United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Orlando, FL, Employer

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Docket No. 18-1446

Issued: March 6, 2019

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 21, 2018 appellant, through counsel, filed a timely appeal from a January 23, 2018 

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

days has elapsed from OWCP’s last merit decision, dated January 13, 2017, 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 over the merits of this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

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

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

FACTUAL HISTORY

On August 14, 2016 appellant, then a 49-year-old transportation security officer (screener), 

filed an occupational disease claim (Form CA-2) alleging that he developed a bilateral knee

condition as a result of his federal employment duties, including constant bending down on the 

concrete floor and prolonged standing when breaks were stopped for an hour or more. He indicated 

that he first became aware of his claimed condition on October 6, 2010 and first realized on 

February 12, 2016 that it was caused or aggravated by his federal employment. Appellant did not 

stop work.

In a letter dated November 18, 2016, the employing establishment controverted appellant’s 

claim and argued that his bilateral knee injury was not the result of his federal employment, but 

more likely the result of a preexisting service-related medical condition for which he was being 

treated by the Department of Veterans Affairs Medical Center.

By decision dated January 13, 2017, OWCP found that fact of injury had been established, 

but denied the claim because the medical evidence submitted was insufficient to establish causal 

relationship between appellant’s bilateral knee condition and accepted factors of his federal 

employment.

On January 13, 2018 appellant requested reconsideration of his claim.

By decision dated January 23, 2018, OWCP denied appellant’s request for reconsideration

of the merits of his claim.

LEGAL PRECEDENT

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

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 One such limitation is that a request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.5 

A timely request for reconsideration, including all supporting documents, must set forth arguments 

 

3 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).

4 20 C.F.R. § 10.607.

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the “received date” in the integrated 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
3

and contain evidence that either: (i) shows that OWCP erroneously applied or interpreted a 

specific point of law; (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 

When a timely application for reconsideration does not meet at least one of the above-noted 

requirements, OWCP will deny the request for reconsideration without reopening the case for a 

review on the merits.7

ANALYSIS

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

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

Appellant’s January 13, 2018 request for reconsideration neither alleged nor demonstrated 

that OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not 

advance a relevant legal argument not previously considered by OWCP. Appellant requested 

reconsideration on January 13, 2018. He did not submit an additional statement or argument 

supporting his request. Consequently, appellant is not entitled to further review of the merits of 

his claim based on the first and second above-noted requirements under section 10.606(b)(3).8

Appellant also failed to submit relevant and pertinent new evidence not previously 

considered by OWCP. Therefore, OWCP was not required to reopen appellant’s claim for 

reconsideration of the merits in accordance with the third above-noted requirement under section 

10.606(b)(3).9

As appellant did not meet any of the regulatory requirements under 20 C.F.R. 

§ 10.606(b)(3), the Board finds that OWCP properly denied his request for reconsideration

pursuant to 20 C.F.R. § 10.608. 

CONCLUSION

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

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

 

6 20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8 Supra note 6.

9

Id. See also V.H., Docket No. 15-1262 (issued March 18, 2016).
4

ORDER

IT IS HEREBY ORDERED THAT the January 23, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 6, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board