United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.D., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-0943 

Issued: July 12, 2016 

Appearances: Case Submitted on the Record

Timothy M. Scheffler, Esq., for the appellant 

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 March 18, 20151

 appellant, through counsel, filed a timely appeal from a 

September 24, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As the last merit decision was issued in this case on July 3, 2013, more than 180 days 

before the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2

 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this 

case. 

                                                             1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from September 24, 2014, the date of OWCP’s last decision was 

March 23, 2015. Since using March 25, 2015, the date the appeal was received by the Clerk of the Appellate Boards 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the 

U.S. Postal Service postmark is March 18, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
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). 

On appeal counsel contends that appellant submitted relevant and pertinent new evidence 

in support of his claim. 

FACTUAL HISTORY 

On April 10, 2012 appellant, a 49-year-old air traffic control specialist, filed an 

occupational disease claim (Form CA-2) alleging an emotional condition due to factors of his 

federal employment, including deviation from normal training protocol, a hostile work 

environment, union and management attitude, and political views. 

By decision dated May 25, 2012, OWCP denied the claim as appellant had not 

established fact of injury. A request for a hearing was filed and in an October 19, 2012 decision, 

an OWCP hearing representative vacated the prior decision and remanded the case for further 

development. The hearing representative explained that, although the May 25, 2012 decision 

was correct, appellant had submitted evidence warranting further development. 

Upon further review of the evidence, by decision dated November 29, 2012, OWCP 

again denied the claim for failing to establish fact of injury. It found that the evidence was 

insufficient to establish a compensable factor of employment. 

Appellant again requested a hearing. In a July 3, 2013 decision, an OWCP hearing 

representative affirmed the prior decision. 

On July 29, 2014 appellant, through counsel, requested reconsideration and submitted 

additional evidence in support of his claim, including records from his Equal Employment 

Opportunity (EEO) complaint. Included with these submissions was an October 22, 2013 

transcript for the deposition of a coworker who testified about appellant’s skill checks, training, 

and job performance. The coworker noted appellant’s overall job performance rating and 

discussed protocol and appellant’s involvement. Additionally, appellant submitted an 

October 22, 2013 transcript for the deposition of his trainer, who testified in general about the 

filing of appellant’s training reports and specifically about an event involving a DC 10 landing 

and a Falcon ready to depart. Appellant’s trainer added that he provided appellant with daily 

feedback. 

By decision dated September 24, 2014, OWCP denied appellant’s request for 

reconsideration of the merits finding that he had failed to submit relevant and pertinent new 

evidence sufficient to warrant a merit review. Appellant also failed to show that OWCP had 

erroneously applied or interpreted a point of law or to offer a relevant or legal not previously 

considered by OWCP. 
3

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’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’s application for review must 

be received 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

ANALYSIS 

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

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

On appealcounsel contends that appellant submitted relevant and pertinent new evidence 

in support of his claim. In support of his July 29, 2014 reconsideration request, appellant 

submitted records from his EEO complaint, including October 22, 2013 transcripts for the 

depositions of his coworker and trainer. The Board finds that the deposition transcripts are 

relevant and pertinent new evidence.8 These depositions present factual testimony about 

appellant’s training, job performance, and the culture of his work environment. The underlying 

issue is whether appellant has established a compensable factor of employment. This testimony 

is new and relevant in consideration of whether appellant has established a compensable factor of 

employment. The requirements for reopening a case for merit review do not include the 

requirement that a claimant submit all evidence which may be necessary to discharge his burden 

                                                             3 Id. 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 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).

6 Id. at § 10.607(a). 

7 Id. at § 10.608(b). 

8 See M.W., Docket No. 11-1287 (issued March 26, 2012) (where the Board held that OWCP improperly denied 

the claimant’s request for reconsideration of his emotional condition claim on the basis that the deposition 

transcripts he submitted from an EEO complaint were new and relevant evidence presenting factual testimony about 

the EEO process, the investigation involving the employee’s claim, and the overall culture of the employee’s work 

environment). 
4

of proof. The claimant need only submit evidence that is relevant and pertinent and not 

previously considered.9

 If OWCP should determine that the new evidence submitted lacks 

probative value, it may deny modification of the prior decision, but only after the case has been 

reviewed on the merits.10

Accordingly, the Board finds that OWCP improperly refused to reopen appellant’s case 

for further reconsideration of the merits. This case will therefore be remanded for merit review, 

to be followed by an appropriate decision. 

CONCLUSION 

The Board finds that OWCP improperly 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 September 24, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.11

Issued: July 12, 2016 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             9

 20 C.F.R. § 10.606(b)(3); see J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006). 

10 Id. at § 10.607(a); see also Robert G. Burns, 57 ECAB 657 (2006). 

11 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.