United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.N., Appellant 

and 

DEPARTMENT OF THE ARMY, ANNISTON 

ARMY DEPOT, Anniston, AL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1258 

Issued: September 14, 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 May 15, 2015 appellant timely appealed a January 14, 2015 nonmerit decision of the 

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

last merit decision of May 1, 2013 to the filing of the current 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. 

ISSUE 

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

review of the merits as his December 22, 2014 request for reconsideration was untimely filed and 

did not demonstrate clear evidence of error 

FACTUAL HISTORY 

This case was previously before the Board.2

 On March 14, 2012 appellant, then a 32-

year-old police officer, filed an occupational disease claim (Form CA-2) for neurological and 

 1

 5 U.S.C. §§ 8101-8193 (2006). 

2

 Docket No. 15-0440 (issued April 14, 2015). 
2

respiratory disorders, which he attributed to exposure to chemical agent resistant coating 

(CARC) paint. He indicated that he first became aware of his illness on October 17, 2007, but it 

was not until October 14, 2011 that he first realized his illness was caused or aggravated by his 

employment. 

By decision dated April 23, 2012, OWCP denied the claim because appellant had not 

factually established his claimed occupational exposure.3

 However, the Branch of Hearings and 

Review set aside the April 23, 2012 decision and remanded the case to OWCP for further 

development regarding whether appellant timely filed his claim. In a November 15, 2012 

decision, OWCP denied appellant’s claim because it was untimely filed. The Branch of 

Hearings and Review affirmed OWCP’s decision on May 1, 2013. 

When the case was last before the Board, OWCP had issued a June 19, 2014 decision 

denying reconsideration. Appellant took issue with the denial of reconsideration and filed an 

appeal with the Board on December 15, 2014. He also filed a request for reconsideration with 

OWCP on December 22, 2014. While the case was pending before the Board, OWCP issued a 

January 14, 2015 decision denying reconsideration. It found that appellant’s latest request for 

reconsideration was untimely filed and failed to present clear evidence of error. 

In a decision dated April 14, 2015, the Board set aside the June 19, 2014 nonmerit 

decision because OWCP neglected to consider evidence appellant submitted on reconsideration.4 

Following the Board’s remand of the claim to OWCP, appellant filed the current appeal 

challenging OWCP’s January 14, 2015 decision denying reconsideration. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.5 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.6 One such limitation is that the application for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

review is sought.7 When a request for reconsideration is untimely, OWCP will undertake a 

limited review to determine whether the application presents clear evidence of error on the part 

of OWCP in its most recent merit decision.8

 

 3

 OWCP also found that the medical evidence did not contain a diagnosis related to appellant’s claimed 

occupational exposure. 

4

 The Board’s April 14, 2015 decision is incorporated herein by reference. 

5

 This section provides in pertinent part: “[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). 

6

 20 C.F.R. § 10.607 (2014). 

7 Id. at § 10.607(a). 

8 Id. at § 10.607(b). 
3

ANALYSIS 

While a case is on appeal to the Board, OWCP has no jurisdiction over the claim with 

respect to issues which directly relate to the issue or issues on appeal.9 Under Docket No. 15-

0440, the Board had jurisdiction over the claim beginning December 15, 2014, and did not issue 

its decision until April 14, 2015. The question before the Board at that time was whether 

appellant established a basis for further review of OWCP’s May 1, 2013 merit decision, which 

denied appellant’s claim as untimely. This is the same issue OWCP addressed in its January 14, 

2015 decision. Accordingly, the Board finds that OWCP lacked jurisdiction when it issued the 

January 14, 2015 decision denying merit review. Therefore, OWCP’s January 14, 2015 decision 

is null and void. 

CONCLUSION 

The Board finds that OWCP did not have jurisdiction over appellant’s claim at the time it 

issued its January 14, 2015 nonmerit decision. Consequently, the January 14, 2015 OWCP 

decision is null and void. 

ORDER 

IT IS HEREBY ORDERED THAT the January 14, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside as null and void. 

Issued: September 14, 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 

 9 Id. at § 10.626; see, e.g., Lawrence Sherman, 55 ECAB 359, 360 n.4 (2004).