United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.P., Appellant

and

GENERAL SERVICES ADMINISTRATION, 

PUBLIC BUILDING SERVICE, 

Kansas City, MO, Employer

__________________________________________

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Docket No. 19-0177

Issued: June 19, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 1, 2018 appellant, through counsel, filed a timely appeal from an August 27, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most 

recent merit decision was a Board decision dated April 6, 2017, which became final 30 days after 

issuance, and is not subject to further review.2 As there was no merit decision by OWCP within 

180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

 

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 20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).

3 5 U.S.C. § 8101 et seq.
2

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review 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

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On September 12, 2013 appellant, then a 62-year-old retired air condition operator/

mechanic, filed an occupational disease claim (Form CA-2) alleging that he was exposed to 

asbestos for 20 years at work and had developed asbestosis.

5

 In a November 19, 2013 decision, 

OWCP initially denied the claim based on appellant’s failure to establish fact of injury. However, 

by decision dated March 21, 2014, an OWCP hearing representative set aside the November 19, 

2013 decision, and remanded the case for further development. Following additional development, 

by decision dated July 16, 2014, OWCP found that while appellant established both components 

of fact of injury, he had not established causal relationship between the accepted employment 

factors and the diagnosed medical condition. That decision was subsequently affirmed by a 

representative of OWCP’s Branch of Hearings and Review, and by decision dated December 16, 

2015, the Board affirmed the hearing representative’s April 27, 2015 decision.6 Although 

appellant established that he was exposed to asbestos during his federal employment and that he 

suffered from asbestosis, the Board found that he had not established causal relationship.7

On May 26, 2016 appellant requested reconsideration and submitted additional medical 

evidence, which included a recent pulmonary function study and a May 17, 2016 narrative report 

from Dr. Gregory G. Hickey, a Board-certified internist and pulmonologist, who diagnosed 

chronic obstructive pulmonary disease, chronic rhinitis, and chronic pneumoconiosis due to 

asbestos and other mineral fibers.

By decision dated August 25, 2016, OWCP denied modification of its prior decision.

Appellant appealed to the Board. By decision dated April 6, 2017, the Board affirmed OWCP’s 

August 25, 2016 decision denying appellant’s claim.8 The Board found that the medical evidence 

 

4 Docket No. 17-0090 (issued April 6, 2017); Docket No. 15-1826 (issued December 26, 2015).

5 Appellant retired from the employing establishment, effective October 15, 1999.

6 Docket No. 15-1826 (issued December 16, 2015).

7

Id.

8 Docket No. 17-0090 (issued April 6, 2017).
3

of record failed to establish causal relationship between appellant’s diagnosed medical condition 

and the accepted asbestos exposure at work.

On March 19, 2018 appellant, through counsel, requested reconsideration of the April 6, 

2017 merit decision. In support of the request, counsel submitted a recent pulmonary function 

study and a January 11, 2018 narrative report from Dr. Linas Vaitkus, a Board-certified internist 

specializing in pulmonary disease. Counsel related that appellant was seen for assessment of 

asbestosis. Dr. Vaitkus reviewed appellant’s history and noted that he had 22 years of asbestos 

exposure working for the government. He provided examination findings and noted that a chest 

computerized tomography (CT) scan from 2016 showed asbestosis and pleural plaques.

Dr. Vaitkus also reviewed the results of a January 11, 2018 pulmonary function study. He

diagnosed chronic obstructive pulmonary disease, chronic rhinitis, chronic pneumoconiosis due to 

asbestos and other mineral fibers, and contact with exposure to asbestos, and pleural plaque with 

presence of asbestos.

By decision dated August 27, 2018, OWCP denied further merit review of appellant’s 

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

LEGAL PRECEDENT

Section 8128(a) of FECA9 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 payment of compensation at any time on his own motion or on application.10 

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

provide evidence or an argument that: (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.11 

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

OWCP’s decision for which review is sought.12 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.13 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.14

 

9 Supra note 1.

10 5 U.S.C. § 8128(a).

11 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

12 Id. at § 10.607(a).

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

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

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 did not show that OWCP erroneously applied or interpreted a specific point of 

law and did not advance a relevant legal argument not previously considered by OWCP. 

Consequently, he is not entitled to further review of the merits of his claim based on the first and 

second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

In support of his reconsideration request, appellant submitted a January 11, 2018 report by

Dr. Vaitkus. He provided examination findings and reported diagnoses of chronic obstructive 

pulmonary disease, chronic rhinitis, chronic pneumoconiosis due to asbestos and other mineral 

fibers, contact with exposure to asbestos, and pleural plaque with presence of asbestos. The Board 

finds that Dr. Vaitkus did not provide an opinion or discussion regarding whether appellant’s 

medical conditions were causally related to his accepted employment exposure. The January 11, 

2018 diagnostic pulmonary function study similarly fails to address causal relationship. The Board 

notes that the submission of evidence that does not address the particular issue involved does not 

constitute a basis for reopening a case.15 Accordingly, appellant is not entitled to a review of the 

merits of his claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3). 

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.16

On appeal counsel asserts that OWCP’s delay in ruling on the March 19, 2018 request for 

reconsideration cost appellant his appeal rights. As noted, the last merit decision of record was 

issued by the Board on April 6, 2017, and is not subject to further review by the Board.17 Counsel 

waited more than 11 months before requesting reconsideration and, as discussed above, failed to 

present sufficient evidence or argument to warrant further merit review. Although OWCP issued 

its August 27, 2018 nonmerit decision more than 90 days after counsel requested reconsideration, 

under the circumstances the approximate two-month delay did not jeopardize appellant’s right to 

a review of the merits of the case by the Board.18

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).

 

15 Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

16 See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 

58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

17 See supra note 2.

18 See E.I., Docket No. 18-0634 (issued January 23, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.7a (October 2011).
5

ORDER

IT IS HEREBY ORDERED THAT the August 27, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 19, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board