United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.G., Appellant 

and 

U.S. POSTAL SERVICE, FORT DEARBORN 

STATION, Chicago, IL, Employer 

__________________________________________ 

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Docket No. 15-1375 

Issued: September 3, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 8, 2015 appellant, through counsel, filed a timely appeal of an April 16, 2015 

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

180 days elapsed between November 7, 2013, the date of OWCP’s most recent merit decision, 

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 appellant’s 

claim. 

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 April 16, 2015 decision was contrary to fact and law. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In an order dated July 25, 2013, the 

Board found the case not in posture for decision as the record did not contain evidence from the 

employing establishment, which had been cited in an OWCP September 16, 2011 decision. The 

Board remanded the case to OWCP to obtain the aforementioned evidence.2 In an October 23, 

2014 decision, the Board found that appellant had not established an occupational disease in the 

performance of duty and affirmed a November 7, 2013 OWCP decision.3

 The findings of the 

previous Board decisions and orders are incorporated herein by reference. 

On February 18, 2015 appellant, through counsel, requested reconsideration and 

submitted evidence previously of record including statements by Coworkers Caroline Travis and 

Nancy Morrow, and a grievance settlement decision dated September 23, 2010. In an undated 

statement, appellant generally alleged that her claim should be accepted. She also submitted a 

partial October 11, 2013 nursing triage report completed by Olivia Szymczak, a May 20, 2014 

statement from a friend, Aurora Volkmann-Arendt, who advised that appellant had no problems 

with irritations since she retired, and the first page of a grievance appeal. In a May 16, 2014 

report, Dr. Steven Wolf, an attending Board-certified internist, advised that he had treated 

appellant since January 2010 and that it was likely that atmospheric contaminants at work caused 

skin rashes on a recurrent and regular basis. 

In a nonmerit decision dated April 16, 2015, OWCP denied appellant’s reconsideration 

request. It found the evidence submitted was either duplicative or irrelevant and, therefore, 

insufficient to warrant merit review. 

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 provide 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 

 

 2 Docket No. 13-658 (issued July 25, 2013). On December 20, 2010 and January 5, 2011 appellant, then a 53-

year-old mail processing clerk, filed occupational disease claims alleging that she had been exposed to ongoing 

chemical irritants at work that caused face, eye, and neck problems. After an initial denial on April 6, 2011, in a 

June 20, 2011 decision, an OWCP hearing representative remanded the case for OWCP to obtain additional 

information from the employing establishment regarding testing and investigation of chemical irritants in the 

workplace. In a September 16, 2011 decision, OWCP indicated that correspondence regarding alleged chemical 

exposure was found in OWCP file number xxxxxx808 which indicated that an investigation had been conducted. 

On June 11, 2012 an OWCP hearing representative affirmed the September 16, 2011 decision, and in a merit 

decision dated January 3, 2013, OWCP denied modification of the prior decisions. 

3

 Docket No. 14-1178 (issued October 23, 2014). 

4

 5 U.S.C. § 8128(a). 

 5

 20 C.F.R. § 10.608(a). 
3

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 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 before the Board in this appeal is the nonmerit decision of OWCP 

dated April 16, 2015 which denied appellant’s application for review. It follows that because 

there is no OWCP merit decision before the Board it lacks jurisdiction to consider the merits of 

appellant’s claim.8 

The Board finds that, as appellant did not assert that OWCP erroneously applied or 

interpreted the law and did not advance a relevant legal argument not previously considered by 

OWCP, and that she was not entitled to a merit review of the merits of her claim based on the 

first and second requirements under section 10.606(b)(3).9

 

With respect to the third above-noted requirement under section 10.606(b)(3), appellant 

submitted some evidence previously of record that had been reviewed by OWCP and the Board. 

This included statements by Coworkers Travis and Morrow, and a grievance settlement decision 

dated September 23, 2010. Evidence or argument that repeats or duplicates evidence previously 

of record has no evidentiary value and does not constitute a basis for reopening a case.10 

Appellant also submitted a partial October 11, 2013 nursing triage report and a May 20, 

2014 statement from a friend, who advised that appellant had no problems with irritations since 

she retired. A medical report is considered probative evidence if there is a clear indication that 

the person completing, signing, and dating the report qualifies as a “physician” as defined in 

section 8102(2) of FECA. That provision provides that the term “physician” includes surgeons, 

podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by State law.11 Lay persons such as 

Ms. Volkmann-Arendt and nurses like Ms. Szymczak are not physicians. These reports 

submitted by appellant are, therefore, not competent medical evidence. Likewise, the first page 

of the grievance appeal is not relevant to the merit issue of whether appellant established an 

occupational disease causally related to her federal employment. The grievance form is as it is 

incomplete and merely demonstrates, at most, that an appeal was filed. 

 

 6 Id. at § 10.608(b)(3). 

 7 Id. at § 10.608(b). 

8 Id. at § 501.3(e). 

9 Id. at § 10.606(b)(3); see R.M., 59 ECAB 690 (2008). 

10 J.P., 58 ECAB 289 (2007). 

11 5 U.S.C. § 8102(2); see Roy L. Humphrey, 57 ECAB 238 (2005); Jaja K. Asaramo, 55 ECAB 200 (2004). 
4

In his May 16, 2014 report, Dr. Wolf, an attending internist, advised that he had been 

treating appellant since January 2010 and that it was likely that atmospheric contaminants at 

work caused skin rashes on a recurrent and regular basis. He previously submitted similar 

opinions reviewed by both OWCP and the Board.12 Appellant, therefore, has not submitted 

relevant and pertinent new evidence not previously considered by OWCP. 

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, OWCP properly denied her reconsideration 

request.13

CONCLUSION 

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

consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the April 16, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 Supra notes 2 and 3. 

13 Supra note 8.