United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.C., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

San Diego, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0843 

Issued: July 6, 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 March 4, 2015 appellant filed a timely appeal from a December 18, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from the last merit decision of July 8, 2014 to 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 claim.2

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional evidence following the December 18, 2014 decision. Since 

the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the 

Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 

ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant 

to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2). 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s October 1, 2014 request for 

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

FACTUAL HISTORY 

On March 24, 2014 appellant, then a 48-year-old customs and border patrol (CBP) 

officer, filed an occupational disease claim alleging that she sustained pain in her neck, upper 

back, and right arm while assigned to work “VACIS 1.”3

 She stated that she felt a severe pain in 

her neck, upper back, and right arm and informed her shift supervisor. Appellant went home and 

then to urgent care the next day. She first became aware of her disease and realized it resulted 

from her employment on February 27, 2014. The record does not indicate that appellant stopped 

work. 

In a letter dated April 29, 2014, OWCP advised appellant that no evidence was submitted 

to establish her claim. It requested a detailed description of the specific work factors that she 

believed caused her claimed injury and medical evidence to demonstrate that she sustained a 

diagnosed condition as a result of her employment duties. 

On February 28, 2014 appellant was treated in urgent care by Dr. Emi Misao Latham, 

Board-certified in emergency medicine, who examined appellant for complaints of right neck, 

arm, and shoulder pain. Dr. Latham related that appellant had a previous injury when she 

strained her neck muscles while training at work. Upon examination, she observed no point 

tenderness along the cervical, thoracic, or lumbar spine. Dr. Latham noted palpable muscle 

spasm to the right trapezial area. She stated that appellant had right-sided trapezial muscle 

spasm that appeared to be an exacerbation of an old injury. Dr. Latham noted that it was unclear 

what exacerbated appellant’s condition. 

In a decision dated July 8, 2014, OWCP denied appellant’s claim. It determined that she 

failed to describe the specific work factors that she believed caused or contributed to her claimed 

condition and the type of injury she claimed to have sustained. 

On October 1, 2014 OWCP received appellant’s request for reconsideration. 

In a September 18, 2014 report, Dr. Marc R. Gottlieb, a chiropractor, noted appellant’s 

complaints of discomfort and paresthesia in the upper thoracic, right cervical, and left thoracic 

dorsal areas. Upon examination he observed multiple subluxations with spasm, hypomobility, 

and end-point tenderness. Dr. Gottlieb noted moderate-to-severe spasm upon palpation of the 

muscles. He stated that appellant’s prognosis was guarded and uncertain. 

By decision dated December 18, 2014, OWCP denied appellant’s request for 

reconsideration finding that her request did not meet any of the requirements for further merit 

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

 3

 There is no further explanation in the record as to what “VACIS 1” entailed. 
3

LEGAL PRECEDENT 

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

to review an award for or against compensation.4

 OWCP regulations provide that OWCP may 

review an award for or against compensation at any time on its own motion or upon application. 

The employee shall exercise his or her right through a request to the district OWCP.5

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or 

interpreted a specific point of law; (2) advances a relevant legal argument not previously 

considered by it; or (3) constitutes relevant and pertinent new evidence not previously considered 

by OWCP.6 

A request for reconsideration must also be submitted within one year of the date of 

OWCP’s decision for which review is sought.7

 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or provided an argument 

that meets at least one of the requirements for reconsideration. If OWCP chooses to grant 

reconsideration, it reopens and reviews the case on its merits.8 If the request is timely but fails to 

meet at least one of the requirements for reconsideration, OWCP will deny the request for 

reconsideration without reopening the case for review on the merits.9

ANALYSIS 

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

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

considered by OWCP; and she has not submitted relevant and pertinent new evidence not 

previously considered by OWCP. 

By decision dated July 8, 2014, OWCP denied appellant’s claim finding that she failed to 

describe the specific work factors that she believed caused or contributed to her claimed 

condition and the type of injury she allegedly sustained. On October 1, 2014 it received her 

request for reconsideration. Appellant submitted a September 18, 2014 chiropractor report. The 

Board finds that this evidence is insufficient to review her case on the merits. This 

September 18, 2014 medical report does not mention or describe any of appellant’s work factors. 

 4

 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008). 

5

 20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730 

(issued March 16, 2009). 

6 Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued 

December 9, 2008). 

7 Id. at § 10.607(a). 

8 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 

9 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 
4

The Board notes that the submission of evidence that does not address the particular issue 

involved does not constitute a basis for reopening a case.10 

Appellant did not submit any factual evidence or narrative description of the employment 

factors that she believed caused or contributed to her condition. She did not therefore submit 

new and relevant evidence which would require OWCP to reopen her claim for merit review. 

On appeal, appellant reviewed the medical treatment she had received and related that her 

job required that she stand, sit, twist, turn, bend, squat, and lift things that are heavy at all times. 

The Board notes that appellant on appeal is addressing the merits of her claim. As previously 

stated, the Board does not have jurisdiction to review the merits of her claim. Furthermore, it 

cannot review new evidence which was not presented to OWCP before it issued its final 

decision.11 The Board can only review the December 18, 2014 nonmerit reconsideration 

decision to determine whether OWCP properly denied appellant’s reconsideration request. 

The Board finds that appellant failed to submit relevant and pertinent new evidence, a 

relevant legal argument not previously considered by OWCP, or evidence or argument which 

shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP 

properly refused to reopen her case for further consideration of the merits of her claim under 

5 U.S.C. § 8128(a). 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s October 10, 2014 request for 

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

 10 Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

11 See 20 C.F.R. §§ 501.2(c)(1) and 501.3(e). See also supra note 2. 
5

ORDER 

IT IS HEREBY ORDERED THAT the December 18, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 6, 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