United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.W., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Fresno, CA, Employer 

__________________________________________ 

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Docket No. 16-0033 

Issued: March 3, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 8, 2015 appellant filed a timely appeal from an August 27, 2015 nonmerit 

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

elapsed from the last merit decision of April 1, 2015 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. 

ISSUE 

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

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

On appeal, appellant alleged that he made new legal arguments with his reconsideration 

request and cited new case law. He also argued that his case could be considered under his prior 

case number. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 5, 2012 appellant, then a 57-year-old social worker, filed an occupational 

disease claim (Form CA-2) alleging that he suffered from depression and stress as a result of 

retaliation that he experienced with the employing establishment. Briefly, he alleged that he was 

a victim of sexual assault in November 2009, that he filed a formal complaint about this assault 

with the Equal Employment Opportunity Commission (EEOC), and that since that time he has 

experienced numerous instances of retaliation by the employing establishment. Appellant noted 

the reclassification of his position was withdrawn, he was stripped of his ability to perform his 

job, he was assigned to report to his administrative assistant who had no knowledge of social 

work, he was subject to people searching his office, he was not allowed proper union 

representation, he was humiliated in front of staff he was supposed to be supervising, and he was 

reassigned to a position for which he had no training with only one day notice. 

By decision dated September 23, 2013, OWCP denied appellant’s claim for an emotional 

condition as he failed to establish that it “arose during the course of employment and within the 

scope of compensable work factors as defined by FECA.” Appellant requested a telephone 

hearing, which was held before an OWCP hearing representative on April 14, 2014. 

By decision dated July 2, 2014, an OWCP hearing representative denied appellant’s 

claim for an emotional condition. It noted that although appellant had established that some of 

the alleged incidents occurred, appellant had not established a compensable factor of federal 

employment. Appellant requested reconsideration and in a decision dated April 1, 2015, OWCP 

conducted a merit review of appellant’s claim, but denied modification of its prior decision. 

On May 28, 2015 appellant filed another request for reconsideration. He alleged that he 

was requesting reconsideration based upon additional legal arguments and citation to Board 

decisions. Appellant argued that he had not been given the opportunity to supply missing 

information, that he had provided evidence that the employing establishment acted with error or 

abuse in handling the situations that OWCP classified as administrative actions, and that the 

medical evidence should have been considered. He also argued that his claim in a different 

compensation case should not have been closed, and that his claim was compensable under File 

No. xxxxxx672. Appellant also submitted letters he previously wrote concerning the factors of 

his claim. 

By decision dated August 27, 2015, OWCP denied reconsideration without reviewing the 

merits of appellant’s claim. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

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 

 2 Supra note 1. 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). 
3

pertinent new evidence not previously considered by OWCP.3 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.4

 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.5 

ANALYSIS 

OWCP denied appellant’s claim for an emotional condition as it found that he had not 

established a compensable factor of federal employment. It noted that although appellant did 

establish that certain events did occur, that these events were considered administrative actions 

and that he had not established error or abuse in the handling of these matters by the employing 

establishment. 

When appellant requested reconsideration, he argued that he established a compensable 

factor of employment, that he had not been given the opportunity to supply missing information, 

that he had provided evidence that the employing establishment acted with error or abuse in 

administrative actions, and that medical evidence should have been considered. He set forth his 

argument with citations to Board decisions. Appellant also argued that his case should be 

considered under his prior OWCP case number. 

Appellant alleged that he provided new legal argument not previously considered by 

OWCP. However, OWCP had previously considered whether he had established a compensable 

factor of employment and had already considered the appropriate law with regard to 

administrative actions by the employing establishment. It also properly noted that in the absence 

of a compensable factor of employment in an emotional condition case, the Board does not 

require OWCP to analyze the medial evidence of record.6 The fact that appellant set forth new 

Board case citations does not amount to new legal argument regarding these previously 

considered issues. 

Appellant’s argument that OWCP did not properly develop the case, in that it failed to 

provide him an opportunity to present missing evidence, is also without merit as OWCP sent 

appellant a letter on May 13, 2013 requesting additional information. He was presented with 

another opportunity to correct deficiencies when he requested review of the written record. 

Furthermore, appellant did not submit any pertinent new and relevant evidence with regard to his 

claim. The Board has held that evidence that is repetitive and duplicative of evidence previously 

of record is insufficient to warrant further merit review.7

 Appellant’s evidence merely consisted 

of resubmitted prior statements and arguments he made with regard to his claim. 

 3 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.607(a). 

5 Id. at § 10.608(b). 

6 M.M., Docket No. 15-1221 (issued September 14, 2015). 

7 D.K., 59 ECAB 141 (2007); see also L.K., Docket No. 14-1722 (issued September 29, 2015). 
4

Finally, appellant asks the Board to reopen a different OWCP case that is not currently 

before the Board. The only issue over which the Board may properly exercise jurisdiction is 

whether OWCP properly declined to reopen his case for further merit review under OWCP File 

No. xxxxxx399. 

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 it, and has not submitted relevant and pertinent new evidence not previously 

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

requirements and is not entitled to further merit review.8

CONCLUSION 

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

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

ORDER 

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

Compensation Programs dated August 27, 2015 is affirmed. 

Issued: March 3, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 See L.H., 59 ECAB 253 (2007).