United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.R., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

HEALTH CLINIC, INDUSTRIAL HYGIENE 

DIVISION, Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 14-554 

Issued: February 19, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 13, 2014 appellant filed a timely appeal from the September 13, 2013 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her 

request for further review of her claim. As more than 180 days elapsed from the last merit 

decision of March 18, 2013 and 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.2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for 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 appellant submitted evidence after the issuance of the September 13, 2013 decision. The 

Board lacks jurisdiction to review evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On February 5, 2013 appellant, then a 46-year-old industrial hygienist, filed a traumatic 

injury claim alleging that on February 4, 2012 she injured her back when, while transporting Girl 

Scout cookies with two shopping carts, she hit a fire lane pole. She alleged that this incident 

aggravated a prior employment-related injury from 2002.3

 The employing establishment 

controverted the claim and alleged that the injury did not occur at work. 

By decision dated March 18, 2013, OWCP denied appellant’s claim. It found that, 

although she established that she filed a timely claim and that the evidence supported that the 

injury or event occurred as described, she had not submitted any medical evidence containing a 

medical diagnosis in connection with the event of February 4, 2012. OWCP further noted that, 

even if fact of injury had been established, appellant’s case would still be denied as the evidence 

shows that she was not in the performance of duty when the accident of February 4, 2012 

occurred. Finally, OWCP noted that, even if the claim were accepted, she would nevertheless 

not be entitled to continuation of pay as the claim was filed more than 30 days after the date of 

her claimed injury. 

By letter dated June 30, 2013, appellant submitted a request for reconsideration. She 

argued that the claim was not a new injury but rather a reinjury of an injury that occurred on 

February 6, 2001. Appellant submitted e-mail correspondence with regard to her leave requests. 

She also resubmitted a copy of a claim for occupational disease she signed on October 16, 2012. 

By decision dated September 13, 2013, OWCP denied reconsideration as it found that the 

evidence presented on reconsideration was not sufficient to warrant review of the March 18, 

2013 decision. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

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.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 

application for review within one year of the date of that decision.6

 When a claimant fails to 

 3

 OWCP No. xxxxxx683. 

 4 5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[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.” 5 U.S.C. § 8128(a). 

5 20 C.F.R. § 10.606(b)(2). 

6 Id. at § 10.607(a). 
3

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

reopening the case for review on the merits.7

ANALYSIS 

OWCP denied appellant’s claim for compensation as she failed to establish a medical 

condition causally related to the incident of February 4, 2012. It also denied her claim because it 

found that she was not in the performance of duty at the time of the alleged incident. As 

previously noted, the Board does not have jurisdiction over the merits of the claim and may only 

address whether OWCP abused its discretion by declining to review the merits of appellant’s 

claim. 

The Board finds that appellant has not submitted evidence or argument sufficient to 

support her request for reconsideration. Her e-mails with regard to requesting leave are not 

relevant to the underlying decision on the claim. Appellant’s claim was denied because she had 

failed to submit medical evidence to establish an injury causally related to the February 4, 2012 

incident and because she had not established that she was in the performance of duty when the 

incident occurred. The evidence submitted on reconsideration did not address either of these 

relevant issues. As to the copy of the occupational disease claim, this is duplicative of the form 

already submitted and as such does not constitute relevant and pertinent new evidence not 

previously considered by OWCP.8

 

The Board finds that appellant has not shown that OWCP erroneously applied or 

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

considered by OWCP, and has not submitted relevant and pertinent new evidence not previously 

considered by OWCP. Accordingly, the Board finds that she did not meet any of the necessary 

requirements and is not entitled to further merit review.9

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

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

 7 Id. at § 10.608(b). 

8 See A.M., Docket No. 14-125 (issued March 24, 2014). 

9 See L.H., 59 ECAB 253 (2007). 
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ORDER 

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

Compensation Programs dated September 13, 2013 is affirmed. 

Issued: February 19, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board