United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.I., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CITIZENSHIP & IMMIGRATION SERVICES, 

New York, NY, Employer 

__________________________________________ 

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Docket No. 17-0759 

Issued: July 6, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 21, 2017 appellant filed a timely appeal from a January 17, 2017 nonmerit 

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

elapsed from the last merit decision dated November 30, 2015, 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 to review the merits of this case. 

ISSUE 

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

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

FACTUAL HISTORY 

On June 14, 2015 appellant, then a 33-year-old immigration services officer, filed an 

occupational disease claim (Form CA-2) alleging that she developed mycoplasma pneumonia as 

 1

 5 U.S.C. § 8101 et seq. 
2

a result of dirty air-conditioning vents in her office. She became aware of her condition on 

March 28, 2015 and realized that it was causally related to her federal employment on 

June 14, 2015. Appellant did not stop work. 

In a statement dated August 9, 2015, appellant indicated that she was diagnosed with 

pneumonia on March 28, 2015. She indicated that she started using her office two weeks prior, 

which was in an internal space, and it was necessary to keep the door closed during interviews. 

Appellant noted that she performed interviews about 15 hours a week in an office without cross 

ventilation. She indicated that she missed eight days of work and continued to be followed by a 

physician. 

Appellant submitted March 28, 2015 note from Dr. Phillip Hubel, Board-certified in 

emergency medicine, who treated her on March 28, 2015 for a medical concern and advised that 

she could not participate in physical training activities for a week. 

Appellant was treated by Dr. Michele Leder, a Board-certified internist, on March 30, 

2015, who noted that she was ill and was unable to work from March 30 to April 2, 2015. On 

April 2, 2015 Dr. Leder noted treating appellant for many years and indicated that on March 28, 

2015 she was treated for pneumonia. She advised that appellant was progressing well and would 

have ongoing evaluations. 

Appellant was treated by Dr. Bruce Levitt, an osteopath, on August 16, 2015 for 

mycoplasma pneumonia. She reported that coworkers had the same medical condition. 

Dr. Levitt recommended evaluating the work setting to determine if steps should be taken to 

prevent this from occurring again. 

By letter dated October 5, 2015, OWCP requested that appellant submit additional 

information including a comprehensive medical report from her treating physician which 

included a reasoned explanation as to how the specific work factors or incidents identified by 

appellant had contributed to her claimed injury. 

Appellant submitted a November 2, 2015 report from Dr. Levitt who treated appellant 

since July 2015 for mycoplasma pneumonia which was diagnosed by chest x-ray. She reported 

other people in her work setting were also ill. Dr. Levitt indicated that it was not unreasonable to 

conclude that pneumonia was acquired in her work setting. 

In an undated statement, appellant indicated that she was moved from a cubicle to an 

office in March 2015. She noted that the office was used as a storage space prior to her 

relocation. Appellant was diagnosed with pneumonia on March 28, 2015 and she believed it was 

due to a pathogen in her office. She indicated that the office was not properly ventilated and she 

conducted interviews with the door closed for several hours a day. Appellant noted not being 

exposed to irritants outside of work and indicated that she has mild exercise-induced asthma 

controlled with medicine. 

In a decision dated November 30, 2015, OWCP denied appellant’s claim finding that, 

while she had established the employment factors occurred, she did not provide sufficient 

medical evidence to establish that her claimed condition was causally related to the established 

work factors. 
3

On October 25, 2016 appellant requested reconsideration and submitted an Occupational 

Safety and Health Indoor Air Quality Assessment. The assessment noted that there was 

inadequate ventilation in the offices, the supply vents were not operating, the return vent was 

visibly soiled with dust and debris and the surfaces in the space were covered with dust and 

debris. The heating, ventilation and air-conditioning filtration system was determined to be 

operating effectively. 

In a January 17, 2017 decision, OWCP denied appellant’s request for reconsideration as 

the evidence submitted was insufficient to warrant a merit review. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review 

on the merits. It must exercise this discretion in accordance with the guidelines set forth in 

section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may 

obtain review of the merits of his or her written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence which: 

“(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.”3

Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.4

ANALYSIS 

OWCP denied appellant’s occupational disease claim because she failed to establish that 

her claimed medical condition was related to the established work-related events. Thereafter, it 

denied appellant’s reconsideration request, without a merit review. 

The issue presented on appeal is whether appellant met any of the requirements of 

20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the 

claim. In her request for reconsideration, appellant did not show that OWCP erroneously applied 

or interpreted a specific point of law. She did not identify a specific point of law or show that it 

was erroneously applied or interpreted. Appellant did not advance a new and relevant legal 

argument not previously reviewed by OWCP. She submitted an Occupational Safety and Health 

Indoor Air Quality Assessment and referenced the air quality in her office and the photographs 

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.608(b). 
4

and charts. These assertions do not show a legal error by OWCP or a new and relevant legal 

argument. The underlying issue in this case is whether appellant developed an occupational 

disease causally related to factors of her employment. That is a medical issue which must be 

addressed by relevant new medical evidence.5

With respect to the third requirement, submitting relevant and pertinent new evidence not 

previously considered by OWCP, appellant, as noted, submitted an Occupational Safety and 

Health Indoor Air Quality Assessment. While this assessment is new to the record, this factual 

report is not relevant because the underlying issue, causal relationship, is medical in nature.6

 

Evidence that does not address the particular issue involved does not constitute a basis for 

reopening a case.7

 OWCP denied the claim because appellant did not submit sufficient medical 

evidence to establish that her workplace exposure caused or aggravated her claimed condition. 

Submission of this factual report is not relevant to the underlying medical issue. Therefore, this 

new evidence is insufficient to warrant reopening the case for a merit review. 

On appeal appellant asserts that her request for reconsideration was timely filed within 

one year of the decision dated November 30, 2015 and therefore her request was declined in 

error. The Board notes that her timely request for reconsideration was denied because the 

evidence submitted was insufficient to warrant a merit review, not because it was untimely filed. 

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

20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advance a relevant legal argument not previously considered by OWCP, 

or constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 

C.F.R. § 10.608, OWCP properly denied merit review. 

CONCLUSION 

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

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

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

6 See W.D., Docket No. 09-658 (issued October 22, 2009) (causal relationship is a medical issue). 

7 C.N., Docket No. 08-1569 (issued December 9, 2008). 
5

ORDER 

IT IS HEREBY ORDERED THAT the January 17, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 6, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board