United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.G., claiming as widow of J.G., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 16-1338 

Issued: February 23, 2017 

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 June 14, 2016 appellant filed a timely appeal from a May 9, 2016 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP).1

 As more than 180 days have 

elapsed from the last merit decision of OWCP dated June 30, 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 to review the merits of this case.3

 1

 Appellant submitted additional evidence with her appeal. The Board’s jurisdiction is limited to reviewing the 

evidence that was before OWCP at the time of its final decision. Therefore, this additional evidence cannot be 

considered by the Board. 20 C.F.R. § 501.2(c)(1). 

2

 5 U.S.C. § 8101 et seq. 

3

 Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After exercising its 

discretion, the Board, by a December 19, 2016 order, denied appellant’s request for an oral argument before the 

Board, noting that her arguments on appeal could be adequately addressed in a Board decision based on a review of 

the case record as submitted. Order Denying Request for Oral Argument, Docket No. 16-1388 (issued 

December 19, 2016). 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s reconsideration request under 

5 U.S.C. § 8128(a). 

On appeal, appellant contends that all the evidence submitted in the record of evidence, to 

establish her children as disabled, has not been reviewed. 

FACTUAL HISTORY 

On January 27, 2003 appellant, through former counsel, filed a survivor’s claim (Form 

CA-5) seeking compensation for her husband’s, the former employee’s, November 16, 2000 

death.4

 Counsel indicated that the nature of injury which caused the employee’s death was 

malignant mesothelioma. A death certificate listed the immediate cause of death as malignant 

mesothelioma due to occupational asbestos exposure. 

On November 17, 2003 OWCP accepted that the employee died due to mesothelioma 

while in the performance of duty. Appellant elected to receive FECA benefits effective 

November 17, 2000 in lieu of benefits from the Office of Personnel Management. 

In an October 1, 2011 letter, appellant requested augmented compensation benefits for 

her disabled adult son and daughter, both of whom were incapable of self-support. She noted 

that both children received Social Security Administration (SSA) disability benefits due to their 

mental disabilities. 

By letter dated January 17, 2012, OWCP requested additional information from appellant 

to determine whether her children were eligible for compensation beyond their 18th birthday. It 

advised that compensation could continue to be paid on behalf of an unmarried child age 18 or 

older who was either a full-time student or incapable of self-support. OWCP requested a 

medical report from a physician fully describing the mental or physical disability which caused 

the incapacity for self-support, when the disability began, and an estimate of its probable 

duration. 

Appellant submitted evidence which addressed her son’s and daughter’s paranoid 

schizophrenia, learning disability, medical treatment, and disability. By letter dated June 25, 

2014, the VA addressed the daughter’s monthly benefits due to her permanent incapacity for 

self-support. 

In an October 4, 2004 letter, Dr. Jennifer Heitkamp, a psychiatrist, indicated that she had 

treated appellant’s daughter since February 2, 2001. She noted, however, that the daughter had 

been in treatment on and off since approximately age nine for her lifelong and chronic 

schizophrenia. 

 4

 The record indicates that the employee alleged exposure to asbestos during his military service and federal 

employment. He worked as a pipefitter at the employing establishment from 1992 until his voluntary retirement on 

September 2, 1994. 
3

In a June 30, 2015 decision, OWCP denied appellant’s claim for augmented 

compensation. It found that the medical evidence of record failed to establish that her son and 

daughter were incapable of self-support at the time of the employee’s death to the present time. 

On April 28, 2016 appellant requested reconsideration. She contended that her daughter 

was entitled to compensation benefits because she received SSA disability benefits and 

Department of Veterans Affairs (VA) benefits due to her schizophrenia. Appellant related that 

the VA benefits were for being a “helpless child.” 

In a May 9, 2016 decision, OWCP denied further merit review of appellant’s claim. It 

found that the evidence of record was irrelevant or immaterial and failed to advance a relevant 

legal argument not previously considered or demonstrate legal error by OWCP. 

LEGAL PRECEDENT 

Section 8128 of FECA vests OWCP with a 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.5

 Section 10.608(b) of OWCP’s regulations provide that a timely 

request for reconsideration may be granted if it determines that the claimant has presented 

evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).6

 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (1) shows that OWCP 

erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument 

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

previously considered by OWCP.7

 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.8

ANALYSIS 

Appellant disagreed with OWCP’s denial of her claim for augmented compensation for 

her disabled, adult son and daughter. She requested reconsideration and asserted that her 

children were incapable of self-support. 

The Board finds that appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, appellant did not advance a relevant legal 

argument not previously considered. In her April 14, 2016 request for reconsideration, she 

asserted that her daughter was entitled to augmented compensation because she had 

schizophrenia for which she received SSA and VA disability benefits. Appellant maintained that 

 5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.608(a). 

 7 Id. at § 10.606(b)(3). 

8 Id. at § 10.608(b). 
4

she received the VA benefits because she was a “helpless child.” The Board finds that these 

assertions do not show a legal error by OWCP or constitute a new and relevant legal argument.9

The underlying issue in this case is whether appellant submitted sufficient medical 

evidence establishing that her adult son and daughter were incapable of self-support due to 

mental or physical disability at the time of the employee’s death.10 This is a medical issue which 

must be addressed by relevant new medical evidence.11 However, appellant did not submit any 

relevant and pertinent new medical evidence with her request for reconsideration showing a 

mental or physical disability which caused her disabled children’s incapacity for self-support. 

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit 

review.12 

On appeal, appellant contends that all the evidence submitted in the record, to establish 

her children as disabled, has not been reviewed. As noted above, the Board lacks jurisdiction to 

review the merits of this case. The only issue on appeal is whether OWCP properly denied 

appellant’s request for further merit review of her claim. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s reconsideration request under 

5 U.S.C. § 8128(a). 

 9 See H.S., 58 ECAB 554 (2007) (the determination of an employee’s rights or remedies under other statutory 

authority does not establish entitlement to benefits under FECA). 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation to Children, Chapter 2.700.8(c) 

(July 2000). 

11 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

12 See L.H., 59 ECAB 253 (2007). 
5

ORDER 

IT IS HEREBY ORDERED THAT the May 9, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: February 23, 2017 

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