United States Department of Labor

Employees’ Compensation Appeals Board

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A.O., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

U.S. MERCHANT MARINE ACADEMY, 

Kings Point, NY, Employer

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Docket No. 20-0360

Issued: November 5, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On December 3, 2019 appellant filed a timely appeal from a November 7, 2019 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 The most recent merit 

decision in this case was an October 10, 2018 Board decision.2 As there was no merit decision 

issued by OWCP within 180 from the filing of this appeal, pursuant to the Federal Employees’

 

1 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated November 2, 

2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately 

be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-0665 (issued 

November 2, 2020). The Board’s Rules of Procedure provides that an appeal in which a request for oral argument is 

denied by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R. 

§ 501.5(b).

2 The decision of the Board became final after 30 days of issuance, and is not subject to further review. 20 C.F.R. 

§ 501.6(d).
2

Compensation Act (FECA)3and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction 

over the merits of this case.4

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.5 The facts and circumstances of the case 

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

are as follows.

On May 1, 2017 appellant, then a 59-year-old security officer, filed an occupational disease 

claim (Form CA-2) alleging that exposure to toxic substances at the site of the World Trade Center 

(“Ground Zero”) shortly after the September 11, 2001 terrorist attacks caused a malignant 

neoplasm of the right choroid. He noted that he was first diagnosed with cancer on November 25, 

2014 by Dr. Paul T. Finger, a Board-certified ophthalmologist. 

Appellant was separated from employment, effective August 30, 2008. OWCP paid his

wage-loss compensation and medical benefits on the periodic rolls under OWCP File No. 

xxxxxx614, for injuries sustained on December 3, 2004 while arresting a suspect.

In statements dated June 14, 2017, appellant asserted that it was his duty to report to Ground 

Zero immediately after the September 11, 2001 attacks. He provided an undated employing 

establishment award to unspecified personnel for their actions from September 11 to 19, 2001. 

Appellant also provided his official position description, and medical literature regarding cancer 

diagnoses following exposures to various toxins at Ground Zero. 

The employing establishment provided several supervisory statements contending that 

appellant did not participate in official operations at Ground Zero following the September 11, 

2001 attacks. 

By decision dated August 10, 2017, OWCP denied appellant’s claim, finding that fact of 

injury had not been established.

On August 22, 2017 appellant requested reconsideration. He submitted statements dated 

from September 21 to November 10, 2017 contending that he was officially authorized to visit 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that, following the issuance of the November 7, 2019 decision, OWCP received additional 

evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence 

in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be 

considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from 

reviewing this additional evidence for the first time on appeal. Id.

5 Docket No. 18-0558 (issued October 10, 2018), petition for reconsideration denied, Docket No. 18-0558 (issued 

August 12, 2019); Order Dismissing Appeal, Docket No. 18-0355 (issued January 31, 2018). 
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One Police Plaza following the September 11, 2001 attacks as part of assigned intelligence 

gathering activities. Appellant asserted that the employing establishment officials who 

controverted his claim were not in his chain of command. He alleged that he frequently 

communicated with state and federal law enforcement officials as part of his official duties, and

that he was in charge of communicating with the governor’s office to establish a federally staffed 

security perimeter for the employing establishment following the September 11, 2001 attacks.

Appellant also provided an April 6, 2016 affidavit from K.V., an emergency management 

technician, who recalled that during a telephone call on September 11, 2001, appellant advised 

that he was at Ground Zero. In a September 22, 2015 affidavit, M.M., appellant’s former partner 

in the New York Police Department (NYPD), recalled that on several occasions between 

September 15 and October 30, 2001, appellant met him at Ground Zero “in his capacity as police 

chief of a federal agency.”

The employing establishment provided additional supervisory statements. Supervisor J.J. 

contended in a September 6, 2017 statement that appellant would have had to have been on an 

official participation record sheet of personnel authorized to be part of any of the trips to Ground 

Zero, which he could not confirm. Supervisor E.W. provided a September 12, 2017 statement 

emphasizing that he had no recollection that appellant was a part of any official waterborne or onsite support activities. In a letter dated September 13, 2017, the employing establishment 

contended that there were no records, which indicated that appellant participated in any official 

activities at or near Ground Zero. Human Resources Specialist R.V. noted in an October 16, 2017 

e-mail that appellant was not assigned to gather or share intelligence with any law enforcement 

agency after the September 11, 2001 attacks. 

