United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.V., Appellant

and

DEPARTMENT OF AGRICULTURE, U.S. 

FOREST SERVCE, MONTEREY RANGER 

DISTRICT-LOS PADRES NATIONAL 

FOREST, King City, CA, Employer

__________________________________________

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Docket No. 19-0990

Issued: August 26, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 4, 2019 appellant filed a timely appeal from an October 30, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed from OWCP’s last merit decision, dated August 15, 2018, 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 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board s Rules of Procedure. 20 

C.F.R. § 501.5(b). By order dated August 19, 2020, the Board exercised its discretion and denied the request, finding 

that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying 

Request for Oral Argument, Docket No. 19-0990 (issued August 19, 2020).

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

FACTUAL HISTORY

On February 20, 2018 appellant, then a 59-year-old administrative assistant, filed an 

occupational disease claim (Form CA-2) alleging that she developed pneumonia with right lung 

septic pneumonia due to factors of her federal employment which she indicated occurred after 

working in smoke from a forest fire and around coworkers who were sick and coughing. She noted 

that she first became aware of her condition and its relationship to factors of her federal 

employment on January 5, 2018. Appellant did not stop work.

In a March 5, 2018 development letter, OWCP informed appellant of the deficiencies of 

her claim. It advised her of the type of factual and medical evidence necessary to establish her 

claim and attached a questionnaire for her completion. In a separate letter, OWCP requested the 

employing establishment to respond to the accuracy of appellant’s claim and to supply any 

additional information surrounding the forest fire. It afforded both parties 30 days to submit the 

requested factual and medical evidence.

OWCP received Mee Memorial Hospital records noting that appellant was admitted on 

January 6, 2018 for a fever and flu-like symptoms. A history and physical summary indicated that 

appellant reported five days of general malaise, low-grade fever, and shortness of breath. 

Laboratory and diagnostic test results were summarized. A computerized tomography (CT) scan 

dated January 6, 2018 noted findings including mild right pleural effusion, and pulmonary mass 

vs. fluid within the minor fissure region. A discharge summary dated January 7, 2018 indicated 

that appellant was discharged with a number of diagnoses including congestive heart failure and 

questionable pneumonia.

Medical records from the Salinas Valley Memorial Hospital note that appellant was 

hospitalized on January 9, 2018 for an admitting diagnosis of pneumonia and discharged on 

January 18, 2018 with a diagnosis of chronic respiratory failure secondary to parpneumonic 

effusions. Numerous diagnostic reports from this hospitalization were submitted to the record.

Additional records from the Mee Memorial Hospital dated February 5, 2018 note that 

appellant was admitted again for shortness of breath and general malaise. Appellant had indicated 

that she was to return to work that morning, but felt too weak and unwell. A diagnosis of possible 

recurrent pneumonia was noted.

A February 5, 2018 emergency room (ER) order summary from the Salinas Valley 

Memorial Hospital, noted that appellant had been sent to the ER from Mee Memorial Hospital 

following complaints of trouble breathing and chest x-rays which showed fluid on her lungs. 

Appellant had been admitted to the hospital following a diagnosis of pneumonia.
3

In a February 9, 2018 Salinas Valley Memorial Hospital operative report, Dr. Neil D. 

Rudo, a Board-certified surgeon and vascular surgeon, diagnosed acute empyema and noted that 

appellant had undergone a right thoracotomy with decortication.

In a March 8, 2018 statement, appellant alleged that a virus she contracted while working 

on a forest fire developed into sepsis pneumonia. She indicated that she worked in close proximity 

to a number of sick people while assigned to her fire assignment dispatch for two weeks. Appellant

noted that the desks in the trailer were placed close together, she was fine when starting the 

assignment, and “deathly sick” after 14 days.

