United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.D., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, CENTERS FOR DISEASE 

CONTROL & PREVENTION, Atlanta, GA, 

Employer 

__________________________________________ 

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Docket No. 14-1196 

Issued: May 6, 2015 

Appearances: Case Submitted on the Record

Patricia Champion, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 29, 2014 appellant, through her representative, filed a timely appeal of an 

April 10, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) 

denying her request for reconsideration of the merits of her claim. As more than 180 days 

elapsed from issuance of the last merit decision of OWCP to the filing of this appeal, the Board 

has no jurisdiction over the merits of the case. Pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board will review the 

April 10, 2014 nonmerit decision. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s claim for merit 

review under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. §§ 8101-8193. 
2

On appeal, appellant asserts that OWCP erred in denying merit review because she 

submitted evidence establishing that the employing establishment committed error and abuse in 

failing to process her applications for promotion appropriately. 

FACTUAL HISTORY 

This case has previously been before the Board. In a November 17, 2005 decision, the 

Board found that OWCP properly refused to reopen appellant’s case for further consideration of 

the merits of her claim pursuant to 5 U.S.C. § 8128(a).2 In a January 14, 2008 decision, the 

Board found that, as her March 2, 2007 reconsideration request was not timely filed and she 

failed to establish clear evidence of error, OWCP properly denied a merit review of her claim in 

its May 3, 2007 decision.3

 In a December 5, 2012 decision, the Board found that appellant did 

not meet her burden of proof to establish that she sustained an emotional condition in the 

performance of duty because she did not establish a compensable factor of employment and 

affirmed a January 12, 2012 OWCP decision.4

 In a November 14, 2013 decision, the Board 

found that she did not meet her burden of proof to establish that she sustained an emotional 

condition in the performance of duty causally related to factors of her federal employment and 

affirmed an April 25, 2013 OWCP decision.5

 The facts of the case as set forth in the prior Board 

decisions are incorporated herein by reference. 

On December 19, 2013 appellant requested reconsideration and asserted that the 

employing establishment committed error when she was not considered for promotion. She 

submitted correspondence dated August 22, 2002, addressed to her by the employing 

establishment. The correspondence stated: 

“This correspondence is to advise [appellant] that you have been authorized to 

receive priority consideration for the position of Human Resources Assistant, 

GS-203-07, Atlanta or next substantially similar position. This consideration has 

been authorized due to an administrative error that was made in association with 

announcement number MP2-01-164. Specifically, an error was made in 

 2

 Docket No. 05-754 (issued November 17, 2005). On February 25, 2002 appellant, a health communications 

specialist who last worked on January 16, 2002, filed an occupational disease claim, alleging that factors of her 

federal employment caused an emotional condition. The claim was adjudicated by OWCP under file 

number xxxxxx622. In a September 26, 2002 decision, OWCP denied the claim, finding that appellant did not 

establish that she sustained an emotional condition in the performance of duty. Appellant retired in 2003. By 

decision dated October 21, 2003, an OWCP hearing representative found that appellant established one factor as 

compensable, that from March 24 to 26, 1999, she and other workers were required to put together approximately 

80 two-inch binders in a short turnaround time and was not provided adequate instruction. The hearing 

representative, however, found that the medical evidence of record did not support that her condition was caused by 

the one accepted employment factor. In a nonmerit decision dated November 9, 2004, OWCP denied appellant’s 

reconsideration request. This was affirmed by the Board in its November 17, 2005 decision, Docket No. 05-754. 

3

 Docket No. 07-2002 (issued January 14, 2008). 

4

 Docket No. 12-860 (issued November 5, 2012). 

5

 Docket No. 13-1522 (issued November 14, 2013). The Board found that appellant submitted insufficient 

evidence to show that the employing establishment committed error when she was not considered for a promotion. 
3

evaluating [appellant’s] basic qualifications and you were inappropriately rated as 

not qualified.” 

