United States Department of Labor

Employees’ Compensation Appeals Board

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H.L., Appellant

and

DEPARTMENT OF THE NAVY, MILITARY 

SEALIFT COMMAND, Norfolk, VA, Employer

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Docket No. 18-0233

Issued: September 20, 2019

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 13, 2017 appellant filed a timely appeal from a July 12, 2017 nonmerit 

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

elapsed from OWCP’s last merit decision, dated July 14, 2016, 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 over the merits of this case.

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 December 30, 2013 appellant, then a 78-year-old boatswain, filed an occupational 

disease claim (Form CA-2) alleging that he lost vision in his right eye due to his federal 

 

1 5 U.S.C. § 8101 et seq.
2

employment dating back to 1973, which included daily exposure to fuel and fumes while in the 

performance of duty. He identified June 20, 2008 as the date he first realized his condition and its 

relationship to factors of his federal employment. Appellant further indicated that his 2013 

employee medical records revealed that he was disabled from work. He voluntarily retired,

effective December 31, 2013. 

In response to its January 15, 2014 development letter, OWCP received additional factual 

and medical evidence, which included employing establishment treatment records from 

January 29, 1999 when appellant was diagnosed with pinguecula/pterygium, and diagnostic 

studies from 2003 and 2004. Also received was an October 18, 2006 report from Dr. Tony Ho, an 

ophthalmologist, diagnosing right (eye) macular hole. 

In an October 3, 2007 report, Dr. Hamid D. Mani, an ophthalmologist, diagnosed fullthickness macular hole (right) and cataracts. OWCP also received diagnostic studies from 

October 2007 through October 2013. Additionally, employing establishment medical records 

from June 2008 through October 2013 included diagnoses of right (eye) macular hole and early 

cataracts, bilaterally. As of October 14, 2013, appellant was declared legally blind in his right eye.

By decision dated May 2, 2014, OWCP denied appellant’s claim. It found that the medical 

evidence of record was insufficient to establish a diagnosis in connection with the injury and/or 

event(s). OWCP noted that it had “not received any medical evidence....” It concluded, therefore, 

that the requirements had not been met to establish an injury as defined by FECA.

On May 1, 2015 appellant’s then counsel requested reconsideration.

By decision dated June 4, 2015, OWCP found that, while appellant established a medical 

diagnosis in connection with his reported employment exposure, he failed to establish causal 

relationship between his claimed eye condition and factors of his federal employment.

On June 6, 2016 appellant requested reconsideration. In support of his reconsideration 

request, he submitted an April 5, 2016 report from Dr. Stanley L. Plecha, Jr., a Board-certified 

ophthalmologist, who diagnosed macular cyst, hole, pseudohole, and nuclear sclerosis.

By decision dated July 14, 2016, OWCP denied modification of the prior decision, finding 

that the additional medical evidence submitted was insufficient to establish causal relationship.

On June 13, 2017 appellant requested reconsideration. He described his various 

employment duties and environmental factors, and provided images of tools he used while 

performing his duties as a boatswain. Appellant also referenced having included additional 

medical evidence regarding a diabetic eye condition, as well as a recent report from Dr. Plecha.

In a July 12, 2017 decision, OWCP denied appellant’s June 13, 2017 request for 

reconsideration, finding that the evidence presented was insufficient to warrant merit review of its 

July 14, 2016 decision.
3

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.2

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.3

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.4 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.5 If the request is timely, but fails to meet at least one of the 

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.6

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 June 13, 2017 request for reconsideration did not show that OWCP 

erroneously applied or interpreted a specific point of law or advance a relevant legal argument not 

previously considered by OWCP. Accordingly, he has not established a basis for further merit 

review under the first and second above-noted requirements of 20 C.F.R. § 10.606(b)(3).

The underlying issue is whether the record established a causal relationship between 

appellant’s right (eye) macular hole and/or bilateral cataracts and his accepted factors of federal 

employment. Although appellant referenced submitting additional medical evidence, there is no 

indication that OWCP received any additional medical evidence. Moreover, the information

OWCP received regarding appellant’s employment duties is not relevant to the underlying medical 

issue. Evidence that does not address the particular issue under consideration does not constitute 

 

2 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

3 20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket 

No. 08-1569 (issued December 9, 2008).

4

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

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 Federal Employees’ Compensation System. Id. at Chapter 2.1602.4b.

5

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

6

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
4

a basis for reopening a case.7 As such, appellant’s newly submitted evidence is insufficient to 

warrant further merit review based on the third above-noted requirement under 20 C.F.R. 

§ 10.606(b)(3). Accordingly, OWCP properly declined to reopen appellant’s case under 5 U.S.C. 

§ 8128(a).

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).

ORDER

IT IS HEREBY ORDERED THAT the July 12, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: September 20, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

7 See S.J., Docket No. 17-1798 (issued February 23, 2018).