United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.T., Appellant 

and 

DEPARTMENT OF THE INTERIOR, BLMREGULAR EMPLOYEE FUNCTIONS 

NEVADA STATE OFFICE, Reno, NV, Employer 

__________________________________________ 

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Docket No. 16-0340 

Issued: October 24, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 15, 2015 appellant filed a timely appeal from a November 30, 2015 

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

180 days elapsed from the last merit decision dated June 10, 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.2

ISSUE 

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

the merits of his claim under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional evidence after OWCP rendered its November 30, 2015 

decision. 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 on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E. 

Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 
2

FACTUAL HISTORY 

On September 3, 2002 appellant, then a 34-year-old wild land firefighter, filed an 

occupational disease claim (Form CA-2) alleging that he developed scarring of the lungs and 

restrictive lung disease as a result of his federal employment duties. He explained that his 

condition developed from 11 years of wild land firefighting, sometimes in heavy smoke and 

toxic chemicals, along with a burn injury in 1996 which injured his lungs.3 Appellant stopped 

work on July 14, 2002 and did not return. The record does not reflect that appellant received 

compensation benefits on the supplemental or periodic rolls. 

By decision dated March 4, 2003, OWCP accepted the claim for smoke inhalation. 

On April 26, 2015 appellant filed a claim for recurrence of disability (Form CA-2a) 

alleging a return/increase of disability on April 20, 2015. He explained that he was 

retired/disabled and had not returned to work, but that on April 20, 2015 he had difficulty 

breathing and sought emergency treatment, at which time he was diagnosed with restrictive lung 

disease. 

By letter dated May 6, 2015, OWCP informed appellant that the evidence of record was 

insufficient to support his recurrence claim. Appellant was advised of the medical and factual 

evidence needed and was afforded 30 days to submit the additional evidence. 

In a May 11, 2015 narrative statement, appellant related that he injured his lungs on 

August 27, 1996 when he was fighting a wildfire in Nevada. He explained that over the past 10 

years he had been suffering from shortness of breath, which had worsened during the last few 

months. On April 20, 2015 appellant sought emergency treatment and underwent a series of 

tests. At the request of his physician, he returned to the emergency room on April 22, 2016 with 

increased shortness of breath. Appellant remained in the hospital until May 2, 2015 when he was 

diagnosed with restrictive lung disease. He was sent home with 100 percent oxygen treatment 

which he was required to use 24 hours a day, 7 days a week. 

In an April 23, 2015 diagnostic report, Dr. Saadia Akhtar, Board-certified in internal 

medicine, reported that lung volumes revealed mild-to-moderate restrictive ventilator impairment 

and spirometry revealed reduced forced vital capacity (FVC) suggesting restriction. 

In a May 1, 2015 St. Luke’s hospital emergency report, Linda J. Gould, a nurse 

practitioner (NP), diagnosed restrictive lung disease, joint pain, and other nonspecific abnormal 

finding of lung fluid. 

By decision dated June 10, 2015, OWCP denied appellant’s claim for recurrence because 

the medical evidence submitted failed to establish that his alleged disability was due to a material 

change/worsening of his accepted work-related conditions. 

 3

 The Board notes that on August 2, 1996, appellant filed a traumatic injury claim (Form CA-1) for burns suffered 

in a work-related injury. OWCP accepted the claim for second and third degree burns of the finger, hands, and arms 

(bilateral) in OWCP File No. xxxxxx797. On April 26, 2000 OWCP expanded the claim to include post-traumatic 

stress disorder. Following these injuries, appellant returned to work as a firefighter. 
3

Appellant requested reconsideration of OWCP’s decision on November 20, 2015. In an 

accompanying narrative statement, he explained that he was requesting reconsideration based on 

recent medical testing and results showing that his progressive disability of interstitial lung 

disease was caused by his work-related injury. Appellant stated that he was enclosing the 

required documents including recent pulmonary function test results, hospital notes, pathology 

reports, and physicians’ statements. The record before the Board, however, contains no 

additional documents. 

By decision dated November 30, 2015, OWCP denied appellant’s request for 

reconsideration. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

the OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP regulations 

provides that when an application for reconsideration does not meet at least one of the three 

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.5

ANALYSIS 

The Board finds that the refusal of OWCP to reopen appellant’s case for further 

consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an 

abuse of discretion. 

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 his application for reconsideration, appellant did not allege that OWCP erroneously 

applied or interpreted a specific point of law. He did not advance relevant legal argument which 

had not previously been considered. The decisive issue in this case was whether appellant was 

disabled on or after April 20, 2015 due to a worsening of his accepted work-related smoke 

inhalation condition. That is a medical issue which must be addressed by relevant medical 

evidence.6

 Appellant, however, failed to submit relevant and pertinent new medical evidence in 

support of his claim.7

Appellant alleged that he had submitted additional medical reports in support of his 

claim. However, his reconsideration request was not accompanied by any additional medical 

 4 D.K., 59 ECAB 141 (2007). 

5 K.H., 59 ECAB 495 (2008). 

6 C.B., Docket No. 08-1583 (issued December 9, 2008). 

7 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
4

evidence and no other evidence was received by OWCP. A claimant may obtain a merit review 

of an OWCP decision by submitting pertinent new and relevant evidence.8 In this case, appellant 

failed to submit any pertinent new and relevant evidence addressing a recurrence of disability 

due to his accepted employment injury beginning April 20, 2015.9

 

On appeal, appellant alleges that work caused his interstitial lung disease and submitted 

additional evidence in support of his claim. As previously noted, 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). 

CONCLUSION 

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

the merits of his claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decision dated November 30, 2015 is affirmed. 

Issued: October 24, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 See E.M., Docket No. 16-0471 (issued May 16, 2016). 

9 L.J., Docket No. 14-523 (issued August 7, 2014).