The August 22, 2002 letter described the applications procedures for prior consideration and 

concluded with the statement: 

“I sincerely regret that this error occurred and I apologize for any inconvenience 

and disappointment that has been caused.” 

In a nonmerit decision dated April 10, 2014, OWCP denied appellant’s reconsideration 

request. It found that the evidence submitted did not contain a relevant legal argument not 

previously considered. OWCP related that in its April 25, 2013 decision it advised appellant 

“even if it did happen, it is not compensable since the desire to work in a particular position is a 

self-generated reaction and it is not compensable.” 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.6

 Section 10.608(a) of the Code of Federal Regulations provide that a 

timely request for reconsideration may be granted if OWCP determines that the employee has 

presented evidence and/or argument that meets at least one of the standards described in section 

10.606(b)(2).7 This section provides that the application for reconsideration must be submitted 

in writing and 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.8 Section 10.608(b) provides that, when a request for 

reconsideration is timely but fails to meet at least one of these three requirements, OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits.9

ANALYSIS 

The only decision before the Board in this appeal is the nonmerit decision of OWCP 

dated April 10, 2014 denying appellant’s application for review. Because there is no OWCP 

merit decision within the Board’s jurisdiction, the Board lacks jurisdiction to review the merits 

of her claim.10 

 6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.608(a). 

8 Id. at § 10.608(b)(1) and (2). 

9 Id. at § 10.608(b). 

10 Supra note 1. 
4

The Board finds that the August 22, 2002 correspondence from the employing 

establishment is pertinent evidence not previously considered by OWCP. The correspondence 

acknowledged that the employing establishment made an “administrative error” with regard to 

whether appellant was qualified for a job. The underlying merit issue in this case is whether 

appellant established that she sustained an emotional condition causally related to factors of 

employment. In the April 10, 2014 decision, OWCP related that the April 25, 2013 decision 

advised her “even if it did happen, it is not compensable since the desire to work in a particular 

position is a self-generated reaction and it is not compensable.” A reading of the April 25, 2013 

decision indicates that, in that decision, OWCP indicated that it found a statement by appellant’s 

attending psychiatrist, Dr. A. Benjamin Eubanks, who indicated that the employing 

establishment made an error, of no probative value. The correspondence dated August 22, 2002, 

is relevant and pertinent new evidence regarding whether the employing establishment 

committed error or abuse in an administrative matter, eligibility for a promotion, an assertion 

appellant made in her claim.11

As appellant has submitted evidence that is pertinent to the merit issue in this case that 

was not previously considered by OWCP, she is entitled to a review of the merits of her claim 

under section 10.606(b)(2) of OWCP’s regulations.12 The case shall therefore be remanded to 

OWCP to consider whether the August 22, 2002 correspondence from the employing 

establishment is sufficient to establish an employment factor which may give rise to a 

compensable disability under FECA. The Board will therefore set aside OWCP’s April 10, 2014 

decision. After this and such further development deemed necessary, OWCP shall issue an 

appropriate merit decision. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for a merit review 

pursuant to section 8128(a) of FECA. 

 11 Administrative and personnel matters, although generally related to the employing establishment, are 

administrative functions of the employing establishment rather than the regular or specially assigned work duties of 

the employee and are not covered under FECA. Charles D. Edwards, 55 ECAB 258 (2004). Where the evidence 

demonstrates that the employing establishment either erred or acted abusively in discharging its administrative or 

personnel responsibilities, such action will be considered a compensable employment factor. Kim Nguyen, 53 

ECAB 127 (2001). 

12 20 C.F.R. § 10.606(b)(2); see T.F., Docket No. 10-1701 (issued May 3, 2011). 
5

ORDER 

IT IS HEREBY ORDERED THAT the April 10, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for 

proceedings consistent with this decision of the Board.13 

Issued: May 6, 2015 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 13 Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member 

of the Board effective December 27, 2014.