United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.S., Appellant 

and 

U.S. POSTAL SERVICE, OAKLAND 

PERFORMANCE & DISTRIBUTION CENTER, 

Oakland, CA, Employer 

__________________________________________ 

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Docket No. 15-1488 

Issued: November 24, 2015 

Appearances: Case Submitted on the Record

Hank Royal, for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 30, 2015 appellant, through her representative, filed a timely appeal from a 

January 30, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days elapsed from the last OWCP merit decision of February 4, 2014 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 further merit review 

of her claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

 1

 5 U.S.C. § 8101 et seq. 
2

On June 26, 2012 appellant, then a 33-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on June 25, 2012 at 10:20 p.m. she injured her thumb and 

wrist while pushing a pie-cart which did not move because of a broken wheel. She noted that her 

thumb popped and she felt electricity through her hand. Appellant stated that she informed 

Supervisor Garrett Oliver of the injury and went to the hospital. The employing establishment 

controverted the claim, noting that the evidence caused them to believe she planned and set up 

the injury. 

OWCP developed the claim by requesting additional factual and medical evidence from 

appellant and additional evidence from the employing establishment regarding the challenge of 

her claim. Both appellant and the employing establishment submitted additional evidence. 

By decision dated August 13, 2012, OWCP denied appellant’s claim as fact of injury was 

not established. It determined that the evidence was not sufficient to establish that the claimed 

employment incident occurred as described. This was based on timekeeping records, an 

investigation report from the postal inspector general, and sworn statements from coworkers and 

supervisors, which refuted appellant’s statements.2

On September 11, 2012 appellant requested an oral hearing before an OWCP’s Branch of 

Hearings and Review. A hearing was scheduled for December 12, 2012, but appellant did not 

attend. A review of the written record was subsequently conducted by an OWCP hearing 

representative. OWCP’s Branch of Hearings and Review requested that appellant and the 

employing establishment submit additional evidence or arguments. By decision dated 

February 13, 2013, OWCP’s hearing representative affirmed OWCP’s August 13, 2012 decision. 

On June 7, 2013 OWCP received appellant’s May 31, 2013 request for reconsideration 

along with additional evidence. By decision dated February 4, 2014, it denied modification of its 

prior decision. OWCP noted that the evidence on file cast serious doubt about whether the 

June 25, 2012 injury occurred. 

On December 29, 2014 OWCP received appellant’s December 22, 2014 request for 

reconsideration. Appellant’s representative argued that the Board’s August 5, 2014 decision, 

pertaining to the August 19, 2012 claim, contained new legal information which was supportive 

of the current claim. No new evidence was submitted. 

By decision dated January 30, 2015, OWCP denied reconsideration of the February 4, 

2014 decision without reviewing the merits of the case. 

 2

 On December 2, 2012 appellant filed a separate traumatic injury claim under a different OWCP file number 

alleging that on August 19, 2012 she injured her right thumb and wrist while pushing a pie-cart which did not move 

because of a broken wheel. OWCP initially denied that claim on March 13, 2013. Appellant requested a hearing 

before the Branch of Hearings and Review. By decision dated September 13, 2013, an OWCP hearing 

representative affirmed the denial of the claim. By decision dated August 5, 2014, the Board set aside OWCP’s 

September 13, 2013 decision and remanded the case. The Board found that the weight of the factual evidence 

established that the incident of August 19, 2012 occurred as alleged and remanded the case for a determination of 

whether the medical opinion evidence established that the employment incident caused an injury. Docket No. 

14-704 (issued August 5, 2014). 
3

LEGAL PRECEDENT 

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

OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.4 

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

claimant’s application for review must be received within one year of the date of that decision.5

 

However, a right to reconsideration within one year accompanies any subsequent merit decision 

on the issues. This includes any hearing or review of the written record decision, any denial of 

modification following reconsideration, any merit decision by the Board, and any merit decision 

following action by the Board.6

 

If the request is timely but fails to meet at least one of the requirements for 

reconsideration, OWCP will deny the request for reconsideration without reopening the case for 

review on the merits.7

ANALYSIS 

OWCP received appellant’s December 22, 2014 reconsideration request on December 29, 

2014, which is within one year of the last merit decision dated February 4, 2014. Appellant’s 

reconsideration request was therefore timely. The question for determination is whether her 

request met at least one of the three standards for obtaining a merit review of her case. 

By decision dated February 4, 2014, OWCP affirmed the denial of appellant’s June 25, 

2012 injury claim on the basis that the evidence of record was insufficient to establish that the 

event occurred as alleged. The decision noted that the record was not consistent with appellant’s 

version of events and the medical evidence of June 26, 2012 did not contain references to the 

alleged June 25, 2012 injury. 

In appellant’s reconsideration request, her representative noted that the Board issued an 

August 5, 2014 decision, Docket No. 14-704, pertaining to appellant’s August 19, 2012 injury 

claim and that the Board decision contained new legal information which was supportive of the 

present claim. However, this information is irrelevant as the Board’s August 5, 2014 decision in 

the other claim has no bearing on the present claim. Appellant’s representative did not explain 

 3

 Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.607(a). 

6 D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013). 

7

 20 C.F.R. § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 
4

how legal argument presented in the Board’s August 5, 2014 decision was relevant to the present 

claim. Thus, the Board finds that appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law or advanced a relevant legal argument not previously 

considered by OWCP. 

Appellant also has not submitted relevant and pertinent new evidence not previously 

considered by OWCP. It is noted that the instant claim was for an injury which allegedly 

occurred approximately two months prior to the date of injury in appellant’s August 19, 2012 

injury claim. Appellant’s reconsideration request nor the Board’s decision in the other claim 

addressed the issue of whether appellant established fact of injury regarding the June 25, 2012 

alleged employment incident. The Board’s findings regarding the August 19, 2012 injury are 

irrelevant, immaterial, and have no bearing on the issue in the current claim. The Board 

therefore finds that the arguments and evidence submitted to support appellant’s reconsideration 

request do not constitute relevant and pertinent new evidence. 

Appellant did not establish that OWCP erroneously applied or interpreted a specific point 

of law. She did not advance a relevant legal argument not previously considered by OWCP and 

she did not submit relevant and pertinent new evidence not previously considered by OWCP. 

Accordingly, as appellant’s reconsideration request did not meet any of the requirements 

for reopening her case, the Board finds that OWCP properly denied a merit review. The Board 

will affirm OWCP’s January 30, 2015 nonmerit decision. 
5

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for merit review under 

5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the January 30, 2015 decision of the Office of 

Workers Compensation Programs is affirmed. 

Issued: November 24, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board