by 

reference. 

By letter dated July 30, 2013, appellant, through his representative, requested 

reconsideration. He submitted a June 13, 2013 brief with respect to the claim.4

 In the June 13, 

2013 brief, appellant reviewed in detail the evidence of record and argued that the statement of 

accepted facts (hereinafter SOAF) provided to Dr. Alvarez-Willis did not provide a complete and 

accurate background. He specifically argued that the conditions of coronary atherosclerosis and 

aortic stenosis were accepted conditions that were not identified as accepted conditions in the 

SOAF. In addition, appellant argued that the SOAF was deficient in failing to adequately 

discuss the extensive medical documentation in the file. 

By decision dated August 7, 2013, OWCP determined that the application for 

reconsideration was insufficient to warrant a review of the merits of the claim. It indicated that 

the Board had previously reviewed the SOAF issue. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5

OWCP 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.”6

 20 

 3

 Docket No. 11-1479 (issued January 26, 2012). 

4

 The June 13, 2013 document is addressed to the Board, but this brief was not received and considered by the 

Board prior to the June 19, 2013 decision. 

5

 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”). 

6

 20 C.F.R. § 10.606(b)(2). 
3

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)(2) will be denied by OWCP without review of the 

merits of the claim.7

ANALYSIS 

In the present case, appellant submitted an application for reconsideration and argued that 

the SOAF provided to the referee physician was not sufficient. As noted above, a claimant that 

advances a relevant legal argument not previously considered by OWCP is entitled to a merit 

review of the claim. In the August 7, 2013 decision, OWCP indicated that the argument 

regarding the SOAF was not a new argument as the Board had considered the issue in its 

June 19, 2013 decision 

The Board’s consideration of the issue in the prior decision was limited to appellant’s 

argument that the SOAF did not include a stroke as a consequential injury. As the Board noted, 

the SOAF did refer to a consequential stroke. In the current application for reconsideration, 

appellant raised a new legal argument regarding the SOAF. He advanced the argument that 

specific conditions of coronary atherosclerosis and aortic stenosis were accepted conditions that 

were not identified in the SOAF. This is a new and relevant legal argument, as it is well 

established that a SOAF should state the conditions claimed and accepted by OWCP, so that the 

physician can properly assess the issue presented.8

 OWCP procedures indicate that an essential 

element of the SOAF is to identify the conditions accepted by OWCP.9

The Board finds appellant has advanced a relevant legal argument not previously 

considered by OWCP. Pursuant to 20 C.F.R. § 10.606(b)(2), appellant is entitled to a merit 

review of the claim. The case will be remanded for a decision by OWCP on the merits of the 

claim. 

CONCLUSION 

The Board finds appellant is entitled to a merit review of the claim. 

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

8 Gwendolyn Merriweather, 50 ECAB 411 (1999). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.5 

(September 2009). 
4

ORDER 

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

Compensation Programs dated August 7, 2013 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: March 24, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board