United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.W., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Decatur, GA, Employer 

__________________________________________ 

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Docket No. 17-0071 

Issued: June 16, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 17, 2016 appellant filed a timely appeal from an August 3, 2016 nonmerit 

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

elapsed from the last merit decision dated November 16, 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 the claim. 

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 December 16, 2013 appellant, then a 54-year-old nurse, filed an occupational disease 

claim (Form CA-2) alleging that she developed a respiratory condition as a result of dusty vents 

 1

 5 U.S.C. § 8101 et seq. 
2

and construction on the premises where she worked. She became aware of her condition on 

November 27, 2013 and related it to factors of her federal employment on December 11, 2013. 

Appellant stopped work on December 12, 2013. 

Appellant was treated by Dr. Michael B. Miller, an osteopath, on December 1, 2013, for 

chest tightness, chest burning mid sternum and shortness of breath worsening on exertion. She 

indicated that her symptoms worsened as her workday progressed and resolved when she left 

work. Appellant denied a history of asthma. In a December 11, 2013 examination with 

Dr. Miller, appellant reported that construction was ongoing in an overhead area and that the 

carpet in her work area had been removed causing an increased level of spores. Dr. Miller 

recommended an alternate work area. On April 2, 2014 he advised that appellant’s multiple 

sclerosis was aggravated by environmental exposures. 

Appellant was treated by Dr. Donovan Christie, a Board-certified internist, on 

December 11, 2013 for shortness of breath and prescribed a nebulizer to relieve her reactive 

airway presentation. Appellant reported that there was a construction project underway at her 

workplace. Dr. Christie recommended appellant take two days of leave to ease her exposure to 

allergens. On January 16, 2014 he treated her for multiple episodes of respiratory distress due to 

caustic fume exposure on December 11 and 16, 2013 through the air vents at work. Dr. Christie 

recommended changing appellant’s work environment to a remote location away from noxious 

fumes and indicated that further exposure would damage appellant’s health. He opined that her 

current illness was the result of exposure to elements in her workplace. Dr. Christie indicated 

appellant would be disabled until her work environment changed. In a report dated April 14, 

2014, he opined that she was exposed multiple times to caustic fumes and mold spores 

performing her daily work tasks which affected her respiratory system and neurological 

functioning. Dr. Christie requested reasonable accommodations and that appellant’s workstation 

be moved. He diagnosed systemic mycosis, sleep disturbance, gait abnormality, stress, shortness 

of breath, respiratory conditions, and multiple sclerosis. 

In a decision dated May 14, 2014, OWCP denied appellant’s claim because the evidence 

did not support that the exposure had occurred as alleged. On March 27, 2015 appellant 

requested reconsideration. 

Appellant submitted a June 10, 2014 report from Dr. Christie who diagnosed reactive 

airway disease and occupational asthma. Dr. Christie noted that appellant presented with 

hoarseness and shortness of breath with marked decrease in lung capacity. He recommended 

that she be moved to another building. On February 26, 2015 Dr. Christie treated appellant for 

severe reactive airway disease. He noted that she worked in an area of the hospital which was 

undergoing major construction and renovation which created environmental changes that 

adversely affected appellant. Dr. Christie diagnosed occupationally-induced asthma and 

mycosis. He advised that appellant had been permitted to telework and her condition had 

gradually improved. 

Appellant submitted a September 26, 2013 employing establishment construction bulletin 

which informed personnel of construction activity where appellant worked from September 28 to 

November 14, 2013. A March 27, 2014 environmental spore trap reported no detectable fungal 

spores in the work area. 
3

On July 22, 2015 OWCP vacated the May 14, 2014 decision. It determined that new 

factual and medical evidence submitted established that appellant was exposed to allergens in the 

workplace which caused her injury. In a second decision of even date, OWCP accepted 

appellant’s claim for asthma reactive airway disease. 

On August 11, 2015 appellant filed a claim for compensation (Form CA-7) for total 

disability, for the period February 24 to September 30, 2014.2

 The employing establishment 

advised that she returned to work on May 5, 2014. In a letter dated September 29, 2015, OWCP 

asked the employing establishment to address any periods of wage loss after appellant returned 

to work on May 5, 2014. On November 16, 2015 the employing establishment commented that 

she should not be entitled to compensation after she had returned to work. 

In a decision dated November 16, 2015, OWCP granted appellant’s claim for 

compensation for the period February 24 to May 4, 2014 but denied her claim for compensation 

for the period May 5 to September 30, 2014. It advised that she had returned to work on May 5, 

2014 and had no entitlement to compensation at that point. 