By decision dated November 21, 2017, OWCP denied modification of its prior decision.6

In a letter dated and received by OWCP on November 28, 2017, appellant requested an 

oral hearing or a review of the written record by OWCP’s Branch of Hearings and Review. He 

submitted a September 25, 2001 U.S. Marshals Service special deputation, which appointed him 

to patrol roadways in and adjacent to the employing establishment. Appellant also provided 

documentation of his law enforcement training.

By decision dated January 11, 2018, OWCP denied appellant’s request for an oral hearing 

as he had previously requested reconsideration. After exercising discretion, it further denied the 

request, finding that the issue could be equally well addressed through a request for reconsideration 

before OWCP’s district office. Appellant appealed to the Board.

By decision dated October 10, 2018,7the Board affirmed OWCP’s November 21, 2017 

and January 11, 2018 decisions, finding that the factual evidence of record was insufficient to

 

6 On December 11, 2017 appellant filed an appeal from the November 21, 2017 decision. By order dated

January 31, 2018, the Board dismissed the appeal at appellant’s request. Order Dismissing Appeal, Docket No. 

18-0355 (issued January 31, 2018).

7 Supra note 5. On October 24, 2018 appellant filed a petition for reconsideration. By order dated August 12, 2019, 

the Board denied the petition for reconsideration as no error of law or fact had been cited warranting further 

consideration by the Board. Order Denying Petition for Reconsideration Docket No. 18-0558 (issued 

August 12, 2019).
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establish that appellant was present at the site of the World Trade Center attacks while in the 

performance of duty. The Board further found that OWCP properly denied appellant’s request for 

an oral hearing.

On October 10, 2019 appellant requested reconsideration. He submitted a February 12, 

2018 statement contending that he reported to Ground Zero on September 11, 2001 as a first 

responder under an emergency legal provision. Appellant contended that OWCP should extend 

FECA benefits to him as the Governor of New York had extended sick leave to 9/11 first 

responders in February 2018.

Appellant also provided a copy of his official position description, training and award 

certificates, and reports from a chiropractor and a physical therapist addressing conditions accepted 

under OWCP File No. xxxxxx614. 

The employing establishment responded by October 29, 2019 statement, contending that 

there was no evidence establishing that appellant was present at Ground Zero in the performance 

of duty. It also provided statements dated February 15 and 16, 2018 reiterating that appellant was 

not authorized to travel to Ground Zero.

By decision dated November 7, 2019, OWCP denied appellant’s request for 

reconsideration.

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.8 

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.9 

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

of OWCP’s decision for which review is sought.10 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.11 If the request is timely, but fails to meet at least one 

 

8 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

9 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). 

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

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 Federal Employees’ Compensation 

System (iFECS). Id. at Chapter 2.1602.4b.

11 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
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of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.12

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 has not asserted that OWCP erroneously applied or interpreted a specific point 

of law or advanced a new and relevant legal argument not previously considered. Thus, he is not 

entitled to a 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). 

With his October 10, 2019 request for reconsideration, appellant provided a February 12, 

2018 statement asserting that he had reported to Ground Zero in the performance of duty. 

Appellant also submitted training and award certificates, and reports addressing conditions 

accepted under OWCP File No. xxxxxx614. This evidence is irrelevant to the factual issue of 

whether appellant traveled to Ground Zero in the performance of duty. The Board notes that the 

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

constitute a basis for reopening a case.13 Appellant also submitted a copy of his official position 

description, which was previously of record as of June 20, 2017 and considered by the Board in 

its October 10, 2018 decision. The Board has held that the submission of evidence or argument 

which repeats or duplicates evidence or argument already in the case record does not constitute a 

basis for reopening a case.14

The Board accordingly finds that OWCP properly determined that appellant was not

entitled to further review of the merits of his claim pursuant to any of the three requirements under

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.15

On appeal appellant contends that his official position description established his authority 

to travel to Ground Zero. As explained above, cumulative evidence is insufficient to warrant a 

review of the merits of the claim. 

 

12 Id. at § 10.608(b); L.C., Docket No. 18-0787 (issued September 26, 2019); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

13 L.C., Docket No. 19-0503 (issued February 7, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. 

Nixon-Steward, 52 ECAB 140 (2000).

14 L.C., id.; J.B., Docket No. 18-1531 (issued April 11, 2019); see L.R., Docket No. 18-0400 (issued August 24, 

2018); Candace A. Karkoff, 56 ECAB 622 (2005). 

15 A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued April 10, 2017); A.M.,

Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 

(2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the 

three requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits).
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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 November 7, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 5, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board