United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.H., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONAL 

INSTITUTE, Berlin, NH, Employer 

__________________________________________ 

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Docket No. 16-1382 

Issued: December 5, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 21, 2016 appellant, through counsel, filed a timely appeal from a May 25, 2016 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 

180 days elapsed from OWCP’s most recent merit decision, dated March 4, 2015, to 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 over the merits of appellant’s claim. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

pursuant to 5 U.S.C. § 8128(a). 

On appeal counsel asserts that the May 25, 2016 decision was contrary to fact and law. 

FACTUAL HISTORY 

On May 10, 2013 appellant, then a 43-year-old senior officer specialist/correctional 

officer, filed a traumatic injury claim (Form CA-1) alleging that on April 24, 2013 she had a 

stress reaction at work due to unfair treatment. She noted that she could not control her 

breathing, became numb, and could not talk due to the alleged unfair treatment. Appellant 

stopped work that day and returned on April 30, 2013. 

Appellant’s supervisor, A.G., controverted the claim. He indicated that on April 24, 2013 

appellant was at a meeting with him and a union official when she became upset. After the 

meeting, she told them she needed to go to the emergency room. In a June 24, 2013 statement, 

A.G. advised that the April 24, 2013 meeting was held to discuss why appellant had been 

temporarily reassigned. He explained that appellant was moved due to a number of complaints 

lodged against her, and for concerns for her safety and security. A.G. noted that the temporary 

move was not disciplinary in nature and that appellant was placed back in her regular post on 

May 7, 2013. 

In an undated statement, appellant alleged that she was treated in a disrespectful manner 

and ignored by employing establishment lieutenants and captains who mistreated her. She 

maintained that she was improperly removed from a position, denied union representation, and 

was generally treated unfairly on numerous occasions since her arrival at the employing 

establishment. Appellant indicated that this caused stress-related conditions including 

hyperventilation and problems with her neck, back, and extremities as well as headaches, 

dizziness, and confusion. She noted that she was filing an Equal Employment Opportunity 

(EEO) claim. Appellant submitted medical evidence including a July 8, 2013 report in which 

Dr. Warren W. Chin, an osteopath, advised that he had seen appellant several times for problems 

at work when she would become very agitated. Dr. Chin diagnosed a conversion-type reaction 

and advised that her workplace was a trigger for the anxiety symptoms. 

By decision dated May 16, 2014 OWCP denied the claim finding that appellant had not 

established an injury in the performance of duty. Appellant timely requested a hearing with 

OWCP’s Branch of Hearings and Review, held on December 16, 2014. Following her review of 

the record and hearing appellant’s testimony, in a March 4, 2015 decision, the hearing 

representative affirmed the May 16, 2014 decision. 
3

On February 29, 2016 appellant requested reconsideration. In an attached statement 

dated February 21, 2016, she asserted that she was placed in a hostile work environment and that 

her claim should be accepted because the employing establishment caused work-related stress.3

In a May 25, 2016 nonmerit decision, OWCP denied appellant’s reconsideration request. 

It noted that she submitted no evidence other than her statement in which she reiterated her belief 

that she was wrongly treated by the employing establishment. 

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.4

 Section 10.608(a) of OWCP’s regulations provides 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)(3).5

 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (i) shows that OWCP 

erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal 

argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new 

evidence not previously considered by OWCP.6 Section 10.608(b) provides that when a request 

for reconsideration is timely filed, 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.7

ANALYSIS 

The only decision presently before the Board is the May 25, 2016 nonmerit decision of 

OWCP denying appellant’s application for further merit review. 

With her February 29, 2016 reconsideration request, appellant merely repeated her 

allegations that she was treated unfairly by the employing establishment. The Board has held 

that the submission of evidence or argument which repeats or duplicates evidence or argument 

already in the case record does constitute a basis for reopening a case.8

 She therefore did not 

show that OWCP erroneously applied or interpreted a specific point of law or advance a relevant 

legal argument not previously considered by OWCP. Consequently, appellant was not entitled to 

a review of the merits of the claim based on the first and second above-noted requirements under 

 3

 Appellant’s reconsideration request was followed by a reconsideration request by counsel on March 1, 2016. 

Counsel attached a copy of appellant’s statement dated February 21, 2016. 

4

 5 U.S.C. § 8128(a). 

 5 20 C.F.R. § 10.608(a). 

 6 Id. at 10.606(b)(3). 

 7 Id. at § 10.608(b). 

8 See L.R., Docket No. 15-1924 (issued September 27, 2016); Eugene F. Butler, 36 ECAB 393, 398 (1984). 
4

section 10.606(b).9

 As to the third above-noted requirement under section 10.606(b)(3), 

appellant submitted no additional evidence. 

As appellant did not show that OWCP erred in applying a point of law, advance a 

relevant legal argument not previously considered, or submit relevant and pertinent new 

evidence not previously considered by OWCP, it properly denied her reconsideration request. 

CONCLUSION 

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

pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the May 25, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 5, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9

 20 C.F.R. § 10.606(b).