On June 2, 2016 appellant requested reconsideration. She sought compensation for 

doctor visits after she returned to work. Appellant indicated that reports from Dr. Miller and 

Dr. Christie supported that she had environmental exposure to allergens while her workplace was 

undergoing construction which caused her pulmonary condition. She noted that she did not have 

a history of pulmonary conditions and documentation revealed that when she returned to the 

building she experienced bronchospasm, hoarseness, and shortness of breath requiring additional 

treatment. Appellant indicated that the employing establishment granted reasonable 

accommodation for her to telework and her pulmonary status had improved, but that she 

continued to treat with Dr. Christie two to three times a week to monitor her condition. She 

submitted a claim for reimbursement for these appointments. 

Appellant submitted a proficiency report dated May 25, 2016 in which she was rated as 

highly satisfactory. 

Appellant submitted health care certificates from Dr. Christie dated December 18, 2013, 

April 16, 2015, and May 18, 2016. These reflect treatment for shortness of breath, dyspnea on 

exertion, hoarseness, chest tightness, and pulmonary function compromise. Dr. Christie noted 

that this was a lifetime condition with continuing exposure to allergens. He advised that 

appellant could not perform her job functions due to her condition and would require treatment 

visits and medication throughout the year. 

In reports dated June 4, 2015 and January 28, 2016, Dr. Christie indicated that on 

November 27, 2013 appellant had developed a severe case of reactive airway disease due to her 

exposure at work and had a medical history significant for multiple sclerosis. He indicated that 

due to major construction and renovation at appellant’s workplace her pulmonary problems were 

exacerbated when she entered the hospital. Dr. Christie noted that appellant has undergone 

extensive treatment and aggressive intravenous therapy. He opined that it was a medical 

necessity for appellant to have high efficiency heating and air-conditioning units at home to 

 2

 The record indicates that appellant used sick and annual leave for her work absences before February 24, 2014. 
4

maintain air quality and her pulmonary function needs. Dr. Christie advised that appellant 

continued to be monitored with office visits and additional treatments including injections two to 

three times a week and has gradually improved. 

In an August 3, 2016 decision, OWCP denied appellant’s request for reconsideration on 

the grounds that the evidence submitted was insufficient to warrant a merit review. It found that 

the submitted evidence was irrelevant or immaterial to the issue of appellant’s claimed 

employment-related total disability. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,3 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 the OWCP; 

or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”4

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.5

ANALYSIS 

OWCP denied appellant’s claim for compensation for the period May 5 to September 30, 

2014 as appellant had returned to work and the medical evidence did not demonstrate that any 

disability was due to her accepted work injury. Thereafter, it denied her 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. In her May 19, 2016 reconsideration request she sought 

payment for doctor visits after she returned to work. However, appellant did not include dates on 

 3 Supra note 1 at § 8128(a). 

4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.608(b). 
5

which she sought medical treatment for her accepted condition during the claimed period of 

May 5 to September 30, 2014. 

A claimant may be entitled to a merit review by submitting relevant and pertinent new 

evidence. Appellant submitted certificates of health care provider dated December 18, 2013, 

April 16, 2015, and May 18, 2016 from Dr. Christie who treated her for shortness of breath, 

dyspnea on exertion, hoarseness, chest tightness, and pulmonary function compromise. 

Dr. Christie noted that appellant could not perform her job functions due to her condition and 

would require treatment visits and medication throughout the year. Similarly, in reports dated 

June 4, 2015 and January 28, 2016, he indicated that appellant developed severe reactive airway 

disease on November 27, 2013 due to exposure to major construction at her workplace. 

Dr. Christie noted her course of treatment and advised that appellant continued to be monitored 

with office visits and additional treatments as needed and has gradually improved. Although 

these reports are new, they are not relevant because they do not address disability for the claimed 

period from May 5 to September 30, 2014 causally related to her accepted condition. 

Submission of evidence or argument which does not address the particular issue involved does 

not constitute a basis for reopening a case.6

 Therefore, this new evidence is insufficient to 

warrant reopening the case for a merit review. 

Appellant submitted a proficiency report dated May 25, 2016 in which she was rated as 

highly satisfactory. This document is not relevant to the underlying issue of whether appellant 

had any period of disability from May 5 to September 30, 2014 causally related to her accepted 

condition.7 Therefore, this new evidence is insufficient to warrant reopening the case for a merit 

review. 

On appeal, appellant asserts that she was entitled to leave without pay for the time she 

sought medical treatment for her accepted condition after returning to work. As explained, the 

Board does not have jurisdiction over the merits of the claim. 

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). 

 6 See J.G., Docket No. 16-1576 (issued November 18, 2016); Edward Matthew Diekemper, 31 ECAB 224, 

225 (1979).

7 Id. 
6

ORDER 

IT IS HEREBY ORDERED THAT the August 3, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 16, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board