United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.T., Appellant 

and 

DEPARTMENT OF THE ARMY, U.S. ARMY 

MEDICAL COMMAND, Fort Hood, TX, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-527 

Issued: April 21, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 9, 2015 appellant filed a timely appeal from a December 19, 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 has elapsed from the date of 

the last merit decision of May 30, 2014 to the filing date of the current appeal on January 9, 2015 

and 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.2 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the December 19, 2014 OWCP decision and on appeal, 

appellant submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP 

at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). 
2

On appeal, appellant contends that OWCP was not diligent in filing evidence, including a 

physician’s report which she submitted with her request for reconsideration. She further argues 

the merits of her claim. 

FACTUAL HISTORY 

On March 29, 2014 appellant, then a 44-year-old food service worker, filed an 

occupational disease claim (Form CA-2) alleging that she sustained a right wrist injury due to 

washing, sanitizing, and rinsing 30 to 40 heavy trays repeatedly for approximately 2.5 weeks in 

the performance of her federal duties. She indicated that the dishwasher was broken and all tray, 

plate, and cup cleaning had to be done manually. 

In an April 8, 2014 letter, OWCP notified appellant of the deficiencies of her claim. It 

afforded her 30 days to submit additional evidence and respond to its inquiries. 

By decision dated May 30, 2014, OWCP denied the claim on the basis that appellant 

failed to establish fact of injury, finding that no factor of employment had been established. 

On July 21, 2014 appellant requested reconsideration and submitted an individual sick 

slip dated June 25, 2014 from a physical therapist who indicated that appellant was injured and 

needed to wear a thumb spica brace during work duties. 

By decision dated December 19, 2014, OWCP denied appellant’s request for 

reconsideration of the merits finding that she did not submit pertinent new and relevant evidence 

and did not show that OWCP erroneously applied or interpreted a point of law not previously 

considered by OWCP. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as 

a matter of right; it vests OWCP with discretionary authority to determine whether it will review 

an award for or against compensation.3

 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).4

 

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

OWCP 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.5

 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

 3 Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against 

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

4 See Annette Louise, 54 ECAB 783, 789-90 (2003). 

5

 20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009). 
3

application for review within one year of the date of that decision.6 When a claimant fails to 

meet one of the above standards, OWCP will deny the application for reconsideration without 

reopening the case for review on the merits.7

 

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record8 and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.9

 

ANALYSIS 

In support of her July 21, 2014 reconsideration request, appellant submitted an individual 

sick slip dated June 25, 2014 from a physical therapist who indicated that she was injured and 

needed to wear a thumb spica brace during work duties. The Board finds that submission of this 

document did not require reopening her case for merit review as it did not contain a medical 

diagnosis and was not focused on whether she had established a factor of her federal 

employment that caused or aggravated her condition, which was the issue before OWCP. 

Therefore, it does not constitute relevant and pertinent new evidence and is not sufficient to 

require OWCP to reopen the claim for consideration of the merits. 

Appellant did not submit any evidence to show that OWCP erroneously applied or 

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

considered by OWCP, nor did she submit any relevant and pertinent new evidence not 

previously considered. The Board finds that she did not meet any of the necessary requirements 

of 5 U.S.C. § 8128(a) and is not entitled to further merit review.10 

On appeal, appellant contends that OWCP was not diligent in filing evidence, including a 

physician’s report which she submitted with her request for reconsideration. As the record 

shows that OWCP did not receive any additional medical evidence from her, the Board finds that 

her argument is not substantiated. 

Appellant further argues the merits of her claim. The Board noted above that it only has 

jurisdiction over OWCP’s December 19, 2014 nonmerit decision which denied her request for 

reconsideration and, therefore, is precluded from conducting a merit review. 

 6 Id. at § 10.607(a). 

7 Id. at § 10.608(b). 

8 See A.L., supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

9 Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 

10 See L.H., 59 ECAB 253 (2007). 
4

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the December 19, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 21, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board