OWCP received numerous additional medical records from Salinas Valley Memorial 

Hospital including nursing, consultation, and diagnostic records relating to her hospitalization 

from February 5 to 20, 2018. Additional diagnostic testing, including a February 6, 2018 CT scan 

report of appellant’s lungs, found possible right-sided pleural effusion, a February 7, 2018 

ultrasound report with findings of recurrent right pleural effusion, and February 13, 2018 vascular 

report diagnosing right basilica vein occlusive thrombus with no evidence of right upper extremity 

deep venous thrombosis.

A February 20, 2018 summary discharge report related that appellant was initially admitted 

for shortness of breath and chest pain. Appellant was diagnosed with empyema and she underwent 

a right thoracotomy and decortication. She was evaluated for a suspicious appearing structure on 

the aortic valve, which was not confirmed. The Salinas Valley Hospital records included 

numerous other documents relating to diagnostic tests.

On May 18 2018 the employing establishment’s District Ranger, T.S., submitted a May 17, 

2018 letter in response to OWCP’s request for additional information. T.S. replied that appellant’s 

“relative to this claim appear accurate”; that although there were no known or harmful substances, 

appellant was exposed to “atmospheric smoke”; that she was “also exposed to other sick people in 

her workplace before becoming ill herself”; and that no air samples are available. 

By decision dated August 15, 2018, OWCP denied appellant’s occupational disease claim,

finding the medical evidence of record insufficient to establish that her diagnosed sepsis 

pneumonia was causally related to the accepted factors of her federal employment.

Subsequent to the denial of her claim, appellant resubmitted medical records from Mee 

Memorial Hospital pertaining to her January 6, 2018 hospitalization.

On September 28, 2018 appellant requested reconsideration.

By decision dated October 30, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
4

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.3

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.4

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

OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.6 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.7

ANALYSIS

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

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

Appellant filed a timely request for reconsideration on September 28, 2018. Appellant did 

not show in her request for reconsideration that OWCP erroneously applied or interpreted a 

specific point of law, nor did she advance a new and relevant legal argument not previously 

considered by OWCP. Consequently, the Board finds that she was not entitled to a review of the 

merits based on the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).8

 

3 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).

4 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).

5

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.

6

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

7

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

8 D.B., Docket No. 19-1963 (issued July 1, 2020); M.O., Docket No. 19-1677 (issued February 25, 2020); C.B., 

Docket No. 18-1108 (issued January 22, 2019).
5

Appellant also failed to submit relevant and pertinent new evidence in support of her 

September 28, 2018 request for reconsideration. The underlying issue on reconsideration was 

whether appellant had met her burden of proof to establish that her medical condition was causally 

related to the accepted factors of her federal employment. This is a medical question that requires 

rationalized medical opinion evidence to resolve the issue.9 

While appellant resubmitted copies of Mee Memorial Hospital report pertaining to her 

January 6, 2018 hospitalization, the Board has long held that evidence that repeats or duplicates 

evidence already of record, or is cumulative in nature, has no evidentiary value, and does not 

constitute a basis for reopening a case.10 As appellant failed to provide relevant and pertinent new 

evidence related to the underlying issue of causal relationship, she was not entitled to a merit 

review based on the third requirement under 20 C.F.R. § 10.606(b)(3).

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

entitled to further review of the merits of her 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.11

CONCLUSION

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

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

 

9 B.O., Docket No. 20-0156 (issued May 13, 2020); E.T., Docket No. 14-1087 (issued September 5, 2014).

10 D.M., Docket No. 18-1003 (issued July 16, 2020); L.C., Docket No. 19-0503 (issued February 7, 2020); A.A., 

Docket No. 18-0031 (issued April 5, 2018).

11 D.M., id.; C.C., Docket No. 18-0316 (issued March 14, 2019); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 

ECAB 630 (2006) (when an application for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b), OWCP will deny the application for reconsideration without reopening the case 

for a review on the merits).
6

ORDER

IT IS HEREBY ORDERED THAT the October 30, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 26, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board